REVOLVING CREDIT AGREEMENT
Dated as of February 28, 1997
between
LEUCADIA NATIONAL CORPORATION
and
THE FIRST NATIONAL BANK OF BOSTON,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Documentation Agent,
and
the BANKS listed on Schedule 1 hereto
TABLE OF CONTENTS
SECTION 1 DEFINITIONS
1.1 Defined Terms...............................1
1.2 Other Definitional Provisions..............11
SECTION 2 REVOLVING CREDIT FACILITY
2.1 Revolving Credit Commitment................11
2.2 Notes......................................12
2.3 Procedure for Credit Borrowing.............12
2.4. Interest Rate..............................14
2.5. Interest Rate Conversion Options...........14
2.6. Termination or Reduction of Commitment.....15
2.7. Prepayments................................15
2.8. Repayment of Loans.........................16
SECTION 3 SWING LINE FACILITY
3.1. The Swing Line Loans.......................16
3.2. Notice of Borrowing........................16
3.3. Interest on Swing Line Loans...............17
3.4. Repayment of Swing Line Loans..............17
3.5. The Swing Line Note........................17
SECTION 4 CERTAIN GENERAL PROVISIONS
4.1. Use of Proceeds............................18
4.2. Annual/Commitment Fees.....................18
4.3. Agents' Fees...............................18
4.4. Computation of Interest and Fees...........18
4.5. Inability to Determine Interest Rate.......19
4.6. Overdue Amounts; Interest Payments.........19
4.7. Payments...................................19
4.8. Foreign Taxes..............................20
4.9. Illegality.................................20
4.10. Additional Costs, Etc......................20
4.11. Indemnity..................................23
SECTION 5 REPRESENTATIONS AND WARRANTIES
5.1. Financial Condition........................23
5.2. No Change..................................24
5.3. Corporate Existence; Compliance with Law...24
5.4. Corporate Power; Authorization; Enforceable
Obligations.............................24
5.5. No Legal Bar...............................24
5.6. No Material Litigation.....................25
5.7. No Default.................................25
5.8. Ownership of Property; Liens...............25
5.9. No Burdensome Restrictions.................25
5.10. Taxes......................................25
5.11. Federal Regulations........................26
5.12. ERISA......................................26
5.13. Investment Company Act.....................26
5.14. Full Disclosure............................26
5.15. Certain Contingent Obligations.............26
5.16. Environmental Compliance...................27
5.17 Nonrecourse Indebtedness...................27
SECTION 6 CONDITIONS PRECEDENT
6.1. Conditions of Initial Loan.................27
6.2. Conditions to All Loans....................28
SECTION 7 AFFIRMATIVE COVENANTS
7.1. Financial Statements.......................29
7.2. Certificates; Other Information............29
7.3. Payment of Obligations.....................30
7.4. Conduct of Business, and Maintenance
of Existence ...........................30
7.5. Maintenance of Property, Insurance.........31
7.6. Inspection of Property; Books and Records;
Discussions.............................31
7.7. Notices....................................31
SECTION 8 NEGATIVE COVENANTS
8.1. Maintenance of Consolidated Tangible
Net Worth ..............................32
8.2. Debt Leverage Ratio........................33
8.3. Limitations on Liens.......................33
8.4. Prohibition of Fundamental Changes.........34
8.5. Investments................................34
8.6. Limitation on Contingent Obligations.......34
8.7. Limitation on Subsidiary Indebtedness......34
SECTION 9 EVENTS OF DEFAULT..........................35
SECTION 10 THE AGENTS
10.1. Authorization..............................37
10.2. Employees and Agents.......................38
10.3. No Liability...............................38
10.4. No Representations.........................38
10.5. Payments...................................38
10.6. Holders of Notes...........................39
10.7. Indemnity..................................39
10.8. Administrative Agent as Bank...............39
10.9. Resignation................................40
10.10. Notification of Defaults and Events of
Default.................................40
SECTION 11 ASSIGNMENT AND PARTICIPATION
11.1. Conditions to Assignment by Banks..........40
11.2. Certain Representations and Warranties;
Limitations; Covenants..................41
11.3. Register...................................41
11.4. New Notes..................................42
11.5. Participations.............................42
11.6. Disclosure.................................43
11.7. Assignee or Participant Affiliated
with the Company........................43
11.8. Miscellaneous Assignment Provisions........43
11.9. Assignment by the Company..................43
SECTION 12 MISCELLANEOUS
12.1. Consents, Amendments and Waivers...........43
12.2. Notices....................................44
12.3. No Waiver; Cumulative Remedies.............46
12.4. Survival of Representations and Warranties.46
12.5. Payment of Expenses........................46
12.6. Indemnification............................47
12.7. Successors and Assigns.....................47
12.8. Set-off....................................47
12.9. Termination................................48
12.10. Counterparts...............................49
12.11. Governing Law..............................49
Schedules
Schedule 1 List of Banks
Schedule 4.1 Indebtedness To Be Repaid
Schedule 5.16 Environmental Compliance
Schedule 5.17 Nonrecourse Indebtedness
Schedule 8.3 Permitted Liens
Exhibits
Exhibit A Revolving Credit Note
Exhibit B Swing Line Note
Exhibit C Legal Opinion
Exhibit D Officer's Certificate
Exhibit E Assignment and Acceptance
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement")
is entered into as of February 28, 1997 between
LEUCADIA NATIONAL CORPORATION, a New York corporation
(the "Company"), the lending institutions listed on
Schedule 1 attached hereto (the "Banks"), THE FIRST
NATIONAL BANK OF BOSTON, as administrative agent for
itself and the other Banks (the "Administrative
Agent"), THE CHASE MANHATTAN BANK, as syndication
agent for itself and the other Banks (the "Syndication
Agent") and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as documentation agent for itself and the
other Banks (the "Documentation Agent").
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Affiliate": any Person that would be considered
to be an affiliate of the Company under Rule 144(a) of
the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof,
if the Company were issuing securities.
"Administrative Agent": The First National Bank of
Boston acting in the capacity of administrative agent
for the Banks, or any successor in such capacity.
"Agreement": this Revolving Credit Agreement, as
it may be further amended, supplemented or modified
from time to time.
"Annual Fee": as defined in Subsection 4.2.
"Assignment and Acceptance": as defined in
Subsection 11.1.
"Available Commitment": at a particular time, an
amount equal to the positive remainder of (a) the
aggregate amount of the Total Commitment at such time,
less (b) the aggregate unpaid principal amount of all
Loans.
"Banking Subsidiaries": (i) so long as they are
Subsidiaries of the Company, (x) American Investment
Bank, N.A., and (y) American Investment Financial and
(ii) any other Subsidiary of the Company taking Federal
Deposit Insurance Corporation (or other similar entity)
insured deposits.
"Banks": at any time of reference thereto, those
lending institutions listed on Schedule 1 hereto
(including without limitation the Swing Line Bank
acting in such capacity) and any other Person who
becomes an Assignee of any rights and obligations of a
Bank pursuant to Section 11 hereof; and any one of the
Banks individually, a "Bank".
"Base Rate": the interest rate per annum equal to
the higher of (a) the rate of interest publicly
announced by the Administrative Agent at its head
office in Boston, Massachusetts from time to time as
its base rate (the base rate is not intended to be the
lowest rate of interest charged by The First National
Bank of Boston in connection with extensions of credit
to debtors), and (b) one-half of one percentage point
(0.5%) above the overnight Federal Funds Effective
Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean, for any day, the
rate per annum equal to the weighted average of the
rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or,
if such day is not a Business Day for the next
preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any
day that is a Business Day, the average of the
quotations for such day on such transactions received
by the Administrative Agent from three funds brokers of
recognized standing selected by the Administrative
Agent.
"Base Rate Loans": Loans hereunder at any time of
reference bearing interest at a rate based upon the
Base Rate.
"Borrowing Date": any Business Day specified in a
notice pursuant to Subsections 2.3, 3.2 or 3.4 as a
date on which the Company requests (or is deemed to
have requested) the Banks to make Revolving Credit
Loans or the Swing Line Bank to make a Swing Line Loan
hereunder.
"Business Day": any day on which banking
institutions in Boston, Massachusetts, are open for the
transaction of banking business and, in the case of
Eurodollar Loans, which is also a Eurodollar Business
Day.
"Code": the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Commitment": with respect to each Bank, the
amount set forth herein as its commitment to make Loans
to the Company as such amount may be reduced from time
to time as provided herein.
"Commitment Fee": as defined in Subsection 4.2.
"Commitment Percentage": with respect to each
Bank, the percentage set forth beside its name in
Schedule 1 (subject to adjustment upon any assignment
permitted by Section 11 hereof) as such Bank's
percentage of the Total Commitment and such Bank's
interest in the aggregate amount of all Swing Line
Loans.
"Commitment Period": the period from and including
the date hereof to, but not including, the Termination
Date or such earlier date as the Commitment shall
terminate as provided herein.
"Commonly Controlled Entity": an entity, whether
or not incorporated, which is under common control with
the Company within the meaning of Section 414(b) or (c)
of the Code.
"Company": Leucadia National Corporation, a New
York corporation.
"Consolidated" or "consolidated": with reference
to any term defined herein, that term as applied to the
accounts of the Company and its Subsidiaries,
consolidated in accordance with GAAP.
"Consolidated Intangibles": at a particular date,
all assets of the Company and its Subsidiaries,
determined on a consolidated basis at such date, that
would be classified as intangible assets in accordance
with GAAP, but in any event including, without
limitation, unamortized debt discount and expense,
unamortized organization and reorganization expense,
costs in excess of the net asset value of acquired
companies, patents, trade or service marks, franchises,
trade names, goodwill and deferred tax assets.
Notwithstanding anything to the contrary contained in
the preceding sentence, Consolidated Intangibles shall
not include deferred insurance policy acquisition costs
or the value of life insurance in force.
"Consolidated Net Worth": as to any Person at a
particular date, all amounts which should be included
under shareholders' equity on a balance sheet of such
Person and its Subsidiaries determined on a
consolidated basis as at such date; provided that, in
calculating shareholders' equity, marketable securities
that have not suffered a decline in value (other than a
decline of a temporary nature) shall be reflected at
the amortized cost thereof and marketable securities
that have suffered a decline in value considered to be
other than temporary shall be reflected at the current
value thereof. For purposes of this definition, the
recorded value of the Company's outstanding preferred
stock shall be included under shareholders' equity.
"Consolidated Tangible Net Worth": at a particular
date, the excess, if any, of Consolidated Net Worth
over Consolidated Intangibles as at such date.
"Contingent Obligation": as to any Person, any
reimbursement obligation of such Person in respect of
the face amount of all letters of credit for the
account of such Person and (without duplication) all
drafts thereunder (other than trade letters of credit
or interest or currency swap transactions entered into
in the ordinary course of business) and any obligation
of such Person guarantying or in effect guarantying any
Indebtedness, leases, dividends or other obligations
("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any
obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any
property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the
purchase or payment 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 of the primary obligor, (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 owner of such
primary obligation against loss in respect thereof;
provided, however, that the term Contingent
Obligation shall not include (i) endorsements of
instruments for deposit or collection in the ordinary
course of business, (ii) indemnities granted in the
ordinary course of business (including in connection
with dispositions by the Company and/or its
Subsidiaries), (iii) any insurance or reinsurance
obligation of any Subsidiary of the Company entered
into in the ordinary course of the insurance business
of such Subsidiary, (iv) any guaranty by a Subsidiary
of the Company of the obligation of another Subsidiary
(other than the Company, if the guarantied obligation
of the Subsidiary is reflected in the Company's
consolidated financial statements as a liability, (v)
any obligation (other than the guaranty by a Subsidiary
of an obligation of the Company) reflected as a
liability in the Company's consolidated financial
statements, including without limitation the Company's
obligations in respect of the $150,000,000 8.65%
Capital Trust Pass-through Securities issued by
Leucadia Capital Trust I, all of the common capital
securities of which are owned by the Company and (vi)
any Indebtedness. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as
determined by the Company in good faith. For the
purposes of this definition, Contingent Obligations
shall not include (x) any guaranty or indemnification
undertaking given in connection with the return of the
assets of Colonial Penn Madison Insurance Company
("Madison"), Commercial Loan Insurance Corporation
("CLIC") and WMAC Credit Insurance Corporation ("WMAC
Credit"), or the assets of any other Insurance
Subsidiary under the jurisdiction of the Wisconsin
Insurance Commissioner (collectively, the "Returned
Companies") to the control of the Company or any of its
Subsidiaries, or (y) any contingent obligation arising
from the operations of such Returned Companies;
provided, that, any such guaranty, indemnification,
undertaking or contingent obligation has recourse
solely to such Returned Companies and the operations of
such Returned Companies are kept separate and apart
from those of the Company and each of the Company's
other Subsidiaries.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of
any agreement, instrument or undertaking to which such
Person is a party or by which it or any of its property
is bound.
"Default": any of the events specified in Section
9, whether or not any requirement for the giving of
notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Delinquent Bank": any Bank that fails to make
available when due to the Administrative Agent its pro
rata share of any Loan, or fails to make available
when due to the Swing Line Bank its pro rata share of
any Swing Line Loan.
"Documentation Agent": Bank of America National
Trust and Savings Association acting as documentation
agent for the Banks.
"Dollars or $:" dollars in lawful currency of the
United States of America.
"Domestic Lending Office": initially, the office
of each Bank; thereafter, such other office of such
Bank, if any, located within the United States that
will be making or maintaining Base Rate Loans.
"Eligible Assignee": Any of (i) a commercial bank
organized under the laws of the United States, or any
State thereof or the District of Columbia, and having
total assets in excess of $1,000,000,000; (ii) a
savings and loan association or savings bank organized
under the laws of the United States, or any State
thereof or the District of Columbia, and having a net
worth of at least $500,000,000, calculated in
accordance with generally accepted accounting
principles; (iii) 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 total assets in excess of
$1,000,000,000, provided that such bank is acting
through a branch or agency located in the country in
which it is organized or another country which is also
a member of the OECD; (iv) the central bank of any
country which is a member of the OECD; and (v) if, but
only if, any Event of Default has occurred and is
continuing, any other bank, insurance company,
commercial finance company or other financial
institution approved by the Administrative Agent, such
approval not to be unreasonably withheld.
"Entity": any partnership, corporation, limited
liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or
other business entity of whatever nature.
"Environmental Laws": any judgment, decree, order,
law, license, rule or regulation of any Governmental
Authority pertaining to protection of the environment,
or any United States state or local statute,
regulation, ordinance, order or decree relating to
health, safety or the environment.
"ERISA": the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Eurodollar Business Day": any day on which
commercial banks are open for international business
(including dealings in Dollar deposits) in London or
such other eurodollar interbank market as may be
selected by the Administrative Agent in its sole
discretion acting in good faith.
"Eurodollar Lending Office": initially, the office
of each Bank; thereafter, such other office of such
Bank, if any, that shall be making or maintaining
Eurodollar Rate Loans.
"Eurodollar Loans": Loans hereunder at any time of
reference bearing interest at a rate based upon the
Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest
Period pertaining to Eurodollar Loans, the rate of
interest per annum (rounded upwards to the nearest
1/100 of one percent) determined by the Administrative
Agent to be equal to the quotient of (a) the rate at
which its Eurodollar Lending Office is offered Dollar
deposits two Eurodollar Business Days prior to the
beginning of such Interest Period pertaining to any
such Eurodollar Loan in the eurodollar interbank market
selected by the Administrative Agent in its sole
discretion in good faith at 10:00 a.m., Boston time, for
delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount
equal to the amount of the Eurodollar Loan to be
outstanding during such Interest Period, divided by (b)
a number equal to l.00 minus the daily average of the
maximum rates in effect on each day of such Interest
Period (expressed as a decimal fraction) at which the
Banks subject thereto would be required to maintain
reserves under Regulation D of the Board of Governors
of the Federal Reserve System (or any successor or
similar regulations relating to such reserve
requirements) against "Eurocurrency Liabilities" (as
such term is used in Regulation D), if such liabilities
were outstanding.
"Event of Default": any of the events specified in
Section 9, provided that any requirement for the giving
of notice or the lapse of time, or both, or any other
condition specified therein, has been satisfied.
"Foreign Recipient": any Bank or Participant which
is a recipient of payments under Subsection 4.8 and
that is organized under a jurisdiction other than the
United States of America or a state thereof.
"Foreign Taxes": as defined in Subsection 4.8.
"Funded Debt": all Indebtedness of the Company and
its Subsidiaries on a consolidated basis in respect of
(i) Loans under this Agreement, and (ii) any other
Indebtedness for borrowed money (other than Nonrecourse
Debt); provided that Funded Debt shall not be deemed to
include customer deposits of Banking Subsidiaries.
"F&H Guaranty": the Guaranty of the Company in the
form of Exhibit E to the Master Agreement dated as of
November 1989, by and among CX Partners, L.P., a
Delaware limited partnership, each of its Limited
Partners, including F&H Associates, C.V., a Netherlands
Antilles limited partnership ("F&H"), its Liquidating
Trustee, and the parties named therein, with respect to
the obligations of F&H under said Master Agreement.
"GAAP": (i) When used in Section 8 means generally
accepted accounting principles that are consistent with
the accounting practices of the Company reflected in
its financial statements for the fiscal year ended on
December 31, 1995 referred to in Subsection 5.1, and
(ii) when used in general, other than in Section 8,
means generally accepted accounting principles that are
consistent with the principles promulgated or adopted
by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time.
"Governmental Authority": any nation or government
(other than Kazakstan, Kyrgyzstan, or Russia), any
state or other political subdivision thereof, and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining
to such government.
"Hazardous Substances": hazardous waste,
pollutants or contaminants, toxic substances, oil or
hazardous materials or other chemicals or substances
regulated by any Environmental Laws.
"Indebtedness": as to any Person at a particular
time, all items which, in conformity with GAAP, would
be classified as liabilities on a balance sheet of such
Person as at such time and which constitute (a)
indebtedness for borrowed money or constituting the
deferred purchase price of assets or other property,
(b) obligations with respect to any conditional sale
agreement or title retention agreement, (c)
indebtedness arising under acceptance facilities and
all drafts drawn under all letters of credit issued for
the account of such Person, (d) all liabilities secured
by any Lien on any property owned by such Person even
though it has not assumed or otherwise become liable
for the payment thereof, (e) obligations under leases
which have been, or under GAAP are required to be,
capitalized, (f) obligations with respect to interest
payable and (g) any asserted withdrawal liability of
such Person or a Commonly Controlled Entity to a
Multiemployer Plan.
"Insurance Subsidiary": Any Subsidiary of the
Company licensed as an insurance company.
"Interest Payment Date": (a) as to any Base Rate
Loan, the last day of each March, June, September and
December and the Termination Date or such earlier date
as the Commitment shall terminate as provided herein,
and (b) as to any Eurodollar Loan in respect of which
the Interest Period is (i) three months or less, the
last day of such Interest Period and (ii) more than
three months, the date which is three months from the
first day of such Interest Period and in addition the
last day of such Interest Period.
"Interest Period": (a) with respect to any
Eurodollar Loan, the period commencing on the Borrowing
Date with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected
by the Company in its notice of borrowing as provided
in Subsection 2.3; (b) with respect to any Base Rate
Loan, the period commencing on the Borrowing Date with
respect to such Base Rate Loan and ending on the
earlier to occur of the date of repayment or conversion
of such Base Rate Loan or the Termination Date; and (c)
with respect to any Swing Line Loan, the period
commencing on the Borrowing Date and ending on the
maturity date specified in the request therefor
pursuant to Subsection 3.2; provided, that, all of the
foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day which is
not a Eurodollar Business Day, that Interest Period
shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would
be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on
the immediately preceding Eurodollar Business Day;
(ii) if any Interest Period pertaining to a
Base Rate Loan or Swing Line Loan would otherwise end
on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding
Business Day;
(iii) any Interest Period pertaining to a
Eurodollar Loan that begins on the last Eurodollar
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 Eurodollar Business Day of a
calendar month; and
(iv) any Interest Period that would otherwise
extend beyond the Termination Date shall end on the
Termination Date.
"Investments": any advance, loan, extension of
credit or capital contribution to, or purchase of any
stocks, bonds, notes, debentures or other securities
of, or any other investment in, any Person.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other
security agreement or preferential arrangement of any
kind or nature whatsoever (including, without
limitation, any conditional sale or other title
retention agreement, and any financing lease having
substantially the same economic effect as any of the
foregoing).
"Loans": the Revolving Credit Loans and the Swing
Line Loans; and any one of such Loans individually, a
"Loan".
"Majority Banks": as of any date, the Banks
holding at least fifty-one percent (51%) of the
outstanding principal amount of the Revolving Credit
Notes on such date; and if no such principal is
outstanding, the Banks whose aggregate Commitments
constitute at least fifty-one percent (51%) of the
Total Commitment.
"Market Price": with reference to the Company's
Common Shares ("Common Share") for any Trading Day, the
last reported sale price of a Common Share as reported
on the New York Stock Exchange or on any principal
stock exchange on which the Common Shares are then
listed or admitted to trading or on the National
Association of Securities Dealers National Market
System, if quoted; or, if the Common Shares are not
then listed or admitted to trading on any national
securities exchange and there is no reported last sale
price or bid and asked prices available, the average of
the reported high-bid and low-asked prices on such day
as reported by a reputable quotation service or a
newspaper of general circulation in the Borough of
Manhattan, City and State of New York, customarily
published on each business day; or, in the absence of
one or more such quotations, the current market price
determined in good faith by the Board of Directors of
the Company on the basis of such quotations or factors
as it deems appropriate.
"Market Value": with reference to the Company's
Common Shares, the average Market Price of such Common
Shares for the twenty Trading Days immediately
preceding the date of the sale, transfer of disposition
giving rise to the need to determine Market Value.
"Maximum Swing Line Loan Amount": as defined in
Subsection 3.1.
"Multiemployer Plan": a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
"Nonrecourse Debt": (x) Indebtedness of any
Subsidiary of the Company which is not guaranteed by,
is not secured by assets (other than assets of such
Subsidiary) of, and does not otherwise have recourse
to, the Company or its assets (other than assets of
such Subsidiary) and (y) Indebtedness of the Company
incurred to finance one or more assets of the Company,
which Indebtedness has recourse only to such asset or
assets for payment.
"Note Record": the grid attached to a Revolving
Credit Note or the Swing Line Note, or the continuation
of such grid, or any other similar record, including
computer records, maintained by any Bank with respect
to any Loan referred to in such Note.
"Notes": the Revolving Credit Notes and the Swing
Line Note; and any one of such Notes individually, a
"Note".
"Participant": as defined in Subsection 11.5.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of
ERISA.
"Permitted Distribution": any distribution to the
Company's shareholders of equity shares of one or more
Subsidiaries, provided, that (i) the aggregate book
value of such Subsidiary or Subsidiaries, when added
together with the aggregate book value of all other
Subsidiaries with respect to which such a Permitted
Distribution has been effected from and after January
1, 1997, shall not exceed $150,000,000, and (ii) no
Default or Event of Default exists at the time of
declaration of such distribution or at the time of the
consummation thereof, either before or after giving
effect thereto.
"Permitted Liens": as defined in Subsection 8.3.
"Permitted Voluntary Proceeding": the commencement
by the Company of a voluntary case or proceeding under
Title 11, U.S. Code or any similar federal or state law
for the relief of debtors with respect to any
Subsidiary if (i) the sum of the Company's total
investment at cost, after write-downs, in such
Subsidiary and the Company's Contingent Obligations in
respect of liabilities of such Subsidiary does not
exceed $90,000,000, and (ii) the commencement of such
case or proceeding does not create nor occasion any
violation or noncompliance with other provisions of
this Agreement.
"Person": an individual, Entity or Governmental
Authority.
"Plan": any pension plan which is covered by Title
IV of ERISA and in respect of which the Company or a
Commonly Controlled Entity is an "employer" as defined
in Section 3(5) of ERISA.
"Real Estate": the real properties owned or leased
by the Company or any of its Subsidiaries.
"Recipient": as defined in Subsection 12.9.
"Register": as defined in Subsection 11.3.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Requirements of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person,
and (other than with respect to Kazakstan, Kyrgyzstan
and Russia) any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the Chairman of the Board
of Directors, President, Treasurer or any Vice
President of the Company.
"Revolving Credit Loans": as defined in Subsection
2.1.
"Revolving Credit Notes": as defined in Subsection
2.2.
"Shareholders' Equity": at any particular date,
the total shareholders' equity of the Company
(including without limitation equity in respect of the
Company's outstanding preferred stock, if any),
determined on a consolidated basis in accordance with
GAAP; provided that, if any Nonrecourse Debt is
excluded from the computation of Funded Debt under
Subsection 8.2, then, for purposes of determining
Shareholders' Equity under Subsection 8.2,
Shareholders' Equity shall be reduced (x) by the
carrying value of the assets of the Company to which
such Nonrecourse Debt has recourse, to the extent of
such Nonrecourse Debt of the Company, and/or (y) by the
Company's equity investment in any Subsidiary having
such Nonrecourse Debt, to the extent of such
Subsidiary's Nonrecourse Debt.
"Single Employer Plan": any Plan which is not a
Multiemployer Plan.
"Subsidiary": as to any Person, any Entity which
is consolidated in such Person's consolidated financial
statements determined in accordance with GAAP as in
effect on December 31, 1995.
"Swing Line Bank": The First National Bank of
Boston acting in such capacity under Section 3 hereof,
or any successor in such capacity.
"Swing Line Loan": any loan made by the Swing Line
Bank pursuant to Section 3.
"Swing Line Loan Maturity Date": as defined in
Subsection 3.2.
"Swing Line Note": as defined in Subsection 3.5.
"Syndication Agent": The Chase Manhattan Bank
acting in the capacity of syndication agent for the
Banks.
"Taxes": as defined in Subsection 4.10.
"Terminating Event": any of the events specified
in Subsection 12.9, whether or not any requirement for
the lapse of time, or any other condition, has been
satisfied.
"Termination Date": February 28, 2002.
"Total Commitment": the aggregate amount of the
Commitments of the Banks to make Loans to the Company
as provided herein.
"Trading Day": any day on which the principal
exchange or quotation system on which the Company's
Common Shares are listed or traded, is open for
trading.
"Type": as to all or any portion of any Loan, its
nature as a Base Rate Loan or Eurodollar Loan.
"Voting Stock": as to the Company, shares of stock
having ordinary voting power (other than stock having
such power only by reason of the happening of a
contingency).
1.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall
have the defined meanings when used in the Notes or any
certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in the Notes, and any
certificate or other document made or delivered
pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in Subsection
1.1, and accounting terms partly defined in Subsection
1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and
"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 section, subsection, schedule and exhibit
references are to this Agreement unless otherwise
specified.
SECTION 2. REVOLVING CREDIT FACILITY
2.1. Revolving Credit Commitment.
(a) Subject to the terms and conditions
hereof, each of the Banks severally agrees to make
revolving credit loans (individually, a "Revolving
Credit Loan"; collectively the "Revolving Credit
Loans") to the Company from time to time during the
Commitment Period upon notice by the Company to the
Administrative Agent given in accordance with
Subsection 2.3 hereof, in an amount equal to such
Bank's Commitment Percentage of the aggregate principal
amount of Loans requested in the Company's notice. The
respective amount of each Bank's Commitment and its
Commitment Percentage shall be as set forth in Schedule
1 attached hereto.
(b) Notwithstanding any other provision of
this Agreement but subject to the following paragraph
(c) of this Subsection 2.1, at no time shall the sum of
(i) the aggregate principal amount of all Revolving
Credit Loans outstanding (after giving effect to all
Loans requested), plus (ii) the aggregate principal
amount of all Swing Line Loans outstanding exceed the
Total Commitment of the Banks then in effect. The
principal amount of the Revolving Credit Loans
outstanding from each Bank to the Company shall not at
any time exceed in the aggregate an amount (after
giving effect to all Loans requested) equal to such
Bank's Commitment Percentage times (i) the Total
Commitment minus (ii) the aggregate principal amount of
all Swing Line Loans outstanding. Within the foregoing
limits, and subject to all of the other terms and
conditions set forth in this Agreement, the Company may
borrow, prepay pursuant to Subsection 2.7 hereof, and
reborrow Revolving Credit Loans.
(c) Notwithstanding the foregoing, each of the
Banks agree to, on one or more occasions during the
Commitment Period, and regardless of whether the
conditions set forth in Section 6 are satisfied, make
Revolving Credit Loans to the Company solely for the
purposes of repaying Swing Line Loans pursuant to
Subsection 3.4 hereof. Section 3 hereof shall govern
the Company's obligations with respect to Swing Line
Loans. In the event that any advances of Revolving
Credit Loans pursuant to this Subsection 2.1(c) cause
the sum of the aggregate principal amount of Revolving
Credit Loans and Swing Line Loans outstanding to exceed
the Total Commitment then in effect, the Company shall
immediately prepay such excess amount together with any
interest accrued thereon.
(d) The Revolving Credit Loans may be
Eurodollar Loans or Base Rate Loans, or combinations
thereof, as determined by the Company and notified to
the Administrative Agent and the Banks in accordance
with Subsection 2.3; provided that no Eurodollar Loan
shall be made with an Interest Period extending beyond
the Termination Date. Eurodollar Loans shall be made
and maintained by the Administrative Agent for the
accounts of the Banks at its Eurodollar Lending Office,
and Base Rate Loans shall be made and maintained by the
Administrative Agent for the accounts of the Banks at
its Domestic Lending Office.
2.2. Notes. The Revolving Credit Loans made
pursuant hereto are evidenced by separate promissory
notes of the Company, substantially in the form of
Exhibit A (together with any promissory notes in
substantially such form issued in substitution or
replacement therefor, the "Revolving Credit Notes" or,
in the singular, a "Revolving Credit Note"); one
Revolving Credit Note being payable to the order of
each Bank in a principal amount equal to such Bank's
Commitment and representing the obligation of the
Company to pay to such Bank the amount of the
Commitment or, if less, the aggregate unpaid principal
amount of all Revolving Credit Loans made by such Bank
hereunder, plus accrued interest thereon, as set forth
below. Each Bank is hereby authorized to record the
date and amount of its Revolving Credit Loan, the
maturity date thereof, the date and amount of each
repayment of principal thereof, and, in the case of
Eurodollar Loans, the interest rate with respect
thereto, on such Bank's Note Record. The outstanding
amount of the Revolving Credit Loans set forth on such
Bank's Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank,
but the failure to record, or any error in so
recording, any such amount on such Bank's Note Record
shall not limit or otherwise affect the actual amount
of the obligations of the Company hereunder or under
any Revolving Credit Note to make payments of principal
of or interest on any Revolving Credit Note when due.
2.3. Procedure for Revolving Credit Borrowing.
(a) The Company may borrow Revolving Credit
Loans under the Commitments during the Commitment
Period on any Eurodollar Business Day if the borrowing
is a Eurodollar Loan or on any Business Day if the
borrowing is a Base Rate Loan; provided, that, the
Company shall give the Administrative Agent irrevocable
notice, which notice must be received by the
Administrative Agent (i) prior to 10:00 A.M., Boston
time two Eurodollar Business Days prior to the
requested Borrowing Date, in the case of Eurodollar
Loans, and (ii) prior to 12:00 noon Boston time on the
requested Borrowing Date, in the case of Base Rate
Loans, specifying (A) the amount to be borrowed, (B)
the requested Borrowing Date, (C) whether the borrowing
is to be a Eurodollar Loan or a Base Rate Loan, or a
combination thereof, and (D) the length of the Interest
Period for each Eurodollar Loan included in such
notice. No more than ten (10) Eurodollar Loans with
different Interest Periods shall be outstanding at one
time. Promptly upon receipt of such notice, the
Administrative Agent shall notify each of the Banks
thereof. Each borrowing of Base Rate Loans pursuant to
the Commitments shall be in a minimum aggregate
principal amount equal to the lesser of (i) $1,000,000
and (ii) the Available Commitment, and shall be in an
integral multiple of $250,000 in excess thereof. Each
borrowing of Eurodollar Loans pursuant to the
Commitments shall be in a minimum amount equal to
$4,000,000 and shall be in an integral multiple of
$500,000 in excess thereof.
(b) Not later than 2:00 P.M. (Boston time) on
any requested Borrowing Date (including without
limitation pursuant to notice under Subsection 3.4 with
regard to the repayment of any Swing Line Loan), each
of the Banks will make available to the Administrative
Agent, at its head office, in immediately available
funds, the amount of the Revolving Credit Loan to be
loaned by it on such Borrowing Date. Upon receipt from
each Bank of the amount of its Revolving Credit Loan,
the Administrative Agent will make the aggregate amount
of such Revolving Credit Loans available to the
Company. The failure or refusal of any Bank to make
available to the Administrative Agent at the aforesaid
time on any Borrowing Date the amount of the Revolving
Credit Loan to be made by such Bank shall not relieve
any other Bank from its several obligations hereunder
to make its respective Commitment Percentage of any
requested Loans.
(c) The Administrative Agent may (unless
notified to the contrary by a Bank prior to a Borrowing
Date) assume that each Bank has made available to the
Administrative Agent on such Borrowing Date such Bank's
Commitment Percentage of the Revolving Credit Loans to
be made on such Borrowing Date, and the Administrative
Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the
Company a corresponding amount. If any Bank makes
available all or any portion of such amount to the
Administrative Agent on a date after such Borrowing
Date, then such Delinquent Bank shall pay to the
Administrative Agent on demand an amount equal to the
product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted
average interest rate paid by the Administrative Agent
for federal funds acquired by the Administrative Agent
during each day included in such period, times (ii) the
amount equal to the lesser of such Bank's Commitment
Percentage of such borrowing or the portion thereof
made available after such Borrowing Date, times (iii) a
fraction, the numerator of which is the number of days
that elapse from and including such Borrowing Date to
the date on which such Bank's Commitment Percentage of
such borrowing shall become immediately available to
the Administrative Agent, and the denominator of which
is 360. A statement of the Administrative Agent
submitted to any Bank with respect to any amounts owing
under this paragraph shall be prima facie evidence of
the amount due and owing. If any portion of such
Bank's Commitment Percentage of such Loan is not in
fact made available to the Administrative Agent by such
Bank within three Business Days of such Borrowing Date,
the Administrative Agent shall be entitled to recover
such amount from the Company on demand, with interest
thereon at the rate per annum applicable to the Loans
made on such Borrowing Date.
(d) The provisions of Subsection 2.3(a)
notwithstanding, if the Company shall not have given a
timely notice of a borrowing to be made on the last day
of any Interest Period for an outstanding Eurodollar
Loan, then unless the Administrative Agent shall have
received notice that the Company elects not to make a
borrowing on such a day (such notice to have been
received at least one Business Day prior to such day)
the Company shall be deemed irrevocably to have
requested a Base Rate Loan to be made on such day in an
amount equal to the amount of such outstanding Loan
(reduced to the extent necessary to reflect any
reductions of the Total Commitment on or prior to such
day).
(e) If the Administrative Agent, for the
account of a Bank, makes a new Revolving Credit Loan on
a day on which the Company is to repay all or any part
of any outstanding Revolving Credit Loan from such
Bank, such Bank shall apply the proceeds of its new
Loan to make such repayment, and only an amount equal
to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made
available by such Bank to the Company or remitted by
the Company to such Bank as provided in Subsection 4.7,
as the case may be.
2.4. Interest Rate.
(a) Each Eurodollar Loan shall bear interest,
for the period commencing on the Borrowing Date thereof
and ending on the last day of the Interest Period with
respect thereto, on the unpaid principal amount thereof
at a rate per annum equal to the Eurodollar Rate
determined by the Administrative Agent for the Interest
Period therefor plus 0.625%.
(b) Each Base Rate Loan shall bear interest
for the period commencing on the Borrowing Date thereof
on the unpaid principal amount thereof at a fluctuating
rate per annum equal to the Base Rate.
2.5. Interest Rate Conversion Options.
(a) The Company may elect from time to time to
convert any outstanding Loan (other than a Swing Line
Loan) to a Loan of another Type, provided that (i) with
respect to any such conversion of a Eurodollar Loan to
a Base Rate Loan, the Company shall give the
Administrative Agent at least one (1) Business Day
prior written notice of such election; (ii) with
respect to any such conversion of a Base Rate Loan to a
Eurodollar Loan, the Company shall give the
Administrative Agent at least two (2) Eurodollar
Business Days' prior written notice of such election;
(iii) with respect to any such conversion of a
Eurodollar Loan into a Base Rate Loan, such conversion
shall only be made on the last day of the Interest
Period with respect thereto, and (iv) no Base Rate Loan
may be converted into a Eurodollar Loan when any
Default or Event of Default has occurred and is
continuing. On the date on which such conversion is
being made each Bank shall take such action as is
necessary to transfer its portion of such Loans to its
Domestic Lending Office or its Eurodollar Lending
Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be
converted into a Revolving Credit Loan of another Type
as provided herein, provided that any conversion shall
comply with the minimum aggregate principal amount
requirements set forth in Subsection 2.3(a). Each
Conversion Request relating to the conversion of a Base
Rate Loan to a Eurodollar Loan shall be irrevocable by
the Company.
(b) Any Revolving Credit Loan of any Type may
be continued as a Revolving Credit Loan of the same
Type upon the expiration of an Interest Period with
respect thereto by compliance by the Company with the
notice provisions contained in Subsection 2.5(a)
hereof; provided that no Eurodollar Loan may be
continued as such when any Default or Event of Default
has occurred and is continuing, but shall be
automatically converted to a Base Rate Loan on the last
day of the first Interest Period relating thereto
ending during the continuance of any Default or Event
of Default. The Administrative Agent shall notify the
Banks promptly when any such automatic conversion
contemplated by this Subsection 2.5(b) is scheduled to
occur.
(c) Any conversion to or from Eurodollar Loans
shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the
aggregate principal amount of all Eurodollar Loans
having the same Interest Period shall not be less than
$4,000,000 or a whole multiple of $500,000 in excess
thereof. No more than ten (10) Eurodollar Loans with
different Interest Periods shall be outstanding at one
time.
2.6. Termination or Reduction of Commitment. The
Company shall have the right, upon not less than five
(5) Business Days' notice to the Administrative Agent,
to terminate the Total Commitment or, from time to
time, reduce the amount of the Total Commitment,
provided, that, (i) each reduction (other than a
termination) shall be in a minimum amount of
$10,000,000 and in integral multiples of $5,000,000 in
excess thereof, (ii) no such reduction or termination
shall be permitted if, after giving effect thereto and
to any prepayments of the Loans made on the effective
date thereof, the then outstanding principal amount of
the Loans would exceed the amount of the Total
Commitment then in effect and (iii) each Bank's
Commitment shall be reduced proportionately.
Termination of the Commitments shall also terminate the
obligation of the Banks to make Loans. The portions of
Commitments once terminated or reduced may not be
reinstated.
2.7. Prepayments. The Company may (i) at any time
and from time to time prepay the Base Rate Loans, in
whole or in part, without premium or penalty and (ii)
subject to payment of the amounts set forth in
Subsection 4.11, prepay the Eurodollar Loans, in either
case upon at least one Business Day's irrevocable
notice to the Administrative Agent, specifying the date
and amount of prepayment and whether the prepayment is
of Eurodollar Loans or Base Rate Loans, or a
combination thereof, and if of a combination thereof,
the amount of prepayment allocable to each. If such
notice is given, the Administrative Agent shall
thereupon transmit such notice to the Banks, the
Company shall make such prepayment to the
Administrative Agent for the accounts of the Banks, and
the prepayment amount specified in such notice shall be
due and payable on the date specified therein, together
with accrued interest to such date on the amount
prepaid. Partial prepayments shall be in an amount
equal to $100,000 or a whole multiple thereof and may
only be made if, after giving effect thereto,
Subsection 2.6 shall not have been contravened, and
each partial prepayment shall be allocated among the
Banks, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent
practical to equalize any prior prepayments not exactly
in proportion.
2.8. Repayment of Loans. The Company will pay to
the Administrative Agent for the accounts of the Banks
the unpaid principal amount of each Revolving Credit
Loan made by the Banks on the last day of the Interest
Period therefor.
SECTION 3. SWING LINE FACILITY
3.1. The Swing Line Loans. Subject to the terms
and conditions hereinafter set forth, upon notice by
the Company made to the Swing Line Bank in accordance
with Subsection 3.2 hereof, the Swing Line Bank agrees
to lend to the Company Swing Line Loans on any Business
Day during the Commitment Period in an aggregate
principal amount not to exceed $10,000,000 (the
"Maximum Swing Line Loan Amount"). Each Swing Line
Loan shall be in such minimum amount as determined by
the Swing Line Bank. Notwithstanding any other
provisions of this Agreement and in addition to the
limit set forth above, (a) at no time shall the
aggregate principal amount of all outstanding Swing
Line Loans exceed the Total Commitment of the Banks
then in effect minus the aggregate principal amount of
all Revolving Credit Loans outstanding, provided
however that, subject to the limitations set forth in
this Subsection, from time to time the sum of the
aggregate outstanding Swing Line Loans plus all
outstanding Revolving Credit Loans made by the Swing
Line Bank may exceed the Swing Line Bank's Commitment
then in effect.
3.2. Notice of Borrowing. When the Company
desires the Swing Line Bank to make a Swing Line Loan,
it shall send to the Administrative Agent and the Swing
Line Bank a Swing Line Loan request, which shall set
forth the principal amount of the proposed Swing Line
Loan and the date on which the proposed Swing Line Loan
would mature (the "Swing Line Loan Maturity Date")
which shall be not earlier than the first day after the
Borrowing Date nor later than the third day after the
Borrowing Date thereof, and in no event shall be later
than the last day of the Commitment Period. Each such
Loan request must be received by the Swing Line Bank
not later than 3:00 p.m. (Boston time) on the date of
the proposed borrowing. Each Swing Line Loan request
shall be irrevocable and binding on the Company and
shall obligate the Company to borrow the Swing Line
Loan from the Borrowing Date thereof. Upon
satisfaction of the applicable conditions set forth in
this Agreement, on the proposed Borrowing Date the
Swing Line Bank shall make the Swing Line Loan
available to the Company by 5:00 p.m. (Boston time) on
the proposed Borrowing Date by crediting the amount of
the Swing Line Loan to the Company's account maintained
with the Administrative Agent at the Head Office;
provided that the Swing Line Bank shall not advance
any Swing Line Loans after it has received notice that
a Default or Event of Default has occurred and has not
been cured or waived in accordance with the provisions
of this Agreement. The Swing Line Bank shall not be
obligated to make any Swing Line Loans at any time when
any Bank is a Delinquent Bank unless the Swing Line
Bank has entered into arrangements satisfactory to it
to eliminate the Swing Line Bank's risk with respect to
such Delinquent Bank, including by cash collateralizing
such Delinquent Bank's Commitment Percentage of the
outstanding Swing Line Loans and any such additional
Swing Line Loans to be made.
3.3. Interest on Swing Line Loans. Each Swing
Line Loan shall bear interest from the Borrowing Date
thereof until the Swing Line Loan Maturity Date thereof
at the rate quoted by the Administrative Agent in its
sole discretion (which shall not be greater than the
then applicable Base Rate) at the time the request for
such Swing Line Loan is made.
3.4. Repayment of Swing Line Loans. The Company
shall repay each outstanding Swing Line Loan on the
Swing Line Loan Maturity Date. Upon notice by the
Swing Line Bank on any Business Day, the Company shall
be deemed irrevocably to have requested, and each of
the Banks hereby agrees to make, a Revolving Credit
Loan bearing interest at the Base Rate to the Company
on the next succeeding Business Day following such
notice, in an amount equal to such Bank's Commitment
Percentage of the aggregate amount of all Swing Line
Loans outstanding. The proceeds thereof shall be
applied directly to repay the Swing Line Bank for such
outstanding Swing Line Loans. In the event that it is
impracticable for such Revolving Credit Loan to be made
for any reason on the date otherwise required above,
then each Bank hereby agrees that it shall forthwith
purchase (as of the date such Revolving Credit Loan
would have been made, but adjusted for any payments
received from the Company on or after such date and
prior to such purchase) from the Swing Line Bank, and
the Swing Line Bank shall sell to each Bank, such
participations in the Swing Line Loans (including all
accrued and unpaid interest thereon) outstanding as
shall be necessary to cause the Banks to share in such
Swing Line Loans pro rata based on their respective
Commitment Percentages by making available to the Swing
Line Bank an amount equal to such Bank's participation
in the Swing Line Loans; provided that all interest
payable on the Swing Line Loans shall be for the
account of the Swing Line Bank as a funding and
administrative fee until the date as of which the
respective participation is purchased. The obligation
of each Bank to make such Revolving Credit Loan, or as
the case may be to purchase such participation in a
Swing Line Loan, upon one Business Day's notice as set
forth above, is absolute, unconditional and irrevocable
notwithstanding (i) that the amount of such Loan may
not comply with the applicable minimums set forth in
Subsection 2.3 hereof, (ii) the failure of the Company
to meet the conditions set forth in Section 6 hereof,
(iii) the occurrence or continuance of a Default or an
Event of Default hereunder, (iv) the date of such
Revolving Credit Loan or participation, and (v) the
Commitment of the Swing Line Bank in effect at such
time.
3.5. The Swing Line Note. The obligation of the
Company to repay the Swing Line Loans made pursuant to
this Agreement and to pay interest thereon as set forth
in this Agreement shall be evidenced by a promissory
note of the Company with appropriate insertions
substantially in the form of Exhibit B attached hereto
(the "Swing Line Note"), of even date herewith and
payable to the order of the Swing Line Bank in a
principal amount stated to be the lesser of (i) the
Maximum Swing Line Loan Amount, or (ii) the aggregate
principal amount of Swing Line Loans at any time
advanced by the Swing Line Bank and outstanding
thereunder. The Borrower irrevocably authorizes the
Swing Line Bank to make or cause to be made, at or
about the time of the Borrowing Date of any Swing Line
Loan or at the time of receipt of any payment of
principal on the Swing Line Note, an appropriate
notation on the Note Record reflecting the making of
such Swing Line Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the
Swing Line Loans set forth on such Note Record shall be
prima facie evidence of the principal amount thereof
owing and unpaid to the Swing Line Bank, but the
failure to record, or any error in so recording, any
such amount on such Note Record shall not limit or
otherwise affect the actual amount of the obligations
of the Company hereunder or under the Swing Line Note
to make payments of principal of or interest on the
Swing Line Note when due.
SECTION 4. CERTAIN GENERAL PROVISIONS
4.1. Use of Proceeds. The Company shall use the
proceeds of the Loans to refinance existing senior
revolver and term debt set forth on Schedule 4.1 and
for general corporate purposes in the ordinary course
of its business. No part of the proceeds of any Loans
hereunder will be used (a) for "purchasing" or
"carrying" any "margin security" or "margin stock"
within the respective meanings of each of the quoted
terms under Regulations U and X of the Board of
Governors of the Federal Reserve System as now and from
time to time hereafter in effect unless (i) the Company
shall have theretofore furnished to the Banks a
statement on Federal Reserve Form U-1 with respect to
such Loans or (ii) not more than 25% of the value of
the assets of either the Company or the Company and its
Subsidiaries on a consolidated basis, respectively, is
represented by "margin stock" as so defined, or (b) for
any purpose which violates, or which would be
inconsistent with, the provisions of the Regulations of
the Board of Governors of the Federal Reserve System.
4.2. Annual/Commitment Fees. The Company agrees
to pay to the Administrative Agent for the accounts of
the Banks in accordance with their respective
Commitment Percentages:
(a) an annual fee (the "Annual Fee") computed
at the rate of 0.025% per annum on the amount of the
Total Commitment, and payable on the date hereof and on
each successive anniversary of the date hereof up to
but not including the Termination Date or such earlier
date as the Commitment shall terminate as provided
herein, and
(b) an unused commitment fee (the "Commitment
Fee") from and including the date hereof to the
Termination Date, computed at the rate of 0.375% per
annum on the average daily amount of the Available
Commitment during the period for which payment is made,
payable quarterly on the last day of each March, June,
September and December and on the Termination Date or
such earlier date as the Commitment shall terminate as
provided herein, commencing on the first of such dates
to occur after the date hereof.
4.3. Agents' Fees. The Company shall pay to each
of the Administrative Agent, Syndication Agent, and
Documentation Agent on the date hereof an agent's
closing fee for each agent's own respective account,
and shall pay to the Administrative Agent on the date
hereof and on each anniversary of such date, up to but
not including the Termination Date or such earlier date
as the Commitment shall terminate as provided herein,
an administration fee for the Administrative Agent's
own account, all as set forth in a certain letter
agreement of even date herewith.
4.4. Computation of Interest and Fees. (a)
Interest in respect of Base Rate Loans shall be
calculated on the basis of a 365-day year for the
actual number of days elapsed (including the first day
but excluding the last day). Commitment fees and
interest in respect of Eurodollar Loans and Swing Line
Loans shall be calculated on the basis of a 360-day
year for the actual number of days elapsed. The
Administrative Agent shall as soon as practicable
notify the Company and the Banks of each determination
of a Eurodollar Rate. Any change in the interest rate
on a Loan resulting from a change in the Base Rate
shall become effective as of the opening of business on
the day on which such change in the Base Rate is
announced. The Administrative Agent shall as soon as
practicable notify the Company of the effective date
and the amount of each such change. The outstanding
amount of the Loans as reflected on the Administrative
Agent's records from time to time shall be considered
correct and binding on the Company and the Banks unless
within five Business Days after receipt of any notice
by the Administrative Agent of such outstanding amount,
the Company or any of the Banks, as the case may be,
shall notify the Administrative Agent to the contrary.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the
Company in the absence of manifest error. The
Administrative Agent shall, at the request of the
Company, deliver to the Company a statement showing the
quotations used by the Administrative Agent in
determining any interest rate pursuant to Subsection
2.4(a).
4.5. Inability to Determine Interest Rate. In the
event that the Administrative Agent shall have
determined (which determination shall be conclusive and
binding upon the Company) that, by reason of
circumstances affecting the eurodollar interbank
markets, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate applicable pursuant to
Subsection 2.4(a) for any requested Interest Period
with respect to a proposed Loan that the Company has
requested be made as a Eurodollar Loan, the
Administrative Agent shall forthwith give telex or
telecopy notice of such determination to the Company
and the Banks at least one day prior to the proposed
Borrowing Date for such Eurodollar Loan. If such
notice is given, any requested Eurodollar Loan shall be
made as a Base Rate Loan. Until such notice has been
withdrawn by the Administrative Agent, no further
Eurodollar Loans may be requested by the Company.
4.6. Overdue Amounts; Interest Payments.
(a) Overdue principal of any Loan and (to the
extent permitted by law) overdue interest on the Loans
and all other overdue amounts payable hereunder shall,
without limiting any rights of the Administrative Agent
under Section 9, bear interest at a rate per annum
which is 2% above the Base Rate until paid in full
(after as well as before judgment).
(b) Interest on each Loan shall be payable in
arrears on each Interest Payment Date with respect
thereto and after the occurrence of any Event of
Default, shall be payable upon demand.
4.7. Payments. All payments (including
prepayments) to be made by the Company on account of
principal, interest and fees shall be made without set
off or counterclaim and shall be made to the
Administrative Agent for the accounts of the Banks at
the Administrative Agent's office set forth in
Subsection 12.2 in lawful money of the United States of
America and in immediately available funds. If any
payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be
extended to the next succeeding Business Day and, with
respect to payments of principal, interest thereon
shall be payable at the Base Rate. If any payment on a
Eurodollar Loan becomes due and payable on a day other
than a Eurodollar Business Day, the maturity thereof
shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would
be to extend such payment into another calendar month
in which event such payment shall be made on the
immediately preceding Eurodollar Business Day.
4.8. Foreign Taxes. All payments made by the
Company under this Agreement shall be made free and
clear of, and without reduction for or on account of,
any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental
Authority excluding income and franchise taxes of the
United States of America or any political subdivision
or taxing authority thereof or therein (including
Puerto Rico), and the country in which the
Administrative Agent's Eurodollar Lending Office is
located or any political subdivision or taxing
authority thereof or therein (such non-excluded taxes
being herein called "Foreign Taxes"). If any Foreign
Taxes are required to be withheld from any amounts
payable to the Banks hereunder or under the Notes, the
amounts so payable to the Banks shall be increased to
the extent necessary to yield to the Banks (after
payment of all Foreign Taxes) interest or any such
other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes.
Whenever any Foreign Tax is payable by the Company, as
promptly as possible thereafter, the Company shall send
to the Administrative Agent a certified copy of an
original official receipt showing payment thereof. If
the Company fails to pay any Foreign Taxes when due to
the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other
required documentary evidence, the Company shall
indemnify the Administrative Agent and the Banks for
any incremental taxes, interest or penalties that may
become payable by the Banks as a result of any such
failure.
4.9. Illegality. Notwithstanding any other
provisions herein, (i) if any Requirement of Law
enacted after the date hereof, or (ii) if any change in
the interpretation or application of any Requirement of
Law as in effect on the date hereof, shall make it
unlawful for the Banks to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the
Commitment to make Eurodollar Loans shall forthwith be
cancelled and (b) the Loans then outstanding as
Eurodollar Loans, if any, shall be repaid on the last
day of the Interest Period therefor, or within such
earlier period as required by law, and reborrowed as
Base Rate Loans. If any such prepayment of a
Eurodollar Loan is made on a day which is not the last
day of the Interest Period therefor, the Company shall
pay to the Administrative Agent for the accounts of the
Banks such amounts, if any, as may be required pursuant
to Subsection 4.11.
4.10. Additional Costs, Etc.
(a) In the event that any Requirement of Law or
any change therein or in the interpretation or
application thereof or compliance by any Bank with any
request or directive (whether or not having the force
of law) from any central bank or other Governmental
Authority or any agency or instrumentality thereof:
(i) does or shall subject any Bank to any tax
of any kind whatsoever other than taxes imposed on or
measured by the net income or any franchise taxes
imposed in lieu of a tax on or measured by net income
of such Bank or any Participant (such non-excluded
items being hereinafter referred to as "Taxes") with
respect to this Agreement, the Notes or any Loans made
hereunder, or changes the basis of taxation of payments
to such Bank of principal, Annual Fees, Commitment
Fees, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall
net income of such Bank);
(ii) does or shall impose, modify or hold
applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, or
deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such
Bank which are not otherwise included in the
determination of the Eurodollar Rate; or
(iii) does or shall impose on such Bank any
other condition;
and the result of any of the foregoing is, in respect
of Eurodollar Loans, to increase the cost to such Bank
of making, renewing or maintaining Loans or extensions
of credit hereunder or to reduce any amount receivable
hereunder, then the Company shall promptly pay to the
Administrative Agent, for the account of such Bank,
upon demand, any additional amounts necessary to
compensate such Bank for such additional cost or
reduced amount receivable which such Bank deems to be
material as determined by such Bank with respect to
such Eurodollar Loans. If such Bank becomes entitled
to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Administrative
Agent which will promptly notify the Company of the
event by reason of which such Bank has become so
entitled. A statement as to any additional amounts
payable pursuant to the foregoing sentence submitted by
the Administrative Agent to the Company shall be
conclusive in the absence of manifest error. This
covenant shall survive the termination of this
Agreement and payment of the Notes.
(b) If any change in, or the introduction,
adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or
not having the force of law) of any court, central
bank, regulator or other Governmental Authority affects
or would affect the amount of capital required or
expected to be maintained by any Bank or any
corporation controlling any Bank, and such Bank
determines (in its sole and absolute discretion) that
the rate of return on such Bank's or such controlling
corporation's capital as a consequence of its
obligation hereunder is reduced to a level below that
which such Bank or such controlling corporation could
have achieved but for the occurrence of any such
circumstance, then, in any such case, upon the notice
from time to time by the Administrative Agent or such
Bank to the Company, the Company shall pay to the
Administrative Agent, for the account of such Bank, on
demand, any additional amount or amounts as may be
sufficient to compensate such Bank or such controlling
corporation for such reduction in rate of return. A
statement of the Administrative Agent or such Bank as
to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in
the absence of manifest error, be conclusive and
binding on the Company. In determining such amount or
amounts, such Bank may use any method of averaging and
attribution that it (in its sole and absolute
discretion) shall deem applicable. This covenant shall
survive the termination of this Agreement and payment
of the Notes.
(c) Any Foreign Recipient, no later than the date
of the initial Loan (or the date of assignment or
transfer, as the case may be) and, subject to clause
(e) below, annually (or at such other times as the
Company may reasonably request) thereafter, shall
timely deliver two accurate and complete signed
originals of either of Internal Revenue Forms 1001 or
4224 (or any successor of such form) to the Company (or
in the case of a Participant which holds a
participation interest which it acquired from any Bank,
to such Bank which shall provide copies thereof to the
Company), in either case, indicating that all payments
by the Company of principal of, and interest on, the
Loans and all other amounts payable hereunder to such
Foreign Recipient may be made free and clear of, and
without deduction for, any United States withholding
tax. In addition, if required under statute, treaty,
regulation, or administrative practice of the United
States, the Foreign Recipient that is claiming
exemption from U.S. withholding tax under a treaty
agrees to provide the Company with proof of tax
residence in the applicable country by providing a
certified taxpayer identification number (TIN), a
certificate of residence or other documentary evidence.
The obligation to deliver forms set forth in the
preceding sentence shall not apply for any period
during which any change in law or circumstance shall
have eliminated any and all obligations imposed on the
Company to withhold or deduct United States withholding
tax in respect of payments made by the Company
hereunder; provided that the Foreign Recipient has
complied with all requirements, if any, imposed by
statute, treaty, regulation or administrative practice
of the United States necessary to eliminate such
obligation to withhold by the Company.
(d) The Company shall not be required to pay any
additional amounts to a Foreign Recipient in respect of
United States withholding tax pursuant to Subsection
4.08 or this Subsection 4.10 if the obligation to pay
such additional amounts would not have arisen but for a
failure by such Foreign Recipient to comply with the
provisions of Subsection 4.10(c) for any reason
(including a change in circumstances that renders such
Foreign Recipient unable to so comply) other than (x) a
change in applicable law, regulation or official
interpretation thereof or (y) an amendment,
modification or revocation of any applicable tax treaty
or a change in official position regarding the
application or interpretation thereof, in each case
after the date hereof (and in the case of a
Participant, after the date of assignment or transfer).
In no event, however, will the Company be required to
pay additional amounts if any obligation to pay such
additional amounts would not have arisen but for the
failure of the Foreign Recipient to comply with any
requirement under a statute, treaty, regulations, or
administrative practice of the United States to
establish exemption from all or part of the tax in
respect of which the additional amount would otherwise
be paid.
(e) If, solely as a result of an event described
in clause (x) or (y) of Subsection 4.10(d), after the
date hereof (or, in the case of a Participant, after
the date of assignment or transfer), (i) any Foreign
Recipient is unable to furnish the Company with a form
otherwise required to be delivered by it pursuant to
Subsection 4.10(c), or (ii) any Bank or any Foreign
Recipient makes any payment or becomes liable to make
any payment on account of any Taxes, other than a
United States withholding tax, with respect to payments
by the Company hereunder, the Company may, at its
option, either (x) prepay the Loans held by such Bank
(or such Foreign Recipient) or (y) continue to make
payments to the Administrative Agent on behalf of such
Bank or such Foreign Recipient under the terms of this
Agreement and the Notes, which payments shall be made
in accordance with the provisions hereof if the
condition set forth in the next succeeding sentence is
satisfied. If the Company exercises its option under
clause (y) of the preceding sentence, the Company's
obligation to make payments to the Administrative Agent
on behalf of such Bank (or such Foreign Recipient)
under the terms of this Agreement and the Notes without
deduction for Taxes shall be conditioned on such Bank
(or such Foreign Recipient), prior to the time that the
next payment under the Notes is due (and thereafter as
is required by applicable law), having furnished the
Company with such certificate as may be required, and
having taken such other steps as reasonably may be
available to it, under applicable tax laws and any
applicable tax treaty or convention to obtain an
exemption from, or reduction (to the lowest applicable
rate) of, such Taxes.
4.11. Indemnity. The Company agrees to indemnify
each Bank and to hold each Bank harmless from and
against any loss, cost or expense or loss of margin
that such Bank may sustain or incur as a consequence of
(i) default by the Company in payment of the principal
amount of or any interest on any Eurodollar Loans as
and when due and payable, including any such loss or
expense arising from interest or fees payable by such
Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Loans, (ii) default by the
Company in making a borrowing or conversion after the
Company has given (or is deemed to have given) a notice
of borrowing or conversion in accordance with
Subsections 2.3 and 2.5 hereof, (iii) default by the
Company in making any prepayment of a Loan after the
Company has given a notice in accordance with
Subsection 2.7 hereof or (iv) the making of any payment
of a Eurodollar Loan (including, without limitation,
any prepayment made as a result of action taken under
Subsection 4.9 or as a result of the Administrative
Agent's exercise of rights under Section 9 hereof) on a
day that is not the last day of the applicable Interest
Period with respect thereto, or the making of any
payment on a Swing Line Loan on a day other than the
maturity date thereof, including (in the case of either
such Eurodollar Loan or Swing Line Loan payments)
interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain any such
Loans. This covenant shall survive termination of this
Agreement and payment of the Notes.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement
and to make the Loans herein provided for, the Company
hereby covenants, represents and warrants to the Banks
that:
5.1. Financial Condition. The consolidated
balance sheet of the Company and its consolidated
Subsidiaries as at December 31, 1995, and the related
consolidated statements of income, statements of
changes in shareholders equity and statements of cash
flows for the fiscal year ended on such date, certified
by Coopers & ▇▇▇▇▇▇▇, copies of which have heretofore
been furnished to the Banks, are complete and correct
and present fairly in accordance with GAAP the
consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in
cash flows for the fiscal year then ended. All such
financial statements, including the related schedules
and notes thereto, have been prepared in accordance
with GAAP applied consistently with the preceding year.
5.2. No Change. Except as set forth in the
filings of the Company with the Securities and Exchange
Commission prior to the date hereof, copies of which
have been delivered to the Banks, since December 31,
1995 there has been no material adverse change in the
business, operations, assets or financial or other
condition of the Company and its Subsidiaries taken as
a whole.
5.3. Corporate Existence; Compliance with Law.
Each of the Company and its Subsidiaries (a) is duly
organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (b)
has the corporate power and authority and the legal
right to own and operate its property, to lease the
property it operates and to conduct the business in
which it is currently engaged, (c) is duly qualified as
a foreign corporation 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, except in those
jurisdictions in which the failure to be so qualified
or in good standing would not be reasonably likely to
have a material adverse effect upon the business,
operations or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole, and (d)
is in compliance with all Requirements of Law, except
(with reference to each of clauses (a), (b), (c) and
(d) above) to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably
likely to have a material adverse effect on the
business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as
a whole, and would not be reasonably likely to have a
material adverse affect on the ability of the Company
to perform its obligations under this Agreement and the
Notes.
5.4. Corporate Power; Authorization; Enforceable
Obligations. The Company has the corporate power and
authority and the legal right to make, deliver and
perform this Agreement and the Notes and to borrow
hereunder and has taken all necessary corporate action
to authorize the borrowings on the terms and conditions
of this Agreement and the Notes and to authorize the
execution, delivery and performance of this Agreement
and the Notes. No consent or authorization of, filing
with, or other act by or in respect of any Governmental
Authority, is required in connection with the
borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this
Agreement or the Notes. This Agreement has been, and
the Notes will be, duly executed and delivered on
behalf of the Company and this Agreement constitutes,
and the Notes when executed and delivered will
constitute, legal, valid and binding obligations of the
Company enforceable against the Company in accordance
with their terms, except as enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally.
5.5. No Legal Bar. The execution, delivery and
performance of this Agreement and the Notes, the
borrowings hereunder and the use of the proceeds
thereof, (a) will not violate any Requirement of Law,
(b) will not violate any Contractual Obligation of the
Company or any of its Subsidiaries, and (c) will not
result in, or require, the creation or imposition of
any Lien on any of its or their respective properties
or revenues pursuant to any Requirement of Law or
Contractual Obligation, except in the case of clauses
(b) and (c) any contractual violations and/or Liens
which in the aggregate would not be reasonably likely
to have a material adverse effect on the business,
operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole and
would not be reasonably likely to have a material
adverse affect on the ability of the Company to perform
its obligations under this Agreement and the Notes.
5.6. No Material Litigation. Except as set forth
in the filings of the Company with the Securities and
Exchange Commission, copies of which have been
delivered to the Banks, no litigation, investigation or
proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the
Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to
this Agreement or the Notes or any of the transactions
contemplated hereby, or (b) which would be reasonably
likely to result in any material adverse change in the
business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as
a whole.
5.7. No Default. Neither the Company nor any of
its Subsidiaries is in default under or with respect to
any Contractual Obligation in any respect which would
be reasonably likely to be materially adverse to the
business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as
a whole, or which would be reasonably likely to
materially adversely affect the ability of the Company
to perform its obligations under this Agreement and the
Notes. No Default or Event of Default has occurred and
is continuing.
5.8. Ownership of Property; Liens. Each of the
Company and its Subsidiaries (a) has good record and
marketable title in fee simple to or valid leasehold
interests in all its real property, and good title to
all its other property (except that such representation
is not made for any such property with a book value of
$1,000,000 or less provided that the aggregate book
value of such property for which such representation is
not made shall not exceed $10,000,000), and (b) none of
such property is subject to any Lien, except as
permitted in Subsection 8.3, except (with reference to
clauses (a) and (b)) any defects in title or Liens
which in the aggregate would not be reasonably likely
to have a material adverse effect on the business,
operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole and
would not be reasonably likely to have a material
adverse affect on the ability of the Company to perform
its obligations under this Agreement and the Notes.
5.9. No Burdensome Restrictions. No Contractual
Obligation of the Company or any of its Subsidiaries
and no Requirement of Law materially adversely affects,
or insofar as the Company may reasonably foresee may so
affect, the business, operations, property or financial
or other condition of the Company and its Subsidiaries
taken as a whole.
5.10. Taxes. Each of the Company and its
Subsidiaries has filed or caused to be filed all tax
returns which to the knowledge of the Company are
required to be filed, and has paid all taxes shown to
be due and payable on said returns or on any
assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority
(other than (i) those the amount or validity of which
is currently being contested in good faith by
appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on
the books of the Company or its Subsidiaries, as the
case may be or (ii) those which if not paid would not,
either individually or in the aggregate, be reasonably
likely to have a material adverse effect upon the
business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as
a whole); and no tax liens have been filed (other than
those which, if foreclosed, would not, either
individually or in the aggregate, be reasonably likely
to have a material adverse effect upon the business,
operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole) and,
to the knowledge of the Company, no claims are being
asserted with respect to any such taxes, fees or other
charges.
5.11. Federal Regulations. Neither the Company
nor any of its Subsidiaries is engaged or will engage,
principally or as one of its important activities, in
the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms
under Regulations U and X of the Board of Governors of
the Federal Reserve System as now and from time to time
hereafter in effect. No part of the proceeds of any
Loans hereunder will be used (a) for "purchasing" or
"carrying" "margin stock" as so defined unless (i) the
Company shall have theretofore furnished to the Banks a
statement on Federal Reserve Form U-1 with respect to
such Loans or (ii) not more than 25% of the value of
the assets of either the Company or the Company and its
Subsidiaries on a consolidated basis, respectively is
represented by "margin stock" as so defined, or (b) for
any purpose which violates, or which would be
inconsistent with, the provisions of the Regulations of
such Board of Governors.
5.12. ERISA. As of January 1, 1996 the actuarially
determined aggregate amount of unfunded vested benefits
under the Plans administered by the Company and its
Subsidiaries was less than $1,000,000. The Company and
its Subsidiaries are in compliance with all applicable
provisions of ERISA except for any noncompliance which,
either individually or in the aggregate with all other
instances of such noncompliance, would not be
reasonably likely to have a material adverse effect
upon the business, operations or condition, financial
or otherwise, of the Company and its Subsidiaries taken
as a whole.
5.13. Investment Company Act. 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.
5.14. Full Disclosure. Neither this Agreement nor
any other certificate, report, statement or other
writing furnished to the Administrative Agent or the
Banks by the Company in connection with the negotiation
of this Agreement, at the time of execution or
delivery, contained any untrue fact or omits to state a
material fact necessary to make the statements
contained herein or therein, in light of the
circumstances under which they were made, not
misleading.
5.15. Certain Contingent Obligations. As of
September 30, 1996, each of Madison, CLIC and WMAC
Credit has assets in excess of its liabilities. The
guaranties or indemnification undertakings given by
Madison, CLIC and/or WMAC Credit referenced in the
definition of Contingent Obligation are obligations of
Madison, CLIC or WMAC Credit, as the case may be,
without recourse to the Company.
5.16. Environmental Compliance. With respect to
the Real Estate and operations thereon by the Company
or its Subsidiaries, and except as set forth on
Schedule 5.16, to the knowledge of the Company:
(a) none of the Company, its Subsidiaries or
any operator of the Real Estate which is a Subsidiary,
has received any written notice from any Governmental
Authority of any actual or alleged violation of any
Environmental Laws which has not heretofore been
resolved, which violation would be reasonably likely to
have a material adverse effect on the business, assets
or financial condition of the Company and its
Subsidiaries taken as a whole;
(b) neither the Company nor any of its
Subsidiaries has received any written notice from any
Governmental Authority or other third party (i) that
any one of them is currently identified by the United
States Environmental Protection Agency as a potentially
responsible party under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended, with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B, or that
any of them is currently identified as a potentially
responsible party for environmental damage under any
state or local Environmental Laws; (ii) that any
Hazardous Substances which any one of them has
generated, transported or disposed of has been found at
any site at which a federal, state or local
governmental agency has conducted or has ordered that
the Company or any of its Subsidiaries conduct a
remedial investigation, removal or other response
action pursuant to any Environmental Law and which has
not heretofore been resolved or from which the Company
or its Subsidiaries have not heretofore been dismissed;
or (iii) that it is currently a named party to any
claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous
Substances and which would be reasonably likely to have
a material adverse effect on the business, assets or
financial condition of the Company and its Subsidiaries
taken as a whole; and
(c) in the conduct of its business by the
Company and its Subsidiaries, the Company or its
Subsidiaries have exercised reasonable diligence in
taking appropriate measures so that no Hazardous
Substances are generated, stored, used or disposed of
except in material compliance with applicable
Environmental Laws.
5.17. Nonrecourse Indebtedness. Schedule 5.17
sets forth, as of September 30, 1996, the aggregate
outstanding amount on a consolidated basis of the
Nonrecourse Debt.
SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions of Initial Loan. The obligation
of the Banks to make Loans hereunder on the first
Borrowing Date is subject to the satisfaction of the
following conditions precedent:
(a) Loan Documents. This Agreement shall have
been duly executed and delivered to the Administrative
Agent by the respective parties and shall be in full
force and effect. The Administrative Agent shall have
received each of the Notes, conforming to the
requirements hereof and executed by a duly authorized
officer of the Company.
(b) Legal Opinion. The Banks shall have
received an opinion addressed to the Administrative
Agent and the Banks of Weil, Gotshal & ▇▇▇▇▇▇ LLP,
counsel to the Company, dated the first Borrowing Date,
substantially in the form of Exhibit C. Such opinion
shall also cover such other matters incident to the
transactions contemplated by this Agreement as the
Administrative Agent shall reasonably require.
(c) Payment of Existing Notes, Etc. The
Administrative Agent shall have received evidence in
form and substance satisfactory to it that the
principal of and interest on the notes and all other
obligations and liabilities of the Company under the
credit agreements listed on Schedule 4.1 shall have
been paid in full or discharged; and each of the Banks
holding notes of the Company evidencing Indebtedness to
be paid off listed on Schedule 4.1 shall have returned
such notes to the Company or other arrangements
satisfactory to the Company have been made with respect
thereto.
(d) Officer's Certificate. The Administrative
Agent shall have received an Officer's Certificate
dated the first Borrowing Date, substantially in the
form of Exhibit D, with appropriate insertions and
attachments satisfactory to the Administrative Agent
and its counsel, executed by the Secretary or Assistant
Secretary of the Company.
(e) Additional Matters. All other documents
and legal matters in connection with the transactions
contemplated by this Agreement shall be satisfactory in
form and substance to the Administrative Agent and its
counsel.
6.2. Conditions to All Loans. The obligation of
the Banks to make any Loans to be made by them
hereunder (including the initial Loans) is subject to
the satisfaction of the following conditions precedent
on the relevant Borrowing Date:
(a) Representations and Warranties. The
representations and warranties contained in Section 5
shall be correct on and as of the Borrowing Date for
such Loan with the same effect as if made on and as of
such date.
(b) No Existing Default. No Default, Event of
Default or Terminating Event shall have occurred and be
continuing hereunder on the Borrowing Date with respect
to such Loan or after giving effect to the Loans to be
made on such Borrowing Date.
Each borrowing by the Company hereunder shall
constitute a representation and warranty by the Company
hereunder as of the date of each such borrowing that
the conditions in clauses (a) and (b) of this
Subsection applicable thereto have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitment remains in effect, any Note remains
outstanding and unpaid or any other amount is owing to
any of the Banks hereunder, the Company shall, and in
the case of the agreements set forth in Subsections
7.3, 7.4, 7.5, and 7.6 shall cause each of its
Subsidiaries to:
7.1. Financial Statements. Furnish to each of the
Banks:
(a) as soon as available, but in any event
within one hundred days after the end of each fiscal
year of the Company, a copy of (i) the consolidated
balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related
consolidated statements of income, statements of change
in shareholder equity and statements of cash flows for
such year, setting forth in each case in comparative
form the figures for the previous year, certified,
without a going concern or like qualification or
exception arising out of the scope of the audit, by
independent certified public accountants of nationally
recognized standing not unacceptable to the
Administrative Agent, (ii) the consolidating balance
sheet of the Company and its consolidated Subsidiaries
as at the end of such fiscal year and the related
consolidating statements of income for such fiscal
year, showing in each case inter-company eliminations,
certified by a Responsible Officer as being fairly
stated in all material respects when considered in
relation to the consolidated financial statements of
the Company and its consolidated Subsidiaries taken as
a whole; and
(b) as soon as available, but in any event not
later than fifty-five days after the end of each of the
first three quarterly periods of each fiscal year of
the Company, (i) the Company's quarterly report to
shareholders on Form 10-Q, as filed with the Securities
and Exchange Commission, certified by a Responsible
Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments) and (ii)
the consolidating balance sheet of the Company and its
Subsidiaries as at the end of each such quarter,
showing inter-company eliminations, and the related
consolidating statements of income, showing
inter-company eliminations, certified by a Responsible
Officer as being fairly stated in all material
respects;
all such financial statements to be prepared in
accordance with GAAP applied consistently throughout
the periods reflected therein except as approved by
such accountants or Responsible Officer, as the case
may be, and disclosed therein.
7.2. Certificates; Other Information. Furnish to
each of the Banks:
(a) concurrently with the delivery of the
financial statements referred to in Subsection 7.1(a)
above, a certificate of the independent certified
public accountants certifying such financial statements
stating that in making the examination necessary
therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the
financial statements referred to in Subsections 7.1(a)
and (b) above, a certificate of a Responsible Officer
(i) stating that, to the best of such officer's
knowledge, the Company during such period has observed
or performed all of its covenants and other agreements,
and satisfied every condition contained in this
Agreement and in the Notes to be observed, performed or
satisfied by it, and that such officer has obtained no
knowledge of any Default or Event of Default except as
specified in such certificate, and (ii) showing in
detail the calculations supporting such statement in
respect of Subsections 8.1, 8.2, 8.6, and 8.7;
(c) within ten days after the same are sent,
copies of all financial statements and reports which
the Company sends to its stockholders, and within ten
days after the same are filed, copies of all financial
statements and reports which the Company may make to,
or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority;
(d) as soon as available, but in any event
within thirty days after filing with the appropriate
insurance department, the annual statements for each
Insurance Subsidiary as filed with the insurance
department in its state of domicile, provided that the
Company shall deliver one copy thereof to the
Administrative Agent who shall make such copy available
upon request to the Banks, and upon request by any Bank
the Company shall deliver additional copies thereof to
such Bank; and
(e) promptly, any such additional financial
and other information as the Administrative Agent or
any Bank may from time to time reasonably request.
7.3. Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its
Indebtedness and other obligations of whatever nature,
except (a) when the amount or validity thereof is
currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the
Company or its Subsidiaries, as the case may be, or (b)
where the failure so to pay, discharge or satisfy would
not be reasonably likely to have a material adverse
effect on the business, operations, property or
financial or other condition of the Company and its
Subsidiaries taken as a whole; provided that for
purposes of this Subsection 7.3, the term
"Indebtedness" shall not include any Nonrecourse Debt.
7.4. Conduct of Business, and Maintenance of
Existence. (a) Continue to engage in business of the
same general type as now conducted by it, and preserve,
renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or
desirable in the normal conduct of its business,
provided, however, that a Permitted Distribution
shall not be prohibited or limited by this Subsection
7.4 and further provided that, subject to Section 8
hereof, this Subsection 7.4 shall not prohibit the
Company or any Subsidiary from taking any action if
such action would not reasonably be likely to have a
material adverse effect upon the business, operations,
property or financial or other condition of the Company
and its Subsidiaries taken as a whole; and (b) comply
with all Contractual Obligations and Requirements of
Law except to the extent that the failure to comply
therewith would not be reasonably likely to, in the
aggregate, have a material adverse effect on the
business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as
a whole.
7.5. Maintenance of Property, Insurance. Keep all
property useful and necessary in its business in good
working order and condition, except where the failure
to comply herewith would not be reasonably likely to
have a material adverse effect on the business,
operations, property, or financial or other condition
of the Company and its Subsidiaries taken as a whole;
to the extent obtainable on terms which its management
deems reasonable, maintain with financially sound and
reputable insurance companies insurance on all its
property against such casualties and contingencies and
in such types and amounts as, in the judgment of its
executive officers, is deemed adequate; and furnish to
the Administrative Agent, upon written request, full
information as to the insurance carried.
7.6. Inspection of Property; Books and Records;
Discussions. Keep proper books of record and account
in which entries, which are accurate and complete in
all material respects, in conformity with GAAP and
Requirements of Law shall be made of all dealings and
transactions in relation to its business and
activities; and permit the Banks, through the
Administrative Agent or any of their designated
representatives, to visit and inspect any of its
properties and examine and make abstracts from any of
its books and records at any reasonable time and as
often as may reasonably be desired, and to discuss the
business, investments, operations, properties and
financial and other condition of the Company and its
Subsidiaries with officers and employees of the Company
and its Subsidiaries and with its independent certified
public accountants.
7.7. Notices. Promptly give notice in writing to
each of the Banks:
(a) of the occurrence of any Default,
Terminating Event or Event of Default;
(b) of any (i) default or event of default
under any Contractual Obligation of the Company or any
of its Subsidiaries or (ii) litigation, investigation
or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental
Authority, which in either case would be reasonably
likely to have a material adverse effect on the
business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as
a whole;
(c) of any litigation or proceeding affecting
the Company or any of its Subsidiaries in which the
relief sought is $30,000,000 or more and not covered by
insurance, or in which injunctive or similar relief is
sought and, if granted, would be reasonably likely to
have a material adverse effect on the business, assets,
operations, financial or other condition of the Company
and its Subsidiaries taken as a whole;
(d) of the following events, as soon as
possible and in any event within 30 days after the
Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable
Event with respect to any Plan, or (ii) the institution
of proceedings or the taking or expected taking of any
other action by PBGC or the Company or any Commonly
Controlled Entity to terminate, withdraw or partially
withdraw from any Plan and with respect to a
Multiemployer Plan, the reorganization or insolvency of
the Plan, and in addition to such notice, deliver to
each of the Banks whichever of the following may be
applicable: (A) a certificate of a Responsible Officer
of the Company setting forth details as to such
Reportable Event and the action that the Company or
Commonly Controlled Entity proposes to take with
respect thereto, together with a copy of any notice of
such Reportable Event that may be required to be filed
with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or
any notice to PBGC that such Plan is to be terminated,
as the case may be; and
(e) of a material adverse change in the
business, operations, property or financial or other
condition of the Company, or the Company and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection shall be
accompanied by a statement of a Responsible Officer of
the Company setting forth details of the occurrence
referred to therein and stating what action the Company
proposes to take with respect thereto. For all
purposes of clause (d) of this subsection, the Company
shall be deemed to have all knowledge of all facts
attributable to the administrator of such Plan.
SECTION 8. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitment of any Bank remains in effect, any Note
remains outstanding and unpaid or any other amount is
owing to any Bank hereunder:
8.1. Maintenance of Consolidated Tangible Net
Worth. At any time during each fiscal year
commencing after December 31, 1995 the Company will not
permit Consolidated Tangible Net Worth to be less than
an amount equal to the sum of (i) $700,000,000 (the
"Baseline Amount"), minus (ii) the sum of (x) an
amount equal to the aggregate amount by which the
capital stock account of the Company shall have been
reduced as a result of purchases by the Company of
shares of its capital stock during the period from
January 1, 1996 to and including the date of computation
of Consolidated Tangible Net Worth and (y) the
aggregate amount by which the assets of the Company
constituting costs in excess of the net asset value of
acquired companies and deferred taxes, as determined in
accordance with GAAP, shall have increased by reason of
acquisitions made by the Company during the period from
January 1, 1996 to and including the date of computation
of Consolidated Tangible Net Worth (provided that, for
purposes of this Subsection 8.1 only, any amount by
which the aggregate cumulative decrease in Consolidated
Tangible Net Worth computed pursuant to clauses (x) and
(y) exceeds $50,000,000 shall not be counted as a
reduction of the Baseline Amount), minus (iii) in the
event of any Permitted Distribution, an amount equal to
the amount by which Consolidated Tangible Net Worth is
reduced as a result of such Permitted Distribution,
plus (iv) an amount equal to the sum of 40% of the
Consolidated Net Income of the Company and its
Subsidiaries (as determined in accordance with GAAP)
for each prior full calendar year commencing after
December 31, 1996 (provided (A) that the amount
determined pursuant to clause (iv) shall be equal to
zero for any calendar year for which there is a net
loss and (B) that the amounts included in net income
(determined in accordance with GAAP) resulting from
changes in accounting principles to the extent that
such changes increase intangibles shall not be included
in net income for purposes of this Subsection).
8.2. Debt Leverage Ratio. The Company will not at
any time permit the ratio of (a) Funded Debt to (b) the
sum of (x) Shareholders' Equity and (y) Funded Debt to
exceed 0.6 to 1.0.
8.3. Limitations on Liens. The Company will not,
nor shall it permit any Subsidiary to, at any time
directly or indirectly create, incur, assume or suffer
to exist, any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired,
other than the following ("Permitted Liens"):
(a) Liens for taxes not yet due or which are
being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto
are maintained on the books of the Company or its
Subsidiaries, as the case may be, in accordance with
GAAP;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising
in the ordinary course of business which are not
overdue for a period of more than 30 days or which are
being contested in good faith and by appropriate
proceedings;
(c) pledges or deposits in connection with
workmen's compensation, unemployment insurance and
other social security legislation;
(d) pledges or deposits to secure the
performance of bids, trade contracts (other than for
borrowed money), option agreements (other than for
borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not
substantial in amount, and which do not in any case
materially detract from the value of the property
subject thereto or interfere with the ordinary conduct
of the business of the Company or its Subsidiaries;
(f) Liens described in Schedule 8.3;
(g) Liens on assets owned by the Company or
any Subsidiary securing an amount not to exceed (i)
$315,000,000 in the aggregate for all such assets or
(ii) $200,000,000 in the aggregate for Liens imposed in
connection with any single transaction or related
series of transactions, provided that the aggregate
book value of all assets securing such Liens shall not
exceed 200% of the aggregate amounts secured thereby;
(h) pledges or deposits effected by the
Company or any Insurance Subsidiary as a condition to
obtaining or maintaining any license, permit or
authorization to transact insurance or reinsurance
business;
(i) deposits with insurance regulatory
authorities; and
(j) Liens arising under ceding reinsurance
agreements entered into by any Insurance Subsidiary.
8.4. Prohibition of Fundamental Changes. The
Company will not, nor will it permit any Subsidiary to,
at any time enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its business
or assets, except that:
(a) any Subsidiary of the Company may be
merged or consolidated with or into the Company
(provided, that, the Company shall be the continuing
or surviving corporation) or with any one or more
Subsidiaries of the Company;
(b) the Company or any Subsidiary may sell,
lease, transfer or otherwise dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to
the Company or any Subsidiary;
(c) the Company may, or may permit a
Subsidiary to, liquidate, sell or dispose of all or
substantially all of a Subsidiary's business or assets
at any time, provided that (i) the book value of the
Subsidiary business or assets being liquidated, sold or
disposed of shall not exceed 10% of the then
Consolidated Tangible Net Worth of the Company, and
(ii) no Default or Event of Default then exists or
shall exist after giving effect to such liquidation,
sale or disposition;
(d) for purposes of this Subsection, a
Permitted Distribution shall not constitute a transfer
or disposition of all or substantially all of the
Company's business or assets; and
(e) a Permitted Voluntary Proceeding shall not
be prohibited by this Subsection.
8.5. Investments. The Company will not nor will
it permit any Subsidiary to make or commit to make any
Investment in a single Person, other than an Investment
in any Governmental Authority of the United States of
America, in an aggregate amount exceeding the then
Consolidated Tangible Net Worth of the Company.
8.6. Limitation on Contingent Obligations. The
Company will not, nor will it permit any Subsidiary to,
create, incur, assume, guarantee, endorse or otherwise
in any way be or become responsible or liable for,
directly or indirectly, or suffer to exist Contingent
Obligations in an aggregate amount for the Company and
its Subsidiaries in excess of $200,000,000; provided,
that such amount shall not include the F&H Guaranty
and provided, further, that, as of any time of
determination under this Subsection 8.6, if the
aggregate amount of any then outstanding Contingent
Obligations of the Company and/or any Subsidiary would
be permitted under Subsection 8.2 hereof had the amount
of such Contingent Obligations been incurred as Funded
Debt, then for the purposes of this Subsection 8.6,
only 50% of the amount of such Contingent Obligations
shall be counted towards the $200,000,000 limitation.
8.7. Limitation on Subsidiary Indebtedness. At
the end of any calendar quarter commencing after
December 31, 1996, the Company will not permit the
aggregate Indebtedness of all of the Company's
consolidated Subsidiaries to be greater than 25% of
Consolidated Tangible Net Worth at such date; provided
that, for purpose of this Subsection, Indebtedness of a
Subsidiary shall not include:
(i) any Indebtedness outstanding at
December 31, 1996;
(ii) any Indebtedness secured by
Permitted Liens ;
(iii) any Indebtedness of the Company's
Banking Subsidiaries;
(iv) Indebtedness of any Subsidiary the
ownership of which is acquired by the Company, directly
or indirectly, after the date hereof, or which is
established by the Company after the date hereof for
the purpose of acquiring assets or equity of any Person
not owned, directly or indirectly, by the Company on
the date hereof; provided, that, such Indebtedness is
not guarantied by, is not secured by assets (other than
assets of such Subsidiary) of, and does not otherwise
have recourse to the Company or its assets (other than
the assets of such Subsidiary); and
(v) Any Indebtedness of a Subsidiary to
another Subsidiary or to the Company.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay any
principal of the Notes when due in accordance with the
terms thereof or hereof; or
(b) The Company shall fail to pay any interest
on the Notes, any Commitment Fees, agents' fees or
other sums due hereunder or under the Notes, when the
same become due in accordance with the terms thereof or
hereof, and such default shall continue unremedied for
a period of five Business Days; or
(c) Any representation or warranty made or
deemed made by the Company herein or which is contained
in any certificate, document or financial or other
statement furnished at any time under or in connection
with this Agreement shall prove to have been incorrect
in any material respect on or as of the date made or
deemed made; or
(d) The Company shall default in the
observance or performance of any agreement contained in
Sections 7.4, 7.7 or 8; or
(e) The Company shall default in the
observance or performance of any other agreement
contained in this Agreement, and such default shall
continue unremedied for a period of 30 days; or
(f) The Company or any of its Subsidiaries
shall (i) default in any payment of principal of or
interest on any Indebtedness (other than the Notes and
other than any Nonrecourse Debt) or in the payment of
any Contingent Obligation, in any case having a
principal amount exceeding $30,000,000 or in the
aggregate having a principal amount exceeding
$50,000,000, in either case beyond the period of grace
(not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness
or Contingent Obligation was created; or (ii) default
in the observance or performance of any other agreement
or condition relating to any such Indebtedness or
Contingent Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the
effect of which default or other event or condition is
to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such
Contingent Obligation (or a trustee or Administrative
Agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Indebtedness to become due
prior to its stated maturity or such Contingent
Obligation to become payable; or
(g) (i) The Company or any Subsidiary shall
commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement,
adjustment, rehabilitation, winding-up, liquidation,
dissolution, composition or other relief with respect
to it or its debts (and except for the commencement of
a Permitted Voluntary Proceeding), or (B) seeking
appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial
part of its assets, or the Company or any Subsidiary
shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the
Company or any Subsidiary any case, proceeding or other
action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief
or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the
Company or any Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or
any substantial part of its assets which results in the
entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof;
or (iv) the Company or any Subsidiary shall have taken
any action indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause
(i), (ii) or (iii) above; or (v) the Company or any
Subsidiary shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its
debts as they become due; or
(h) (i) Any Person shall engage in any
"prohibited transaction" (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined
in Section 302 of ERISA), whether or not waived, shall
exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or
institution of proceedings is, in the reasonable
opinion of the Administrative Agent, likely to result
in the termination of such Plan for purposes of Title
IV of ERISA, and, in the case of a Reportable Event,
the continuance of such Reportable Event unremedied for
ten days after notice of such Reportable Event pursuant
to Section 4043(a), (c) or (d) of ERISA is given or the
continuance of such proceedings for ten days after
commencement thereof, as the case may be, (iv) any
Single Employer Plan shall terminate for purposes of
Title V of ERISA, or (v) any other event or condition
shall occur or exist with respect to a Single Employer
Plan; and in each case in clauses (i) through (v)
above, such event or condition, together with all other
such events or conditions, if any, could subject the
Company or any of its Subsidiaries to any tax, penalty
or other liabilities which are, in the aggregate,
material in relation to the business, operations,
property or financial or other conditions of the
Company and its Subsidiaries taken as a whole; or
(i) One or more judgments or decrees shall be
entered against the Company or any of its Subsidiaries
involving in the aggregate a liability (not paid or
fully covered by insurance) of $30,000,000 or more and
all such judgments or decrees shall not have been
vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof;
then, and in any such event, (A) if such event is an
Event of Default specified in clauses (i), (ii) or (iv)
of paragraph (g) above, automatically the Commitment
shall immediately terminate and the Loan or Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall
immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of
the following actions may be taken: (I) the
Administrative Agent may, and upon the request of the
Majority Banks shall, by notice of default to the
Company, declare the Commitment to be terminated
forthwith whereupon the Commitment shall immediately
terminate; and (II) the Administrative Agent may, and
upon the request of the Majority Banks shall, by notice
of default to the Company, declare the Loan or Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as
expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 10. THE AGENTS
10.1. Authorization.
(a) Each Bank hereby irrevocably designates
and appoints The First National Bank of Boston as the
Administrative Agent, Bank of America National Trust
and Savings Association as the Documentation Agent, and
The Chase Manhattan Bank as the Syndication Agent under
this Agreement and irrevocably authorizes said agents
for such Bank to take such action on its behalf under
the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly
delegated to said agents by the terms of this Agreement
together with such other powers as are reasonably
incident thereto, provided that no duties or
responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by said
agents.
(b) The relationship between the
Administrative Agent, the Documentation Agent and the
Syndication Agent and each of the Banks is that of an
independent contractor. The use of the term "Agent" is
for convenience only and is used to describe, as a form
of convention, the independent contractual relationship
between the respective party and each of the Banks.
Nothing contained in this Agreement shall be construed
to create an agency (except to the extent of the
specific contractual obligations of the Administrative
Agent hereunder), trust or other fiduciary relationship
between any of the Administrative Agent, the
Documentation Agent or the Syndication Agent and any of
the Banks.
10.2. Employees and Agents. The Administrative Agent may
exercise its powers and execute its duties by or through employees
or agents and shall be entitled to take, and to rely on, advice of
counsel concerning all matters pertaining to its rights and duties
under this Agreement. The Administrative Agent may utilize the
services of such Persons as the Administrative Agent in its sole
discretion may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Company.
10.3. No Liability. Neither the Administrative Agent nor any of
its shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any Administrative Agent
or employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder, or in connection herewith, or be
responsible for the consequences of any oversight or error of
judgment whatsoever, except that the Administrative Agent or such
other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
10.4. No Representations. The Administrative Agent shall not be
responsible for the execution or validity or enforceability of this
Agreement, the Notes, or for any recitals or statements, warranties
or representations made herein or in any certificate or instrument
hereafter furnished to it by or on behalf of the Company or any of
its Subsidiaries, or be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants
or agreements herein or in any books or records of the Company or
any of its Subsidiaries. The Administrative Agent shall not be
bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Company or any holder of any of the Notes
shall have been duly authorized or is true, accurate and
complete. The Administrative Agent has not made nor does it now
make any representations or warranties, express or implied, nor
does it assume any liability to the Banks, with respect to the
credit worthiness or financial conditions of the Company or any
of its Subsidiaries. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent
or any other Bank, and based upon such information and documents
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
10.5. Payments.
(a) Payments to Administrative Agent. A payment by the Company
to the Administrative Agent hereunder for the account of any Bank
shall constitute a payment to such Bank. The Administrative Agent
agrees promptly to distribute to each Bank such Bank's pro rata
share of payments received by the Administrative Agent for the
account of the Banks except as otherwise expressly provided herein.
(b) Distribution by Administrative Agent. If in the opinion of
the Administrative Agent the distribution of any amount received by
it in such capacity hereunder or under the Notes might involve it in
liability, it may refrain from making distribution until its right
to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the
Administrative Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
(c) Delinquent Banks. Notwithstanding anything to the contrary
contained in this Agreement, any Bank that fails to make available
to the Administrative Agent its pro rata share of any Loan, or
fails to make available to the Swing Line Bank its pro rata share
of any Swing Line Loan, when and to the full extent required by
the provisions of this Agreement, shall be deemed a Delinquent
Bank and shall be deemed a Delinquent Bank until such time as
such delinquency is satisfied. A Delinquent Bank shall be deemed
to have assigned any and all payments due to it from the Company
to the remaining nondelinquent Banks for application to, and
reduction of, their respective pro rata shares of all outstanding
Loans. The Delinquent Bank hereby authorizes the Administrative
Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding
Loans. A Delinquent Bank shall be deemed to have satisfied in
full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans of the nondelinquent
Banks, the Banks' respective pro rata shares of all outstanding
Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing
such delinquency.
10.6. Holders of Notes. The Administrative Agent may deem and
treat the payee of any Note as the absolute owner or purchaser
thereof for all purposes hereof until it shall have been furnished
in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
10.7. Indemnity. The Banks ratably agree hereby to indemnify
and hold harmless the Administrative Agent from and against any and
all claims, actions and suits (whether groundless or otherwise),
losses, damages, costs, expenses (including without limitation, any
expenses for which the Administrative Agent has not been reimbursed
by the Company as required by Subsection 10.5 hereof), and
liabilities of every nature and character arising out of or related
to this Agreement, the Notes, or the transactions contemplated or
evidenced hereby, or the Administrative Agent's actions taken
hereunder, except to the extent that any of the same shall be caused
by
the Administrative Agent's willful misconduct or gross
negligence.
10.8. Administrative Agent as Bank. In its individual capacity,
The First National Bank of Boston shall have the same obligations
and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the
Notes, as it would have were it not also the Administrative Agent.
10.9. Resignation. The Administrative Agent may resign at any
time by giving sixty (60) days prior written notice thereof to the
Banks and the Company. Upon any such resignation, the Majority Banks
shall have the right to appoint a successor Administrative Agent.
Unless a Default or Event of Default shall have occurred and be
continuing, such successor Administrative Agent shall be reasonably
acceptable to the Company. If no successor Administrative Agent
shall have been so appointed by the Majority Banks and shall have
accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a financial
institution having a rating of not less than A or its equivalent by
Standard & Poor's Corporation. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's
resignation, the provisions of this Agreement shall continue in
effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
10.10. Notification of Defaults and Events of Default. Each
Bank hereby agrees that, upon learning of the
existence of a Default or an Event of Default, it shall promptly
notify the Administrative Agent thereof. The Administrative Agent
hereby agrees that upon receipt of any notice under this
Subsection it shall promptly notify the other Banks of the
existence of such Default or Event of Default.
SECTION 11. ASSIGNMENT AND PARTICIPATION
11.1. Conditions to Assignment by Banks. Except as provided
herein, each Bank may assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the time owing
to it and the Notes held by it); provided that (i) each of the
Administrative Agent and, unless (x) a Default or Event of Default
shall have occurred and be continuing or (y) the Assignee is an
Affiliate of the assigning Bank, the Company shall have given its
prior written consent to such assignment, which consent will not be
unreasonably withheld, (ii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's
rights and obligations under this Agreement, (iii) each assignment
shall be in an amount that is a whole multiple of $10,000,000, (iv)
the parties to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register, an Assignment
and Acceptance, substantially in the form of Exhibit E hereto (an
"Assignment and Acceptance"), together with any Notes subject to
such assignment, and (v) the Company shall not, at the time of such
assignment, incur any additional expenses solely as a result of such
assignment other than as contemplated under Subsection 11.4 hereof.
Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business
Days after the execution thereof, (i) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder, and
(ii) the assigning Bank shall, to the extent provided in such
assignment and upon payment to the
Administrative Agent of the registration fee referred
to in Subsection 11.3, be released from its obligations
under this Agreement.
11.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Acceptance,
the parties to the assignment thereunder confirm to and agree with
each other and the other parties hereto as follows:
(a) other than the representation and warranty
that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and
assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution,
legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto;
(b) the assigning Bank makes no representation
or warranty and assumes no responsibility with respect
to the financial condition of the Company and its
Subsidiaries, or the performance or observance by the
Company and its Subsidiaries of any of their
obligations under this Agreement or any other
instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received
a copy of this Agreement, together with copies of the
most recent financial statements referred to herein and
such other documents and information as it has deemed
appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and
without reliance upon the assigning Bank, the
Administrative Agent or any other Bank and based on
such documents and information as it shall deem
appropriate at the time, continue to make its own
credit decisions in taking or not taking action under
this Agreement;
(e) such assignee represents and warrants that
it is an Eligible Assignee;
(f) such assignee appoints and authorizes the
Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such
powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform
all of the obligations that by the terms of this
Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that
it is legally authorized to enter into such Assignment
and Acceptance.
11.3. Register. The Administrative Agent shall maintain a copy
of each Assignment and Acceptance delivered to it and a register or
similar list (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment Percentage of, and
principal amount of the Loans owing to the Banks from time to time.
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Administrative Agent and the
Banks may treat each Person whose name is recorded in the Register
as a Bank hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Company and the Banks at
any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay
to the Administrative Agent a registration fee in the sum of $2,500.
11.4. New Notes. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with
each Note subject to such assignment, the Administrative Agent shall
(i) record the information contained therein in the Register, and
(ii) give prompt
notice thereof to the Company and the Banks (other than the
assigning Bank). Within five (5) Business Days after receipt of
such notice, the Company, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible
Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance and,
if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning
Bank in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount
equal to the aggregate principal amount of the surrendered Notes,
shall be dated the effective date of such in Assignment and
Acceptance and shall otherwise be substantially the form of the
assigned Notes. The surrendered Notes shall be cancelled and
returned to the Company.
11.5. Participations. Each Bank may sell participations to one
or more banks or other entities (any such entity, a "Participant" in
all or a portion of such Bank's rights and obligations under this
Agreement; provided that (i) each such participation shall be in an
amount of not less than $10,000,000, (ii) any such sale or
participation shall not affect the rights and duties of the selling
Bank hereunder to the Company, (iii) the only rights granted to the
Participant pursuant to such participation arrangements with respect
to waivers, amendments or modifications of this Agreement shall be
the rights to approve waivers, amendments or modifications that
would reduce the principal of or the interest rate on any Loans,
extend the term or increase the amount of the Commitment of such
Bank as it relates to such Participant, reduce the amount of any
Annual Fees or Commitment Fees to which such Participant is entitled
or extend any regularly scheduled payment date for principal or
interest and (iv) the Company shall not, at the time of such
transfer of a participation interest, incur any additional expenses
solely as a result of such transfer. The Company agrees that each
Participant may, subject to the provisions of this
Agreement, exercise all rights of payment with respect to the
portion of such Loans held by it as fully as if such Participant
were the direct holder thereof, and that each Participant shall
be entitled to the benefits of Subsections 4.7, 4.9 and 4.10
(including without limitation, with respect to Subsection 4.10,
that the covenants therein shall survive termination of this
Agreement and payment of the Notes) with respect to its
participation in any Eurodollar Loans; provided that such
Participant complies with the provisions of such Subsections, and
provided further that the Company shall not be obligated to pay
to a Bank and its Participants collectively, in respect of such
Subsections, any greater amount than the Company would be
obligated to pay to such Bank had it not entered into any
participations.
11.6. Disclosure. The Company agrees that in addition to
disclosures made in accordance with standard and customary banking
practices any Bank may disclose information obtained by such Bank
pursuant to this Agreement to Eligible Assignees or Participants and
potential Eligible Assignees or Participants hereunder; provided
that such Eligible Assignees or Participants or potential Eligible
Assignees or Participants shall agree (i) to treat in confidence
such information unless such information otherwise becomes public
knowledge, (ii) not to disclose such information to a third party,
except as required by law or legal process and (iii) not to make use
of such information for purposes of transactions unrelated to such
contemplated assignment or participation.
11.7. Assignee or Participant Affiliated with the Company. If
any assignee Bank is an Affiliate of the Company, then any such
assignee Bank shall have no right to vote as a Bank hereunder for
purposes of granting consents or waivers or for purposes of agreeing
to amendments or other modifications to this Agreement, and the
determination of the Majority Banks shall for all purposes of this
Agreement be made without regard to such assignee Bank's interest in
any of the Loans. If any Bank sells a participating interest in any
of the
Loans to a Participant, and such Participant is the Company or an
Affiliate of the Company, then such transferor Bank shall
promptly notify the Administrative Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a
Bank hereunder for purposes of granting consents or waivers or
for purposes of agreeing to amendments or modifications to this
Agreement to the extent that such participation is beneficially
owned by the Company or any Affiliate of the Company, and the
determination of the Majority Banks shall for all purposes of
this Agreement be made without regard to the interest of such
transferor Bank in the Loans to the extent of such participation.
11.8. Miscellaneous Assignment Provisions. Any assigning Bank
shall retain its rights to be indemnified pursuant to Subsection
12.6 with respect to any claims or actions arising prior to the date
of such assignment. If any assignee Bank is not incorporated under
the laws of the United States of America or any state thereof, it
shall, prior to the date on which any interest or fees are payable
hereunder for its account, deliver to the Company and the
Administrative Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes.
Anything contained in this Subsection to the contrary
notwithstanding, any Bank may at any time pledge all or any portion
of its interest and rights under this Agreement (including all or
any portion of its Notes) to any of the twelve Federal Reserve Banks
organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341.
No such pledge or the enforcement thereof shall release the pledgor
Bank from its obligations hereunder.
11.9. Assignment by the Company. The Company shall not assign
or transfer any of its rights or obligations under any of this
Agreement without the prior written consent of each of the Banks.
SECTION 12. MISCELLANEOUS
12.1. Consents, Amendments and Waivers. Any
consent or approval required or permitted by this
Agreement to be given by all of the Banks may be given,
and any term of this Agreement or any instrument
related hereto may be amended, and the performance or
observance by the Company or any of its Subsidiaries of
any terms of this Agreement or the continuance of any
Default or Event of Default may be waived (either
generally or in a particular instance and either
retroactively or prospectively) with, but only with,
the written consent of the Company and the written
consent of the Majority Banks. Notwithstanding the
foregoing, the rate of interest on the Notes, the term
of the Notes, the Total Commitment, the Commitment
Percentage of any Bank, and the amount of the Annual
Fee and Commitment Fee hereunder may not be changed
without the written consent of the Company and the
written consent of each Bank affected thereby; the
definition of Majority Banks may not be amended without
the written consent of all of the Banks; and the amount
of the agents' fees and Section 10 may not be amended
without the written consent of the Administrative Agent
and, if affected thereby, the Syndication Agent and/or
Documentation Agent. No waiver shall extend to or
affect any obligation not expressly waived or impair
any right consequent thereon. No course of dealing or
delay or omission on the part of the Administrative
Agent or any Bank in exercising any right shall operate
as a waiver thereof or otherwise be prejudicial
thereto. No notice to or demand upon the Company shall
entitle the Company to other or further notice or
demand in similar or other circumstances.
12.2. Notices. All notices, requests and demands
to or upon the respective parties hereto to be
effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand, or when
deposited in the mail, postage prepaid, or, if sent by
telecopy, when received, addressed as follows or to
such other address as may be hereafter notified by the
respective parties hereto and any future holders of the
Notes:
The Company: Leucadia National Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The Banks: The First National Bank of Boston
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The Chase Manhattan Bank
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Bank of America Illinois or
Bank of America National Trust
and Savings Association
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇.▇.
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Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Republic National Bank of New York
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
First Union National Bank of
North Carolina
c/o First Union Capital
Markets Group
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
First Bank National
Association
First Bank Place, MPFP 0704
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Fleet National Bank
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
- ▇▇-
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative Agent: The First National Bank of Boston
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the
Administrative Agent pursuant to Subsections 2.3 or 3.2
shall be subject to the time restrictions stated in those
Subsections.
12.3. No Waiver; Cumulative Remedies. No failure
to exercise and no delay in exercising, on the part of
the Administrative Agent or the Banks, 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. The rights, remedies, powers and
privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and
privileges provided by law.
12.4. Survival of Representations and Warranties.
All representations and warranties made hereunder and
in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the
Notes.
12.5. Payment of Expenses. Subject to a Bank's
compliance with Subsection 4.10 hereof, the Company
agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, (b) any taxes (including
any interest and penalties in respect thereto) payable
by the Administrative Agent or any of the Banks (other
than taxes based upon the Administrative Agent's or any
Bank's net income) on or with respect to the
transactions contemplated by this Agreement (the
Company hereby agreeing to indemnify the Administrative
Agent and each Bank with respect thereto), (c) the
reasonable fees, expenses and disbursements of the
Administrative Agent's counsel incurred in connection
with the preparation, administration or interpretation
of this Agreement, each closing hereunder, and
amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the fees, expenses and
disbursements of the Administrative Agent incurred by
the Administrative Agent in connection with the
preparation, administration or interpretation of this
Agreement, and (e) all reasonable out-of-pocket
expenses (including without limitation reasonable
attorneys' fees and costs, which attorneys may be
employees of any Bank or the Administrative Agent, and
reasonable consulting, accounting, appraisal,
investment banking and similar professional fees and
charges) incurred by any Bank or the Administrative
Agent in connection with (i) the enforcement of or
preservation of rights under this Agreement against the
Company or any of its Subsidiaries or the
administration thereof after the occurrence of a
Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the
Administrative Agent's relationship with the Company or
any of its Subsidiaries. The agreements in this
subsection shall survive repayment of the Notes and all
other amounts payable hereunder.
12.6. Indemnification. The Company agrees to
indemnify and hold harmless the Administrative Agent
and the Banks from and against any and all claims,
actions and suits whether groundless or otherwise, and
from and against any and all liabilities, losses,
damages and expenses of every nature and character
arising out of this Agreement or the transactions
contemplated hereby including, without limitation, (i)
any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the Loans, (ii)
the Company or any of its Subsidiaries entering into or
performing this Agreement or any of the other Loan
Documents or (iii) with respect to the Company and its
Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the
presence, disposal, escape, seepage, leakage, spillage,
discharge, emission, release or threatened release of
any Hazardous Substances or any action, suit,
proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not
limited to, claims with respect to wrongful death,
personal injury or damage to property), in each case
including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of
internal counsel incurred in connection with any such
investigation, litigation or other proceeding. The
Company shall have control of any such litigation and
the Company shall pay the reasonable fees and expenses
of one counsel to be selected jointly by the
Administrative Agent and the Banks, which counsel shall
be reasonably acceptable to the Company. If, and to
the extent that the obligations of the Company under
this subsection are unenforceable for any reason, the
Company hereby agrees to make the maximum contribution
to the payment in satisfaction of such obligations
which is permissible under applicable law. The
agreements in this subsection shall survive repayment
of the Notes and all other amounts payable hereunder.
12.7. Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the
Company, the Administrative Agent, the Banks, all
future holders of the Notes and their respective
successors and assigns, except that the Company may not
assign or transfer any of its rights under this
Agreement without the prior written consent of each of
the Banks.
12.8. Set-off. In addition to any rights or
remedies of the Banks provided by law, each Bank shall
have the right, without prior notice to the Company,
any such notice being expressly waived by the Company
to the extent permitted by applicable law, upon the
acceleration of obligations under and in respect of
this Agreement and the Notes pursuant to Section 9, the
filing of a petition under any of the provisions of the
federal bankruptcy act or amendments thereto, by or
against the Company, the making of an assignment for
the benefit of creditors by the Company, the
application for the appointment, or the actual
appointment, of any receiver of the Company, or of any
of the property of the Company, the issuance of any
execution against any of the property of the Company,
the issuance of a subpoena or order, in supplementary
proceedings, against or with respect to any of the
property of the Company, or the issuance of a warrant
of attachment against any of the property of the
Company, to set-off and apply against any indebtedness,
whether matured or unmatured of the Company to such
Bank, any amount owing from such Bank to the Company
at, or at any time after, the happening of any of the
above mentioned events, and the aforesaid right of
set-off may be exercised by such Bank against the
Company or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor
of the Company, the Company or such trustee in
bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment
or attachment creditor, notwithstanding the fact that
such right of set-off shall not have been exercised by
such Bank prior to the making, filing or issuance, or
service upon such Bank (either directly or through the
Administrative Agent) of, or of notice of, any such
petition; assignment for the benefit of creditors;
appointment or application for the appointment of a
receiver; or issuance of execution, subpoena, order or
warrant. Such Bank agrees promptly to notify the
Company and the Administrative Agent after any such
set-off and application made by the Bank, provided,
that, the failure to give such notice shall not
affect the validity of such set-off and application.
Each Bank agrees with the other Banks that (i) if an
amount to be set off is to be applied to Indebtedness
of the Company to a Bank, other than Indebtedness
evidenced by the then outstanding Notes held by all of
the Banks, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by
all such Notes, and (ii) if a Bank shall receive from
the Company, whether by voluntary payment, exercise of
the right of set-off, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by
a Bank by proceeding against the Company at law or in
equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply
to the payment of the Note or Notes held by a Bank any
amount in excess of its ratable portion of the payments
received by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with
respect to such excess, either by way of distribution,
pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in
respect of the Notes held by it its proportionate
payment as contemplated by this Agreement; provided,
however, that if all or any part of such excess
payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but
without interest.
12.9. Termination. This Agreement shall terminate
in the event (I) ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ cease
to own, directly or indirectly, 32% or more of the
Voting Stock of the Company, provided, that Messrs.
Cumming and/or ▇▇▇▇▇▇▇▇▇ may cease to own, directly or
indirectly, 32% or more of the Voting Stock of the
Company if: (a) in the aggregate, they own, directly
or indirectly, at least 23% of the outstanding Voting
Stock, and (b)(i) if during the lifetime of ▇▇. ▇▇▇▇▇▇▇
or ▇▇. ▇▇▇▇▇▇▇▇▇, the aggregate Market Value of the
Voting Stock owned by them, directly or indirectly, is
at least $200,000,000 or (ii) if upon the death of
either ▇▇. ▇▇▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇▇, the aggregate
Market Value of the Voting Stock owned, directly or
indirectly, by the survivor would be at least
$100,000,000 or (II) either ▇▇. ▇▇▇▇▇▇▇ or ▇▇.
▇▇▇▇▇▇▇▇▇ ceases to be a principal executive officer
(which shall include the office of Chairman of the
Board of Directors) of the Company. For purposes
hereof, the term "owned, directly or indirectly" shall
be deemed to include all Voting Stock received from ▇▇.
▇▇▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇▇ by any member of their
respective immediate families or by any trust for the
benefit of either of them or any member of their
respective immediate families (a "Recipient"), which
Voting Stock is held by a Recipient during the lifetime
of ▇▇. ▇▇▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇▇. In determining the
number of outstanding Common Shares then held by
Messrs. Cumming and ▇▇▇▇▇▇▇▇▇ and the total number of
outstanding Common Shares, there shall be excluded
Common Shares issued by the Company after December 31,
1991, or the conversion into or exchange for, after
December 31, 1991, Common Shares or securities
convertible into or exchangeable for Common Shares.
Such termination shall be immediate if it arises from
any event other than the death or incapacity of either
or both of ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. If such
termination shall arise from the death or incapacity of
either or both of ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ such
termination shall take effect 120 days after such
event. Upon any such termination, the Company shall
pay to the Administrative Agent for the accounts of the
Banks all amounts owing under this Agreement and the
Notes. No such termination shall affect any rights
acquired by the Banks under this Agreement prior to or
as a result of such termination.
12.10. Counterparts. This Agreement may be
executed by one or more of the parties to this
Agreement in any number of separate counterparts and
all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
12.11. Governing Law. This Agreement and the
Notes and the rights and obligations of the parties
under this Agreement and the Notes shall be governed
by, and construed and interpreted in accordance with,
the laws (excluding the laws applicable to conflicts or
choice of law) of the Commonwealth of Massachusetts.
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.
LEUCADIA NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
THE FIRST NATIONAL BANK OF
BOSTON,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
THE CHASE MANHATTAN BANK,
as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Documentation Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title:
REPUBLIC NATIONAL BANK OF NEW
YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
FIRST BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
NATIONAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: