Exhibit 4.B
U.S. $400,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 24, 1996
Among
THE DIAL CORP
(to be known as VIAD CORP upon
the effectiveness of this Agreement)
as Borrower
and
THE BANKS NAMED HEREIN
as Lenders
and
CITICORP USA, INC.
as Administrative Agent
and
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
as Documentation Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . . . . 2
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . 2
SECTION 1.02. Computation of Time Periods . . . . . . . .17
SECTION 1.03. Accounting Terms. . . . . . . . . . . . . .17
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . . .18
SECTION 2.01. The Committed Advances. . . . . . . . . . .18
SECTION 2.02. Making the Committed Advances . . . . . . .18
SECTION 2.03. Making the Bid Advances . . . . . . . . . .21
SECTION 2.04. Fees. . . . . . . . . . . . . . . . . . . .25
SECTION 2.05. Termination and Reduction of the
Commitments . . . . . . . . . . . . . . . .26
SECTION 2.06. Repayment and Prepayment of Advances. . . .27
SECTION 2.07. Interest on Committed Advances. . . . . . .28
SECTION 2.08. Interest Rate Determination . . . . . . . .29
SECTION 2.09. Voluntary Conversion or Continuation of
Committed Advances. . . . . . . . . . . . .29
SECTION 2.10. Increased Costs . . . . . . . . . . . . . .30
SECTION 2.11. Payments and Computations . . . . . . . . .31
SECTION 2.12. Taxes . . . . . . . . . . . . . . . . . . .32
SECTION 2.13. Sharing of Payments, Etc. . . . . . . . . .34
SECTION 2.14. Evidence of Debt. . . . . . . . . . . . . .34
SECTION 2.15. Use of Proceeds . . . . . . . . . . . . . .35
SECTION 2.16. Extension of the Commitment Termination
Date. . . . . . . . . . . . . . . . . . . .35
SECTION 2.17. Substitution of Lenders . . . . . . . . . .36
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING . . . . . . .37
SECTION 3.01. Documents to be Delivered on the Closing
Date. . . . . . . . . . . . . . . . . . . .37
SECTION 3.02. Conditions Precedent to Effective Time. . .38
SECTION 3.03. Conditions Precedent to Each Committed
Borrowing . . . . . . . . . . . . . . . . .40
SECTION 3.04. Conditions Precedent to Each Bid
Borrowing . . . . . . . . . . . . . . . . .40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . .41
SECTION 4.01. Representations and Warranties of the
Borrower. . . . . . . . . . . . . . . . . .41
ARTICLE V
COVENANTS OF THE BORROWER . . . . . . . . . . . . . .44
SECTION 5.01. Affirmative Covenants . . . . . . . . . . .44
SECTION 5.02. Negative Covenants. . . . . . . . . . . . .49
ARTICLE VI
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . .51
SECTION 6.01. Events of Default . . . . . . . . . . . . .51
ARTICLE VI
THE AGENTS. . . . . . . . . . . . . . . . . . . . . .54
SECTION 7.01. Authorization and Action. . . . . . . . . .54
SECTION 7.02. Agents' Reliance, Etc.. . . . . . . . . . .55
SECTION 7.03. CUSA, B of A and Affiliates . . . . . . . .55
SECTION 7.04. Lender Credit Decision. . . . . . . . . . .56
SECTION 7.05. Indemnification . . . . . . . . . . . . . .56
SECTION 7.06. Successor Agent . . . . . . . . . . . . . .56
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . .57
SECTION 8.01. Amendments, Etc.. . . . . . . . . . . . . .57
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . .57
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . .58
SECTION 8.04. Costs, Expenses and Indemnification . . . .58
SECTION 8.05. Right of Set-off. . . . . . . . . . . . . .59
SECTION 8.06. Binding Effect; Effectiveness; Entire
Agreement . . . . . . . . . . . . . . . . .60
SECTION 8.07. Assignments and Participations. . . . . . .60
SECTION 8.08. Confidentiality . . . . . . . . . . . . . .64
SECTION 8.09. Governing Law . . . . . . . . . . . . . . .64
SECTION 8.10. Execution in Counterparts . . . . . . . . .64
SECTION 8.11. Consent to Jurisdiction; Waiver of
Immunities. . . . . . . . . . . . . . . . .65
SECTION 8.12. Waiver of Trial by Jury . . . . . . . . . .65
SCHEDULES
SCHEDULE I List of Applicable Lending Offices
EXHIBITS
EXHIBIT A-1 Notice of Committed Borrowing
EXHIBIT A-2 Notice of Bid Borrowing
EXHIBIT B Assignment and Acceptance
EXHIBIT C-1 Form of Opinion of Counsel for the Borrower as of
the Closing Date
EXHIBIT C-2 Form of Opinion of Counsel for the Borrower as of
the Effective Date
EXHIBIT D-1 Form of Opinion of Counsel to the Agents as of the
Closing Date
EXHIBIT D-2 Form of Opinion of Counsel to the Agents as of the
Effective Date
EXHIBIT E Form of Extension Request
EXHIBIT F Form of Compliance Certificate
EXHIBIT G-1 Form of Committed Note
EXHIBIT G-2 Form of Bid Note
EXHIBIT H Form of Designation Agreement
U.S. $400,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 24, 1996
This AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement") is among THE DIAL CORP, a Delaware corporation, to
be known as VIAD CORP on and after the Effective Date (as defined
below) (the "Borrower"), the banks (the "Banks") listed on the
signature pages hereof, CITICORP USA, INC. ("CUSA"), as
administrative agent for the Lenders hereunder (in such capacity,
the "Administrative Agent"), and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION ("B of A"), as documentation agent for
the Lenders hereunder (in such capacity, the "Documentation
Agent"; the Administrative Agent and the Documentation Agent
being referred to together as the "Agents"). Certain capitalized
terms have the meanings given to them in Section 1.01 hereof.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower desires to effect the spin-off to the
Borrower's stockholders of the Consumer Products Business
currently being conducted by the Borrower directly and through
certain of its subsidiaries;
WHEREAS, pursuant to the Distribution Agreement, on the
Effective Date the Borrower shall (i) contribute all of the
assets and liabilities of the Consumer Products Business,
including the stock of certain subsidiaries, to The Dial
Corporation, a newly formed Delaware corporation ("Newco") and a
wholly-owned subsidiary of the Borrower, and (ii) distribute to
the holders of Borrower Common Stock approximately 94.8 million
shares of Newco Common Stock;
WHEREAS, pursuant to the Distribution Agreement and in
conjunction with the Distribution, immediately prior to the
Effective Date, Exhibitgroup shall be merged with and into the
Borrower, with the Borrower as the surviving corporation;
WHEREAS, the Borrower, certain of the Banks, the Exiting
Banks (as hereinafter defined), and Citibank and B of A, as
Agents, are parties to that certain amended and restated credit
agreement dated as of December 15, 1993, as such agreement has
been and may be amended from time to time (as so amended, the
"Existing Credit Agreement");
WHEREAS, the Borrower, the Banks, and the Agents desire to
amend and restate the Existing Credit Agreement in its entirety
in this Agreement in order to reflect the Distribution, but have
agreed that this Agreement shall not become effective (except to
the extent set forth in Section 8.06 hereof) and the Existing
Credit Agreement shall remain in place until the Effective Date
(which shall be the date of the Distribution) and the
satisfaction of the terms and conditions set forth herein;
WHEREAS, the Borrower, certain financial institutions, and
the Agents further desire to enter into the Newco Credit
Agreement concurrently with this Agreement, and the Newco Credit
Agreement shall not become effective until the Effective Date, at
which time the Borrower shall assign and Newco shall assume the
Newco Credit Agreement, upon the satisfaction of the terms and
conditions set forth therein; and
WHEREAS, the Borrower and each bank that is party to the
Existing Credit Agreement but is not a party to this Agreement
(an "Exiting Bank") have agreed, pursuant to those certain letter
agreements dated as of August 15, 1996, that all funding
obligations and other obligations of the Exiting Banks under the
Existing Credit Agreement will be terminated upon the
effectiveness of this Agreement and, except as set forth in such
letter agreements, all payment obligations and other obligations
of the Borrower with respect to the Exiting Banks under the
Existing Credit Agreement, on the terms and conditions set forth
in such letter agreements, will be satisfied upon the
effectiveness of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"ADDITIONS TO CAPITAL" means the sum of (i) the
aggregate net proceeds, including cash and the fair market
value of property other than cash (as determined in good
faith by the Board of Directors of the Borrower as evidenced
by a Board resolution), received by the Borrower from the
issue or sale (other than to a Subsidiary) of capital stock
of the Borrower and (ii) the aggregate of 25% of the after
tax gain realized from unusual, extraordinary, and major
nonrecurring items including, but not limited to, the sale,
transfer, or other disposition of (x) any of the stock of
any of the Borrower's Subsidiaries or (y) substantially all
of the assets of any geographic or other division or line of
business of the Borrower or any of its Subsidiaries (but
excluding any after tax loss realized on any such unusual,
extraordinary, and major nonrecurring items to the extent
they exceed any after tax gains on such items).
"ADJUSTED EURODOLLAR RATE" means, for any Interest
Period for each Eurodollar Rate Advance comprising part of
the same Borrowing, an interest rate per annum equal to the
rate per annum obtained by dividing (a) the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by
the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to the respective Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing
and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage. The Adjusted Eurodollar Rate for any Interest
Period for each Eurodollar Rate Advance comprising part of
the same Borrowing shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.08.
"ADMINISTRATIVE AGENT" means CUSA, or any Person
serving as its successor agent.
"ADVANCE" means a Committed Advance or a Bid Advance.
"AFFILIATE" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person.
"AGENT" or "AGENTS" has the meaning specified in the
introductory paragraph of this Agreement; provided, that,
for purposes of Sections 7.02, 7.04, 7.05, 8.04, 8.07(b)(iv)
and 8.12 of this Agreement the term "Agent" or "Agents", as
the case may be, shall include Arrangers.
"AGREEMENT" means this Amended and Restated Credit
Agreement as it may be amended, supplemented or otherwise
modified from time to time.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, for any period for which any
interest payment is to be made with respect to any Advance,
the interest rate per annum derived by dividing (i) the sum
of the Daily Margins for each of the days included in such
period by (ii) the number of days included in such period.
"ARRANGERS" means Citicorp Securities, Inc. and BA
Securities, Inc., collectively, and each individually is an
"ARRANGER."
"ASSIGNMENT AND ACCEPTANCE" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in
substantially the form of EXHIBIT B hereto.
"BANKRUPTCY CODE" means Title 11 of the United States
Code entitled "Bankruptcy" as now and hereafter in effect,
or any successor statute.
"BASE RATE" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to
time which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate (which is a rate set by Citibank
based upon various factors including Citibank's costs
and desired return, general economic conditions and
other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or
below such announced rate);
(b) the sum of (A) 1/2 of one percent per annum,
plus (B) the rate obtained by dividing (x) the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks (such three-week moving average being
determined weekly by Citibank on the basis of such
rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated,
on the basis of quotations for such rates received by
Citibank, in either case adjusted to the nearest 1/4 of
one percent or, if there is no nearest 1/4 of one
percent, to the next higher 1/4 of one percent), by (y)
a percentage equal to 100% minus the average of the
daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve
System for determining the maximum reserve requirement
(including, but not limited to, any marginal reserve
requirements for Citibank in respect of liabilities
consisting of or including (among other liabilities)
three-month nonpersonal time deposits of at least
$100,000), plus (C) the average during such three-week
period of the daily net annual assessment rates
estimated by Citibank for determining the current
annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation for insuring three-month
deposits in the United States; or
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"BASE RATE ADVANCE" means a Committed Advance which
bears interest at a rate per annum determined on the basis
of the Base Rate, as provided in Section 2.07(a).
"BID ADVANCE" means an advance by a Lender to the
Borrower as part of a Bid Borrowing resulting from the
auction bidding procedure described in Section 2.03(a).
"BID BORROWING" means a borrowing consisting of
simultaneous Bid Advances of the same Type from each of the
Lenders whose offer to make one or more Bid Advances as part
of such borrowing has been accepted by the Borrower under
the auction bidding procedure described in Section 2.03(a).
"BID REDUCTION" has the meaning specified in Section
2.01(a).
"BORROWER" means The Dial Corp, a Delaware corporation,
to be known as Viad Corp on and after the Effective Date.
"BORROWER COMMON STOCK" means the approximately 94.8
million shares of common stock, par value of $1.50 per
share, of Borrower currently outstanding.
"BORROWING" means a Committed Borrowing or a Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks
are not required or authorized to close in New York City or
Los Angeles and, if the applicable Business Day relates to
any Eurodollar Rate Advances, on which dealings are carried
on in the London interbank market.
"CAPITAL LEASE" means, with respect to any Person, any
lease of any property by that Person as lessee which would,
in conformity with GAAP, be required to be accounted for as
a capital lease on the balance sheet of that Person.
"CASH" means money, currency or a credit balance in a
deposit account.
"CASH EQUIVALENTS" means (a) marketable direct
obligations issued or unconditionally guaranteed by the
United States government or issued by any agency thereof and
backed by the full faith and credit of the United States, in
each case maturing within one year from the date of
acquisition thereof, (b) marketable direct obligations
issued by any state of the United States of America or any
political subdivision of any such state or any public
instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition,
having the highest rating generally obtainable from either
S&P or ▇▇▇▇▇'▇, (c) commercial paper maturing no more than
one year from the date of creation thereof and, at the time
of acquisition, having a rating of A-1 or higher from S&P or
P-1 or higher from ▇▇▇▇▇'▇, and (d) certificates of deposit
or bankers' acceptances maturing within one year from the
date of acquisition thereof issued by any lender.
"CITIBANK" means Citibank, N.A.
"CLOSING DATE" means the date this Agreement is
executed and the documents referred to in Section 3.01 are
delivered to the Agents, which shall be July 24, 1996 or
such other date as may be agreed upon by the Borrower and
the Agents.
"CODE" means the Internal Revenue Code of 1986, as
amended.
"COMMITMENT" has the meaning specified in Section 2.01
"COMMITMENT TERMINATION DATE" means, with respect to
any Lender, the fifth anniversary of the Effective Date, or
such later date to which the Commitment Termination Date of
such Lender may be extended from time to time pursuant to
Section 2.16 (or if any such date is not a Business Day, the
next preceding Business Day).
"COMMITTED ADVANCE" means an advance by a Lender to the
Borrower as part of a borrowing consisting of simultaneous
Advances from each of the Lenders pursuant to Section 2.01
and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of Advance.
"COMMITTED BORROWING" means a borrowing consisting of
simultaneous Committed Advances of the same Type made on the
same day pursuant to the same Notice of Borrowing by each of
the Lenders pursuant to Section 2.01(b).
"COMPLIANCE CERTIFICATE" means a certificate
substantially in the form of EXHIBIT F hereto, delivered to
the Lenders by the Borrower pursuant to Section
5.10(b)(iii).
"CONVERT," "CONVERSION" and "CONVERTED" each refers to
a conversion of Advances of one Type into Advances of
another Type pursuant to Section 2.09.
"CONSUMER PRODUCTS BUSINESS" means the consumer
products business, including certain assets and liabilities
thereof, currently being conducted by the Borrower directly
and through certain of its subsidiaries, to be contributed
to Newco pursuant to the Distribution Agreement.
"DAILY MARGIN" means, for any date of determination,
for the designated Level, Utilization Ratio applicable to
such date of determination and Type of Advance, the
following interest rates per annum:
DAILY MARGIN WHEN DAILY MARGIN WHEN
UTILIZATION RATIO UTILIZATION RATIO
IS EQUAL TO OR IS GREATER THAN
LESS THAN 0.50:1.00 0.50:1.00
---------------------------- ----------------------------------
TYPE OF ADVANCE TYPE OF ADVANCE
---------------------------- ----------------------------
BASE RATE EURODOLLAR BASE RATE EURODOLLAR
ADVANCE RATE ADVANCE ADVANCE RATE ADVANCE
▇▇▇▇▇ ▇ 0% 0.2000% 0% 0.2500%
▇▇▇▇▇ ▇ 0% 0.2400% 0% 0.2900%
▇▇▇▇▇ ▇ 0% 0.2750% 0% 0.3250%
▇▇▇▇▇ ▇ 0% 0.4375% 0% 0.4375%
▇▇▇▇▇ ▇ 0% 0.5000% 0% 0.5000%
For purposes of this definition, (a) "UTILIZATION RATIO"
means, as of any date of determination, the ratio of (1) the
aggregate outstanding principal amount of all Advances as of
such date to (2) the aggregate amount of all Commitments in
effect as of such date (whether used or unused), (b) if any
change in the rating established by S&P, ▇▇▇▇▇'▇ or ▇▇▇▇ &
▇▇▇▇▇▇ with respect to Long-Term Debt shall result in a
change in the Level, the change in the Daily Margin shall be
effective as of the date on which such rating change is
publicly announced, and (c) if the ratings established by
any two of S&P, ▇▇▇▇▇'▇ or ▇▇▇▇ & ▇▇▇▇▇▇ with respect to
Long-Term Debt are unavailable for any reason for any day,
then the applicable level for such day shall be deemed to be
▇▇▇▇▇ ▇ (or, if the Requisite Lenders consent in writing,
such other Level as may be reasonably determined by the
Requisite Lenders from a rating with respect to Long-Term
Debt for such day established by another rating agency
reasonably acceptable to the Requisite Lenders).
"DEBT" means (i) indebtedness for borrowed money or for
the deferred purchase price of property or services, (ii)
obligations as lessee under Capital Leases, (iii)
obligations under guarantees in respect of indebtedness or
in respect of obligations of others of the kinds referred to
in clause (i) or (ii) above, (iv) liabilities in respect of
unfunded vested benefits under Single Employer Plans, and
(v) Withdrawal Liability incurred under ERISA by the
Borrower or any of its ERISA Affiliates to any Multi-employer Plans;
provided that "Debt" shall not include
payment obligations in the ordinary course of the business
of Travelers Express Company, Inc. ("Travelers Express")
arising from (x) payments made by banks on checks or money
orders issued by Travelers Express and presented to such
banks and (y) contingent obligations of Travelers Express to
banks which have issued official checks drawn on Travelers
Express and have paid to Travelers Express the amounts of
such official checks, to repay to such banks such amounts if
such official checks are not negotiated.
"DESIGNATED BIDDER" means (i) an Eligible Assignee or
(ii) a special purpose corporation which is engaged in
making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and that issues
(or the parent of which issues) commercial paper rated at
least "Prime-1" by ▇▇▇▇▇'▇ or "A-1" by S&P or a comparable
rating from the successor or either of them, that, in either
case, (w) is organized under the laws of the United States
or any State thereof, (x) shall have become a party hereto
pursuant to Section 8.07(d), (e) and (f), (y) is not
otherwise a Lender and (z) shall have been consented to by
the Borrower, which consent shall not be unreasonably
withheld.
"DESIGNATION AGREEMENT" means a designation agreement
entered into by a Lender (other than a Designated Bidder)
and a Designated Bidder, and accepted by the Administrative
Agent, in substantially the form of EXHIBIT H hereto.
"DISTRIBUTION" means the distribution of approximately
94.8 million shares of Newco Common Stock, constituting 100%
of the outstanding Newco Common Stock, to the holders of
Borrower Common Stock pursuant to the Distribution
Agreement, together with the consummation of the other
transactions to occur in connection with such distribution,
as set forth in the Distribution Agreement.
"DISTRIBUTION AGREEMENT" means that certain
Distribution Agreement by and among the Borrower, Newco, and
Exhibitgroup, in the form of EXHIBIT A attached to the Form
10, with such changes as may be approved by the Requisite
Lenders.
"DISTRIBUTION TIME" means the time of the Distribution
on the Effective Date.
"DOCUMENTATION AGENT" means B of A, or any Person
serving as its successor agent.
"DOLLARS" and the sign "$" each means lawful money of
the United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the
Agents.
"DUFF & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Inc.
"EBITDA" means, for any period, consolidated net income
plus provision for taxes of the Borrower and its
Subsidiaries (excluding extraordinary, unusual, or
nonrecurring gains or losses), plus interest expense of the
Borrower and its Subsidiaries, plus depreciation expense of
the Borrower and its Subsidiaries, plus amortization of
intangibles of the Borrower and its Subsidiaries, as
determined on a consolidated basis in conformity with GAAP;
provided that to the extent that during such period the
Borrower or any of its Subsidiaries has acquired or disposed
of a business or businesses in an amount for any transaction
or series of related transactions exceeding $15,000,000,
such calculations shall be made as if such acquisition or
disposition took place on the first day of such period (on a
pro forma basis for the portion of such period prior to the
date of such acquisition (or after the date of such
disposition) and on an actual basis for the portion of such
period after the date of such acquisition (or before the
date of such disposition)).
"EFFECTIVE DATE" means the date on which the
Distribution occurs, as provided for in the Distribution
Agreement, and the conditions set forth in Section 3.02 are
satisfied.
"EFFECTIVE TIME" means the time, immediately prior to
the Distribution Time, at which this Agreement shall become
fully effective upon satisfaction of the conditions
precedent set forth in Section 3.02 hereof.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at
least $100,000,000; (ii) a commercial bank organized under
the laws of any other country which is a member of the
Organization for Economical Cooperation and Development (the
"OECD"), or a political subdivision of any such country and
having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is
organized or another country which is also a member of the
OECD; and (iii) any Person engaged in the business of
lending and that is an Affiliate of a Lender or of a Person
of which a Lender is a Subsidiary.
"ENVIRONMENTAL LAW" means any and all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions of any
federal, state or local governmental authority within the
United States or any State or territory thereof and which
relate to the environment or the release of any materials
into the environment.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA AFFILIATE" means any Person who for purposes of
Title IV of ERISA is a member of the Borrower's controlled
group, or under common control with the Borrower, within the
meaning of Section 414 of the Code and the regulations
promulgated and rulings issued thereunder.
"ERISA EVENT" means (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA (other
than an event arising out of the transactions contemplated
by the Distribution Agreement), unless the 30-day notice
requirement with respect thereto has been waived by the
PBGC; (ii) the provision by the administrator of any Pension
Plan of a notice of intent to terminate such Pension Plan
pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (iii) the cessation of operations
at a facility in the circumstances described in Section
4062(e) of ERISA; (iv) the withdrawal by the Borrower or an
ERISA Affiliate from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (v) the failure by the Borrower
or any ERISA Affiliate to make a payment to a Pension Plan
required under Section 302(f)(1) of ERISA, which Section
imposes a lien for failure to make required payments; (vi)
the adoption of an amendment to a Pension Plan requiring the
provision of security to such Pension Plan, pursuant to
Section 307 of ERISA; or (vii) the institution by the PBGC
of proceedings to terminate a Pension Plan, pursuant to
Section 4042 of ERISA, or the occurrence of any event or
condition which, in the reasonable judgment of the Borrower,
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, a Pension Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on SCHEDULE I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE ADVANCE" means a Committed Advance
which bears interest as provided in Section 2.07(b) and/or a
Bid Advance which bears interest based on the Adjusted
Eurodollar Rate as provided in Section 2.03(a).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest
Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if
more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirements
(including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for member banks in
the Federal Reserve System with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in
Section 6.01.
"EXHIBITGROUP" means Exhibitgroup Inc., a Delaware
corporation and wholly-owned subsidiary of the Borrower
which operates part of the Borrower's convention services
business, and which shall be merged into the Borrower
pursuant to the Merger.
"EXISTING CREDIT AGREEMENT" means that certain amended
and restated credit agreement, dated as of December 15,
1993, by and among the Borrower, certain of the Lenders,
certain of the Exiting Banks, and Citibank and B of A, as
Agents, as such agreement has been and may be amended from
time to time.
"FEDERAL FUNDS RATE" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period 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 which is a Business Day, the average
of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"FIXED RATE" means, for the period for each Fixed Rate
Advance comprising part of the same Bid Borrowing, the fixed
interest rate per annum determined for such Advance, as
provided in Section 2.03(a).
"FIXED RATE ADVANCE" means a Bid Advance which bears
interest at a fixed rate per annum determined as provided in
Section 2.03(a).
"FORM 8-K" means that certain Current Report on Form
8-K filed by the Borrower with the SEC on June 13, 1996.
"FORM 10" means that certain Registration Statement on
Form 10 originally filed by Newco with the SEC on June 5,
1996, as amended on July 18, 1996.
"FUNDED DEBT" means outstanding Debt of the Borrower
and its Subsidiaries of the kind described in clauses (i),
(ii) and (iii) of the definition of Debt.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as may be
approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of
the date of determination.
"HOSTILE ACQUISITION" means the acquisition of the
capital stock or other equity interests of a Person (the
"Target") through a tender offer or similar solicitation of
the owners of such capital stock or other equity interests
which has not been approved (prior to such acquisition) by
resolutions of the Board of Directors of the Target or by
similar action if the Target is not a corporation and as to
which such approval has not been withdrawn.
"INSUFFICIENCY" means, with respect to any Pension
Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA.
"INTEREST PERIOD" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, the period
commencing on the date of such Eurodollar Rate Advance, or
on the date of continuation of such Advance as a Eurodollar
Rate Advance upon expiration of successive Interest Periods
applicable thereto, or on the date of Conversion of a Base
Rate Advance into a Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant
to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the
Borrower may select in the Notice of Borrowing or the Notice
of Conversion/Continuation for such Advance; provided,
however, that:
(i) the Borrower may not select any Interest
Period which ends after the earliest Commitment
Termination Date of any Lender then in effect;
(ii) Interest Periods commencing on the same
date for Advances comprising part of the same Borrowing
shall be of the same duration; and
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, that if such extension would
cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day.
"LENDERS" means the Banks listed on the signature pages
hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07 and, except when used in
reference to a Committed Advance, a Committed Borrowing, a
Commitment or a related term, each Designated Bidder.
"LEVEL" means ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4 or
▇▇▇▇▇ ▇, as the case may be.
"LEVEL l" means that, as of any date of determination,
the Borrower's Long-Term Debt rating is equal to or higher
than at least two of the following: BBB+ from S&P, Baal from
Moody's and/or BBB+ from Duff & ▇▇▇▇▇▇.
"LEVEL 2" means that, as of any date of determination,
the Borrower's Long-Term Debt rating is equal to at least
two of the following: BBB from S&P, Baa2 from Moody's and/or
BBB from Duff & ▇▇▇▇▇▇.
"LEVEL 3" means that, as of any date of determination,
the Borrower's Long-Term Debt rating is equal to at least
two of the following: BBB- from S&P, Baa3 from Moody's
and/or BBB- from Duff & ▇▇▇▇▇▇.
"LEVEL 4" means that, as of any date of determination,
the Borrower's Long-Term Debt rating is equal to at least
two of the following: BB+ from S&P, Bal from Moody's and/or
BB+ from Duff & ▇▇▇▇▇▇.
"LEVEL 5" means that, as of any date of determination,
the Borrower's Long-Term Debt rating is lower than at least
two of the following: BB+ from S&P, Bal from Moody's and/or
BB+ from Duff & ▇▇▇▇▇▇.
"LIEN" means any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement and any
lease in the nature thereof).
"LOAN DOCUMENTS" means this Agreement and the related
documents.
"LONG-TERM DEBT" means senior, unsecured, long term
debt securities of the Borrower.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U promulgated by the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"MATERIAL SUBSIDIARY" means any Subsidiary of the
Borrower having total assets in excess of $10,000,000.
"MERGER" means the merger, pursuant to the Distribution
Agreement, of the Borrower and Exhibitgroup, with the
Borrower as the surviving corporation.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any ERISA Affiliate of the Borrower is making, or is
obligated to make, contributions or has within any of the
preceding six plan years been obligated to make or accrue
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, which (i) is
maintained for employees of the Borrower or an ERISA
Affiliate and at least one Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could
have liability under Section 4063, 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NET INCOME" means net income in accordance with GAAP.
"NET WORTH" means minority interests, preferred stock
and common stock and other equity, as shown on the
consolidated balance sheet of the Borrower and its
Subsidiaries; provided that there shall be excluded from the
calculation of Net Worth any unrealized gains or losses (net
of taxes) on securities available for sale.
"NEWCO" means The Dial Corporation, a Delaware
corporation, which immediately prior to the Distribution
shall be capitalized by the Borrower with the assets and
liabilities of the Consumer Products Business pursuant to
the Distribution Agreement.
"NEWCO COMMON STOCK" means the approximately 94.8
million shares of common stock, par value of $0.01 per
share, of Newco to be issued pursuant to the Distribution.
"NEWCO CREDIT AGREEMENT" means the Credit Agreement
dated as of the Closing Date among the Borrower, the Banks
and the Agents, which shall not become effective until the
Effective Time upon the satisfaction or waiver of the terms
and conditions contained therein and which shall be assumed
by Newco at the Distribution Time.
"NOTICE OF BID BORROWING" has the meaning specified in
Section 2.03(a).
"NOTICE OF BORROWING" means a Notice of Committed
Borrowing or a Notice of Bid Borrowing, as the case may be.
"NOTICE OF COMMITTED BORROWING" has the meaning
specified in Section 2.02(a).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning
specified in Section 2.09.
"PAYMENT OFFICE" means the principal office of CUSA,
located on the date hereof at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Zone
1, Long Island City, N.Y. 11120 (or such other place as the
Administrative Agent may designate by notice to the Borrower
and the Lenders from time to time).
"PBGC" means the U.S. Pension Benefit Guaranty
Corporation.
"PENSION PLAN" means a Single Employer Plan or a
Multiple Employer Plan or both.
"PERSON" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event
which, after notice or lapse of time or both, would
constitute an Event of Default if that condition or event
were not cured or removed within any applicable grace or
cure period.
"REFERENCE BANKS" means, B of A, Citibank, and Bank of
Montreal.
"REGISTER" has the meaning specified in Section
8.07(c).
"REQUISITE LENDERS" means at any time Lenders holding
at least 662/3% of the then aggregate unpaid principal
amount of the Committed Advances held by Lenders, or, if no
such principal amount is then outstanding, Lenders having at
least 66-2/3 % of the Commitments (provided that, for
purposes hereof, neither the Borrower, nor any of its
Affiliates, if a Lender, shall be included in (i) the
Lenders holding such amount of the Committed Advances or
having such amount of the Commitments or (ii) determining
the aggregate unpaid principal amount of the Committed
Advances or the total Commitments).
"S&P" means Standard & Poor's Ratings Group, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies.
"SEC" means the Securities and Exchange Commission and
any successor agency.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is
maintained for employees of the Borrower or any ERISA
Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of
which the Borrower or an ERISA Affiliate could have
liability under Section 4062 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"SUBSIDIARY" of any Person means any corporation,
association, partnership or other business entity of which
at least 50% of the total voting power of shares of stock or
other securities entitled to vote in the election of
directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such Person or one
or more of the other Subsidiaries of that Person or a
combination thereof.
"SWAPS" means, with respect to any Person, payment
obligations with respect to interest rate swaps, currency
swaps and similar obligations obligating such Person to make
payments, whether periodically or upon the happening of a
contingency.
"TERMINATION DATE" means, with respect to any Lender,
the earlier of (i) the Commitment Termination Date of such
Lender and (ii) the date of termination in whole of the
Commitments of all Lenders pursuant to Section 2.05 or 6.01.
"TOTAL UTILIZATION OF COMMITMENTS" means at any date of
determination the sum of (i) the aggregate principal amount
of all Committed Advances outstanding at such date plus (ii)
the aggregate principal amount of all Bid Advances
outstanding at such date.
"TYPE" means, with reference to an Advance, a Base Rate
Advance, a Eurodollar Rate Advance, or a Fixed Rate Advance.
"WITHDRAWAL LIABILITY" has the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with
GAAP. All computations determining compliance with financial
covenants or terms, including definitions used therein, shall be
prepared in accordance with generally accepted accounting
principles in effect at the time of the preparation of, and in
conformity with those used to prepare, the historical financial
statements delivered to the Lenders pursuant to Section 4.01(e).
If at any time the computations for determining compliance with
financial covenants or provisions relating thereto utilize
generally accepted accounting principles different than those
then being utilized in the financial statements being delivered
to the Lenders, such financial statements shall be accompanied by
a reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE COMMITTED ADVANCES.
(a) Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Committed Advances
to the Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination
Date of such Lender in an aggregate amount not to exceed at
any time outstanding the amount set opposite such Lender's
name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for
such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant to Section 2.04 (such Lender's
"Commitment"); provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to
time to the extent of the aggregate amount of the Bid
Advances and such deemed use of the aggregate amount of the
Commitments shall be applied to the Lenders ratably
according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments resulting from
the Bid Advances being the "Bid Reduction"); provided
further that (i) in no event shall the aggregate principal
amount of Committed Advances from any Lender outstanding at
any time exceed its Commitment then in effect and (ii) the
Total Utilization of Commitments shall not exceed the
aggregate Commitments then in effect.
(b) Each Committed Borrowing shall be in an aggregate
amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Committed
Advances of the same Type made on the same day by the
Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower
may from time to time borrow, prepay pursuant to Section
2.06(c) and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE COMMITTED ADVANCES.
(a) Each Committed Borrowing shall be made on notice,
given not later than (x) 11:00 A.M. (New York City time) on
the date of a proposed Committed Borrowing consisting of
Base Rate Advances and (y) 11:00 A.M. (New York City time)
on the third Business Day prior to the date of a proposed
Committed Borrowing consisting of Eurodollar Rate Advances,
by the Borrower to the Administrative Agent, which shall
give to each Lender prompt notice thereof by telecopier,
telex or cable. Each such notice of a Committed Borrowing (a
"Notice of Committed Borrowing") shall be by telecopier,
telex or cable, confirmed immediately in writing, in
substantially the form of EXHIBIT A-1 hereto, specifying
therein the requested (i) date of such Committed Borrowing,
(ii) Type of Committed Advances comprising such Committed
Borrowing, (iii) aggregate amount of such Committed
Borrowing, and (iv) in the case of a Committed Borrowing
comprised of Eurodollar Rate Advances, the initial Interest
Period for each such Committed Advance. The Borrower may,
subject to the conditions herein provided, borrow more than
one Committed Borrowing on any Business Day. Each Lender
shall, before 2:00 P.M. (New York City time) in the case of
a Committed Borrowing consisting of Base Rate Advances and
before 11:00 A.M. (New York City time) in the case of a
Committed Borrowing consisting of Eurodollar Rate Advances,
in each case on the date of such Committed Borrowing, make
available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in
Section 8.02, in same day funds, such Lender's ratable
portion of such Committed Borrowing. After the
Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) the Borrower may not select Eurodollar Rate
Advances for any Committed Borrowing or with respect to
the Conversion or continuance of any Committed
Borrowing if the aggregate amount of such Committed
Borrowing or such Conversion or continuance is less
than $5,000,000;
(ii) there shall be no more than five Interest
Periods relating to Committed Borrowings consisting of
Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business
Day before the date of any requested Committed
Borrowing, notify the Administrative Agent that the
introduction of or any change in or in the
interpretation of any law or regulation makes it
unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for
such Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate
Advances hereunder, the Commitment of such Lender to
make Eurodollar Rate Advances or to Convert all or any
portion of Base Rate Advances shall forthwith be
suspended until the Administrative Agent shall notify
the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist
and such Lender's then outstanding Eurodollar Rate
Advances, if any, shall be Base Rate Advances; to the
extent that such affected Eurodollar Rate Advances
become Base Rate Advances, all payments of principal
that would have been otherwise applied to such
Eurodollar Rate Advances shall be applied instead to
such Lender's Base Rate Advances; provided that if
Requisite Lenders are subject to the same illegality or
assertion of illegality, then the right of the Borrower
to select Eurodollar Rate Advances for such Committed
Borrowing or any subsequent Committed Borrowing or to
Convert all or any portion of Base Rate Advances shall
forthwith be suspended until the Administrative Agent
shall notify the Borrower that the circumstances
causing such suspension no longer exist, and each
Committed Advance comprising such Committed Borrowing
shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish
timely information to the Administrative Agent for
determining the Adjusted Eurodollar Rate for any
Eurodollar Rate Advances comprising any requested
Committed Borrowing, the right of the Borrower to
select Eurodollar Rate Advances for such Committed
Borrowing or any subsequent Committed Borrowing shall
be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist,
and each Advance comprising such Committed Borrowing
shall be made as a Base Rate Advance; and
(v) if the Requisite Lenders shall, at least
one Business Day before the date of any requested
Committed Borrowing, notify the Administrative Agent
that the Adjusted Eurodollar Rate for Eurodollar Rate
Advances comprising such Committed Borrowing will not
adequately reflect the cost to such Requisite Lenders
of making, funding or maintaining their respective
Eurodollar Rate Advances for such Committed Borrowing,
the right of the Borrower to select Eurodollar Rate
Advances for such Committed Borrowing or any subsequent
Committed Borrowing shall be suspended until the
Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension
no longer exist, and each Committed Advance comprising
such Committed Borrowing shall be made as a Base Rate
Advance.
(c) Each Notice of Committed Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
Committed Borrowing which the related Notice of Committed
Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against
any loss, cost or expense incurred by such Lender by reason
of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Advance to be made
by such Lender as part of such Committed Borrowing or by
reason of the termination of hedging or other similar
arrangements, in each case when such Advance is not made on
such date (other than by reason of (i) a breach of a
Lender's obligations hereunder or (ii) a suspension of
Eurodollar Rate Advances under clauses (iii), (iv) or (v) of
paragraph (b) of this Section 2.02), including without
limitation, as a result of any failure to fulfill on or
before the date specified in such Notice of Committed
Borrowing for such Committed Borrowing the applicable
conditions set forth in Article III.
(d) Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any
Committed Borrowing that such Lender will not make available
to the Administrative Agent such Lender's ratable portion of
such Committed Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to
the Administrative Agent on the date of such Committed
Borrowing in accordance with subsection (a) of this Section
2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest
thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of
the Borrower, the interest rate applicable at the time to
Advances comprising such Committed Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Lender's
Advance as part of such Committed Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the Advance to
be made by it as part of any Committed Borrowing shall not
relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other
Lender on the date of any Committed Borrowing.
SECTION 2.03. MAKING THE BID ADVANCES.
(a) Each Lender severally agrees that the Borrower may
make Bid Borrowings in Dollars under this Section 2.03 from
time to time on any Business Day during the period from the
Effective Date until the date occurring one month prior to
the Termination Date, in the manner set forth below;
provided that, after giving effect to the making of each Bid
Borrowing, the Total Utilization of Commitments shall not
exceed the aggregate Commitments then in effect and the
aggregate amount of the Bid Advances of all Lenders then
outstanding shall not exceed the aggregate Commitments then
in effect.
(i) The Borrower may request a Bid Borrowing
under this Section 2.03 by delivering to the
Administrative Agent, by telecopier, telex or cable,
confirmed immediately in writing, a notice of a Bid
Borrowing (a "Notice of Bid Borrowing"), in
substantially the form of EXHIBIT A-2 hereto,
specifying the date and aggregate amount of the
proposed Bid Borrowing, the maturity date for repayment
of each Bid Advance to be made as part of such Bid
Borrowing (which maturity date may not be earlier than
the date occurring thirty (30) days (in the case of
Fixed Rate Advances) or one (1) month (in the case of
Eurodollar Rate Advances) after the date of such Bid
Borrowing, or in any case later than the Termination
Date), whether the Lenders should offer to make Fixed
Rate Advances or Eurodollar Rate Advances, the interest
payment date or dates relating thereto, and any other
terms to be applicable to such Bid Borrowing, not later
than 10:00 A.M. (New York City time) (A) at least one
(1) Business Day prior to the date of a proposed Bid
Borrowing consisting of Fixed Rate Advances and (B) at
least four (4) Business Days prior to the date of a
proposed Bid Borrowing consisting of Eurodollar Rate
Advances. The Administrative Agent shall in turn
promptly notify each Lender of each request for a Bid
Borrowing received by it from the Borrower by sending
such Lender a copy of the related Notice of Bid
Borrowing.
(ii) Each Lender may, if, in its sole
discretion, it elects to do so, irrevocably offer to
make one or more Bid Advances to the Borrower as part
of such proposed Bid Borrowing at a Fixed Rate or Rates
or a margin or margins relative to the Adjusted
Eurodollar Rate, as requested by the Borrower. Each
Lender electing to make such an offer shall do so by
notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 10:00
A.M. (New York City time) (A) the date of such proposed
Bid Borrowing, in the case of a Notice of Bid Borrowing
delivered pursuant to clause (A) of paragraph (i) above
and (B) three (3) Business Days before the date of such
proposed Bid Borrowing, in the case of a Notice of Bid
Borrowing delivered pursuant to clause (B) of paragraph
(i) above, of the amount of each Bid Advance which such
Lender would be willing to make as part of such
proposed Bid Borrowing (which amount may, subject to
the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the
Fixed Rate or Rates or margin or margins relative to
the Adjusted Eurodollar Rate, as requested by the
Borrower, which such Lender would be willing to accept
for such Bid Advance and such Lender's Applicable
Lending Office with respect to such Bid Advance;
provided that if the Administrative Agent in its
capacity as a Lender, or any affiliate of the
Administrative Agent in its capacity as a Lender,
shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer
before 9:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the
Agent by the other Lenders.
(iii) The Borrower, in turn, (A) before 12:00
P.M. (New York City time) the date of such proposed Bid
Borrowing, in the case of a Notice of Bid Borrowing
delivered pursuant to clause (A) of paragraph (i) above
and (B) before 12:00 Noon (New York City time) three
(3) Business Days before the date of such proposed Bid
Borrowing, in the case of a Notice of Bid Borrowing
delivered pursuant to clause (B) of paragraph (i)
above, either
(x) cancel such Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii)
above, in its sole discretion, by giving notice to
the Administrative Agent of the amount of each Bid
Advance to be made by each Lender as part of such
Bid Borrowing, and reject any remaining offers
made by Lenders pursuant to paragraph (ii) above
by giving the Administrative Agent notice to that
effect; provided that acceptance of offers may
only be made on the basis of ascending rates for
Bid Borrowings of the same Type and duration; and
provided further that the Borrower may not accept
offers in excess of the aggregate amount requested
in the Notice of Bid Borrowing; and provided
further still if offers are made by two or more
Lenders for the same Type of Bid Borrowing for the
same duration and with the same rate of interest,
in an aggregate amount which is greater than the
amount requested, such offers shall be accepted on
a pro rata basis in proportion to the amount of
the offer made by each such Lender.
(iv) If the Borrower notifies the Administrative
Agent that such Bid Borrowing is cancelled pursuant to
paragraph (iii)(x) above, the Administrative Agent
shall give prompt notice thereof to the Lenders and
such Bid Borrowing shall not be made.
(v) If the Borrower accepts (which acceptance
may not be revoked) one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y)
above, the Administrative Agent shall in turn promptly
notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and
aggregate amount of such Bid Borrowing and whether or
not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by the
Borrower, (B) each Lender that is to make a Bid Advance
as part of such Bid Borrowing, of the amount of each
Bid Advance to be made by such Lender as part of such
Bid Borrowing, and (C) each Lender that is to make a
Bid Advance as part of such Bid Borrowing, upon
receipt, that the Administrative Agent has received
forms of documents appearing to fulfill the applicable
conditions set forth in Article III.
(b) Each Lender that is to make a Bid Advance as part
of a Bid Borrowing shall, before 1:00 P.M. (New York City
time) on the date of such Bid Borrowing specified in the
Notice of Bid Borrowing relating thereto, make available for
the account of its Applicable Lending Office to the
Administrative Agent at such account maintained at the
Payment Office for Dollars as shall have been notified by
the Administrative Agent to the Lenders prior thereto and in
same day funds, such Lender's portion of such Bid Borrowing.
Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds
available to the Borrower requesting a Bid Advance at the
aforesaid applicable Payment Office. Promptly after each Bid
Borrowing the Administrative Agent will notify each Lender
of the amount of the Bid Borrowing, the consequent Bid
Reduction and the dates upon which such Bid Reduction
commenced and will terminate. The Borrower shall indemnify
each Lender which is to make a Bid Advance (as a result of
the acceptance by the Borrower of one or more offers by such
Lender) as part of a Bid Borrowing against any loss, cost or
expense incurred by such Lender by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Lender to fund the Bid Advance to be made by such Lender as
part of such Bid Borrowing or by reason of the termination
of hedging or other similar arrangements, in each case when
such Bid Advance is not made on such date (other than by
reason of a breach of a Lender's obligations hereunder),
including without limitation, as a result of any failure to
fulfill on or before the date specified in such notice of
Bid Borrowing for such Bid Borrowing the applicable
conditions set forth in Article III.
(c) Each Bid Borrowing shall be in an aggregate
principal amount of not less than $5,000,000 with increments
of $1,000,000 and, following the making of each Bid
Borrowing, the Borrower and each Lender shall be in
compliance with the limitations set forth in the proviso to
the first sentence of subsection (a) above.
(d) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time
borrow under this Section 2.03, repay or prepay pursuant to
subsection (e) below, and reborrow under this Section 2.03;
provided that a Notice of Bid Borrowing shall not be given
within seven (7) Business Days of the date of any other
Notice of Bid Borrowing.
(e) The Borrower shall repay to the Administrative
Agent for the account of each Lender which has made, or
holds the right to repayment of, a Bid Advance to such
Borrower on the maturity date of each Bid Advance (such
maturity date being that specified by the Borrower for
repayment of such Bid Advance in the related Notice of Bid
Borrowing delivered pursuant to subsection (a)(i) above) the
then unpaid principal amount of such Bid Advance. The
Borrower shall not have the right to prepay any principal
amount of any Bid Advance unless, and then only on the
terms, specified by the Borrower for such Bid Advance in the
related Notice of Bid Borrowing delivered pursuant to
subsection (a)(i) above.
(f) The Borrower shall pay interest on the unpaid
principal amount of each Bid Advance from the date of such
Bid Advance to the date the principal amount of such Bid
Advance is repaid in full, at the rate of interest for such
Bid Advance specified by the Lender making such Bid Advance
in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment
date or dates specified by the Borrower for such Bid Advance
in the related Notice of Bid Borrowing delivered pursuant to
subsection (a)(i) above; provided that any principal amount
of any Bid Rate Advance which is not paid when due (whether
at stated maturity, by acceleration or otherwise) shall bear
interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate
per annum equal at all times to (A) until the scheduled
maturity date of such Bid Advances, the greater of (x) 2%
per annum above the Base Rate in effect from time to time
and (y) 2% per annum above the rate per annum required to be
paid on such amount immediately prior to the date on which
such amount became due, and (B) from and after the scheduled
maturity date of such Bid Advances, 2% per annum above the
Base Rate in effect from time to time.
SECTION 2.04. FEES.
(a) FACILITY FEES. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender (other
than the Designated Bidders) a facility fee on such Lender's
daily average Commitment, whether used or unused and without
giving effect to any Bid Reduction, from the Effective Date
in the case of each Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until
the Termination Date of such Lender, payable quarterly in
arrears on the last day of each March, June, September and
December during the term of such Lender's Commitment,
commencing September 30, 1996, and on the Termination Date
of such Lender, in an amount equal to the product of (i)
such Lender's daily average Commitment, whether used or
unused and without giving effect to any Bid Reduction, in
effect during the period for which such payment that is to
be made times (ii) the weighted average rate per annum that
is derived from the following rates: (a) a rate of 0.10% per
annum with respect to each day during such period that the
ratings with respect to Long-Term Debt were at ▇▇▇▇▇ ▇, (▇)
a rate of 0.110% per annum with respect to each day during
such period that such ratings were at Level 2, (c) a rate of
0.125% per annum with respect to each day during such period
that such ratings were at ▇▇▇▇▇ ▇, (▇) a rate of 0.1875% per
annum with respect to each day during such period that such
ratings were at ▇▇▇▇▇ ▇, and (e) at the rate of 0.2500% per
annum with respect to each day during such period that such
ratings were at Level 5. If any change in the rating
established by S&P, ▇▇▇▇▇'▇ or ▇▇▇▇ & ▇▇▇▇▇▇ with respect to
Long-Term Debt shall result in a change in the Level, the
change in the commitment fee shall be effective as of the
date on which such rating change is publicly announced. If
the ratings established by any two of S&P, ▇▇▇▇▇'▇ or Duff &
▇▇▇▇▇▇ with respect to Long-Term Debt are unavailable for
any reason for any day, then the applicable level for
purposes of calculating the commitment fee for such day
shall be deemed to be ▇▇▇▇▇ ▇ (or, if the Requisite Lenders
consent in writing, such other Level as may be reasonably
determined by the Requisite Lenders from a rating with
respect to Long-Term Debt for such day established by
another rating agency reasonably acceptable to the Requisite
Lenders).
(b) BID ADVANCE ADMINISTRATION FEE. The Borrower
agrees to pay the Administrative Agent for its own account a
handling fee as set forth in that certain fee letter dated
July 24, 1996 between the Administrative Agent and the
Borrower in connection with each request for a Bid Advance
pursuant to Section 2.03.
(c) AGENTS' FEES. The Borrower agrees to pay to each
of the Agents the fees payable to each such Agent pursuant
to the fee letters dated as of July 24, 1996 between the
Borrower and CUSA and the fee letter dated as of July 9,
1996 between the Borrower and B of A, in the amounts and at
the times specified in each of such letters.
(d) ADDITIONAL FEES. In the event the Effective Date
has not occurred on or before September 30, 1996, the
Borrower agrees to pay to the Administrative Agent for
account of each Lender the fees payable to such Lenders
pursuant to that certain fee letter dated as of July 24,
1996 between the Borrower and the Administrative Agent.
SECTION 2.05. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) MANDATORY TERMINATION. In the event that a
mandatory prepayment in full of the Advances is required by
the Requisite Lenders pursuant to Section 2.06(b) (whether
or not there are Advances outstanding), the Commitments of
the Lenders shall immediately terminate.
(b) OPTIONAL REDUCTIONS. The Borrower shall have the
right, upon at least three (3) Business Days' notice to the
Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective
Commitments of the Lenders; provided that (i) each partial
reduction shall be in the aggregate amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof, and
(ii) the aggregate of the Commitments of the Lenders shall
not be reduced to an amount which is less than the Total
Utilization of Commitments.
(c) NO REINSTATEMENT. Once so reduced or terminated
pursuant to this Section 2.05, Commitments of the Lenders
shall not be reinstated.
SECTION 2.06. REPAYMENT AND PREPAYMENT OF ADVANCES.
(a) MANDATORY REPAYMENT ON CERTAIN DATE. The Borrower
shall repay the outstanding principal amount of (i) each
Committed Advance made by each Lender on the Termination
Date of such Lender, and (ii) each Bid Advance at the
maturity date specified in the Notice of Bid Borrowing.
(b) MANDATORY PREPAYMENT IN CERTAIN EVENTS. If any one
of the following events shall occur:
(i) any Person or Persons acting in concert
shall acquire beneficial ownership of more than 40% of
the Borrower's voting stock; or
(ii) during any period of up to 12 months,
individuals who at the beginning of such period were
directors of the Borrower shall cease to constitute a
majority of the Borrower's board of directors; or
(iii) any Debt which is outstanding in a
principal amount of at least $15,000,000 in the
aggregate (but excluding Debt arising under this
Agreement) of the Borrower or any of its Subsidiaries
(as the case may be) shall be required to be prepaid
(other than by a regularly scheduled required
prepayment or by a required prepayment of insurance
proceeds or by a required prepayment as a result of
formulas based on asset sales or excess cash flow),
redeemed, purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity
thereof (other than as set forth in Section 6.01(d));
then, and in any such event, if the Administrative Agent
shall have received notice from the Requisite Lenders that
they elect to have the Advances prepaid in full and the
Administrative Agent shall have provided notice to the
Borrower that the Advances are to be prepaid in full, the
Borrower shall immediately prepay in full the Advances,
together with interest accrued to the date of prepayment and
will reimburse the Lenders in respect thereof pursuant to
Section 8.04(b).
(c) VOLUNTARY PREPAYMENTS OF COMMITTED BORROWINGS.
(i) The Borrower shall have no right to prepay
any principal amount of any Advances other than as
provided in this subsection (c).
(ii) The Borrower may, upon notice to the
Administrative Agent no later than 11:00 A.M. (New York
time) (i) on the date the Borrower proposes to prepay
Committed Advances in the case of Base Rate Advances
and (ii) at least two (2) Business Days' notice to the
Administrative Agent in the case of Eurodollar Rate
Advances, stating the proposed date and aggregate
principal amount of the prepayment, and if such notice
is given the Borrower shall, prepay the outstanding
principal amounts of the Advances comprising part of
the same Committed Borrowing in whole or ratably in
part; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount
not less than $5,000,000 and integral multiples of
$1,000,000 in excess thereof, and (y) in the case of
any such prepayment of any Eurodollar Rate Advance, the
Borrower shall pay all accrued interest to the date of
such prepayment on the portion of such Eurodollar Rate
Advance being prepaid and shall be obligated to
reimburse the Lenders in respect thereof pursuant to
Section 8.04(b).
(d) NO PREPAYMENT OF BID BORROWINGS. The Borrower
shall have no right to prepay any principal amount of any
Bid Advances.
SECTION 2.07. INTEREST ON COMMITTED ADVANCES. The Borrower
shall pay to each Lender interest accrued on the principal amount
of each Committed Advance outstanding from time to time from the
date of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) BASE RATE ADVANCES. If such Committed Advance is
a Base Rate Advance, a rate per annum equal at all times to
(i) the Base Rate in effect from time to time plus (ii) the
Applicable Margin, if any, payable quarterly in arrears on
the last day of each March, June, September and December
during the term of this Agreement, commencing September 30,
1996, and on the Termination Date of the applicable Lender;
provided that any amount of principal, interest, fees and
other amounts payable under this Agreement (including,
without limitation, the principal amount of Base Rate
Advances, but excluding the principal amount of Eurodollar
Rate Advances) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest
from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum
equal at all times to 2% per annum above the Base Rate in
effect from time to time.
(b) EURODOLLAR RATE ADVANCES. If such Committed
Advance is a Eurodollar Rate Advance, a rate per annum equal
at all times during the Interest Period for such Advance to
the sum of (i) the Adjusted Eurodollar Rate for such
Interest Period plus (ii) the Applicable Margin, payable in
arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on
the day which occurs during such Interest Period three
months from the first day of such Interest Period; provided
that any principal amount of any Eurodollar Rate Advance
which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date
on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal at all
times to (A) during the Interest Period applicable to such
Eurodollar Rate Advance, the greater of (x) 2% per annum
above the Base Rate in effect from time to time and (y) 2%
per annum above the rate per annum required to be paid on
such amount immediately prior to the date on which such
amount became due and (B) after the expiration of such
Interest Period, 2% per annum above the Base Rate in effect
from time to time.
SECTION 2.08. INTEREST RATE DETERMINATION.
(a) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of
determining each Adjusted Eurodollar Rate. If any one or
more of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks,
subject to Section 2.02(b)(iv).
(b) The Administrative Agent shall give prompt notice
to the Borrower and the Lenders of the applicable interest
rate determined by the Administrative Agent for purposes of
Section 2.07(a) or 2.07(b), and the applicable rate, if any,
furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section
2.07(b).
SECTION 2.09. VOLUNTARY CONVERSION OR CONTINUATION OF
COMMITTED ADVANCES.
(a) The Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 12:00 noon
(New York City time) on the third Business Day prior to the
date of the proposed Conversion or continuance (a "Notice of
Conversion/Continuation") and subject to the provisions of
Section 2.02(b), (1) Convert all Committed Advances of one
Type comprising the same Committed Borrowing into Advances
of another Type and (2) upon the expiration of any Interest
Period applicable to Committed Advances which are Eurodollar
Rate Advances, continue all (or, subject to Section 2.02(b),
any portion of) such Advances as Eurodollar Rate Advances
and the succeeding Interest Period(s) of such continued
Advances shall commence on the last day of the Interest
Period of the Advances to be continued; provided, however,
that any Conversion of any Eurodollar Rate Advances into
Base Rate Advances shall be made on, and only on, the last
day of an Interest Period for such Eurodollar Rate Advances.
Each such Notice of Conversion/Continuation shall, within
the restrictions specified above, specify (i) the date of
such continuation or Conversion, (ii) the Committed Advances
(or, subject to Section 2.02(b), any portion thereof) to be
continued or Converted, (iii) if such continuation is of, or
such Conversion is into, Eurodollar Rate Advances, the
duration of the Interest Period for each such Committed
Advance, and (iv) in the case of a continuation of or a
Conversion into a Eurodollar Rate Advance, that no Potential
Event of Default or Event of Default has occurred and is
continuing.
(b) If upon the expiration of the then existing
Interest Period applicable to any Committed Advance which is
a Eurodollar Rate Advance, the Borrower shall not have
delivered a Notice of Conversion/Continuation in accordance
with this Section 2.09, then such Advance shall upon such
expiration automatically be Converted to a Base Rate
Advance.
(c) After the occurrence of and during the continuance
of a Potential Event of Default or an Event of Default, the
Borrower may not elect to have an Advance be made or
continued as, or Converted into, a Eurodollar Rate Advance
after the expiration of any Interest Period then in effect
for that Advance.
SECTION 2.10. INCREASED COSTS.
(a) If, due to either (i) the introduction of or any
change (other than any change by way of imposition or
increase of reserve requirements in the case of Eurodollar
Rate Advances included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or
request from any central bank or other governmental
authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate
Advances, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A reasonably
detailed certificate as to the amount and manner of
calculation of such increased cost, submitted to the
Borrower and the Administrative Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender (other than Designated Bidders)
determines that compliance with any law or regulation or any
guideline or request from any central bank or other
governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required
or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Administrative Agent),
the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of
such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to
lend hereunder. A reasonably detailed certificate as to
such amounts and the manner of calculation thereof submitted
to the Borrower and the Administrative Agent by such Lender
shall be conclusive and binding for all purposes, absent
manifest error.
(c) If a Lender shall change its Applicable Lending
Office, such Lender shall not be entitled to receive any
greater payment under Sections 2.10 and 2.12 than the amount
such Lender would have been entitled to receive if it had
not changed its Applicable Lending Office, unless such
change was made at the request of the Borrower or at a time
when the circumstances giving rise to such greater payment
did not exist.
SECTION 2.11. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder not
later than 1:00 P.M. (New York City time) on the day when
due in Dollars to the Administrative Agent at its address
referred to in Section 8.02 in same day funds. Subject to
the immediately succeeding sentence, the Administrative
Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or
commitment fees ratably (other than amounts payable pursuant
to Section 2.10 or 2.12 or, to the extent the Termination
Date is not the same for all Lenders, pursuant to Section
2.06(a)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this
Agreement. Upon receipt of principal or interest paid after
an Event of Default and an acceleration or a deemed
acceleration of amounts due hereunder, the Administrative
Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest
ratably in accordance with each Lender's outstanding
Advances (other than amounts payable pursuant to Section
2.10 or 2.12) to the Lenders for the account of their
respective Applicable Lending Offices. Upon its acceptance
of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified
in such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder in respect of the interest
assigned thereby to the Lender assignee thereunder, and the
parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior
to such effective date directly between themselves.
(b) All computations of interest based on the Base
Rate shall be made by the Administrative Agent on the basis
of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Adjusted Eurodollar
Rate, the Federal Funds Rate or the Fixed Rate and of
commitment fees shall be made by the Administrative Agent on
the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the
last day) occurring in the period for which such interest or
such fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes. absent manifest
error.
(c) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the
case may be; provided, however, if such extension would
cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business
Day.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which
any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such
date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so
made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.12. TAXES.
(a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.11, free and
clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding (i) in the case of each Lender and each Agent,
taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender
or such Agent (as the case may be) is organized or any
political subdivision thereof or in which its principal
office is located, (ii) in the case of each Lender taxes
imposed on its net income, and franchise taxes imposed on
it, by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof and (iii) in the
case of each Lender and each Agent, taxes imposed by the
United States by means of withholding at the source if and
to the extent that such taxes shall be in effect and shall
be applicable on the date hereof in the case of each Bank
and on the effective date of the Assignment and Acceptance
pursuant to which it became a Lender in the case of each
other Lender, on payments to be made to the Agents or such
Lender's Applicable Lending Office (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any
Lender or either Agent, (i) the sum payable shall be
increased as may be necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender
or such Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and each
Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 2.12) paid by such Lender or such Agent (as the case
may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days
from the date such Lender or such Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Administrative
Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment
thereof.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or
business in the United States. If the form provided by a
Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall
be considered excluded from "Taxes" as defined in Section
2.12(a).
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form
described in Section 2.12(e) (other than if such failure is
due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if
such form otherwise is not required under the first sentence
of subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.12(a) with respect to
Taxes imposed by the United States; provided, however, that
should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower
shall, at the expense of such Lender, take such steps as the
Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 2.12
shall survive the payment in full of principal and interest
hereunder.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of setoff, or otherwise) on account of
the Advances made by it (other than pursuant to Section 2.10 or
2.12 or, to the extent the Termination Date is not the same for
all Lenders, pursuant to Section 2.06(a)) in excess of its
ratable share of payments on account of the Committed Advances
obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Committed
Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.14. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from
each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Register maintained by the Administrative
Agent pursuant to Section 8.07(c) shall include a control
account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date,
amount and tenor, as applicable, of each Borrowing, the Type
of Advances comprising such Borrowing and the Interest
Period applicable thereto, (ii) the terms of each Assignment
and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender
hereunder, and (iv) the amount of any sum received by the
Administrative Agent from the Borrower hereunder and each
Lender's share thereof.
(c) The entries made in the Register shall be
conclusive and binding for all purposes, absent manifest
error.
(d) If, in the opinion of any Lender, a promissory
note or other evidence of debt is required, appropriate or
desirable to reflect or enforce the indebtedness of the
Borrower resulting from the Committed Advances or Bid
Advances made, or to be made, by such Lender to the
Borrower, then, upon request of such Lender, the Borrower
shall promptly execute and deliver to such Lender a
promissory note substantially in the form of EXHIBIT G-1 in
the case of Committed Advances and EXHIBIT G-2 in the case
of Bid Advances, payable to the order of such Lender in an
amount up to the maximum amount of Committed Advances or Bid
Advances, as the case may be, payable or to be payable by
such Borrower to the Lender from time to time hereunder.
SECTION 2.15. USE OF PROCEEDS.
(a) Advances shall be used by the Borrower for
commercial paper backup and for general corporate purposes;
provided that proceeds of Advances and proceeds of
commercial paper as to which this Agreement provides backup
shall not be used for any Hostile Acquisition.
(b) No portion of the proceeds of any Advances under
this Agreement shall be used by the Borrower or any of its
Subsidiaries in any manner which might cause the Advances or
the application of such proceeds to violate, or require any
Lender to make any filing or take any other action under,
Regulation G, Regulation U, Regulation T, or Regulation X of
the Board of Governors of the Federal Reserve System or any
other regulation of such Board or to violate the Securities
Exchange Act of 1934, in each case as in effect on the date
or dates of such Advances and such use of proceeds.
SECTION 2.16. EXTENSION OF THE COMMITMENT TERMINATION DATE.
The Borrower may not more than once in any calendar year and not
later than 45 days prior to an anniversary of the Effective Date,
request that the Commitment Termination Date of all Eligible
Lenders (as defined below) be extended for a period of one year
by delivering to the Administrative Agent a signed copy of an
extension request (an "Extension Request") in substantially the
form of EXHIBIT E hereto. The Administrative Agent shall
promptly notify each Eligible Lender of its receipt of such
Extension Request. On or prior to ten days prior to the
applicable anniversary of the Effective Date in each calendar
year in which there has been an Extension Request (the
"Determination Date"), each Eligible Lender shall notify the
Administrative Agent and the Borrower of its willingness or
unwillingness to extend its Commitment Termination Date
hereunder. Any Eligible Lender that shall fail to so notify the
Administrative Agent and the Borrower on or prior to the
Determination Date shall be deemed to have declined to so extend.
In the event that, on or prior to the Determination Date,
Eligible Lenders representing 66-2/3% or more of the aggregate
amount of the Commitments of all Eligible Lenders then in effect
shall consent to such extension, upon confirmation by the
Administrative Agent of such consent, the Administrative Agent
shall so advise the Lenders and the Borrower, and, subject to
execution of documentation evidencing such extension and
consents, the Commitment Termination Date of each Eligible Lender
(each a "Consenting Lender") that has consented on or prior to
the Determination Date to so extend shall be extended to the date
one year after the Commitment Termination Date of such Eligible
Lender in existence on the date of the related Extension Request.
Thereafter, (i) for each Consenting Lender, the term "Commitment
Termination Date" shall at all times refer to such date, unless
it is later extended pursuant to this Section 2.16, and (ii) for
each Lender that is not an Eligible Lender and for each Eligible
Lender that either has declined on or prior to the Determination
Date to so extend or is deemed to have so declined, the term
"Commitment Termination Date" shall at all times refer to the
date which was the Commitment Termination Date of such Lender
immediately prior to the delivery to the Administrative Agent of
such Extension Request. In the event that, as of the
Determination Date, the Consenting Lenders represent less than
66-2/3% of the aggregate amount of the Commitments of all
Eligible Lenders then in effect, and the Agents confirm the same,
the Administrative Agent shall so advise the Lenders and the
Borrower, and none of the Lenders' Commitment Termination Dates
shall be extended to the date indicated in the Extension Request
and each Lender's Commitment Termination Date shall continue to
be the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agents of such
Extension Request. For purposes of this Section 2.16, the term
"Eligible Lenders" means, with respect to any Extension Request,
(i) all Lenders if no Lender's Commitment Termination Date had
been extended pursuant to this Section 2.16 prior to the delivery
to the Agents of such Extension Request, and (ii) in all other
cases, those Lenders which had extended their Commitment
Termination Date in the most recent extension of any Commitment
Termination Date effected pursuant to this Section 2.16.
SECTION 2.17. SUBSTITUTION OF LENDERS. If any Lender
requests compensation from the Borrower under Section 2.10(a) or
(b) or Section 2.12 or if any Lender declines to extend its
Commitment Termination Date pursuant to Section 2.16, the
Borrower shall have the right, with the assistance of the Agents,
to seek one or more Eligible Assignees (which may be one or more
of the Lenders) reasonably satisfactory to the Agents and the
Borrower to purchase the Advances and assume the Commitments of
such Lender, and the Borrower the Agents, such Lender, and such
Eligible Assignees shall execute and deliver an appropriately
completed Assignment and Acceptance pursuant to Section 8.07(a)
hereof to effect the assignment of rights to and the assumption
of obligations by such Eligible Assignees; provided that (i) such
requesting Lender shall be entitled to compensation under Section
2.10 and 2.12 for any costs incurred by it prior to its
replacement, (ii) no Event of Default, or event which with the
giving of notice or lapse of time or both would be an Event of
Default, has occurred and is continuing, (iii) the Borrower has
satisfied all of its obligations under the Loan Documents
relating to such Lender, including without limitation
obligations, if any, under Section 8.04(b), and (iv) the Borrower
shall have paid the Administrative Agent a $3,000 administrative
fee if such replacement Lender is not an existing Lender.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. DOCUMENTS TO BE DELIVERED ON THE CLOSING
DATE. The Closing Date shall be deemed to have occurred when
this Agreement shall have been executed and delivered by the
parties hereto and (a) the Agents shall have received the
following, each dated the Closing Date or within two days prior
to the Closing Date unless otherwise indicated, and each in form
and substance satisfactory to the Agents unless otherwise
indicated and in sufficient copies for each Lender:
(i) Copies of resolutions of the Board of Directors
of the Borrower (or its Executive Committee, together with
evidence of the authority of the Executive Committee)
approving this Agreement, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to this Agreement, certified as of a
recent date prior to the Closing Date.
(ii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
sign this Agreement and the other documents to be delivered
by the Borrower hereunder.
(iii) Certified copies of the Borrower's Certificate
of Incorporation, together with good standing certificates
from the state of Delaware and the jurisdiction of the
Borrower's principal place of business, each to be dated a
recent date prior to the Closing Date;
(iv) Copies of the Borrower's Bylaws, certified as of
the Closing Date by their respective Secretary or an
Assistant Secretary;
(v) Executed originals of this Agreement and the
other documents to be delivered by the Borrower hereunder;
(vi) A favorable opinion of the General Counsel of
the Borrower, substantially in the form of EXHIBIT C-1
hereto;
(vii) A favorable opinion of O'Melveny & ▇▇▇▇▇ LLP,
counsel for the Agents, substantially in the form of EXHIBIT
D-1 hereto;
(viii) The Form 10, in the form filed with the SEC;
(ix) The Form 8-K, in the form filed with the SEC;
(x) A certificate of an authorized officer of the
Borrower to the effect that since December 31, 1995, there
has been no material adverse change in the operations,
business or financial or other condition or properties of
the Borrower and its Subsidiaries, taken as a whole and
since March 31, 1996 there has been no material adverse
change in the operations, business or financial or other
condition or properties of the Borrower and its
Subsidiaries, taken as a whole, in each case on a pro forma
basis after giving effect to the Distribution; and
(xi) Evidence that the Newco Credit Agreement has
been duly executed and delivered and the Closing Date
thereunder has occurred; and
(b) the Agents shall have received such other approvals,
opinions or documents as the Requisite Lenders through the Agents
may reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO EFFECTIVE TIME. This
Agreement shall become fully effective pursuant to Section
8.06(b) at the Effective Time on the Effective Date upon the
satisfaction of, and the obligation of each Lender to make its
initial Advance is subject to, the conditions precedent that:
(a) the Agents shall have received on or before the
Effective Date the following, each dated the Effective Date
unless otherwise indicated, and each in form and substance
satisfactory to the Requisite Lenders and in sufficient
copies for each Lender:
(i) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying that the
documents, certificates and statements referred to in
Section 3.01(a)(i) through (iv) remain in full force
and effect and are true and correct as of the Effective
Date as if executed and made on the Effective Date;
(ii) A favorable opinion of the General Counsel
of the Borrower, substantially in the form of EXHIBIT
C-2 hereto;
(iii) A favorable opinion of O'Melveny & ▇▇▇▇▇
LLP, counsel for the Agents, substantially in the form
of EXHIBIT D-2 hereto;
(iv) A certificate of an authorized officer of
the Borrower certifying that the statements made in the
certificate referred to in Section 3.01(a)(x) remain
true and correct as of the Effective Date;
(v) Evidence reasonably satisfactory to the
Requisite Lenders that the Distribution Agreement is in
full force and effect and has not been amended,
supplemented, waived or otherwise modified without the
consent of Requisite Lenders, and executed and
conformed copies thereof (including all exhibits and
schedules thereto) and any amendments thereto and all
documents executed in connection therewith shall have
been delivered to Agents;
(vi) Evidence reasonably satisfactory to the
Requisite Lenders that the Merger has become effective
and that the Distribution will become effective
immediately after the Effective Time at the
Distribution Time in accordance with the terms and
conditions of the Distribution Agreement;
(vii) Evidence that the SEC has declared the Form
10 effective;
(viii) Evidence reasonably satisfactory to the
Requisite Lenders that all approvals, permits,
licenses, authorizations and consents, if any, from any
governmental or regulatory authority necessary to
effectuate the Distribution have been duly obtained and
are in full force and effect as of the Effective Date;
(ix) Evidence that the Newco Credit Agreement
has become effective in accordance with the terms and
conditions set forth therein; and
(x) Letter agreements between the Borrower and
the Exiting Banks, reasonably satisfactory to the
Requisite Lenders terminating (1) all funding
obligations and other obligations of the Exiting Banks
under the Existing Credit Agreement upon the
effectiveness of this Agreement, and (2) all payment
obligations and other obligations of the Borrower under
the Existing Credit Agreement to the Exiting Banks upon
the terms and conditions set forth in such letter
agreements; and
(b) the Agents shall have received the fees set forth
in Section 2.04(c) if such fees are payable to the Agents
and the Banks on or prior to the Effective Date; and
(c) the Agents shall have received such other
approvals, opinions or documents as the Requisite Lenders
through the Agents may reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH COMMITTED
BORROWING. The obligation of each Lender to make a Committed
Advance on the occasion of a Committed Borrowing (including the
initial Committed Borrowing) shall be subject to the further
conditions precedent that (x) the Administrative Agent shall have
received a Notice of Committed Borrowing with respect thereto in
accordance with Section 2.02 and (y) on the date of such
Borrowing (a) the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing such statements are true):
(i) The representations and warranties of the
Borrower contained in Section 4.01 are correct on and
as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application
of the proceeds therefrom, as though made on and as of
such date, except to the extent that any such
representation or warranty expressly relates only to an
earlier date, in which case they were correct as of
such earlier date; and
(ii) No event has occurred and is continuing, or
would result from such Borrowing or from the
application of the proceeds therefrom, which
constitutes an Event of Default, or a Potential Event
of Default; and
(b) the Agents shall have received such other
approvals, opinions or documents as the Requisite Lenders
through the Agents may reasonably request.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH BID BORROWING.
The obligation of each Lender to make a Bid Advance on the
occasion of a Bid Borrowing (including the initial Bid Borrowing)
shall be subject to the further conditions precedent that (x) the
Administrative Agent shall have received a Notice of Bid
Borrowing with respect thereto in accordance with Section 2.03
and (y) on the date of such Borrowing the following statements
shall be true (and each of the giving of the applicable Notice of
Bid Borrowing and the acceptance by the Borrower of the proceeds
of such Borrowing shall constitute a representation and warranty
by the Borrower that on the date of such Borrowing such
statements are true):
(i) The representations and warranties of the
Borrower contained in Section 4.01 are correct on and as of
the date of such Borrowing, before and after giving effect
to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, except to
the extent that any such representation or warranty
expressly relates only to an earlier date, in which case
they were correct as of such earlier date; and
(ii) No event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom, which constitutes an Event of
Default, or a Potential Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
BORROWER. The Borrower represents and warrants as follows:
(a) DUE ORGANIZATION, ETC. The Borrower and each
Material Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation. The Borrower and each of
its Material Subsidiaries are qualified to do business in
and are in good standing under the laws of each jurisdiction
in which failure to be so qualified would have a material
adverse effect on the Borrower and its Subsidiaries, taken
as a whole.
(b) DUE AUTHORIZATION, ETC. The execution, delivery
and performance by the Borrower of this Agreement and the
other Loan Documents are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's Certificate
of Incorporation or (ii) applicable law or any material
contractual restriction binding on or affecting the
Borrower.
(c) GOVERNMENTAL CONSENT. No authorization or
approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by
the Borrower of this Agreement and the other Loan Documents.
(d) VALIDITY. This Agreement is the legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms subject to the effect
of applicable bankruptcy, insolvency, arrangement,
moratorium and other similar laws affecting creditors'
rights generally and to the application of general
principles of equity.
(e) CONDITION OF THE BORROWER. The consolidated
balance sheet of the Borrower and its Subsidiaries as at
December 31, 1995, and the related consolidated statements
of income and retained earnings of the Borrower and its
Subsidiaries for the fiscal year then ended, copies of which
have been previously furnished to each Bank, and the pro
forma consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 1996 and the pro forma
statements of consolidated income of the Borrower and its
Subsidiaries for the three months ended March 31, 1996 and
1995 and for the year ended December 31, 1995, in each case
after giving effect to the Distribution, copies of which are
contained in the Form 8-K furnished to each Bank pursuant to
Section 3.01(a)(ix), fairly present the consolidated
financial condition of the Borrower and its Subsidiaries (on
a pro forma basis after giving effect to the Distribution
with respect to such pro forma financial statements) as at
such date and the results of the operations of the Borrower
and its Subsidiaries for the periods ended on such dates,
all in accordance with GAAP consistently applied, and as of
the Effective Date, there has been no material adverse
change in the business, condition (financial or otherwise),
operations or properties of the Borrower and its
Subsidiaries, taken as a whole, since March 31, 1996, after
giving effect to the Distribution.
(f) LITIGATION. (i) There is no pending action or
proceeding against the Borrower or any of its Subsidiaries
before any court, governmental agency or arbitrator, and
(ii) to the knowledge of the Borrower, there is no pending
or threatened action or proceeding affecting the Borrower or
any of its Subsidiaries before any court, governmental
agency or arbitrator, which in either case, in the
reasonable judgement of the Borrower could reasonably be
expected to materially adversely affect the financial
condition or operations of the Borrower and its
Subsidiaries, taken as a whole, or with respect to actions
of third parties which purports to affect the legality,
validity or enforceability of this Agreement.
(g) MARGIN REGULATIONS. The Borrower is not engaged
in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used
to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin
stock in any manner that violates, or would cause a
violation of, Regulation G, Regulation T, Regulation U or
Regulation X. Less than 25 percent of the fair market value
of the assets of (i) the Borrower or (ii) the Borrower and
its Subsidiaries consists of Margin Stock.
(h) PAYMENT OF TAXES. The Borrower and each of its
Subsidiaries have filed or caused to be filed all material
tax returns (federal, state, local and foreign) required to
be filed and paid all material amounts of taxes shown
thereon to be due, including interest and penalties, except
for such taxes as are being contested in good faith and by
proper proceedings and with respect to which appropriate
reserves are being maintained by the Borrower or any such
Subsidiary, as the case may be.
(i) GOVERNMENTAL REGULATION. The Borrower is not
subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act or the Investment Company Act of 1940, each as
amended, or to any Federal or state statute or regulation
limiting its ability to incur indebtedness for money
borrowed. No Subsidiary of the Borrower is subject to any
regulation that would limit the ability of the Borrower to
enter into or perform its obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in
liability of the Borrower or any of its ERISA
Affiliates in excess of $10,000,000 (or, in the case of
an event described in clause (v) of the definition of
ERISA Event, $750,000) (other than for premiums payable
under Title IV of ERISA) has occurred or is reasonably
expected to occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to the
most recently completed annual report prior to the
Effective Date (Form 5500 Series) for each Pension
Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Agents, is
complete and, to the best knowledge of the Borrower,
accurate, and since the date of such Schedule B there
has been no material adverse change in the funding
status of any such Pension Plan.
(iii) Neither the Borrower nor any ERISA
Affiliate has incurred, or, to the best knowledge of
the Borrower, is reasonably expected to incur, any
Withdrawal Liability to any Multiemployer Plan which
has not been satisfied or which is or might be in
excess of $10,000,000.
(iv) Neither the Borrower nor any ERISA
Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the
meaning of Title IV of ERISA, and, to the best
knowledge of the Borrower, no Multiemployer Plan is
reasonably expected to be in reorganization or to be
terminated within the meaning of Title IV of ERISA.
(k) ENVIRONMENTAL MATTERS.
(i) The Borrower and each of its Subsidiaries
is in compliance in all material respects with all
Environmental Laws the non-compliance with which could
reasonably be expected to have a material adverse
effect on the financial condition or operations of the
Borrower and its Subsidiaries, taken as a whole, and
(ii) there has been no "release or threatened release
of a hazardous substance" (as defined by the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601 et
seq.) or any other release, emission or discharge into
the environment of any hazardous or toxic substance,
pollutant or other materials from the Borrower's or its
Subsidiaries' property other than as permitted under
applicable Environmental Law and other than those which
would not have a material adverse effect on the
financial condition or operations of the Borrower and
its Subsidiaries, taken as a whole. Other than
disposals (A) for which the Borrower has been
indemnified in full or (B) which would not have a
material adverse effect on the financial condition or
operations of the Borrower and its Subsidiaries, taken
as a whole, all "hazardous waste" (as defined by the
Resource Conservation and Recovery Act, 42 U.S.C. 6901
et seq. (1976) and the regulations thereunder, 40 CFR
Part 261 ("RCRA")) generated at the Borrower's or any
Subsidiaries' properties have in the past been and
shall continue to be disposed of at sites which
maintain valid permits under RCRA and any applicable
state or local Environmental Law.
(l) DISCLOSURE. As of the Closing Date and as of the
Effective Date, to the best of the Borrower's knowledge, no
representation or warranty of the Borrower or any of its
Subsidiaries contained in this Agreement or any other Loan
Document or statement made in the Form 10 (including all
Exhibits thereto filed with the Securities and Exchange
Commission) or the Form 8-K or in any other document,
certificate or written statement furnished to the Banks by
or on behalf of the Borrower or any of its Subsidiaries
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements contained in such agreements, documents,
certificates and statements not misleading in light of the
circumstances in which the same were made.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will unless the Requisite
Lenders shall otherwise consent in writing:
(a) COMPLIANCE WITH LAWS ETC. Comply, and cause each
of its Subsidiaries to comply, with all applicable laws,
rules, regulations and orders, such compliance to include,
without limitation, (i) complying with all Environmental
Laws and (ii) paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent contested in good
faith, except where failure to so comply would not have a
material adverse effect on the business, condition
(financial or otherwise), operations or properties of the
Borrower and its Subsidiaries, taken as a whole.
(b) REPORTING REQUIREMENTS. Furnish to the
Administrative Agent (in sufficient quantity for delivery to
each Lender) for prompt distribution by the Administrative
Agent to the Lenders and furnish to the Documentation Agent:
(i) as soon as available and in any event
within 60 days after the end of each of the first three
quarters of each fiscal year of the Borrower,
consolidated balance sheets as of the end of such
quarter and consolidated statements of source and
application of funds of the Borrower and its
Subsidiaries and consolidated statements of income and
retained earnings of the Borrower and its Subsidiaries
for such quarter and the period commencing at the end
of the previous fiscal year and ending with the end of
such quarter and certified by the chief financial
officer or chief accounting officer of the Borrower;
(ii) as soon as available and in any event
within 120 days after the end of each fiscal year of
the Borrower, a copy of the annual audit report for
such year for the Borrower and its Subsidiaries,
containing financial statements (including a
consolidated balance sheet and consolidated statement
of income and cash flows of the Borrower and its
Subsidiaries) for such year, certified by and
accompanied by an opinion of Deloitte & Touche or other
nationally recognized independent public accountants.
The opinion shall be unqualified (as to going concern,
scope of audit and disagreements over the accounting or
other treatment of offsets) and shall state that such
consolidated financial statements present fairly in all
material respects the financial position of the
Borrower and its Subsidiaries as at the dates indicated
and the results of their operations and cash flow for
the periods indicated in conformity with GAAP and that
the examination by such accountants in connection with
such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iii) together with each delivery of the report
of the Borrower and its Subsidiaries pursuant to
subsections (i) and (ii) above, a Compliance
Certificate for the year executed by the chief
financial officer or treasurer of the Borrower
demonstrating in reasonable detail compliance during
and at the end of such accounting periods with the
restrictions contained in Section 5.02(e) and (f) (and
setting forth the arithmetical computation required to
show such compliance) and stating that the signer has
reviewed the terms of this Agreement and has made, or
caused to be made under his or her supervision, a
review in reasonable detail of the transactions and
condition of the Borrower and its Subsidiaries during
the accounting period covered by such financial
statements and that such review has not disclosed the
existence during or at the end of such accounting
period, and that the signer does not have knowledge of
the existence as at the date of the compliance
certificate, of any condition or event that constitutes
an Event of Default or Potential Event of Default or,
if any such condition or event existed or exists,
specifying the nature and period of existence thereof
and what action the Borrower has taken, is taking and
proposes to take with respect thereto;
(iv) as soon as possible and in any event within
five days after the occurrence of each Event of Default
and each Potential Event of Default, continuing on the
date of such statement, a statement of an authorized
financial officer of the Borrower setting forth details
of such Event of Default or event and the action which
the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after any material change in
accounting policies or reporting practices, notice and
a description in reasonable detail of such change;
(vi) promptly and in any event within 30 days
after the Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event referred to in
clause (i) of the definition of ERISA Event with
respect to any Pension Plan has occurred which might
result in liability to the PBGC a statement of the
chief accounting officer of the Borrower describing
such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate has taken or proposes
to take with respect thereto;
(vii) promptly and in any event within 15 days
after the Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event (other than an
ERISA Event referred to in (vi) above) with respect to
any Pension Plan has occurred which might result in
liability to the PBGC in excess of $100,000, a
statement of the chief accounting officer of the
Borrower describing such ERISA Event and the action, if
any, that the Borrower or such ERISA Affiliate has
taken or proposes to take with respect thereto;
(viii) promptly and in any event within five
Business Days after receipt thereof by the Borrower or
any ERISA Affiliate from the PBGC, copies of each
notice from the PBGC of its intention to terminate any
Pension Plan or to have a trustee appointed to
administer any Pension Plan;
(ix) promptly and in any event within 15 days
after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by the Borrower or any
ERISA Affiliate concerning (w) the imposition of
Withdrawal Liability by a Multiemployer Plan in excess
of $100,000, (x) the determination that a Multiemployer
Plan is, or is expected to be, in reorganization within
the meaning of Title IV of ERISA, (y) the termination
of a Multiemployer Plan within the meaning of Title IV
of ERISA or (z) the amount of liability incurred, or
expected to be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in
clause (w), (x) or (y) above;
(x) promptly after the commencement thereof,
notice of all material actions, suits and proceedings
before any court or government department, commission,
board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any of its
Subsidiaries, of the type described in Section 4.01(f);
(xi) promptly after the occurrence thereof,
notice of (A) any event which makes any of the
representations contained in Section 4.01(k) inaccurate
in any material respect or (B) the receipt by the
Borrower of any notice, order, directive or other
communication from a governmental authority alleging
violations of or noncompliance with any Environmental
Law which could reasonably be expected to have a
material adverse effect on the financial condition of
the Borrowers and its Subsidiaries, taken as a whole;
(xii) promptly after any change in the rating
established by S&P, ▇▇▇▇▇'▇ or ▇▇▇▇ & ▇▇▇▇▇▇, as
applicable, with respect to Long-Term Debt, a notice of
such change, which notice shall specify the new rating,
the date on which such change was publicly announced,
and such other information with respect to such change
as any Lender through either Agent may reasonably
request;
(xiii) promptly after the sending or filing
thereof, copies of all reports which the Borrower sends
to any of its public security holders, and copies of
all reports and registration statements which the
Borrower files with the SEC or any national security
exchange;
(xiv) promptly after the Borrower or any ERISA
Affiliate creates any employee benefit plan to provide
health or welfare benefits (through the purchase of
insurance or otherwise) for any retired or former
employee of the Borrower or any of its ERISA Affiliates
(except as provided in Section 4980B of the Code and
except as provided under the terms of any employee
welfare benefit plans provided pursuant to the terms of
collective bargaining agreements) under the terms of
which the Borrower and/or any of its ERISA Affiliates
are not permitted to terminate such benefits, a notice
detailing such plan; and
(xv) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Lender
through either Agent may from time to time reasonably
request.
(c) CORPORATE EXISTENCE, ETC. The Borrower will, and
will cause each of its Subsidiaries to, at all times
preserve and maintain its fundamental business and preserve
and keep in full force and effect its corporate existence
(except as permitted under Section 5.02(b) hereof) and all
rights, franchises and licenses necessary or desirable in
the normal conduct of its business; provided, however, that
this paragraph (c) shall not apply in any case when, in the
good faith business judgment of the Borrower, such
preservation or maintenance is neither necessary nor
appropriate for the prudent management of the business of
the Borrower.
(d) INSPECTION. The Borrower will permit and will
cause each of its Subsidiaries to permit any authorized
representative designated by either Agent or any Lender at
the expense of such Agent or such Lender, to visit and
inspect any of the properties of the Borrower or any of its
Subsidiaries, including its and their financial and
accounting records, and to take copies and to take extracts
therefrom, and discuss its and their affairs, finances and
accounts with its and their officers and independent public
accountants, all during normal hours, upon reasonable notice
and as often as may be reasonably requested.
(e) INSURANCE. The Borrower will maintain and will
cause each of its Subsidiaries to maintain insurance to such
extent and covering such risks as is usual for companies
engaged in the same or similar business and on request will
advise the Lenders of all insurance so carried.
(f) TAXES. The Borrower will and will cause each of
its Subsidiaries to pay and discharge, before the same shall
become delinquent, (x) all taxes, assessments and
governmental charges or levies imposed upon it or upon its
property and (y) all lawful claims that, if unpaid, might by
law become a lien upon their property; provided, however,
that neither the Borrower nor any such Subsidiary shall be
required to pay or discharge any such tax, assessment,
charge or levy (A) that is being contested in good faith and
by proper proceedings and for which appropriate reserves are
being maintained, or (B) the failure to pay or discharge
which would not have a material adverse effect on the
financial condition or operations of the Borrower and its
Subsidiaries taken as a whole.
(g) MAINTENANCE OF BOOKS, ETC. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of
records and accounts, in which full and correct entries
shall be made of all financial transactions and the assets
and business of the Borrower and each of its domestic
Subsidiaries in accordance with GAAP and with respect to
foreign Subsidiaries in accordance with customary accounting
standards in the applicable jurisdiction, in each case
consistently applied and consistent with prudent business
practices.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment
hereunder, without the written consent of the Requisite Lenders:
(a) LIENS, ETC. The Borrower will not create or
suffer to exist, or permit any of its Subsidiaries to create
or suffer to exist, any Lien, upon or with respect to any of
its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any
right to receive income, in each case to secure or provide
for the payment of any Debt of any Person, unless the
Borrower's obligations hereunder shall be secured equally
and ratably with, or prior to, any such Debt; provided
however that the foregoing restriction shall not apply to
the following Liens which are permitted:
(i) Liens on assets of any Subsidiary of the
Borrower existing at the time such Person becomes a
Subsidiary (other than any such Lien created in
contemplation of becoming a Subsidiary);
(ii) Liens on accounts receivable resulting from
the sale of such accounts receivable by the Borrower or
a Subsidiary of the Borrower, so long as, at any time,
the aggregate outstanding amount of cash advanced to
the Borrower or such Subsidiary, as the case may be,
and attributable to the sale of such accounts
receivable does not exceed $300,000,000;
(iii) purchase money Liens upon or in any
property acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure
the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the
acquisition of such property (provided that the amount
of Debt secured by such Lien does not exceed 100% of
the purchase price of such property and transaction
costs relating to such acquisition) and Liens existing
on such property at the time of its acquisition (other
than any such Lien created in contemplation of such
acquisition); and the interest of the lessor thereof in
any property that is subject to a Capital Lease;
(iv) any Lien securing Debt that was incurred
prior to or during construction or improvement of
property for the purpose of financing all or part of
the cost of such construction or improvement, provided
that the amount of Debt secured by such Lien does not
exceed 100% of the fair market value of such property
after giving effect to such construction or
improvement;
(v) any Lien securing Debt of a Subsidiary
owing to the Borrower;
(vi) Liens resulting from any extension, renewal
or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Debt secured
by any Lien referred to in clauses (i), (iii) and (iv)
above so long as (x) the aggregate principal amount of
such Debt shall not increase as a result of such
extension, renewal or replacement and (y) Liens
resulting from any such extension, renewal or
replacement shall cover only such property which
secured the Debt that is being extended, renewed or
replaced; and
(vii) Liens other than Liens described in clauses
(i) through (vi) hereof, whether now existing or
hereafter arising, securing Debt in an aggregate amount
not exceeding $50,000,000.
(b) RESTRICTIONS ON FUNDAMENTAL CHANGES. The Borrower
will not, and will not permit any of its Material
Subsidiaries to, merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or a
substantial portion of its assets (whether now owned or
hereafter acquired) to any Person, or enter into any
partnership, joint venture, syndicate, pool or other
combination, unless no Event of Default or Potential Event
of Default has occurred and is continuing or would result
therefrom and, in the case of a merger or consolidation of
the Borrower, (i) the Borrower is the surviving entity or
(ii) the surviving entity assumes all of the Borrower's
obligations under this Agreement in a manner satisfactory to
the Requisite Lenders.
(c) PLAN TERMINATIONS. The Borrower will not, and
will not permit any ERISA Affiliate to, terminate any
Pension Plan so as to result in liability of the Borrower or
any ERISA Affiliate to the PBGC in excess of $15,000,000, or
permit to exist any occurrence of an event or condition
which reasonably presents a material risk of a termination
by the PBGC of any Pension Plan with respect to which the
Borrower or any ERISA Affiliate would, in the event of such
termination, incur liability to the PBGC in excess of
$15,000,000.
(d) MARGIN STOCK. The Borrower will not permit 25%
or more of the fair market value of the assets of (i) the
Borrower or (ii) the Borrower and its Subsidiaries to
consist of Margin Stock.
(e) MINIMUM NET WORTH. The Borrower will not permit
at any time Net Worth to be less than the sum of (i) 80% of
Net Worth as of the Effective Date, plus (ii) 25% of Net
Income (if a positive number) from the Effective Date to the
then most recent June 30 or December 31, plus (iii) all
Additions to Capital from the Effective Date to the then
most recent June 30 or December 31.
(f) MAXIMUM FUNDED DEBT RATIO. The Borrower will not
permit at any time the ratio of (i) Funded Debt to (ii)
EBITDA, for each period consisting of the most recently
ended four consecutive fiscal quarters of the Borrower, to
exceed 3.00 to 1.00.
(g) SWAPS. The Borrower will not and will not permit
any of its Subsidiaries to create or suffer to exist any
Lien, upon or with respect to any of its properties, whether
now owned or hereafter acquired, or assign any right to
receive income, in each case to secure or provide for the
payment of any Swaps.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable or the
Borrower shall fail to pay any interest on any Advance or
any fees or other amounts payable hereunder within five days
of the date due; or
(b) Any representation or warranty made or deemed made
by the Borrower herein or by the Borrower pursuant to this
Agreement (including any notice, certificate or other
document delivered hereunder) shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i)
any term, covenant or agreement contained in this Agreement
(other than any term, covenant or agreement contained in
Section 5.01(b)(iv), 5.01(c) or 5.02) on its part to be
performed or observed and the failure to perform or observe
such other term, covenant or agreement shall remain
unremedied for 30 days after the Borrower obtains knowledge
of such breach or (ii) any term, covenant or agreement
contained in Section 5.02 and either of the Agents or the
Requisite Lenders shall have notified the Borrower that an
Event of Default has occurred, or (iii) any term, covenant
or agreement contained in Section 5.01(b)(iv) or 5.01(c); or
(d) The Borrower or any of its Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt
which is outstanding in a principal amount of at least
$15,000,000 in the aggregate (but excluding Debt arising
under this Agreement) of the Borrower or such Subsidiary (as
the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Debt; or the Borrower or any of its Subsidiaries shall fail
to perform or observe any other agreement, term or condition
contained in any agreement or instrument relating to any
such Debt (or if any other event or condition of default
under any such agreement or instrument shall exist) and such
failure, event or condition shall continue after the
applicable grace period, if any, specified in such agreement
or instrument, if the effect of such failure, event or
condition is to accelerate, or to permit the acceleration
of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable as a result of such failure,
event or condition; or
(e) The Borrower or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted
by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for a substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the
Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $25,000,000 shall be rendered against the Borrower
or any of its Material Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any
creditor upon a final or nonappealable judgment or order or
(ii) there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect;
(g) (i) Any ERISA Event with respect to a Pension
Plan shall have occurred and, 30 days after notice
thereof shall have been given to the Borrower by either
of the Agents, (x) such ERISA Event shall still exist
arid (y) the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of
such Pension Plan and the Insufficiency of any and all
other Pension Plans with respect to which an ERISA
Event shall have occurred and then exist (or in the
case of a Pension Plan with respect to which an ERISA
Event described in clause (iii) through (vi) of the
definition of ERISA Event shall have occurred and then
exist, the liability related thereto) is equal to or
greater than $25,000,000; or
(ii) The Borrower or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer
Plan that it has incurred an aggregate Withdrawal
Liability for all years to such Multiemployer Plan in
an amount that, when aggregated with all other amounts
then required to be paid to Multiemployer Plans by the
Borrower and its ERISA Affiliates as Withdrawal
Liability (determined as of the date of such
notification), exceeds $25,000,000 and it is reasonably
likely that all amounts then required to be paid to
Multiemployer Plans by the Borrower and its ERISA
Affiliates as Withdrawal Liability will exceed
$25,000,000; or
(iii) The Borrower or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization
or is being terminated, within the meaning of Title IV
or ERISA, and it is reasonably likely that as a result
of such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be
increased over the amounts contributed to such
Multiemployer Plans for the plan year of such
Multiemployer Plan immediately preceding the plan year
in which the reorganization or termination occurs by an
amount exceeding $25,000,000;
then, and in any such event, either of the Agents (i) shall
at the request, or may with the consent, of the Requisite
Lenders, by notice to the Borrower, declare the obligation
of each Lender to make Advances to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Requisite Lenders,
by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall
become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower or
any of its Subsidiaries under the Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes CUSA to act as Administrative Agent under
this Agreement and B of A to act as Documentation Agent under
this Agreement and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement as are delegated to each Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or
collection of the Advances and other amounts owing hereunder), no
Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Requisite Lenders, and such
instructions shall be binding upon all Lenders; provided,
however, that no Agent shall be required to take any action which
exposes such Agent to personal liability or which is contrary to
any of the Loan Documents or applicable law. Each Agent agrees to
give to each Lender prompt notice of each notice given to it by
the Borrower pursuant to the terms of the Loan Documents.
SECTION 7.02. AGENTS' RELIANCE, ETC. Neither the Agents
nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with any of the Loan
Documents, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the
foregoing, the Agents: (i) may treat the payee of any Advance as
the holder thereof until the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender
which is the payee of such Advance, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) make no warranty or
representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with any of the Loan
Documents; (iv) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms,
covenants or conditions of any of the Loan Documents on the part
of the Borrower or to inspect the property (including the books
and records) of the Borrower; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any of the Loan Documents or
any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any of the
Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03. CUSA, B OF A AND AFFILIATES. With respect to
its respective Commitment and the respective Advances made by it,
CUSA and B of A shall each have the same rights and powers under
this Agreement as any other Lender and may exercise the same as
though it were not an Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include B of A and
CUSA respectively in its individual capacity. B of A or CUSA and
their respective affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in
any kind of business (including without limitation the investment
banking business) with, the Borrower, any of its subsidiaries and
any Person who may do business with or own securities of the
Borrower or any such subsidiary, all as if B of A or CUSA, as the
case may be was not Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. LENDER CREDIT DECISION. Each Lender
acknowledges that it has, independently and without reliance upon
either the Agents or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without
reliance upon the Agents or any other Lender 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.
SECTION 7.05. INDEMNIFICATION. The Lenders (other than the
Designated Bidders) agree to indemnify each Agent (to the extent
not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Committed Advances then held
by each of them (or if no such Advances are at the time
outstanding or if any such Advances are held by Persons which are
not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of any
of the Loan Documents or any action taken or omitted by such
Agent under any of the Loan Documents, provided that no Lender
shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from any Agent's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Lender (other than the Designated Bidders) agrees
to reimburse each Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees)
incurred by such Agent in connection with the preparation,
execution, delivery, administration, syndication, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, the Loan Documents, to the
extent that such Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. SUCCESSOR AGENT. Each Agent may resign at
any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by
the Requisite Lenders. Upon any such resignation or removal, the
Requisite Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the
Requisite Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of
resignation or the Requisite Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America or of
any State thereof or any Bank and, in each case having a combined
capital and surplus of at least $50,000,000. Upon the acceptance
of any appointment as an Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Loan Documents. After any
retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent
under the Loan Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of
any provision of this Agreement, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Requisite Lenders,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section
3.01, (b) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (c) reduce the principal
of, or interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Advances, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action hereunder or (f)
amend Section 2.15 or this Section 8.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and
signed by an Agent in addition to the Lenders required above to
take such action, affect the rights or duties of such Agent under
this Agreement.
SECTION 8.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable communication)
and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at Dial Tower,
Phoenix, Arizona 850772343, Attn: Treasurer; if to any Bank, at
its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; if to the Administrative
Agent at its address at Citicorp USA, Inc., Loan Syndications
Operations, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (with a copy of notices, other than those given
pursuant to Sections 2.01 through 2.14 hereof, to Citicorp USA,
Inc. ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) and if to
the Documentation Agent at its address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Agency Management Services No. 5596;
or, as to the Borrower or either Agent, at such other address as
shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the
Borrower and the Agents. All such notices and communications
shall, when personally delivered, mailed, telecopied,
telegraphed, telexed or cabled, be effective when personally
delivered, after five (5) days after being deposited in the
mails, when confirmed by telecopy response, when delivered to the
telegraph company, when confirmed by telex answerback or when
delivered to the cable company, respectively, except that notices
and communications to any Agent pursuant to Article II or VII
shall not be effective until received by such Agent.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part
of any Lender or either Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS, EXPENSES AND INDEMNIFICATION.
(a) The Borrower agrees to pay promptly on demand all
reasonable costs and out-of-pocket expenses of the Agents in
connection with the preparation, execution, delivery,
administration, syndication, modification and amendment of
this Agreement, and the other documents to be delivered
hereunder or thereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for
the Agents (including the allocated time charges of each
Agent's legal departments, as their respective internal
counsel) with respect thereto and with respect to advising
the Agents as to their rights and responsibilities under
this Agreement. The Borrower further agrees to pay promptly
on demand all costs and expenses of the Agents and of each
Lender, if any (including, without limitation, reasonable
counsel fees and out-of-pocket expenses), in connection with
the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other
documents to be delivered hereunder or thereunder,
including, without limitation, reasonable counsel fees and
out-of-pocket expenses in connection with the enforcement of
rights under this Section 8.04(a). Such expenses shall be
reimbursed by the Borrower upon a presentation of statement
of account, regardless of whether the Closing Date, the
Effective Date or the Distribution occurs.
(b) If any payment of principal of any Eurodollar Rate
Advance is made other than on the last day of the interest
period for such Advance, as a result of a payment pursuant
to Section 2.06 or acceleration of the maturity of the
Advances pursuant to Section 6.01 or for any other reason,
the Borrower shall, upon demand by any Lender (with a copy
of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably
incur as a result of such payment, including, without
limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless
each Agent, each Lender and each director, officer,
employee, agent, attorney and affiliate of each Agent and
each Lender (each an "indemnified person") in connection
with any expenses, losses, claims, damages or liabilities to
which an Agent, a Lender or such indemnified persons may
become subject, insofar as such expenses, losses, claims,
damages or liabilities (or actions or other proceedings
commenced or threatened in respect thereof) arise out of the
transactions referred to in this Agreement or arise from any
use or intended use of the proceeds of the Advances, or in
any way arise out of activities of the Borrower that violate
Environmental Laws, and to reimburse each Agent, each Lender
and each indemnified person, upon their demand, for any
reasonable legal or other out-of-pocket expenses incurred in
connection with investigating, defending or participating in
any such loss, claim, damage, liability, or action or other
proceeding, whether commenced or threatened (whether or not
such Agent, such Lender or any such person is a party to any
action or proceeding out of which any such expense arises).
Notwithstanding the foregoing, the Borrower shall have no
obligation hereunder to an indemnified person with respect
to indemnified liabilities which have resulted from the
gross negligence, bad faith or willful misconduct of such
indemnified person.
SECTION 8.05. RIGHT OF SET-OFF. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agents to declare the Advances due
and payable pursuant to the provisions of Section 6.01, each
Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and
all deposits (time or demand, provisional or final, or general,
but not special) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of
the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement that are
then due and payable, whether or not such Lender shall have made
any demand under this Agreement. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made
by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
SECTION 8.06. BINDING EFFECT; EFFECTIVENESS, ENTIRE
AGREEMENT.
(a) This Agreement shall be deemed to have been
executed and delivered when it shall have been executed by
the Borrower and the Agents and when the Agents shall have
been notified by each Bank that such Bank has executed it
and thereafter shall be binding upon and inure to the
benefit of the Borrower, each Agent and each Lender and
their respective successors and permitted assigns, except
that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior
written consent of all Lenders.
(b) This Agreement (except for the provisions of
Section 2.04(d), Articles VII and VIII hereof and related
definitions) shall not become effective and the Existing
Credit Agreement shall remain in place until the time at
which the conditions set forth in Section 3.02 have been
satisfied or otherwise waived at the Effective Time, at
which time this Agreement shall become fully effective and
replace the Existing Credit Agreement, which shall be deemed
to be completely amended and restated hereby at such time.
At such time this Agreement (including the Schedules and
Exhibits attached hereto) shall constitute the entire
agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements,
understandings and negotiations, both written and oral,
among the parties with respect to such subject matter,
including, but not limited to, the Existing Credit
Agreement. If the Effective Date has not occurred by
December 31, 1996, then this Agreement shall terminate on
such date and the Existing Credit Agreement shall remain in
place in accordance with its terms.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender (other than the Designated Bidders)
may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and the Advances owing to it); provided, however,
that (i) each such assignment shall be of a constant, and
not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement (other than any
right to make Bid Advances or Bid Advances held by it), (ii)
after giving effect to any such assignment, (1) the
assigning Lender shall no longer have any Commitment or (2)
the amount of the Commitment of both the assigning Lender
and the Eligible Assignee party to such assignment (in each
case determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall not be
less than $10,000,000, (iii) each such assignment shall be
to an Eligible Assignee, (iv) the parties to each such
assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, and a processing and recordation
fee of $3,000 to the Administrative Agent, and (v) the
Borrower and the Agents shall have consented to such
assignment, which consent shall not be unreasonably
withheld. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in
each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to
be a party hereto). Any Lender may at any time pledge or
assign all or any portion of its rights hereunder to a
Federal Reserve Bank; provided, that no such pledge or
assignment shall release such Lender from any of its
obligations hereunder.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any of the
Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of
the Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
the Borrower or the performance or observance by the
Borrower of any of its obligations under any of the Loan
Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee confirms
that it has received a copy of the Loan Documents, together
with copies of the financial statements referred to in
Section 4.01 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; (iv)
such assignee will, independently and without reliance upon
the Agents, such assigning Lender or any other Lender 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 the Loan
Documents; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are
delegated to such Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a
Lender.
(c) Within five (5) days of its receipt of an
Assignment and Acceptance executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee
(together with a processing and recordation fee of $3,000
with respect thereto) and upon evidence of consent of the
Borrower and the Agents thereto, which consent shall not be
unreasonably withheld, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT B hereto, (1) accept such
Assignment and Acceptance and (2) record the information
contained therein in the Register. All communications with
the Borrower with respect to such consent of the Borrower
shall be sent pursuant to Section 8.02.
(d) Each Lender (other than the Designated Bidders)
may designate one or more banks or other entities to have a
right to make Bid Advances as a Lender pursuant to Section
2.03; provided, however, that (i) no such Lender shall be
entitled to make more than two such designations, (ii) each
such Lender making one or more of such designations shall
retain the right to make Bid Advances as a Lender pursuant
to Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such
designation shall execute and deliver to the Agent, for its
acceptance and recording in the Register, a Designation
Agreement. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in
each Designation Agreement, the designee thereunder shall be
a party hereto with a right to make Bid Advances as a Lender
pursuant to Section 2.03 and the obligations related
thereto.
(e) By executing and delivering a Designation
Agreement, the Lender making the designation thereunder and
its designee thereunder confirm and agree with each other
and the other parties hereto as follows: (i) such Lender
makes no representation or warranty 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; (ii)
such Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto;
(iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into the
Designation Agreement; (iv) such designee will,
independently and without reliance upon the Agent, such
designating Lender or any other Lender 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; (v) such
designee confirms that it is a Designated Bidder; (vi) such
designee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such designee agrees that it
will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement
executed by a designating Lender and a designee representing
that it is a Designated Bidder, the Agent shall, if such
Designation Agreement has been completed and is
substantially in the form of EXHIBIT H hereto, (i) accept
such Designation Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt
notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its
address referred to in Section 8.02 a copy of each
Assignment and Acceptance and each Designation Agreement
delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and,
with respect to Lenders other than Designated Bidders, the
Commitment of, the Commitment Termination Date of, and
principal amount of the Advances owing to, each such Lender
from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agents and the
Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of the Loan
Documents. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its
rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and
the Advances owing to it; provided, however, that (i) such
Lender's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall
remain the holder of any such Advance for all purposes of
this Agreement, (iv) the Borrower, the Agents and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under the Loan Documents, (v) no Lender shall
grant any participation under which the participant shall
have rights to require such Lender to take or omit to take
any action hereunder or under the other Loan Documents or
approve any amendment to or waiver of this Agreement or the
other Loan Documents, except to the extent such amendment or
waiver would: (A) extend the Termination Date of such
Lender; or (B) reduce the interest rate or the amount of
principal or fees applicable to Advances or the Commitment
in which such participant is participating or change the
date on which interest, principal or fees applicable to
Advances or the Commitment in which such participant is
participating are payable, (vi) such Lender shall notify the
Borrower of the sale of the participation, and (vii) the
Person purchasing such participation shall agree to
customary provisions relating to the confidentiality of
nonpublic information received by such Person in connection
with its purchase of the participation.
(i) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation
pursuant to this Section 8.07, disclose to the assignee or
participant or proposed assignee or participant, any
information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or Participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to
the Borrower received by it from such Lender.
SECTION 8.08. CONFIDENTIALITY. Each Lender agrees, insofar
as is legally possible, to use its best efforts to keep in
confidence all financial data and other information relative to
the affairs of the Borrower heretofore furnished or which may
hereafter be furnished to it pursuant to the provisions of this
Agreement; provided, however, that this Section 8.08 shall not be
applicable to information otherwise disseminated to the public by
the Borrower; and provided further that such obligation of each
Bank shall be subject to each Bank's (a) obligation to disclose
such information pursuant to a request or order under applicable
laws and regulations or pursuant to a subpoena or other legal
process, (b) right to disclose any such information to bank
examiners, its affiliates (including, without limitation, in the
case of B of A, BA Securities, Inc. and in the case of CUSA,
Citicorp Securities, Inc.), bank, auditors, accountants and its
counsel and other Banks, and (c) right to disclose any such
information, (i) in connection with the transactions set forth
herein including assignments and sales of participation interests
pursuant to Section 8.07 hereof or (ii) in or in connection with
any litigation or dispute involving the Banks and the Borrower or
any transfer or other disposition by such Bank of any of its
Advances or other extensions of credit by such Bank to the
Borrower or any of its Subsidiaries, provided that information
disclosed pursuant to this proviso shall be so disclosed subject
to such procedures as are reasonably calculated to maintain the
confidentiality thereof.
SECTION 8.09. GOVERNING LAW. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.10. EXECUTION IN COUNTERPARTS. This Agreement
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 8.11. CONSENT TO JURISDICTION, WAIVER OF
IMMUNITIES. The Borrower hereby irrevocably submits to the
jurisdiction of any New York state or Federal court sitting in
New York, New York in any action or proceeding arising out of or
relating to this Agreement, and the Borrower hereby irrevocably
agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York state or Federal
court. The Borrower hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The
Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 8.11 shall affect the
right of any Lender or Agent to serve legal process in any other
manner permitted by law or affect the right of any Lender or
Agent to bring any action or proceeding against the Borrower or
its property in the courts of any other jurisdiction.
SECTION 8.12. WAIVER OF TRIAL BY JURY. THE BORROWER, THE
BANKS, THE AGENTS AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
OTHER LENDERS EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of
this transaction, including without limitation contract claims,
tort claims, breach of duty claims and all other common law and
statutory claims. The Borrower, the Banks, the Agents and, by
its acceptance of the benefits hereof, other Lenders each (i)
acknowledges that this waiver is a material inducement for the
Borrower, the Lenders and the Agents to enter into a business
relationship, that the Borrower, the Lenders and the Agents have
already relied on this waiver in entering into this Agreement or
accepting the benefits thereof, as the case may be, and that each
will continue to rely on this waiver in their related future
dealings and (ii) further warrants and represents that each has
reviewed this waiver with its legal counsel, and that each
knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the
event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers "hereunto
duly authorized, as of the date first above written.
THE DIAL CORP, a Delaware
corporation (to be known as VIAD
CORP upon the on and after the
Effective Date)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President-Finance
and Treasurer
CITICORP USA, INC., as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
COMMITMENT LENDER
$42,500,000 CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
$42,500,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
$30,000,000 BANK OF MONTREAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
$30,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Vice President
$30,000,000 CIBC INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
$30,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
$30,000,000 ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Manager
$25,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
$25,000,000 NBD BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Agent
$20,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ ▇. ▇▇▇▇▇▇▇
Joint General Manager
$20,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Associate
$15,000,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By: /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deputy General Manager
$15,000,000 MELLON BANK, N.A.
By: /s/ ▇.▇. ▇▇▇▇
Vice President
$15,000,000 THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
$15,000,000 UNION BANK OF CALIFORNIA
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Vice President
$15,000,000 ▇▇▇▇▇ FARGO BANK OF ARIZONA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
DOMESTIC LENDING EURODOLLAR LENDING
NAME OF BANK OFFICE OFFICE
CITIBANK, N. A. Central Corporate Central Corporate
Customer Services Customer Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
7th Floor 7th Floor
Long Island City, NY ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ 11120
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Bank Loan Syndication Bank Loan Syndication
BANK OF AMERICA ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SAVINGS ASSOCIATION Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
BANK OF MONTREAL ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
CIBC, INC. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
2 Paces West ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇
THE ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ BANK, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
NATIONSBANK OF c/o NationsBank c/o NationsBank
TEXAS, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
ROYAL BANK OF ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ RCBO 4101-251
OF ARIZONA, ▇.▇. ▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
NATIONAL Phoenix, AZ 85072-3456 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ASSOCIATION Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Street Address: Street Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
THE INDUSTRIAL ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇.
BANK OF JAPAN, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ANGELES AGENCY Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
THE LONG-TERM ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇.
CREDIT BANK OF Suite 3000 Suite 3000
JAPAN, LTD., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LOS ANGELES AGENCY Attn: ▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ BANK, N.A. Three Mellon Bank Center Three Mellon Bank Center
Room 2303 Room 2303
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
NBD BANK ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY c/o ▇.▇. ▇▇▇▇▇▇ Nassau, Bahamas Office
TRUST COMPANY OF Services, Inc. c/o ▇.▇. ▇▇▇▇▇▇ Services,
NEW YORK 500 ▇▇▇▇▇▇▇ - Inc.
Christiana Road Loan Operations - 3rd Flr
Newark, Delaware 19713 500 ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
THE NORTHERN 50 S. La Salle 50 S. La Salle
TRUST COMPANY B-12 B-12
Chicago, IL 60675 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Honda Attn: ▇▇▇▇▇ Honda
UNION BANK OF ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
CALIFORNIA ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
WESTDEUTSCHE 1211 Avenue of the 1211 Avenue of the
LANDESBANK Americas Americas
GIROZENTRALE, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
NEW YORK BRANCH Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT A-1
[FORM OF NOTICE OF COMMITTED BORROWING]
NOTICE OF COMMITTED BORROWING
Citicorp USA, Inc., as Administrative
Agent for the Lenders party
to the Credit Agreement
referred to below
c/o Citicorp Bank Loan
Syndications Operations
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: [ ]
Gentlemen:
The undersigned, [The Dial Corp][Viad Corp] (the "Borrower"),
refers to that certain Amended and Restated Credit Agreement dated as
of July 24, 1996 (as it may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined), by and
among the Borrower, certain Lenders party thereto, Citicorp USA, Inc.,
as Administrative Agent for said Lenders, and Bank of America National
Trust and Savings Association, as Documentation Agent for said
Lenders. The Borrower hereby gives you notice, irrevocably, pursuant
to Section 2.02 of the Credit Agreement, that the Borrower hereby
requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing
(the "Proposed Committed Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed Committed Borrowing
is [ ], 19[ ].
(ii) The Type of Committed Advances comprising the
Proposed Committed Borrowing is [Base Rate Advances] [Eurodollar
Rate Advances].
(iii) The aggregate amount of the Proposed Committed
Borrowing is $[ ].
(iv) If the Type of Advances comprising the Proposed
Committed Borrowing is Eurodollar Rate Advances, the Interest
Period for each Advance made as part of the Proposed Committed
Borrowing is [ ] month[s].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the
Proposed Committed Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Committed Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they
were correct as of such earlier date; and
(B) no event has occurred and is continuing, or will result
from such Proposed Committed Borrowing or from the application of
the proceeds therefrom, which constitutes an Event of Default or
a Potential Event of Default.
Very truly yours,
[THE DIAL CORP] [VIAD CORP]
By:
Title:
EXHIBIT A-2
[FORM OF NOTICE OF BID BORROWING]
NOTICE OF BID BORROWING
Citicorp USA, Inc.,
as Administrative Agent
for the Lenders party to
the Credit Agreement referred
to below
c/o Citicorp Bank Loan
Syndications Operations
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: [ ]
Gentlemen:
The undersigned, [The Dial Corp][Viad Corp] (the "Borrower"),
refers to that certain Amended and Restated Credit Agreement dated as
of July 24, 1996 (as it may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined), by and
among the Borrower, certain Lenders party thereto, Citicorp USA, Inc.,
as Administrative Agent for said Lenders, and Bank of America National
Trust and Savings Association, as Documentation Agent for said
Lenders. The Borrower hereby gives you notice pursuant to Section
2.03(a) of the Credit Agreement that the undersigned hereby requests a
Bid Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Bid Borrowing (the "Proposed Bid
Borrowing") is requested to be made:
(A) Date of Proposed Bid Borrowing:
(B) Aggregate Amount of Proposed Bid Borrowing:
(C) Maturity Date:
(D) Currency if the Proposed Bid Borrowing
is comprised of Eurodollar Advances:
(E) Interest Payment Date(s):
(F) Other Terms
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the
Proposed Bid Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date,
except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they
were correct as of such earlier date; and
(B) no event has occurred and is continuing, or will result
from such Proposed Bid Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or a
Potential Event of Default.
The undersigned hereby confirms that the Proposed Bid Borrowing
is to be made available to it in accordance with Section 2.03 of the
Credit Agreement.
Very truly yours,
[THE DIAL CORP] [VIAD CORP]
By:
Title:
EXHIBIT B
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Dated [ ], 19[ ]
Reference is made to that certain Amended and Restated Credit
Agreement dated as of July 24, 1996 (as it may be amended,
supplemented, restated or otherwise modified from time to time, the
"Credit Agreement") among [The Dial Corp][Viad Corp] (the "Borrower"),
the Lenders (as defined in the Credit Agreement), Citicorp USA, Inc.,
as Administrative Agent for the Lenders, and Bank of America National
Trust and Savings Association, as Documentation Agent for the Lenders.
Terms defined in the Credit Agreement and not defined herein are used
herein with the same meaning.
[ ] (the "Assignor") and [ ] (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns without recourse to
the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date which
represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement,
including, without limitation, such interest in the Assignor's
Commitment and the Advances owing to the Assignor. After giving effect
to such sale and assignment, the Assignee's Commitment, the amount of
the Advances owing to the Assignee, and the Commitment Termination
Date of the Assignee will be as set forth in Section 2 of Schedule 1.
In consideration of Assignor's assignment, Assignee hereby agrees to
pay to Assignor, on the Effective Date, the amount of $[ ] in
immediately available funds by wire transfer to Assignor's office at
[ ].
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument
or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant
thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon the
Agents, the Assignor or any other Lender 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 the
Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are
delegated to such Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it
as a Lender; and (vi) specifies as its Domestic Lending Office (and
address for notices) and Eurodollar Lending Office the offices set
forth beneath its name on the signature pages hereof [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's status for purposes of
determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit
Agreement or such other documents as are necessary to indicate that
all such payments are subject to such rates at a rate reduced by an
applicable tax treaty].*
4. Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to the
Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto
(the "Effective Date").
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder
and (ii) the Assignor shall, to the extent provided in this Assignment
and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
--------------
*If the Assignee is organized under the laws of a jurisdiction
outside the United States.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent
shall make all payments under the Credit Agreement in respect of the
interest assigned hereby (including, without limitation, all payments
of principal, interest and fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers
"hereunto duly authorized, as of the date first above written, such
execution being made on Schedule 1 hereto.
Schedule 1
to
Assignment and Acceptance
Dated [ ], 19[ ]
Section 1.
----------
Percentage Interest: [ ]%
Section 2.
----------
Assignee's Commitment: $[ ]
Aggregate Outstanding Principal
Amount of Advances owing to
the Assignee: $[ ]
Advances payable to the Assignee
Principal amount: [ ]
Advances payable to the Assignor
Principal amount: [ ]
Assignee's Commitment Termination
Date: [ ], 199[ ]
Section 3.
----------
Effective Date*: [ ], 199[ ]
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
------------------
' This date should be no earlier than the date of acceptance by
the Administrative Agent.
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this [ ] day
of [ ], 199[ ]
CITICORP USA, INC., as
Administrative Agent
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent
By:
Title:
[THE DIAL CORP] [VIAD CORP]
By:
Title:
EXHIBIT C-l
[FORM OF OPINION OF COUNSEL TO BORROWER
AS OF THE CLOSING DATE]
[CLOSING DATE]
Citicorp USA, Inc.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
and Savings Association,
as Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks (the "Banks") Listed on
Schedule I Party to the Credit
Agreement Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996,
among The Dial Corp, the Banks named therein, Citicorp USA, Inc.
as Administrative Agent, and Bank of America National Trust and
Savings Association, as Documentation Agent
Ladies and Gentlemen:
I am Vice President and General Counsel of The Dial Corp, a
Delaware corporation (the "Borrower"), and as such have acted as
counsel to the Borrower in connection with the negotiation, execution
and delivery by the Borrower of the Amended and Restated Credit
Agreement dated as of July 24, 1996 (the "Credit Agreement") among the
Borrower, the Banks, Citicorp USA, Inc. as Administrative Agent, and
Bank of America National Trust and Savings Association as
Documentation Agent. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
This opinion is delivered to you pursuant to Section 3.01(a)(vi)
of the Credit Agreement. I have examined the Credit Agreement and I
have examined or am familiar with originals or copies, the
authenticity of which has been established to my satisfaction of such
other documents, corporate records, agreements and instruments, and
certificates of public officials and of officers of the Borrower as I
have deemed necessary or appropriate to enable me to express the
opinions set forth below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently
established, relied upon certification by officers of the Borrower,
which I believe to be reliable.
The opinions hereinafter expressed are subject to the fact that I
am a member of the State Bar of Arizona and do not hold myself out as
an expert on the laws of other states or jurisdictions except (i) the
federal law of the United States of America, (ii) the General
Corporation Law of the State of Delaware, and (iii) the laws of New
York relevant to the opinions herein expressed.
Based upon the foregoing and having regard to legal
considerations which I have deemed relevant, it is my opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware and is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions which require such qualification, except to the extent
that failure to so qualify would not have a material adverse effect on
the Borrower. The Borrower has all requisite corporate power and
authority to own and operate its properties, to conduct its business
as presently conducted, and to execute, deliver and perform its
obligations under the Credit Agreement.
2. The Credit Agreement has been duly authorized by all
necessary corporate action on the part of the Borrower and has been
duly executed and delivered by the Borrower. The Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency and
reorganization laws and other similar laws governing the enforcement
of lessors' or creditors' rights and by the effects of specific
performance, injunctive relief and other equitable remedies.
3. Neither the execution and delivery by the Borrower of the
Credit Agreement, nor consummation of the transactions contemplated
thereby, nor compliance on or prior to the date hereof with the terms
and conditions thereof by the Borrower conflicts with or is a
violation of, its certificate of incorporation or bylaws, each as in
effect on the date hereof. Neither the execution and delivery by the
Borrower of the Credit Agreement, nor the consummation of the
transactions contemplated thereby, nor compliance on or prior to the
date hereof with the terms and conditions thereof by the Borrower will
result in a violation of any applicable federal or New York law,
governmental rule or regulation or of the Corporation Law of the State
of Delaware or conflicts with, will result in a breach of, or
constitutes a default under, any provision of any indenture, agreement
or other instrument to which the Borrower is a party or any of its
properties may be bound ("Material Agreements"), or any order,
judgment or decree to which the Borrower or any of its assets are
bound ("Judicial Orders"), or will result in the creation or
imposition of any lien upon any property or assets of the Borrower
pursuant to any Material Agreement or Judicial Order.
4. Neither the making of the Advances pursuant to, nor
application of the proceeds thereof in accordance with, the Credit
Agreement, will violate Regulations G, T, U or X promulgated by the
Board of Governors of the Federal Reserve System.
5. No consent, approval or authorization of, and no
registration, declaration or filing with, any administrative,
governmental or other public authority of the United States of America
or the State of New York or under the Corporation Law of the State of
Delaware is required by law to be obtained or made by the Borrower for
the execution, delivery and performance by the Borrower of the Credit
Agreement, except such filings as may be required in the ordinary
course to keep in full force and effect rights and franchises material
to the business of the Borrower and in connection with the payment of
taxes.
6. The Borrower is not an "investment company" or a Person
directly or indirectly "controlled" by or "acting on behalf of an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
This opinion is delivered to the Agents and the Banks as of the
date hereof in connection with the Credit Agreement, and may not be
relied upon by any person other than the Agents and the Banks and
their permitted assignees, or by them in any other context, and may
not be furnished to any other person or entity without my prior
written consent, provided that each Bank and its permitted assignees
may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such
Bank, (iii) pursuant to order or legal process of any court or
governmental agency, (iv) in connection with any legal action to which
the Bank is a party arising out of the transactions contemplated by
the Credit Agreement, or (v) in connection with the assignment of or
sale of participations in the Advances.
Very truly yours,
EXHIBIT C-2
[FORM OF OPINION OF COUNSEL TO BORROWER
AS OF THE EFFECTIVE DATE]
[EFFECTIVE DATE]
Citicorp USA, Inc.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National
Trust and Savings Association,
as Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks (the "Banks") Listed on
Schedule I Party to the Credit
Agreement Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996,
among The Dial Corp, the Banks named therein, Citicorp USA, Inc.
as Administrative Agent, and Bank of America National Trust and
Savings Association as Documentation Agent
Ladies and Gentlemen:
I am Vice President and General Counsel of The Dial Corp, a
Delaware corporation (the "Borrower"), and as such have acted as
counsel to the Borrower in connection with the negotiation, execution
and delivery by the Borrower of the Amended and Restated Credit
Agreement dated as of July 24, 1996 (the "Credit Agreement") among the
Borrower, the Banks, Citicorp USA, Inc. as Administrative Agent, and
Bank of America National Trust and Savings Association as
Documentation Agent. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
This opinion is delivered to you pursuant to Section 3.02(a)(ii)
of the Credit Agreement. I have examined the Credit Agreement and I
have examined or am familiar with originals or copies, the
authenticity of which has been established to my satisfaction of such
other documents corporate records, agreements and instruments, and
certificates of public officials and of officers of the Borrower as I
have deemed necessary or appropriate to enable me to express the
opinions set forth below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently
established, relied upon certification by officers of the Borrower,
which I believe to be reliable.
The opinions hereinafter expressed are subject to the fact that I
am a member of the State Bar of Arizona and do not hold myself out as
an expert on the laws of other states or jurisdictions except (i) the
federal law of the United States of America, (ii) the General
Corporation Law of the State of Delaware, and (iii) the laws of New
York relevant to the opinions herein expressed.
Based upon the foregoing and having regard to legal
considerations which I have deemed relevant, it is my opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware and is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions which require such qualification, except to the extent
that failure to so qualify would not have a material adverse effect on
the Borrower. The Borrower has all requisite corporate power and
authority to own and operate its properties, to conduct its business
as presently conducted, and to execute, deliver and perform its
obligations under the Credit Agreement.
2. The Credit Agreement has been duly authorized by all
necessary corporate action on the part of the Borrower and has been
duly executed and delivered by the Borrower. The Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency and
reorganization laws and other similar laws governing the enforcement
of lessors' or creditors' rights and by the effects of specific
performance, injunctive relief and other equitable remedies.
3. Neither the execution and delivery by the Borrower of the
Credit Agreement, nor consummation of the transactions contemplated
thereby, nor compliance on or prior to the date hereof with the terms
and conditions thereof by the Borrower conflicts with or is a
violation of, its certificate of incorporation or bylaws, each as in
effect on the date hereof. Neither the execution and delivery by the
Borrower of the Credit Agreement, nor the consummation of the
transactions contemplated thereby, nor compliance on or prior to the
date hereof with the terms and conditions thereof by the Borrower will
result in a violation of any applicable federal or New York law,
governmental rule or regulation or of the Corporation Law of the State
of Delaware or conflicts with, will result in a breach of, or
constitutes a default under, any provision of any indenture, agreement
or other instrument to which the Borrower is a party or any of its
properties may be bound ("Material Agreements"), or any order,
judgment or decree to which the Borrower or any of its assets are
bound ("Judicial Orders"), or will result in the creation or
imposition of any lien upon any property or assets of the Borrower
pursuant to any Material Agreement or Judicial Order.
4. Neither the making of the Advances pursuant to, nor
application of the proceeds thereof in accordance with, the Credit
Agreement, will violate Regulations G, T, U or X promulgated by the
Board of Governors of the Federal Reserve System.
5. No consent, approval or authorization of, and no
registration, declaration or filing with, any administrative,
governmental or other public authority of the United States of America
or the State of New York or under the Corporation Law of the State of
Delaware is required by law to be obtained or made by the Borrower for
the execution, delivery and performance by the Borrower of the Credit
Agreement, except such filings as may be required in the ordinary
course to keep in full force and effect rights and franchises material
to the business of the Borrower and in connection with the payment of
taxes.
6. The Borrower is not an "investment company" or a Person
directly or indirectly "controlled" by or "acting on behalf of an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
This opinion is delivered to the Agents and the Banks as of the
date hereof in connection with the Credit Agreement, and may not be
relied upon by any person other than the Agents and the Banks and
their permitted assignees, or by them in any other context, and may
not be furnished to any other person or entity without my prior
written consent, provided that each Bank and its permitted assignees
may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such
Bank, (iii) pursuant to order or legal process of any court or
governmental agency, (iv) in connection with any legal action to which
the Bank is a party arising out of the transactions contemplated by
the Credit Agreement, or (v) in connection with the assignment of or
sale of participations in the Advances.
Very truly yours,
EXHIBIT D-1
[FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
AS OF THE CLOSING DATE]
[CLOSING DATE]
Citicorp USA, Inc., as
Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
and Savings Association, as
Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996
among The Dial Corp, the Banks named therein, Citicorp USA, Inc.,
as Administrative Agent, and Bank of America National Trust and
Savings Association, as Documentation Agent
Gentlemen:
We have participated in the preparation of the Amended and
Restated Credit Agreement dated as of July 24, 1996 (the "Credit
Agreement"; capitalized terms defined therein and not otherwise
defined herein are used herein as therein defined) among The Dial Corp
(the "Borrower"), the Banks named therein (the "Banks"), Citicorp USA,
Inc., as Administrative Agent, and Bank of America National Trust and
Savings Association, as Documentation Agent (Documentation Agent and
Administrative Agent, collectively, are hereinafter referred to as
"Agents"), and have acted as special counsel for the Agents for the
purpose of rendering this opinion pursuant to Section 3.01(a)(vii) of
the Credit Agreement.
We have participated in various conferences and telephone
conferences with representatives of the Borrower and the Agents and
conferences and telephone calls with counsel to the Borrower, and with
your representatives, during which the Credit Agreement and related
matters have been discussed, and we have also participated in the
meeting held on the date hereof (the "Closing") incident to the
effectiveness of the Credit Agreement. We have reviewed the forms of
the Credit Agreement and the exhibits thereto, and the opinion of [L.
▇▇▇▇ ▇▇▇▇▇], General Counsel of the Borrower (the "Opinion"), and
officers' certificates and other documents delivered at the Closing.
We have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals or copies, the due
authority of all persons executing the same, and we have relied as to
factual matters on the documents which we have reviewed.
On the basis of such examination, our reliance upon the
assumptions contained herein and our consideration of those questions
of law we considered relevant and subject to the limitations and
qualifications in this opinion, we are of the opinion that:
1. The Credit Agreement constitutes the legally valid and
binding obligations of the Borrower, enforceable against the Borrower
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
In giving the foregoing opinion, we have assumed, without independent
investigation, that the Credit Agreement has been duly authorized by
all necessary corporate action on the part of the Borrower and has
been duly executed and delivered by the Borrower.
2. The Opinion is satisfactory in form to us and, in our
opinion, you are justified in relying thereon.
Our opinions in paragraph 1 above as to the enforceability of the
Credit Agreement are subject to:
(a) public policy considerations, statutes or court
decisions that may limit the rights of a party to obtain
indemnification against its own gross negligence, willful
misconduct or unlawful conduct; and
(b) the unenforceability under certain circumstances of
waivers of rights granted by law where the waivers are against
public policy or prohibited by law.
We express no opinion as to the effect of non-compliance by you
with any state or federal laws or regulations applicable to the
transactions contemplated by the Credit Agreement because of the
nature of your business.
The law covered by this opinion is limited to the present federal
law of the United States and the present law of the State of New York.
We express no opinion as to the laws of any other jurisdiction. This
opinion is furnished by us as special counsel for the Agents and may
be relied upon by you only in connection with the Credit Agreement. It
may not be used or relied upon by you for any other purpose or by any
other person, nor may copies be delivered to any other person, without
in each instance our prior written consent. You may, however, deliver
a copy of this opinion to permitted assignees of all or a portion of a
Lender's rights and obligations under the Credit Agreement in
connection with such assignment, and such assignees may rely on this
opinion as if it were addressed and had been delivered to them on the
date of this opinion. This opinion may also be disclosed to
regulatory and other governmental authorities having jurisdiction over
you requesting (or requiring) such disclosure.
Respectfully submitted,
EXHIBIT D-2
[FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
AS OF THE EFFECTIVE DATE]
[EFFECTIVE DATE]
Citicorp USA, Inc., as
Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
and Savings Association, as
Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996
among The Dial Corp, the Banks named therein, Citicorp USA, Inc.,
as Administrative Agent, and Bank of America National Trust and
Savings Association as Documentation Agent
Gentlemen:
We have participated in the preparation of the Amended and
Restated Credit Agreement dated as of July 24, 1996 (the "Credit
Agreement"; capitalized terms defined therein and not otherwise
defined herein are used herein as therein defined) among The Dial Corp
(the "Borrower"), the Banks named therein (the "Banks"), Citicorp USA,
Inc., as Administrative Agent, and Bank of America National Trust and
Savings Association, as Documentation Agent (Documentation Agent and
Administrative Agent, collectively, are hereinafter referred to as
"Agents"), and have acted as special counsel for the Agents for the
purpose of rendering this opinion pursuant to Section 3.01(a)(vii) of
the Credit Agreement.
We have participated in various conferences and telephone
conferences with representatives of the Borrower and the Agents and
conferences and telephone calls with counsel to the Borrower, and with
your representatives, during which the Credit Agreement and related
matters have been discussed, and we have also participated in the
meeting held on the date hereof (the "Closing") incident to the
effectiveness of the Credit Agreement. We have reviewed the forms of
the Credit Agreement and the exhibits thereto, and the opinion of [L.
▇▇▇▇ ▇▇▇▇▇], General Counsel of the Borrower (the "Opinion"), and
officers' certificates and other documents delivered at the Closing.
We have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals or copies, the due
authority of all persons executing the same, and we have relied as to
factual matters on the documents which we have reviewed.
On the basis of such examination, our reliance upon the
assumptions contained herein and our consideration of those questions
of law we considered relevant and subject to the limitations and
qualifications in this opinion, we are of the opinion that:
1. The Credit Agreement constitutes the legally valid and
binding obligations of the Borrower, enforceable against the Borrower
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
In giving the foregoing opinion, we have assumed, without independent
investigation, that the Credit Agreement has been duly authorized by
all necessary corporate action on the part of the Borrower and has
been duly executed and delivered by the Borrower.
2. The Opinion is satisfactory in form to us and, in our
opinion, you are justified in relying thereon.
Our opinions in paragraph 1 above as to the enforceability of the
Credit Agreement are subject to:
(a) public policy considerations, statutes or court
decisions that may limit the rights of a party to obtain
indemnification against its own gross negligence, willful
misconduct or unlawful conduct; and
(b) the unenforceability under certain circumstances of
waivers of rights granted by law where the waivers are against
public policy or prohibited by law.
We express no opinion as to the effect of non-compliance by you
with any state or federal laws or regulations applicable to the
transactions contemplated by the Credit Agreement because of the
nature of your business.
The law covered by this opinion is limited to the present federal
law of the United States and the present law of the State of New York.
We express no opinion as to the laws of any other jurisdiction.
This opinion is furnished by us as special counsel for the Agents
and may be relied upon by you only in connection with the Credit
Agreement. It may not be used or relied upon by you for any other
purpose or by any other person, nor may copies be delivered to any
other person, without in each instance our prior written consent. You
may, however, deliver a copy of this opinion to permitted assignees of
all or a portion of a Lender's rights and obligations under the Credit
Agreement in connection with such assignment, and such assignees may
rely on this opinion as if it were addressed and had been delivered to
them on the date of this opinion. This opinion may also be disclosed
to regulatory and other governmental authorities having jurisdiction
over you requesting (or requiring) such disclosure.
Respectfully submitted,
EXHIBIT E
[FORM OF EXTENSION REQUEST]
[THE DIAL CORP] [VIAD CORP]
REQUEST FOR EXTENSION OF COMMITMENT
TERMINATION DATE
[Date]
[Name and Address of Eligible Lender]
Pursuant to that certain Amended and Restated Credit Agreement
dated as of July 24, 1996 (as amended from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein
defined) among [The Dial Corp][Viad Corp] (the "Borrower"), certain
Lenders party thereto, Citicorp USA, Inc., as Administrative Agent for
said Lenders, and Bank of America National Trust and Savings
Association, as Documentation Agent for said Lenders, this represents
the Borrower's request to extend the Commitment Termination Date of
each Eligible Lender to [1] pursuant to Section 2.16 of the Credit
Agreement.
The Borrower hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the
effectiveness of the extension requested hereby ("Proposed
Extension"):
(a) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Extension, as though made on and as of
such date, except to the extent that any such representation or
warranty expressly relates only to an earlier date, in which case
they were correct as of such earlier date;
(b) no event has occurred and is continuing, or would
result from the Proposed Extension, which constitutes an Event of
Default or a Potential Event of Default; and
-------------
[1] Insert date which is one year or two years after the latest
Commitment Termination Date in effect.
(c) the balance sheet of the Borrower and its Subsidiaries
as at [ ], 199[ ][2], and the related statements of income
and retained earnings of the Borrower and its Subsidiaries for
the fiscal year then ended, copies of each of which have been
furnished to each Lender, fairly present the financial condition
of the Borrower and its Subsidiaries as at such applicable date
and the results of the operations of the Borrower and its
Subsidiaries for the fiscal year ended on such applicable date,
all in accordance with GAAP consistently applied, and since
[ ], 199[ ][2], there has been no material adverse change
in the business, condition (financial or otherwise), operations
or properties of the Borrower and its Subsidiaries, taken as a
whole.
Please indicate your consent to such extension of the Commitment
Termination Date by signing the attached copy of this request in the
space provided below and returning the same to the undersigned.
Very truly yours,
[THE DIAL CORP] [VIAD CORP]
By:
Title:
The undersigned Eligible Lender
hereby consents to the extension
of its Commitment Termination Date
as requested above. This consent
is subject to the terms of
Section 2.16 of the Credit Agreement.
DATED:
[ELIGIBLE LENDER]
By:
Title:
------------------
[2] Insert date of the most recent audited balance sheet of the
Borrower and its Subsidiaries.
EXHIBIT F
[FORM OF COMPLIANCE CERTIFICATE]
The undersigned certifies that: (i) this Certificate is as of
[ ] and pertains to the period from [ ] to [ ], (ii)
the undersigned has reviewed the terms of that certain Amended and
Restated Credit Agreement, dated as of July 24, 1996, among The Dial
Corp (to be known as The Viad Corp upon the effectiveness of such
Credit Agreement), the Banks named therein, Citicorp USA, Inc., as
Administrative Agent, and Bank of America National Trust and Savings
Association, as Documentation Agent (as it may be amended,
supplemented, restated or otherwise modified from time to time, the
"Credit Agreement") and has made, or caused to be made under the
undersigned's supervision, a review in reasonable detail of the
transactions and condition of the Borrower and its Subsidiaries during
the period set forth above and (iii) such review has not disclosed the
existence during or at the end of such period, and the undersigned
does not have knowledge of the existences as of the date of this
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default.[3] Capitalized terms used
herein shall have the meanings set forth in the Credit Agreement.
A. Net Worth
For the Borrower and its Subsidiaries:
1. Net Worth as of the Effective Date $[ ]
2. 80% multiplied (1) $[ ]
3. Net Income (if a positive number)
from the Effective Date to most
recent June 30 or December 31 $[ ]
4. 25% multiplied (3) $[ ]
-------------
[3] If any event or condition that constitutes an Event of
Default or Potential Event of Default exists, the Certificate should
include the nature and period of existence of such event or condition
and what action the Borrower has taken, is taking and proposes to take
with respect thereto.
5. aggregate net proceeds, including
cash and the fair market value of
property other than cash, received
by the Borrower from the issue or sale
of capital stock of the Borrower
from the Effective Date to the most
recent June 30 or December 31 $[ ]
6. aggregate of 25% of the after tax
gains realized from unusual,
extraordinary, and major nonrecurring
items from the Effective Date to the
most recent June 30 or December 31 $[ ]
7. Additions to Capital [(5) plus (6)] $[ ]
8. Net Worth $[ ]
9. Minimum Net Worth permitted under
Credit Agreement
[(2) plus (4) plus (7)] $[ ]
B. Maximum Funded Debt Ratio.
For the Borrower and its Subsidiaries
(for each period consisting of the most
recently ended four consecutive fiscal
quarters of the Borrower):
1. indebtedness for borrowed money
or for the deferred purchase price
of property or services $[ ]
2. obligations as lessee under leases
which shall have been or should be,
in accordance with GAAP, recorded as
capital leases $[ ]
3. obligations under guarantees in
respect of indebtedness or
obligations of others of the
kinds referred to in clauses (1) and
(2) of this Section B $[ ]
4. Funded Debt [(1) plus (2) plus (3)] $[ ]
5. consolidated net income plus provision
for taxes (excluding extraordinary,
unusual, or nonrecurring gains or
losses) $[ ]
6. interest expense $[ ]
7. depreciation expense and
amortization of intangibles $[ ]
8. EBITDA [(5) plus (6) plus (7)] $[ ]
9. Ratio of Funded Debt to EBITDA
[(4):(8)] [ : ]
10. Maximum Funded Debt Ratio required
under Credit Agreement 3.00:1.00
By:
Title:
EXHIBIT G-1
[FORM OF PROMISSORY NOTE (COMMITTED ADVANCES)]
PROMISSORY NOTE
[ ] Dated: [ ], 19[ ]
FOR VALUE RECEIVED, the undersigned, [THE DIAL CORP][VIAD CORP],
a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of [ ] (the "Lender"), for the account of
its Applicable Lending Office, the unpaid principal amount of each
Advance made by the Lender to the Borrower pursuant to the Credit
Agreement referred to below on or before the Termination Date of the
Lender. The Borrower promises to pay interest on the unpaid principal
amount of each such Advance on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal
and interest shall be made in United States dollars in same day funds
at the Administrative Agent's office, as specified in the Credit
Agreement.
All Advances made by the Lender, the respective maturities
thereof and all repayments of principal thereof shall be recorded by
the Lender and, prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to each such Advance
then outstanding shall be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and
made a part hereof, or in the records of such Lender in accordance
with its usual practice; provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This promissory note is one of the promissory notes referred to
in Section 2.14(d) of that certain Amended and Restated Credit
Agreement dated as of July 24, 1996, among the Borrower, the Lenders
named therein, Citicorp USA, Inc., as Administrative Agent, and Bank
of America National Trust and Savings Association as Documentation
Agent (said Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is hereby made to the Credit Agreement for
provisions relating to this promissory note, including, without
limitation, the mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
[THE DIAL CORP] [VIAD CORP]
By:
Title:
TRANSACTIONS ON PROMISSORY NOTE
Amount of
Advance Amount
Made This Maturity Interest of Notation
Date Date Period Rate Payment Made By
---- --------- -------- -------- ------- --------
EXHIBIT G-2
[FORM OF PROMISSORY NOTE (BID ADVANCES)]
PROMISSORY NOTE
[ ] Dated: [__________], 19[ ]
FOR VALUE RECEIVED, the undersigned, [THE DIAL CORP][VIAD CORP], a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order
of [ ] (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of each Bid Advance (as defined below) made by the Lender
to the Borrower pursuant to the Credit Agreement on the maturity date of
such Bid Advance determined pursuant to the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Bid Advance from the date of such Bid Advance until such
principal amount is paid in full, at such interest rates, and payable at
such times, in accordance with the terms of the Credit Agreement .
Both principal and interest are payable in lawful money of the United
States of America to Citicorp USA, Inc., as Agent, at the office of
Citibank, N.A. located at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇ in same day funds. Each Bid Advance made by the Lender to the
Borrower pursuant to the Credit Agreement, and all payments made on account
of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the promissory notes referred to in
Section 2.14(d) of, and is entitled to the benefits of, that certain
Amended and Restated Credit Agreement dated as of July 24, 1996 (as it may
be amended, supplemented, restated or otherwise modified from time to time,
the "Credit Agreement") by and among Borrower, the financial institutions
named therein, Citicorp USA, Inc., as Administrative Agent and Bank of
America National Trust and Savings Association, as Documentation Agent. The
Credit Agreement, among other things, contains provisions for the making of
certain advances (the "Bid Advances") at the discretion of the Lender, and
for the acceleration of the maturity of the Bid Advances upon the happening
of certain stated events.
The date and amount of each Bid Advance, the maturity thereof and the
interest rate applicable thereto and all payments made by the Borrower on
account of principal hereof shall be recorded by the Lender and, prior to
any transfer of this Promissory Note, entered by the Lender on the grid
attached hereto, which is part of this Promissory Note, provided that the
Lender shall not be liable to the Borrower or to any other person for
failure to record any of the foregoing matters on the grid or otherwise in
the Lender's records. Such grid or such other record maintained by the
Lender shall, in the absence of manifest error, be conclusive evidence of
the matters so recorded.
The Borrower hereby waives presentment, demand, protest, and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York, United States.
[THE DIAL CORP] [VIAD CORP]
By:
Title:
TRANSACTIONS ON PROMISSORY NOTE
Amount of
Advance Amount
Made This Maturity Interest of Notation
Date Date Period Rate Payment Made By
---- --------- -------- -------- ------- --------
EXHIBIT H
[FORM OF DESIGNATION AGREEMENT]
DESIGNATION AGREEMENT
Dated [ ], 19[ ]
Reference is made to that certain Amended and Restated Credit
Agreement dated as of July 24, 1996 (as it may be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined) by and
among [The Dial Corp][Viad Corp], a Delaware corporation (the "Company"),
the financial institutions named therein, Citicorp USA, Inc., as
Administrative Agent, and Bank of America National Trust and Savings
Association, as Documentation Agent.
[ ] (the "Designator") and [ ] (the
"Designee") agree as follows:
1. The Designator hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Bid Advances
pursuant to Section 2.03 of the Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto and (ii) the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under
the Credit Agreement or any other instrument or document furnished pursuant
thereto.
3. The Designee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Designation Agreement; (ii) agrees that it will,
independently and without reliance upon the Agent, the Designator or any
other Lender 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 the Credit Agreement; (iii) confirms that
it is a Designated Bidder; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by
it as a Lender; and (vi) specifies as its Applicable Lending Office with
respect to Bid Advances (and address for notices) the offices set forth
beneath its name on the signature page[s] hereof.
[Remainder of page intentionally left blank]
A. This Designation Agreement shall be effective upon the execution
of this Agreement by the Designator, Designee and the Agent and the
approval of the Company as provided in the Credit Agreement.
1. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF DESIGNATOR]
By:
Title:
[NAME OF DESIGNEE]
By:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this [ ] day
of [ ], 19[ ]
Citicorp USA, Inc.
as Administrative Agent
By:
Title:
Bank of America National
Trust and Savings Association
as Documentation Agent
By:
Title: