U.S. $250,000,000
REVOLVING CREDIT AGREEMENT
Dated as of October 31, 1995
among
COMPAQ COMPUTER CORPORATION,
THE BANKS PARTY HERETO
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
As Administrative Agent
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
and
CITIBANK, N.A.,
As Co-Agents
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms.......................................... 1
1.02 Other Interpretive Provisions.................................. 12
1.03 Accounting Principles.......................................... 13
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments............................... 13
2.02 Notes.......................................................... 14
2.03 Procedure for Revolving Loan Borrowings........................ 14
2.04 Conversion and Continuation Elections for Revolving Loan
Borrowings. 15
2.05 Procedure for Swingline Borrowings............................. 17
2.06 Increase of Commitments........................................ 18
2.07 Ratable Reduction or Termination of Commitments................ 19
2.08 Non-Ratable Reduction or Termination of Commitments............ 20
2.09 Optional and Mandatory Prepayments............................. 20
2.10 Repayment...................................................... 21
2.11 Interest....................................................... 21
2.12 Fees........................................................... 22
2.13 Computation of Fees and Interest............................... 22
2.14 Interest Rate Determination and Protection..................... 22
2.15 Payments by the Company........................................ 23
2.16 Payments by the Banks to the Agent............................. 24
2.17 Sharing of Payments, Etc....................................... 25
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.......................................................... 25
3.02 Breakage Costs................................................. 26
3.03 Increased Costs................................................ 27
3.04 Illegality..................................................... 28
3.05 Reserves on Offshore Loans..................................... 28
3.06 Replacement of Bank; Termination of Bank....................... 28
3.07 Reallocation of Commitments in Event of Merger, Etc............ 30
3.08 Certificates of Banks.......................................... 30
3.09 Survival....................................................... 31
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans.................................... 31
4.02 Conditions to All Borrowings................................... 32
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence............................................ 32
5.02 Corporate Power................................................ 32
5.03 Authorization and Approvals.................................... 33
5.04 Enforceable Obligations........................................ 33
5.05 Financial Statements........................................... 33
5.06 Litigation..................................................... 33
5.07 Regulation U; Use of Proceeds.................................. 33
5.08 Investment Company Act......................................... 34
5.09 ERISA.......................................................... 34
5.10 Holding Company................................................ 34
5.11 Environmental Condition........................................ 34
5.12 No Material Adverse Change..................................... 34
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws Etc....................................... 35
6.02 Reporting Requirements......................................... 35
6.03 Use of Proceeds................................................ 36
6.04 Maintenance of Insurance....................................... 36
6.05 Corporate Existence Etc........................................ 36
6.06 Visitation Rights.............................................. 36
ARTICLE VII
NEGATIVE COVENANTS
7.01 Consolidated Tangible Net Worth................................ 36
7.02 Liens.......................................................... 36
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default............................................... 37
8.02 Remedies....................................................... 38
8.03 Rights Not Exclusive........................................... 38
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization.................................. 38
9.02 Delegation of Duties........................................... 39
9.03 Liability of Agent............................................. 39
9.04 Reliance by Agent.............................................. 39
9.05 Notice of Default.............................................. 40
9.06 Credit Decision................................................ 40
9.07 Indemnification................................................ 40
9.08 Agent in Individual Capacity................................... 41
9.09 Successor Agent................................................ 41
9.10 Withholding Tax................................................ 42
9.11 Co-Agent....................................................... 43
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers......................................... 43
10.02 Notices........................................................ 44
10.03 No Waiver: Cumulative Remedies................................. 44
10.04 Costs and Expenses............................................. 45
10.05 Indemnity...................................................... 45
10.06 Payments Set Aside............................................. 45
10.07 Binding Effect; Assignments; Participations.................... 46
10.08 Set-off........................................................ 47
10.09 Interest....................................................... 47
10.10 Confidentiality................................................ 48
10.11 Preservation of Certain Matters................................ 49
10.12 Notification of Addresses, Lending Offices Etc................. 50
10.13 Counterparts................................................... 50
10.14 Severability................................................... 50
10.15 Governing Law; Jurisdiction.................................... 50
10.16 WAIVER OF JURY TRIAL........................................... 50
10.17 ENTIRE AGREEMENT............................................... 50
SCHEDULES
Schedule 10.02 Notice Addresses, Payment and Lending Offices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Opinion of Senior Vice President and General
Counsel of the Company
Exhibit D-2 Form of Opinion of Corporate Counsel of the Company
Exhibit E Form of Note
REVOLVING CREDIT AGREEMENT
dated as of October 31, 1995
COMPAQ COMPUTER CORPORATION, a Delaware corporation (the "Company"), the
several financial institutions from time to time party to this Agreement
(collectively, the "Banks", and individually, a "Bank"), and Bank of America
National Trust and Savings Association, as administrative agent for the Banks,
agree as follows.
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Acquiring Entity" has the meaning specified in Section 3.07.
"Adjusted CD Rate" means, for any Interest Period for each Adjusted CD
Rate Revolving Loan comprising part of the same Borrowing or an Adjusted CD
Rate Swingline Loan, as the case may be, an interest rate per annum equal to
the sum of:
(a) the rate per annum obtained by dividing (i) the rate of
interest determined by the Agent to be the average (rounded upward to
the nearest whole multiple of 1/100 of 1% per annum, if such average is
not such a multiple) of the consensus bid rate determined by each of the
Reference Banks, in the case of Adjusted CD Rate Revolving Loans, or the
Swingline Bank, in the case of an Adjusted CD Rate Swingline Loan, for
the bid rates per annum, at 9:00 a.m. (Houston time) (or as soon
thereafter as practicable) on the first day of such Interest Period, of
New York certificate of deposit dealers of recognized standing selected
by such Reference Bank or the Swingline Bank, as applicable, for the
purchase at face value of certificates of deposit of such Reference Bank
or the Swingline Bank, as applicable, in an amount substantially equal
to such Reference Bank's Adjusted CD Rate Revolving Loan comprising part
of such Borrowing, in the case of Adjusted CD Rate Revolving Loans, or
the Adjusted CD Rate Swingline Loan, in the case of an Adjusted CD Rate
Swingline Loan, and with a maturity equal to such Interest Period
(provided that, if bid rate quotes from such dealers are not available
to any Reference Bank or the Swingline Bank, as applicable, such
Reference Bank or the Swingline Bank shall notify the Agent of a
reasonably equivalent rate determined by it on the basis of another
source or sources selected by it), by (ii) a percentage equal to 100%
minus the Adjusted CD Rate Reserve Percentage for such Interest Period
(the "Certificate of Deposit Rate"), plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each Adjusted CD Rate
Revolving Loan comprising part of the same Borrowing or an Adjusted CD
Rate Swingline Loan, as the case may be, shall be determined by the
Agent on the basis of applicable rates furnished to and received by the
Agent as set forth above on the first day of such Interest Period,
subject however, to the provisions of Section 2.14.
"Adjusted CD Rate Revolving Loan" means a Revolving Loan which bears
interest at the Adjusted CD Rate plus the Applicable Margin.
"Adjusted CD Rate Reserve Percentage" for any Interest Period for each
Adjusted CD Rate Revolving Loan comprising part of the same Borrowing or an
Adjusted CD Rate Swingline Loan, as the case may be, means the reserve
percentage applicable on the first day of such Interest Period under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with deposits exceeding one billion
dollars with respect to liabilities consisting of or including U.S. dollar
nonpersonal time deposits in the United States with a maturity equal to such
Interest Period.
"Adjusted CD Rate Swingline Loan" means a Swingline Loan which bears
interest at the Adjusted CD Rate plus the Applicable Margin.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agent" means BofA in its capacity as administrative agent for the Banks
hereunder, and any successor administrative agent.
"Agent-Related Persons" means BofA and any successor administrative
agent arising under Section 9.09, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
Schedule 10.02 or such other address as the Agent may from time to time
specify.
"Agreement" means this Revolving Credit Agreement.
"Applicable Fee Amount" means, for any date, 0.080 percent per annum.
"Applicable Margin" means, on any date and with respect to each CD Loan
or Offshore Loan outstanding on such date, 0.20 percent per annum; provided,
that at any time as the aggregate outstanding principal amount of Revolving
Loans, together with the aggregate outstanding principal amount of "Revolving
Loans" under, and as that term is defined in, the 5-Year Credit Agreement,
exceeds 50% of the combined Commitments of all the Banks, together with the
combined "Commitments" of all the lenders under, and as that term is defined
in, the 5-Year Credit Agreement (and any time after the termination of
commitments to lend under clause (a) of Section 8.02 or under paragraph (b) or
(c) of Section 2.09 hereof, or of the 5-Year Credit Agreement, as applicable),
the Applicable Margin in respect of CD Loans and Offshore Loans hereunder
shall be increased by an additional 0.125 percentage points.
"Arranger" means BA Securities, Inc., a Delaware corporation.
"Assessment Rate" for any Interest Period for each Adjusted CD Rate
Revolving Loan comprising part of the same Borrowing or an Adjusted CD Rate
Swingline Loan, as the case may be, means the rate determined by the Agent as
equal to the annual assessment rate in effect on the first day of such
Interest Period payable to the FDIC by a member of the Bank Insurance Fund
that is classified as adequately capitalized and within supervisory subgroup
"A" (or a comparable successor assessment risk classification within the
meaning of 12 C.F.R. Section 327.3) for insuring time deposits at offices of
such member in the United States; or, in the event that the FDIC shall at any
time hereafter cease to assess time deposits based upon such classifications
or successor classifications, equal to the maximum annual assessment rate in
effect on such day that is payable to the FDIC by commercial banks (whether or
not applicable to any particular Bank) for insuring time deposits at offices
of such banks in the United States.
"Attorney Costs" means and includes the reasonable fees and
disbursements of any law firm or other external counsel and the allocated cost
of internal counsel.
"Bank" has the meaning specified in the introductory clause hereto.
References to the "Banks" shall include references to BofA in its capacity as
the Swingline Bank. For purposes of clarification only, to the extent that
BofA may have any rights or obligations in addition to those of the Banks due
to its status as the Swingline Bank, its status as such will be specifically
referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Loan" means any Base Rate Revolving Loan or any Base Rate
Swingline Loan.
"Base Rate" means, for any day, the higher of: (a) 1/2% above the latest
Federal Funds Rate, and (b) the rate of interest in effect for such day as
publicly announced from time to time by the Bank which is the Agent at its
principal office, as its "prime" or "reference" rate (or comparable rate, if
such Bank does not so designate a "prime" or "reference" rate). The prime or
reference rate is a rate set by such Bank based upon various factors including
such Bank's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the prime or
reference rate announced by such Bank shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Revolving Loan" means a Revolving Loan that bears interest
based on the Base Rate.
"Base Rate Swingline Loan" means a Swingline Loan which bears interest
based on the Base Rate.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Borrowing" means a borrowing hereunder consisting of (a) Revolving
Loans of the same Type made to the Company on the same day by the Banks, or
(b) a Swingline Loan made to the Company by the Swingline Bank, in each case
pursuant to Article II.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03 or 2.05.
"Business Day" means (i) any day of the year except Saturday, Sunday and
any day on which banks are required or authorized to close in New York City or
San Francisco and (ii) if the applicable Business Day relates to any Offshore
Loan, any day which is a "Business Day" described in clause (i) and which is
also a day for trading by and between banks in the London interbank Eurodollar
market.
"Certificate of Deposit Rate" has the meaning specified in the
definition of "Adjusted CD Rate."
"CD Lending Office" means, with respect to any Bank, the office of such
Bank specified as its "CD Lending Office" opposite its name on Schedule 10.02
or in the document pursuant to which it became a party hereto as contemplated
by Section 2.06, 3.06(a), 3.07 or 10.07(c) (or, if no such office is
specified, its Domestic Lending Office) or such other office of such Bank as
such Bank may from time to time specify to the Company and the Agent.
"CD Loan" means any Adjusted CD Rate Revolving Loan or any Adjusted CD
Rate Swingline Loan.
"Change in Control" means the direct or indirect acquisition by any
person (as such term is used in Section 13(d) and Section 14(d)(2) of the
Exchange Act), or related persons constituting a group (as such term is used
in Rule 13d-5 under the Exchange Act), of (a) beneficial ownership of issued
and outstanding shares of voting stock of a corporation or other entity, the
result of which acquisition is that such person or such group possesses in
excess of 50% of the combined voting power of all then-issued and outstanding
voting stock of such corporation or other entity, or (b) the power to elect,
appoint, or cause the election or appointment of at least a majority of the
members of the board of directors of such corporation or other entity.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.01 are satisfied or waived by all Banks.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in Section
2.01(a).
"Commitment Percentage" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Bank's Commitment divided by the combined
Commitments of all Banks.
"Company" means Compaq Computer Corporation, a Delaware corporation and
successors thereto.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its consolidated Subsidiaries
(excluding any Redeemable Preferred Stock of the Company).
"Consolidated Tangible Net Worth" means at any date Consolidated Net
Worth less the amount, if any, in excess of $25,000,000 of consolidated
"intangible assets" (as defined below) included in determining Consolidated
Net Worth. For the purposes of this definition, "intangible assets" means the
sum of (i) all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business made within
twelve months after the acquisition of such business) subsequent to December
31, 1994 in the book value of any asset owned by the Company or a Subsidiary
of the Company and (ii) all unamortized goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or developmental expenses and
other intangible items.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Revolving Loans of one Type to another Type, or
(b) continues as Revolving Loans of the same Type, but with a new Interest
Period, Revolving Loans having Interest Periods expiring on such date.
"Debt" of any Person means, at any date, without duplication, (i)
obligations for the repayment of money borrowed which are or should be shown
on a balance sheet as debt in accordance with GAAP, (ii) obligations as lessee
under leases which, in accordance with GAAP, are capital leases, (iii)
non-contingent reimbursement and payment obligations with respect to letters
of credit, bank guaranties or banker's acceptances, and (iv) guaranties of
payment or collection of any obligations described in clauses (i), (ii) and
(iii) of other Persons; provided, that clauses (i), (ii) and (iii) include, in
the case of obligations of the Company or any Subsidiary, only such
obligations as are or should be shown as debt or capital lease liabilities on
a consolidated balance sheet in accordance with GAAP; and provided, further,
that the liability of any Person as a general partner of a partnership for
Debt of such partnership, if the partnership is not a Subsidiary of such
Person, shall not constitute "Debt."
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule 10.02 hereto or in the document pursuant to which it became a party
hereto as contemplated by Section 2.06, 3.06(a), 3.07 or 10.07(c) or such
other office of such Bank as such Bank may from time to time specify to the
Company and the Agent.
"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 $200,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development or a political subdivision of any such country,
and having a combined capital and surplus of at least $200,000,000, provided
that such bank is acting through a branch or agency located in the United
States; and (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of
a Person of which a Bank is a Subsidiary, or (C) a Person of which a Bank is a
Subsidiary.
"Environment" or "Environmental" has the meanings set forth in the
Comprehensive Environmental Response, Compensation and Liability Act at 42
U.S.C. Section 9601(8) (1982).
"Environmental Protection Statute" means any United States local, state
or federal, or any foreign, law, statute, regulation, order, consent decree or
other agreement or Requirement of Law pertaining to the protection or
regulation of the Environment, including, without limitation, those laws,
statutes, regulations, orders, decrees, agreements and other Requirements of
Law relating to the disposal, cleanup, production, storing, refining,
handling, transferring, processing or transporting of Hazardous Waste,
Hazardous Substances or any pollutant or contaminant, wherever located.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the FRB.
"Event of Default" means any of the events or circumstances specified in
Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), published by the FRB on
the preceding Business Day opposite the caption "Federal Funds (Effective)";
or, if any relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as determined
by the Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by the
Agent.
"5-Year Credit Agreement" means that U.S. $1,000,000,000 Revolving Credit
Agreement dated as of this date among the Company, BofA as Administrative
Agent and the lenders party thereto, under which such lenders have agreed to
extend credit to the Company on a five-year basis.
"FRB" means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Hazardous Substance" has the meaning set forth in the Comprehensive
Environmental Response, Compensation and Liability Act at 42 U.S.C. Section
9601(14) and also includes each other substance considered to be a hazardous
substance under any analogous statute or regulation.
"Hazardous Waste" has the meaning set forth in the Resource Conservation
and Recovery Act at 42 U.S.C. Section 6903(5) and also includes each other
substance considered to be a hazardous waste under any analogous statute or
regulation (including 40 C.F.R. Section 261.3).
"Highest Lawful Rate" means, with respect to each Bank, the maximum
nonusurious interest rate, if any, that at any time or from time to time may
be contracted for, taken, reserved, charged or received on the Loans or on
other indebtedness outstanding under this Agreement or the Notes applicable to
such Bank which is presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
"Information" has the meaning specified in Section 10.10.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion
of its creditors; undertaken under Federal, state or foreign law, including
the Bankruptcy Code.
"Interest Payment Date" means (a) as to any Revolving Loan other than a
Base Rate Revolving Loan, the last day of each Interest Period applicable to
such Loan, provided, however, that if any Interest Period for (i) an Adjusted
CD Rate Revolving Loan exceeds 90 days, the date that falls 90 days after the
beginning of such Interest Period is also an Interest Payment Date, or (ii) a
LIBOR Revolving Loan exceeds three months, the date that falls three months
after the beginning of such Interest Period is also an Interest Payment Date,
(b) as to any Base Rate Revolving Loan, the last Business Day of each calendar
quarter and each date such Loan is converted into another Type of Revolving
Loan, and (c) as to any Swingline Loan, the last day of the Interest Period
applicable to such Loan.
"Interest Period" means (a) as to any Adjusted CD Rate Revolving Loan,
the period commencing on the Borrowing Date or on the Conversion/Continuation
Date on which a Revolving Loan is converted into or continued as an Adjusted
CD Rate Revolving Loan, and ending on the date 30, 60, 90 or 180 days
thereafter, as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, (b) as to any LIBOR Revolving
Loan, the period commencing on the Borrowing Date or on the
Conversion/Continuation Date on which a Revolving Loan is converted into or
continued as a LIBOR Revolving Loan, and ending on the day which numerically
corresponds to such date one, two, three or six months thereafter (or if such
month has no numerically corresponding day, on the last Business Day of such
month), as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, and (c) as to any Swingline Loan,
the period commencing on the Borrowing Date of such Loan and ending on such
date, not more than 10 days later, as agreed upon by the Company and the
Swingline Bank at the time of the Borrowing of such Loan; provided that:
(i) if any Interest Period pertaining to a CD Loan would
otherwise end on a day that is not a Business Day, that Interest Period
shall be extended to the following Business Day;
(ii) if any Interest Period pertaining to an Offshore Loan
would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the following Business Day unless the result
of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the
preceding Business Day; and
(iii) no Interest Period for any Loan shall extend beyond
October 30, 1996.
"IRS" means the United States Internal Revenue Service.
"Lending Office" means, as to any Bank, the office or offices of the
Bank specified as its "CD Lending Office" or "Domestic Lending Office" or
"LIBOR Lending Office", as the case may be, on Schedule 10.02, or such other
office or offices as the Bank may from time to time notify the Company and the
Agent.
"LIBO Rate" means, for any Interest Period for each LIBOR Revolving Loan
comprising part of the same Borrowing or a LIBOR Swingline Loan, as the case
may be, an interest rate per annum equal to 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 dollar deposits in immediately
available funds are offered by each of the Reference Banks, in the case of
LIBOR Revolving Loans, or the Swingline Bank, in the case of a LIBOR Swingline
Loan, to leading banks in the London interbank Eurodollar 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 amount of the LIBOR Revolving Loan of
such Reference Bank comprising part of such Borrowing, in the case of LIBOR
Revolving Loans, or the LIBOR Swingline Loan, in the case of a LIBOR Swingline
Loan, to be outstanding during such Interest Period and for a period equal to
such Interest Period. The LIBO Rate for each Interest Period for each LIBOR
Revolving Loan comprising part of the same Borrowing or a LIBOR Swingline
Loan, as the case may be, shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent as set forth above two
Business Days before the first day of such Interest Period, subject, however,
to the provisions of Section 2.14.
"LIBOR Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "LIBOR Lending Office" opposite its name on
Schedule 10.02 or in the document pursuant to which it became a party hereto
as contemplated by Section 2.06, 3.06(a), 3.07 or 10.07(c) (or, if no such
office is specified, its Domestic Lending Office) or such other office of such
Bank as such Bank may from time to time specify to the Company and the Agent.
"LIBOR Revolving Loan" means a Revolving Loan which bears interest at
the LIBO Rate plus the Applicable Margin.
"LIBOR Swingline Loan" means a Swingline Loan which bears interest at
the LIBO Rate plus the Applicable Margin.
"Loan" means an extension of credit, in the form of (a) a Revolving Loan
by a Bank to the Company, which may be a Base Rate Revolving Loan, Adjusted CD
Rate Revolving Loan or LIBOR Revolving Loan (each, a "Type" of Revolving
Loan), or (b) a Swingline Loan by the Swingline Bank to the Company, which may
be a Base Rate Swingline Loan, Adjusted CD Rate Swingline Loan or LIBOR
Swingline Loan (each, a "Type" of Swingline Loan); in each case pursuant to
Article II.
"Loan Documents" means this Agreement, the Notes and all other documents
delivered to the Agent or any Bank in connection herewith.
"Majority Banks" means at any time Banks holding at least 60% of the
combined Commitments of all the Banks, or, if at such time there are no
Commitments hereunder, Banks holding at least 60% of the then aggregate unpaid
principal amount of the Loans, including the Swingline Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, U or X of the FRB.
"Minimum Tranche" means: (a) in respect of Revolving Loans comprising
part of the same Borrowing, or to be converted or continued under Section
2.04, (i) in the case of Base Rate Revolving Loans, $5,000,000 or any multiple
of $1,000,000 in excess thereof; and (ii) in the case of Adjusted CD Rate
Revolving Loans and LIBOR Revolving Loans, $10,000,000 or any multiple of
$1,000,000 in excess thereof; and (b) in respect of any Swingline Loan,
$1,000,000 or any multiple of $500,000 in excess thereof, unless otherwise
agreed by the Swingline Bank.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto that is a nationally recognized rating agency.
"New Affiliate Bank" has the meaning specified in Section 3.06.
"No Loan Date" means any Business Day on which (a) no principal amount
of any Revolving Loan is outstanding, and (b) no Notice of Borrowing with
respect to Revolving Loans is pending or deemed pending pursuant to Article II.
"Note" has the meaning specified in Section 2.02.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document, owing by the Company to
any Bank, including the Swingline Bank, the Agent, or any Person required to
be indemnified, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising.
"Offshore Loan" means any LIBOR Revolving Loan or any LIBOR Swingline
Loan.
"Other Taxes" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies which arise from
any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Loan Document.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Preferred Stock" means, as applied to any corporation, shares of such
corporation which shall be entitled to preference or priority over any other
shares of such corporation in respect of either the payment of dividends or
the distribution of assets upon liquidation.
"Prescribed Forms" shall mean such duly executed and filed form(s) or
statement(s), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (a) an
income tax treaty between the United States and the country of residence of
the Bank providing the form(s) or statement(s), (b) the Code, or (c) any
applicable rule or regulation under the Code, permit the Company and the Agent
to make payments hereunder for the account of such Bank free of deduction or
withholding of United States income or other similar taxes.
"Redeemable" means, as applied to any Preferred Stock, any Preferred
Stock which (i) the issuer undertakes to redeem at a fixed or determinable
date or dates (other than pursuant to the exercise of an option to redeem by
the issuer, if the failure to exercise such option would not materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the issuer and its subsidiaries taken as a whole),
whether by operation of a sinking fund or otherwise, or upon the occurrence of
a condition not solely within the control of the issuer, or (ii) is redeemable
at the option of the holder.
"Reference Banks" means BofA, NationsBank of Texas, N.A. and Citibank,
N.A.
"Replacement Bank" has the meaning specified in Section 3.06(a).
"Required Banks" means at any time Banks holding at least 50% of the
combined Commitments of all the Banks, or, if at such time there are no
Commitments hereunder, Banks holding at least 50% of the then aggregate unpaid
principal amount of the Loans, including the Swingline Loans.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person
or any of its property or to which the Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer, the president,
the chief financial officer or the treasurer of the Company.
"Restricted Subsidiary" means any Subsidiary of the Company which has
non-intercompany assets with an aggregate book value exceeding 10% of the
Consolidated Tangible Net Worth of the Company based upon, at the time of
determination, the most recent year-end audited consolidated financial
statements of the Company.
"Resulting Increased Commitment" has the meaning specified in Section
3.07.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Termination Date" means the earlier to occur of:
(a) October 30, 1996; and
(b) the date on which the commitments of the Banks to make Loans
terminate in whole in accordance with Section 2.07, Section 2.09(b) or
2.09(c) or Section 8.02.
"S&P" means Standard & Poor's Rating Group and any successor thereto
that is a nationally recognized rating agency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Senior Debt Indenture" means that certain indenture dated as of March
1, 1994 between the Company and NationsBank of Texas, N.A., as Trustee,
without giving effect to any amendment, modification, termination or
cancellation thereof.
"Specified Transaction," in respect of the Company, means any
transaction or related set of transactions, that results, directly or
indirectly, in (i) any sale, lease or exchange of all or substantially all of
its property, (ii) the consolidation of the Company with any other Person, or
(iii) a merger of the Company with or into any other Person, if in connection
with such sale, lease, exchange, consolidation or merger any consent, approval
or authorization of the shareholders of the Company is required under any of
the Company's organizational documents, or any rule, regulation or Requirement
of Law.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, business trust, joint stock company,
joint venture or other business entity of which more than 50% of the voting
stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
Unless the context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company.
"Surviving Bank" has the meaning specified in Section 3.07.
"Swingline Bank" means BofA.
"Swingline Commitment", as to the Swingline Bank, has the meaning
specified in Section 2.01(b).
"Swingline Loan" has the meaning specified in Section 2.01(b).
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, taxes imposed on its net
income, and franchise taxes imposed on its net income, by the jurisdiction (or
any political subdivision thereof) under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a lending office.
"Type" has the meaning specified in the definition of "Loan."
"United States" and "U.S." each mean the United States of America.
1.02 Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement. Subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified. The term "documents" includes any and
all instruments, documents, agreements, certificates, indentures, notices and
other writings, however evidenced. The term "including" is not limiting and
means "including without limitation."
(c) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, (ii) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation and (iii) references to IRS forms, SEC
forms, FRB statistical releases or other forms, reports or documents of any
Governmental Authority are to be construed as including all forms, reports or
other documents that consolidate, amend or replace the forms, reports or
documents.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
1.03 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. (a) Each Bank severally agrees,
on the terms and conditions set forth herein, to make loans (each such loan a
"Revolving Loan") to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination Date, in an
aggregate principal amount not to exceed at any time outstanding, together
with such Bank's Commitment Percentage of all Swingline Loans then
outstanding, the amount set forth opposite the Bank's name on the signature
pages hereto (as such signature pages are deemed modified pursuant to this
Article II or Article III or Section 10.07) (as such amount may be reduced or
increased pursuant to Sections 2.06, 2.07, 2.08, 2.09, 3.06, 3.07 or 8.02,
such Bank's "Commitment"); provided, however, that, after giving effect to any
Borrowing of Revolving Loans, the aggregate principal amount of all
outstanding Revolving Loans and Swingline Loans shall not at any time exceed
the combined Commitments of all the Banks. Within the limits of each Bank's
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this Section 2.01(a), prepay under Section 2.09(a) and
reborrow under this Section 2.01(a).
(b) The Swingline Bank agrees, on the terms and conditions set
forth herein, to make a portion of the combined Commitments of all the Banks
available to the Company by making swingline loans (each such loan a
"Swingline Loan") to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination Date, in an
aggregate principal amount not to exceed at any time outstanding $50,000,000
(as such amount may be reduced pursuant to Sections 2.07, 2.08, 2.09, 3.06 or
8.02, the Swingline Bank's "Swingline Commitment"), notwithstanding the fact
that such Swingline Loans, when aggregated with the Swingline Bank's
outstanding Revolving Loans, may exceed the Swingline Bank's Commitment;
provided, however, that, after giving effect to any Borrowing of a Swingline
Loan, the aggregate principal amount of all outstanding Revolving Loans and
Swingline Loans shall not at any time exceed the combined Commitments of all
the Banks. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 2.01(b), prepay
under Section 2.09(a) and reborrow pursuant to this Section 2.01(b).
2.02 Notes. The Loans made by each Bank are evidenced by a note in
substantially the form of Exhibit E ("Note") payable to the order of that
Bank, evidencing the aggregate indebtedness of the Company to such Bank
resulting from the Loans owed to such Bank. Each Bank may endorse on the
schedules annexed to its Notes, the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the Company with
respect thereto. Each Bank is irrevocably authorized by the Company to
endorse its Notes, and each Bank's record shall be prima facie evidence of the
matters reflected therein; provided, however, that the failure of a Bank to
make, or an error in making, a notation thereon with respect to any Loan shall
not limit or otherwise affect the obligations of the Company hereunder or
under any such Note to such Bank.
2.03 Procedure for Revolving Loan Borrowings. (a) Each Borrowing of
Revolving Loans shall be made upon the Company's irrevocable written notice
delivered to the Agent as described in Section 10.02 in the form of a Notice
of Borrowing prior to 11:00 a.m. (Houston time) (i) one Business Day prior to
the requested Borrowing Date, in the case of Adjusted CD Rate Revolving Loans,
(ii) three Business Days prior to the requested Borrowing Date, in the case of
LIBOR Revolving Loans, and (iii) on the requested Borrowing Date, in the case
of Base Rate Revolving Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate amount not less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Revolving Loans comprising the
Borrowing;
(D) in the case of Adjusted CD Rate Revolving Loans
and LIBOR Revolving Loans, the duration of the Interest Period
applicable to such Loans included in such notice. If the Notice
of Borrowing fails to specify the duration of the Interest Period
for any Borrowing comprised of Adjusted CD Rate Revolving Loans or
LIBOR Revolving Loans, such Interest Period shall be 90 days (in
the case of an Adjusted CD Rate Revolving Loan) and three months
(in the case of a LIBOR Revolving Loan);
provided, however, that with respect to a Borrowing, if any, to be made on the
Closing Date, the Notice of Borrowing shall be delivered to the Agent not
later than 11:00 a.m. (Houston time) on the Closing Date and such Borrowing
will consist of Base Rate Revolving Loans only.
(b) Upon receipt of the Notice of Borrowing, the Agent will
promptly notify each Bank thereof and of the amount of such Bank's Commitment
Percentage of such Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage
of such Borrowing available to the Agent for the account of the Company at the
Agent's Payment Office on the Borrowing Date requested by the Company in
immediately available funds by 11:00 a.m. (Houston time) in the case of a
Borrowing comprised of Adjusted CD Rate Revolving Loans or LIBOR Revolving
Loans, and by 1:00 p.m. (Houston time) in the case of a Borrowing comprised of
Base Rate Revolving Loans. The proceeds of all such Loans will then be made
available to the Company by the Agent by wire transfer of immediately
available funds in accordance with written instructions provided to the Agent
by the Company, unless on the date of the Borrowing all or any portion of the
proceeds thereof shall then be required to be applied to the repayment of any
outstanding Swingline Loans pursuant to Section 2.05(f), in which case such
proceeds or portion thereof shall be applied to the repayment of such
Swingline Loans.
(d) After giving effect to any Borrowing of Revolving Loans,
there may not be more than (i) four different Interest Periods in effect in
respect of all Adjusted CD Rate Revolving Loans together then outstanding and
(ii) four different Interest Periods in effect in respect of all LIBOR
Revolving Loans together then outstanding.
2.04 Conversion and Continuation Elections for Revolving Loan
Borrowings. (a) The Company may, upon irrevocable written notice to the Agent
under subsection (b) of this Section:
(i) elect, on any Business Day, in the case of Base Rate
Revolving Loans, or on the last day of the applicable Interest Period,
in the case of Adjusted CD Rate Revolving Loans or LIBOR Revolving
Loans, to convert any such Loans (or any part thereof in an amount not
less than the Minimum Tranche) into Revolving Loans of another Type; or
(ii) elect to renew on the last day of the applicable
Interest Period any Revolving Loans having Interest Periods maturing on
such day (or any part thereof in an amount not less than the Minimum
Tranche);
provided, that if at any time the aggregate amount of Adjusted CD Rate
Revolving Loans or LIBOR Loans in respect of any Borrowing is reduced, by
payment, prepayment, or conversion of part thereof to be less than the Minimum
Tranche, such Loans shall automatically convert into Base Rate Revolving
Loans, and on and after such date the right of the Company to continue such
Loans as, and convert such Loans into, Adjusted CD Rate Revolving Loans or
LIBOR Revolving Loans shall terminate, except that if and so long as each such
Revolving Loan shall be of the same Type and have the same Interest Period as
Revolving Loans comprising another Borrowing or other Borrowings, and the
aggregate unpaid principal amount of all such Loans of all such Borrowings
shall equal or exceed $10,000,000, the Company shall have the right to
continue all such Loans as, or to convert all such Loans into, Revolving Loans
of such Type having such Interest Period.
(b) The Company shall deliver a Notice of Conversion/Continuation
to be received by the Agent not later than 11:00 a.m. (Houston time) at least
(i) one Business Day in advance of the Conversion/Continuation Date, if the
Revolving Loans are to be converted into or continued as Adjusted CD Rate
Revolving Loans; (ii) three Business Days in advance of the
Conversion/Continuation Date, if the Revolving Loans are to be converted into
or continued as LIBOR Revolving Loans; and (iii) on the
Conversion/Continuation Date, if the Revolving Loans are to be converted into
Base Rate Revolving Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Revolving Loans to be
converted or renewed;
(C) the Type of Revolving Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Base
Rate Revolving Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable to
any Adjusted CD Rate Revolving Loans or LIBOR Revolving Loans, the Company has
failed to select timely a new Interest Period to be applicable to such Loans,
the Company shall be deemed to have elected to convert such Loans into Base
Rate Revolving Loans.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company under this Section, the Agent will promptly notify each Bank of the
details of any automatic conversion. All conversions and continuations shall
be made ratably according to the respective outstanding principal amounts of
the Revolving Loans held by each Bank with respect to which the notice was
given.
(e) Unless the Majority Banks otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect to have
a Revolving Loan converted into or continued as an Adjusted CD Rate Revolving
Loan or a LIBOR Revolving Loan with an Interest Period exceeding one month (in
the case of a LIBOR Revolving Loan) or 30 days (in the case of an Adjusted CD
Rate Revolving Loan).
(f) After giving effect to any conversion or continuation of
Revolving Loans, there may not be more than (i) four different Interest
Periods in effect in respect of all Adjusted CD Rate Revolving Loans together
then outstanding and (ii) four different Interest Periods in effect in respect
of all LIBOR Revolving Loans together then outstanding.
2.05 Procedure for Swingline Borrowings. (a) Each Borrowing of a
Swingline Loan shall be made upon the Company's irrevocable written notice to
the Agent as described in Section 10.02 in the form of a Notice of Borrowing
prior to 11:00 a.m. (Houston time) (i) one Business Day prior to the requested
Borrowing Date, in the case of an Adjusted CD Rate Swingline Loan, (ii) three
Business Days prior to the requested Borrowing Date, in the case of a LIBOR
Swingline Loan, and (iii) on the requested Borrowing Date, in the case of a
Base Rate Swingline Loan, specifying: (i) the amount of such Loan, which
shall be an amount not less than the Minimum Tranche; (ii) the requested
Borrowing Date, which shall be a Business Day, (iii) the duration of the
Interest Period applicable to such Loan, which shall not be more than 10 days,
and (iv) if the product of the amount of such Loan and the number of days in
the applicable Interest Period equals or exceeds $15,000,000, the Type of
Swingline Loan. Upon receipt of the Notice of Borrowing, the Agent will
promptly provide the Swingline Bank with a copy thereof.
(b) If the product of the amount of a requested Swingline Loan
and the number of days in the applicable Interest Period equals or exceeds
$15,000,000, such Loan shall bear interest at the LIBO Rate plus the
Applicable Margin, the Adjusted CD Rate plus the Applicable Margin or the Base
Rate, as selected by the Company pursuant to Section 2.05(a). If the product
of the amount of a requested Swingline Loan and the number of days in the
applicable Interest Period is less than $15,000,000, such Loan shall bear
interest at the Base Rate.
(c) Unless the Swingline Bank has received notice prior to 11:00
a.m. (Houston time) on the relevant Borrowing Date from the Agent (including
at the request of any Bank) (i) directing the Swingline Bank not to make the
requested Swingline Loan as a result of the limitation set forth in the
proviso set forth in Section 2.01(b), or (ii) that one or more conditions
specified in Article IV are not then satisfied; then, subject to the terms and
conditions hereof, the Swingline Bank will, not later than 2:00 p.m. (Houston
time) on the Borrowing Date specified in such Notice of Borrowing, make the
amount of the requested Swingline Loan available to the Company by wire
transfer of immediately available funds in accordance with written
instructions provided to the Agent by the Company.
(d) After giving effect to any Borrowing of a Swingline Loan,
there may not be more than three different Swingline Loans outstanding at any
one time.
(e) The Agent will notify the Banks of any Swingline Loan
Borrowing or repayment thereof promptly after any such Borrowing or repayment.
(f) If (i) any Swingline Loan shall remain outstanding at 11:00
a.m. (Houston time) on the last day of the Interest Period applicable to such
Loan and by such time on such day the Agent shall have received neither (A) a
Notice of Borrowing delivered pursuant to Section 2.03 requesting that
Revolving Loans be made pursuant to Section 2.01(a) on such day in an amount
at least equal to the principal amount of such Swingline Loan, nor (B) any
other notice indicating the Company's intent to repay such Swingline Loan with
funds obtained from other sources, or (ii) any Swingline Loans shall remain
outstanding during the existence of a Default or Event of Default and the
Swingline Bank shall in its sole discretion notify the Agent that the
Swingline Bank desires that such Swingline Loans be converted into Revolving
Loans; then, the Agent shall be deemed to have received a Notice of Borrowing
from the Company pursuant to Section 2.03 requesting that Base Rate Revolving
Loans be made pursuant to Section 2.01(a) on such day (in the case of the
circumstances described in clause (i) above) or on the first Business Day
subsequent to the date of such notice from the Swingline Bank (in the case of
the circumstances described in clause (ii) above) in an amount equal to the
aggregate amount of such Swingline Loans, and the procedures set forth in
Sections 2.03(b) and 2.03(c) shall be followed in making such Base Rate
Revolving Loans; provided, that such Base Rate Revolving Loans shall be made
notwithstanding the Company's failure to comply with the conditions specified
in Section 4.02; and provided, further, that if a Borrowing of Revolving Loans
becomes legally impracticable and if so required by the Swingline Bank at the
time such Revolving Loans are required to be made by the Banks in accordance
with this Section 2.05(f), each Bank agrees that in lieu of making Revolving
Loans as described above, such Bank shall purchase a participation from the
Swingline Bank in the applicable Swingline Loans in an amount equal to such
Bank's Commitment Percentage of the aggregate principal amount of such
Swingline Loans, and the procedures set forth in Sections 2.03(b) and 2.03(c)
shall be followed in connection with the purchases of such participations.
The proceeds of such Base Rate Revolving Loans or purchases of participations,
as the case may be, shall be applied to repay such Swingline Loans. A copy of
each notice given by the Agent to the Banks pursuant to this Section 2.05(f)
with respect to the making of Revolving Loans or the purchases of
participations, as the case may be, shall be promptly delivered by the Agent
to the Company. Each Bank's obligation in accordance with this Agreement to
make the Revolving Loans or purchase the participations, as contemplated by
this Section 2.05(f), shall be absolute and unconditional and shall not be
affected by any circumstance, including (1) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the
Swingline Bank, the Company or any other Person for any reason whatsoever; (2)
the occurrence or continuance of a Default or an Event of Default; or (3) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
2.06 Increase of Commitments. The Company shall have the right,
without the consent of the Banks but subject to the approval of the Agent
(which approval shall not be unreasonably withheld), to effectuate from time
to time an increase in the total Commitments under this Agreement by adding to
this Agreement one or more Persons that are Eligible Assignees (who shall,
upon completion of the requirements stated in this Section, constitute "Banks"
hereunder), or by allowing one or more Banks to increase their Commitments
hereunder, so that such added and increased Commitments shall equal the
increase in Commitments effectuated pursuant to this Section; provided that
(a) no increase in Commitments pursuant to this Section shall result in the
total Commitments exceeding $300,000,000 or shall result in the aggregate
amount of the increases in the Commitments effectuated pursuant to this
Section since the date of this Agreement being in excess of the sum of
$50,000,000 plus the aggregate amount (but not greater than $50,000,000) of
all non-ratable reductions and terminations of Commitments effectuated
pursuant to Section 2.08; (b) no Bank's Commitment shall be increased without
the consent of such Bank; (c) there has occurred and is continuing no Default
or Event of Default, and (d) there has been no ratable reduction of
Commitments pursuant to Section 2.07. The Company shall deliver or pay, as
applicable, to the Agent each of the following items prior to 11:00 a.m.
(Houston time) (i) three Business Days prior to the requested effective date
of such increase in the Commitments, if such date is a No Loan Date, or (ii)
five Business Days prior to the requested effective date of such increase in
the Commitments, if such date is not a No Loan Date:
(A) a written notice of the Company's intention to
increase the total Commitments pursuant to this Section, which
shall specify each new Eligible Assignee, if any, the changes in
amounts of Commitments that will result, and such other
information as is reasonably requested by the Agent;
(B) a document in form and substance as may be reasonably
required by the Agent, executed and delivered by each new Eligible
Assignee and each Bank agreeing to increase its Commitment,
pursuant to which it becomes a party hereto or increases its
Commitment, as the case may be, which document, in the case of a
new Eligible Assignee, shall (among other matters) specify the CD
Lending Office, Domestic Lending Office and LIBOR Lending Office
of such new Eligible Assignee;
(C) a Note in the principal amount of the Commitment of
each new Eligible Assignee, or a replacement Note in the principal
amount of the increased Commitment of each Bank agreeing to
increase its Commitment, as the case may be, executed and
delivered by the Company, which Note shall be in form and
substance as may be reasonably required by Agent; and
(D) a non-refundable processing fee of $3,500, for the
sole account of the Agent.
Upon receipt of any notice referred to in clause (A) above, the Agent will
promptly notify each Bank thereof. Upon execution and delivery of such
documents and the payment of such fee, such new Eligible Assignee shall
constitute a "Bank" hereunder with a Commitment as specified therein, or such
Bank's Commitment shall increase as specified therein, as the case may be. The
Company agrees to pay to the Banks any and all amounts to the extent payable
pursuant to Section 3.02 as a result of any such increase in the Commitments.
2.07 Ratable Reduction or Termination of Commitments. The Company may,
upon not less than three Business Days' prior notice to the Agent, terminate
all the Commitments, or permanently reduce all the Commitments by an aggregate
minimum amount of $10,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of Loans made on
the effective date thereof, (i) the then-outstanding principal amount of all
Revolving Loans and Swingline Loans would exceed the amount of the combined
Commitments of all the Banks then in effect, or (ii) the then-outstanding
principal amount of all Swingline Loans would exceed the amount of the
Swingline Commitment then in effect, as adjusted pursuant to the last sentence
of this Section 2.07. Once reduced in accordance with this Section, the
Commitments may not be increased. Any such reduction of the Commitments shall
be applied ratably to each Bank's Commitment according to its Commitment
Percentage. At no time shall the Swingline Commitment exceed the combined
Commitments of all the Banks, and any reduction of the Commitments which
reduces the combined Commitments of all the Banks below the then-current
amount of the Swingline Commitment shall result in an automatic corresponding
reduction of the Swingline Commitment to the amount of the combined
Commitments of all the Banks, as so reduced, without any action on the part of
the Swingline Bank.
2.08 Non-Ratable Reduction or Termination of Commitments. The Company
shall have the right, without the consent of any Bank, but subject to the
approval of the Agent (which consent shall not be unreasonably withheld), to
reduce in part or to terminate in whole the Commitment of one or more Banks
non-ratably, provided that (i) the effective date of any such reduction or
termination of Commitments shall be a No Loan Date, (ii) after giving effect
thereto and to any prepayments of Swingline Loans made on the effective date
thereof, the then-outstanding principal amount of all Swingline Loans shall
not exceed the amount of the Swingline Commitment then in effect, as adjusted
pursuant to the penultimate sentence of this Section 2.08; (iii) on the
effective date of any such reduction or termination (x) no Default or Event of
Default shall have occurred and be continuing, (y) the senior unsecured
long-term debt of the Company is rated BBB- or better by S&P or Baa3 or better
by ▇▇▇▇▇'▇, and (z) the Company shall pay to any Bank whose Commitment is
terminated all amounts owed by the Company to such Bank under this Agreement
(including accrued commitment fees), (iv) the aggregate amount of each
non-ratable reduction shall be at least $5,000,000, and (v) the aggregate
amount of all such non-ratable reductions and terminations of Commitments
since the date of this Agreement shall not exceed the sum of $50,000,000 plus
the aggregate amount (but not greater than $50,000,000) of all increases in
Commitments effectuated pursuant to Section 2.06. At no time shall the
Swingline Commitment exceed the combined Commitments of the Banks, and any
reduction of the Commitment of one or more Banks non-ratably which reduces the
combined Commitments of the Banks below the then-current amount of the
Swingline Commitment shall result in an automatic corresponding reduction of
the Swingline Commitment to the amount of the combined Commitments of the
Banks, as so reduced, without any action on the part of the Swingline Bank.
The Company shall give the Agent three Business Days' notice of the Company's
intention to reduce or terminate any Commitment pursuant to this Section.
2.09 Optional and Mandatory Prepayments. (a) Subject to Section 3.02,
the Company may, at any time or from time to time by irrevocable notice to the
Agent, not less than (i) one Business Day prior to a prepayment of any CD
Loan, (ii) three Business Days prior to a prepayment of any Offshore Loan, or
(iii) by 11:00 a.m. (Houston time) on the Business Day of a prepayment of any
Base Loan, ratably prepay Loans in whole or in part, in minimum amounts of
$5,000,000 or any multiple of $1,000,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment, whether the
Loans to be prepaid are Revolving Loans or Swingline Loans, the Type(s) of any
Loans to be prepaid and the specific Borrowing or Borrowings pursuant to which
such Loans were made. The Agent will promptly notify each Bank, in the case
of the prepayment of Revolving Loans, or the Swingline Bank, in the case of
the prepayment of Swingline Loans, of its receipt of any such notice, and of
such Bank's Commitment Percentage of such prepayment, as applicable. If such
notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on the
amount prepaid.
(b) No later than the date that is 30 days after the occurrence
of any Change in Control as to the Company, the Company shall prepay all
outstanding Loans, together with accrued interest, fees, amounts payable
pursuant to Section 3.02 and all other amounts outstanding hereunder, and
immediately upon the occurrence of such Change in Control, the obligations of
the Banks to make additional Loans, including the obligation of the Swingline
Bank to make Swingline Loans, shall be terminated automatically.
(c) Immediately upon the occurrence of any Specified Transaction
or at any time prior to the date that is 180 days after the date of
consummation of such Specified Transaction, the Agent shall at the request of,
and may with the consent of, the Required Banks, in their sole and absolute
discretion, (i) by notice to the Company pursuant to Section 10.02 hereof,
declare the outstanding principal amount of all Loans, together with accrued
interest, amounts payable pursuant to Section 3.02 and all other amounts
outstanding hereunder, to be immediately due and payable, whereupon such
amounts shall immediately be paid by the Company, and (ii) by notice to the
Company pursuant to Section 10.02 hereof, declare the obligation of each Bank
to make Loans, including the obligation of the Swingline Bank to make
Swingline Loans, be terminated, whereupon such obligations shall be
terminated immediately.
(d) On the date of any increase in the total Commitments pursuant
to Section 2.06, the Company shall prepay all Revolving Loans outstanding on
such date, together with accrued interest thereon and amounts payable pursuant
to Section 3.02; provided, however, that, notwithstanding the foregoing
sentence, if after giving effect to such an increase in the total Commitments
there are no new Banks hereunder and the Commitment Percentage of each Bank
is unchanged from its Commitment Percentage immediately prior to such
increase, then the Company shall not be required to prepay any Revolving Loans
and related amounts outstanding on such date.
(e) Any mandatory prepayment under subsection (b), (c) or (d) of
this Section shall be made by the Company without presentment, demand, protest
or other notice of any kind, except as provided in subsection (c), all of
which are expressly waived by the Company.
2.10 Repayment. The Company shall repay to the Agent for the account
of each Bank on the Revolving Termination Date the aggregate principal amount
of all Revolving Loans outstanding on such date. The Company shall repay to
the Agent for the account of the Swingline Bank the outstanding principal
amount of each Swingline Loan on the last day of the Interest Period
applicable thereto.
2.11 Interest. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date until paid at a
rate per annum equal to the Adjusted CD Rate, the LIBO Rate or the Base Rate,
as the case may be (and subject, in the case of Revolving Loans, to the
Company's right to convert to other Types of Revolving Loans under Section
2.04), plus, in the case of CD Loans and Offshore Loans, the Applicable Margin;
provided, however, that in no event shall the applicable rate payable to any
Bank exceed the Highest Lawful Rate applicable to such Bank.
(b) Interest on each Loan shall be paid to the Agent for the
account of each Bank, in the case of Revolving Loans, or the Swingline Bank,
in the case of Swingline Loans, in arrears on each Interest Payment Date.
Interest shall also be paid on the date of any prepayment of Loans under
Section 2.09 for the portion of the Loans so prepaid and upon payment in full
thereof.
(c) Any principal amount of any Loan which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, to the extent permitted by law, from the date on which such amount
became due until such amount is paid in full, payable on demand, at a rate per
annum equal at all times to the sum of the Base Rate in effect from time to
time plus 1.50% per annum, provided, however, that in no event shall such rate
as to any Bank exceed the Highest Lawful Rate applicable to such Bank.
2.12 Fees. The Company agrees to pay to the Agent for the account of
each Bank a commitment fee on the average daily amount by which such Bank's
Commitment exceeds the aggregate outstanding principal amount of such Bank's
Revolving Loans, from the date hereof until the Revolving Termination Date at
a rate per annum equal to the Applicable Fee Amount, payable in arrears on the
last Business Day of each calendar quarter during the term of such Bank's
Commitment, and on the Revolving Termination Date. The Company shall pay to
the Agent for its own account and the account of the Arranger such additional
fees as are set forth in the fee letter dated September 8, 1995 among such
Persons.
2.13 Computation of Fees and Interest. All computations of interest
for Base Rate Revolving Loans and Base Rate Swingline Loans, when the Base
Rate is determined according to clause (b) of the definition of "Base Rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be
made on the basis of a 360-day year and actual days elapsed (but not to exceed
as to any Bank the Highest Lawful Rate applicable to such Bank). Interest and
fees shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
2.14 Interest Rate Determination and Protection. (a) Each Reference
Bank and the Swingline Bank, as applicable, agrees to furnish to the Agent
timely information for the purpose of determining each Adjusted CD Rate or
LIBO Rate, as applicable. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining
any such interest rate, the Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Company and the
Banks of the applicable interest rate determined by the Agent for purposes of
Section 2.11(a).
(c) If fewer than two Reference Banks furnish timely information
to the Agent for determining the LIBO Rate for any LIBOR Revolving Loans or
the Adjusted CD Rate for any Adjusted CD Rate Revolving Loans,
(i) the Agent shall forthwith notify the Company and the
Banks that the interest rate cannot be determined for such LIBOR
Revolving Loans or Adjusted CD Rate Revolving Loans, as the case may be,
(ii) each such Loan will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate
Revolving Loan (or if such Loan is then a Base Rate Revolving Loan, will
continue as a Base Rate Revolving Loan), and
(iii) the obligation of the Banks to make, or to convert
Revolving Loans into or continue Revolving Loans as, Adjusted CD Rate
Revolving Loans or LIBOR Revolving Loans, as the case may be, shall be
suspended until the Agent shall notify the Company and the Banks that
the circumstances causing such suspension no longer exist.
(d) With respect to any Offshore Loan or CD Loan, upon request by
the Company the Agent shall provide to the Company the information furnished
by each Reference Bank or the Swingline Bank, as applicable, to enable the
Agent to determine the LIBOR Rate or the Adjusted CD Rate, as the case may be,
for such Loan.
(e) If, with respect to any Adjusted CD Rate Revolving Loans or
LIBOR Revolving Loans, the Majority Banks notify the Agent that the applicable
interest rate for any Interest Period for such Loans cannot be reasonably
determined or will not adequately reflect the cost to such Majority Banks of
making, funding or maintaining their respective Adjusted CD Rate Revolving
Loans or LIBOR Revolving Loans, as the case may be, for such Interest Period,
the Agent shall forthwith so notify the Company and the Banks, whereupon
(i) each such Revolving Loan will automatically, on the
last day of the then existing Interest Period therefor, convert into a
Base Rate Revolving Loan (or, if such Revolving Loan is then a Base Rate
Revolving Loan, will continue as a Base Rate Revolving Loan), and
(ii) the obligation of the Banks to make, or to convert
Revolving Loans into or continue Revolving Loans as, Adjusted CD Rate
Revolving Loans or LIBOR Revolving Loans, as the case may be, shall be
suspended until the Agent shall notify the Company and the Banks that
the circumstances causing such suspension no longer exist.
(f) If the Swingline Bank notifies the Agent that the applicable
interest rate for any Interest Period for any Adjusted CD Rate Swingline Loan
or LIBOR Swingline Loan cannot be reasonably determined or will not adequately
reflect the cost to the Swingline Bank of making, funding or maintaining such
Loan, the Agent shall forthwith so notify the Company, whereupon the
obligation of the Swingline Bank to make Adjusted CD Rate Swingline Loans or
LIBOR Swingline Loans, as the case may be, shall be suspended until the Agent
shall notify the Company that the circumstances causing such suspension no
longer exist.
2.15 Payments by the Company. Except as otherwise expressly provided
herein, all payments by the Company shall be made in Dollars to the Agent for
the account of the Banks, in the case of Revolving Loans, or the Swingline
Bank, in the case of Swingline Loans, at the Agent's Payment Office and shall
be made without setoff, recoupment or counterclaim. Such payments shall be
made in immediately available funds no later than 12:00 noon (Houston time)
on the date specified herein. The Agent will promptly distribute to each Bank
its Commitment Percentage share (or other applicable share as expressly
provided herein), in the case of Revolving Loans, or to the Swingline Bank, in
the case of Swingline Loans, of such payment in like funds as received. Any
payment received by the Agent later than the time specified above shall be
deemed to have been received on the following Business Day, and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks or the Swingline Bank, as
the case may be, that the Company will not make such payment in full as and
when required, the Agent may assume that the Company has made such payment in
full to the Agent on such date in immediately available funds, and the Agent
may (but shall not be so required), in reliance upon such assumption,
distribute to each Bank or the Swingline Bank, as the case may be, on such due
date an amount equal to the amount then due such Bank. If and to the extent
the Company has not made such payment in full to the Agent, each Bank or the
Swingline Bank, as applicable, shall repay to the Agent on demand such amount
distributed to such Bank, together with interest thereon at the Federal Funds
Rate for each day from the date such amount is distributed to such Bank until
the date repaid.
2.16 Payments by the Banks to the Agent. (a) Unless the Agent receives
notice from a Bank on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, at least one Business Day prior to the
proposed Borrowing Date, that such Bank will not make available as and when
required hereunder to the Agent for the account of the Company the amount of
that Bank's Commitment Percentage, in the case of a Revolving Loan Borrowing,
or the Swingline Loan, in the case of a Swingline Loan Borrowing, the Agent
may assume that each Bank, in the case of a Revolving Loan Borrowing, or the
Swingline Bank, in the case of a Swingline Borrowing, has made such amount
available to the Agent in immediately available funds on the Borrowing Date
and the Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding amount.
If and to the extent any Bank shall not have made its full amount available to
the Agent in immediately available funds and the Agent in such circumstances
has made available to the Company such amount, that Bank shall on the Business
Day following such Borrowing Date make such amount available to the Agent,
together with interest at the Federal Funds Rate for each day during such
period. A notice of the Agent submitted to any Bank with respect to amounts
owing under this subsection (a) shall be conclusive, absent manifest error.
If such amount is so made available, such payment to the Agent shall
constitute such Bank's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Agent on the Business
Day following the Borrowing Date, the Agent will notify the Company of such
failure to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans comprising such
Borrowing, in the case of a Revolving Loan Borrowing, or at the applicable
Swingline Rate, in the case of a Swingline Loan Borrowing.
(b) The failure of any Bank to make any Revolving Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Revolving Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Revolving Loan to be made by
such other Bank on any Borrowing Date.
2.17 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
non-pro rata payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise), such Bank shall immediately (a) notify
the Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment with each of them in accordance
with their Commitment Percentages; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each other Bank
shall repay to the purchasing Bank the purchase price paid therefor, together
with an amount equal to such paying Bank's Commitment Percentage (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest
or other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank 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 Bank were the direct
creditor of the Company in the amount of such participation.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to each Bank or
the Agent under this Agreement and any Note shall be made free and clear of,
and without deduction or withholding for, any Taxes. In addition, the Company
shall pay all Other Taxes.
(b) To the fullest extent permitted by applicable law, the
Company agrees to indemnify and hold harmless each Bank and the Agent for the
full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 3.01) paid
by such Bank or the Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days after the date
the Bank or the Agent makes written demand therefor in accordance with this
Section 3.01(b).
(c) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable under
this Agreement or any Note to any Bank or the Agent, then: (i) the sum payable
shall be increased as necessary so that after making all required deductions
and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 3.01) such Bank or the Agent, as
the case may be, receives an amount equal to the sum it would have received
had no such deductions or withholdings been made; (ii) the Company shall make
such deductions and withholdings; and (iii) the Company shall pay the full
amount deducted or withheld to the relevant taxing or other authority in
accordance with applicable law.
(d) Notwithstanding anything to the contrary contained in this
Agreement, each of the Company and the Agent shall be entitled, to the extent
it is required to do so by law, to deduct or withhold income or other similar
taxes imposed by the United States of America from interest, fees or other
amounts payable under this Agreement or any Note for the account of any Bank
(without indemnification or the payment by the Company of increased amounts
pursuant to clause (a), (b) or (c) above) other than a Bank (i) which is a
domestic corporation (as defined in Section 7701 of the Code) for federal
income tax purposes or (ii) which has the Prescribed Forms on file with the
Company and the Agent for the applicable year, provided that if the Company
shall so deduct or withhold any such taxes, it shall provide a statement to
the Agent and such Bank, setting forth the amount of such taxes so deducted or
withheld, the applicable rate and any other information or documentation which
such Bank or the Agent may reasonably request to assist such Bank or the Agent
in obtaining any allowable credits or deductions for the taxes so deducted or
withheld in the jurisdiction or jurisdictions in which such Bank is subject
to tax.
(e) Within 30 days after the date of any payment by the Company
of Taxes or Other Taxes, the Company shall furnish the Agent the original or a
certified copy of a receipt (if available) evidencing payment thereof, or
other evidence of payment satisfactory to the Agent.
(f) Each Bank shall use reasonable efforts (consistent with its
internal policies and legal and regulatory restrictions) to select a
jurisdiction for its Lending Office or change the jurisdiction of its Lending
Office, as the case may be, so as to avoid the imposition of any Taxes or
Other Taxes or to eliminate any such additional payment by the Company which
may thereafter accrue; provided that no such selection or change shall be made
if, in the sole judgment of such Bank, such selection or change would be
disadvantageous to such Bank.
3.02 Breakage Costs. If (a) any payment of principal of any CD Loan or
Offshore Loan is made by the Company prior to the last day of an Interest
Period relating to such Loan, or (b) the Company fails to borrow a Borrowing
consisting of a CD Loan or an Offshore Loan on the date for such Borrowing
specified in the Notice of Borrowing (except as permitted by and subject to
the provisions of Sections 2.14(c), (e) and (f) and 3.04), then upon demand by
any Bank, the Company shall pay to the Agent for the account of such Bank any
amounts required to compensate such Bank for any losses, costs or expenses
which it may reasonably incur as a result of such payment, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reasons of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain such Borrowing, but not
including any cost of termination or liquidation of any hedge or related
trading position (such as a rate swap, basis swap, forward rate transaction,
interest rate option, cap, collar or floor transaction, swaption, or any
other, similar transaction). For purposes of calculating amounts payable by
the Company to the Banks under this Section, (i) each Offshore Loan made by a
Bank (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the LIBO Rate used in
determining such Offshore Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Offshore Loan is in fact so funded, and (ii) each
CD Loan made by a Bank (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the
Certificate of Deposit Rate used in determining the Adjusted CD Rate for such
CD Loan by the issuance of its certificate of deposit in a comparable amount
and for a comparable period, whether or not such CD Loan is in fact so funded.
3.03 Increased Costs. (a) If, due to either: (i) after the date
hereof, the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements pursuant to Section 3.05) in or
in the interpretation of any law or regulation by a Governmental Authority
charged with the interpretation or administration thereof, or (ii) the
compliance with any guideline enacted after the date hereof or request
received after the date hereof from any Governmental Authority (whether or not
having the force of law) the effect of which is to impose or modify any
reserve, special deposit, insurance assessment, or similar requirement
relating to any extensions of credit or other assets of, or any deposits with
or other liabilities of, any Bank (other than reserves maintained as provided
for in Section 3.05), there shall be any actual increase in the cost to such
Bank of agreeing to make or making, funding or maintaining any CD Loan or
Offshore Loan, then the Company shall from time to time, upon demand by such
Bank (with a copy of such demand to the Agent), pay to the Agent for the
account of such Bank additional amounts sufficient to compensate such Bank for
such actual increased cost. Promptly after any Bank becomes aware of any such
introduction, change or proposed compliance, such Bank shall notify the
Company thereof. No Bank shall be permitted to recover increased costs
incurred or accrued more than 90 days prior to the date such notice is given
to the Company.
(b) If the Company so notifies the Agent within five Business
Days after any Bank notifies the Company of any increased cost pursuant to the
provisions of Section 3.03(a), the Company shall convert all Revolving Loans
of the Type affected by such increased cost of all Banks then outstanding into
Revolving Loans of another Type in accordance with Section 2.04 and,
additionally, reimburse such Bank for such increased cost in accordance with
Section 3.03(a).
(c) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation
or administration thereof by any Governmental Authority, charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank
or comparable agency has the effect of increasing the amount of capital
required or expected to be maintained as a result of its Commitment hereunder,
such Bank shall have the right to give prompt written notice to the Company
with a copy to the Agent, which notice shall notify the Company of the
additional amounts as shall be required to compensate such Bank for the
increased cost to such Bank as a result of such increase in capital and shall
certify that such costs are generally being charged by such Bank to other
similarly situated borrowers under similar credit facilities and such amounts
shall be paid promptly by the Company.
(d) Each Bank shall use its best efforts (consistent with its
internal policies and legal and regulatory restrictions) to select a
jurisdiction for its Lending Office or change the jurisdiction of its Lending
Office, as the case may be, so as to avoid the imposition of any increased
costs under this Section 3.03 or to eliminate the amount of any such increased
cost which may thereafter accrue; provided that no such selection or change of
the jurisdiction for its Lending Office shall be made if, in the reasonable
judgment of such Bank, such selection or change would be disadvantageous to
such Bank.
3.04 Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Agent that, after the date hereof, the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any Governmental Authority shall assert
that it is unlawful, for any Bank or its LIBOR Lending Office to make any
Offshore Loans or to continue to fund or maintain any Offshore Loan hereunder,
then, on notice thereof and demand therefor by such Bank to the Company, (i)
the obligation of such Bank to make Offshore Loans and to convert Revolving
Loans into LIBOR Revolving Loans shall be suspended until the Agent shall
notify the Company that the circumstances causing such suspension no longer
exist, and (ii) the Company shall, forthwith convert all LIBOR Revolving Loans
of all Banks then outstanding into Revolving Loans of another Type in
accordance with Section 2.04.
3.05 Reserves on Offshore Loans. If any Bank shall be required under
regulations of the FRB to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), and if as a result thereof there is an
increase in the cost to such Bank of agreeing to make or making, funding or
maintaining Offshore Loans, the Company shall from time to time, upon demand
by such Bank (with a copy of such demand to the Agent), pay to the Agent for
the account of such Bank additional amounts, as additional interest hereunder,
sufficient to compensate Bank for such increased cost. Increased costs under
this Section 3.05 shall be payable by the Company on each Interest Payment
Date on such Offshore Loans, provided the Company shall have received at least
15 days' prior written notice (with a copy to the Agent) of such additional
interest from the Bank. If a Bank fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
3.06 Replacement of Bank; Termination of Bank. In the event that any
Bank makes a demand for payment pursuant to Sections 3.01 or 3.03, or any Bank
has suspended its funding of Offshore Loans pursuant to Section 3.04, the
Company shall have the right, if no Default or Event of Default then exists,
to either replace such Bank in accordance with subsection (a) of this Section
3.06 or terminate such Bank's Commitment in accordance with subsection (b) of
this Section 3.06. If any Banks that are not Affiliates as of the Closing
Date become Affiliates after the Closing Date (each such Bank, a "New
Affiliate Bank"), the Company shall have the right, if no Default or Event of
Default then exists, to either replace each such New Affiliate Bank (other
than the New Affiliate Bank having the largest Commitment) in accordance with
subsection (a) of this Section 3.06 or terminate each such New Affiliate Bank
(other than the New Affiliate Bank having the largest Commitment) in
accordance with subsection (b) of this Section 3.06.
(a) If the Company determines to replace a Bank pursuant to this
Section 3.06, the Company shall have the right to replace such Bank with an
entity that is an Eligible Assignee (a "Replacement Bank"); provided that such
Replacement Bank, (i) if it is not already a Bank, shall be reasonably
acceptable to the Agent, (ii) shall unconditionally offer in writing (with a
copy to the Agent) to purchase all of such Bank's rights hereunder and
interest in the Loans owing to such Bank and the Note held by such Bank
without recourse at the principal amount of such Note plus interest and fees
accrued thereon to the date of such purchase on a date therein specified, and
(iii) shall, if such Replacement Bank is not already a Bank, execute and
deliver to the Agent a document in form and substance satisfactory to the
Agent pursuant to which such Replacement Bank becomes a party hereto with a
Commitment equal to that of the Bank being replaced, including, in the case of
the replacement of the Swingline Bank, the Swingline Commitment, which
document shall (among other matters) specify the CD Lending Office, Domestic
Lending Office and LIBOR Lending Office of such Replacement Bank. Upon
satisfaction of the requirements set forth in the first sentence of this
Section 3.06(a), acceptance of such offer to purchase by the Bank to be
replaced, payment to such Bank of the purchase price in immediately available
funds, and the payment by the Company of all requested costs accruing to the
date of purchase which the Company is obligated to pay under Section 3.02 and
all other amounts owed by the Company to such Bank (other than the principal
of and interest on the Loans of such Bank purchased by the Replacement Bank
and interest and fees accrued thereon to the date of purchase), and payment to
the Agent of a non-refundable processing fee of $2,500, the Replacement Bank
shall constitute a "Bank" hereunder with a Commitment as so specified and the
Bank being so replaced shall no longer constitute a "Bank" hereunder (with the
signature pages being amended to reflect same) and such Bank shall be relieved
of its obligations hereunder. If, however, (x) a Bank accepts such an offer
and such proposed Replacement Bank fails to purchase such rights and interest
on such specified date in accordance with the terms of such offer, the Company
shall continue to be obligated to pay the increased costs or additional
amounts due to such Bank pursuant to Section 3.01, 3.03 or 3.05 (if a demand
for repayment of increased costs or additional amounts pursuant to any of such
Sections is the basis for the proposed replacement), as the case may be, or
(y) the Bank proposed to be replaced fails to accept such purchase offer, the
Company (if the basis for the proposed replacement is a demand for payment of
increased costs or additional amounts pursuant to Sections 3.01, 3.03 or 3.05)
shall not be obligated to pay to such Bank such increased costs or additional
amounts to the extent incurred or accrued from and after the date of such
purchase offer, but in each of the cases set forth in clauses (x) and (y), the
Company shall continue to have the right to terminate such Bank's Commitment
in accordance with Section 3.06(b) hereof.
(b) In the event that the Company determines to terminate a
Bank's Commitment pursuant to this Section 3.06 which, in the case of the
Swingline Bank, includes the Swingline Commitment, the Company shall give
notice to such Bank of the Company's election to terminate (a copy shall be
sent to the Agent), and such termination shall become effective 15 days
thereafter unless such Bank withdraws its request for additional compensation
(with respect to a proposed termination based on a request for additional
compensation) or reinstates its funding of Offshore Loans (with respect to a
proposed termination based on a suspension of funding of Offshore Loans). On
the date of the termination of the Commitment of any Bank pursuant to this
Section 3.06(b), (x) the Company shall deliver notice of the effectiveness of
such termination to such Bank and to the Agent, (y) the Company shall pay all
amounts owed by the Company to such Bank under this Agreement or under the
Note payable to such Bank (including principal of and interest on the Loans
owed to such Bank, accrued commitment fees and amounts specified in such
Bank's notice (if any) delivered pursuant to Sections 3.01, 3.03 or 3.05 as
the case maybe, with respect to the period prior to such termination) and (z)
upon the occurrence of the events set forth in clauses (x) and (y), such Bank
shall cease to be a "Bank" hereunder for all purposes and such Bank shall be
relieved of its obligations hereunder.
3.07 Reallocation of Commitments in Event of Merger, Etc. If after the
Closing Date any Bank merges or consolidates with or into one or more other
Banks, the surviving entity of such merger or consolidation (the "Surviving
Bank") shall at the request of the Company, if no Default or Event of Default
then exists, assign all or a portion of its Resulting Increased Commitment (as
defined below) to one or more entities selected by the Company that are
Eligible Assignees (each an "Acquiring Entity"); provided that (i) each
Acquiring Entity shall unconditionally offer in writing (with a copy to the
Agent) to purchase a portion of such Surviving Bank's Resulting Increased
Commitment and the portion of the Revolving Loans owing to such Surviving Bank
and the Note or Notes held by such Surviving Bank allocable to the amount of
the Resulting Increased Commitment to be acquired; (ii) the portion of the
Resulting Increased Commitment of the Surviving Bank acquired by each
Acquiring Entity shall be in integral multiples of $1,000,000; (iii) the
purchase price to be paid by the Acquiring Entity shall be the outstanding
principal amount of the Revolving Loans owed to such Surviving Bank on the
date of purchase (plus interest and fees accrued thereon) that are allocable
to the amount of the Resulting Increased Commitment being acquired; and (iv)
each Acquiring Entity, if it is not already a Bank, shall be reasonably
acceptable to the Agent. Each Assignment hereunder shall be accomplished in
accordance with the third sentence of Section 10.07(c), and to the extent of
any such assignment, the Surviving Bank shall be relieved of its obligations
hereunder with respect to its assigned Commitment. To the extent that the
Surviving Bank's Resulting Increased Commitment is not acquired by an
Acquiring Entity, the Company shall have the right to terminate the Surviving
Bank's Resulting Increased Commitment by notice given to the Agent and such
Bank within 180 days after the effective date of such merger or consolidation.
The termination shall be effective 15 days thereafter, provided that on the
date of termination the Company shall have paid to the Surviving Bank all
amounts owed by the Company to the Surviving Bank allocable to the amount of
the Surviving Bank's Resulting Increased Commitment being terminated
(including principal of the Revolving Loans owed to such Surviving Bank
allocable to the portion of the Resulting Increased Commitment being terminated
plus interest and fees accrued on such portion). The amounts owed by the
Company to the Surviving Bank under the Agreement that are allocable to the
amount of the Resulting Increased Commitment being acquired or terminated
pursuant to this Section 3.07, shall be the product of (a) all amounts owed by
the Company to the Surviving Bank hereunder on the date of acquisition or
termination (including the outstanding principal amount of the Revolving Loans
owed to the Surviving Bank and interest and fees accrued thereon), and (b) a
fraction having as it numerator the amount of the Resulting Increased
Commitment being acquired or terminated and having as its denominator the
total amount of the Surviving Bank's Commitment without giving effect to such
acquisition or termination. For the purposes of this Section 3.07, "Resulting
Increased Commitment" shall mean (a) the total combined Commitment of the
Surviving Bank immediately following a merger or consolidation contemplated by
this Section 3.07, minus (b) the amount of the largest Commitment (immediately
prior to such merger or consolidation) of any Bank that was a party to such
merger or consolidation, excluding the Swingline Commitment in the event the
Swingline Bank is a Surviving Bank.
3.08 Certificates of Banks. Any Bank claiming reimbursement or
compensation under this Article III shall, as part of each notice and demand
for payment required under this Article III, deliver to the Company (with a
copy to the Agent) a certificate setting forth in reasonable detail the amount
and basis of the reimbursement or compensation payable to the Bank hereunder
and such certificate shall be conclusive and binding on the Company in the
absence of manifest error.
3.09 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Bank to make
its initial Loan hereunder, including the obligation of the Swingline Bank to
make its initial Swingline Loan, is subject to the condition that the Agent
have received on or before the Closing Date all of the following, in form and
substance satisfactory to the Agent and each Bank:
(a) Credit Agreement and Notes. This Agreement and the Notes
executed by each party thereto;
(b) Resolutions; Incumbency. (i) Copies of the resolutions of
the board of directors of the Company authorizing the transactions
contemplated hereby, certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Company; and (ii) a certificate of the Secretary or
Assistant Secretary of the Company certifying the names and true signatures
of the officers of the Company authorized to execute and deliver each Loan
Document to be executed by the Company;
(c) Organization Documents: Good Standing. Each of the following
documents: (i) the articles or certificate of incorporation and the bylaws of
the Company as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company as of the Closing Date; and (ii) a good
standing certificate for the Company from the Secretary of State (or similar,
applicable Governmental Authority) of its state of incorporation and of the
State of Texas dated as of a recent date;
(d) Legal Opinions. An opinion of Wilson B. Fargo, Senior Vice
President and General Counsel of the Company, addressed to the Agent and the
Banks, substantially in the form of Exhibit D-1, and an opinion of ▇▇▇▇▇▇▇▇▇
▇. Lucie, Corporate Counsel of the Company, addressed to the Agent and the
Banks, substantially in the form of Exhibit D-2;
(e) 5-Year Credit Agreement. Evidence that all conditions to
closing of the 5-Year Credit Agreement have occurred;
(f) Officer's Certificate. A certificate signed by a
Responsible Officer of the Company, dated as of the Closing Date, stating that
(i) the representations and warranties contained in Article
V are true and correct on and as of such date, and
(ii) no Default or Event of Default exists or would result
from the initial Borrowing; and
(g) Other Documents. Such other approvals, opinions, documents
or materials as the Agent or any Bank may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each Bank to make
any Loan, including the obligation of the Swingline Bank to make any Swingline
Loan, is subject to the satisfaction of the following conditions precedent on
the relevant Borrowing Date:
(a) Notice of Borrowing. The Agent shall have received a Notice
of Borrowing;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on and
as of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing.
Each Notice of Borrowing submitted by the Company hereunder, and each making
of a Borrowing by the Company, shall constitute a representation and warranty
by the Company hereunder, as of the date of each such notice or request and as
of each Borrowing Date, that the conditions in Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence. The Company and each of its Restricted
Subsidiaries are duly incorporated or otherwise formed, validly existing and
(if applicable) in good standing in each case under the laws of its
jurisdiction of incorporation or formation and have all requisite power and
all authority as a corporation, partnership or other form of business
organization, governmental licenses, authorizations, certificates, consents
and approvals required to carry on their respective businesses as now
conducted in all material respects.
5.02 Corporate Power. The execution, delivery and performance by the
Company of the Loan Documents and the consummation of the transactions
contemplated by such Loan Documents are within the Company's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (a) the Company's charter or bylaws or (b) any law or regulation
applicable to the Company, or (c) any material ("material" for the purposes of
this representation meaning creating a liability of $50,000,000 or more)
agreement binding on the Company, or, to its knowledge, any other agreement
binding on the Company.
5.03 Authorization and Approvals. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority
is required for the due execution, delivery and performance by the Company of
the Loan Documents or the consummation of the transactions contemplated by
such Loan Documents.
5.04 Enforceable Obligations. This Agreement has been duly executed
and delivered by the Company. This Agreement is, and, when executed and
delivered in accordance with this Agreement, each Note will be, the legal,
valid and binding obligations of the Company enforceable against the Company
in accordance with their respective terms, except as such enforceability may
be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, and by
general principles of equity.
5.05 Financial Statements. The audited consolidated balance sheet of
the Company and its Subsidiaries as of December 31, 1994, and the related
audited consolidated statements of income and cash flows for the fiscal year
then ended (as shown on the Company's Form 10-K for the year ended December
31, 1994) and the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of June 30, 1995 and the related unaudited statements of income
and cash flows for the fiscal quarter then ended (as shown on the Company's
Form 10-Q for the quarter ended June 30, 1995), fairly present the
consolidated financial condition of the Company and its Subsidiaries as of
such dates and the consolidated results of operations of the Company and its
Subsidiaries for such fiscal periods, all in accordance with GAAP except as
otherwise expressly noted therein, subject (in the case of the unaudited
balance sheet and income statement) to changes resulting from normal year-end
audit adjustments.
5.06 Litigation. Except as disclosed in the Company's Form 10-K for
the year ended December 31, 1994, or the Company's Form 10-Q for the quarter
ended June 30, 1995, which were delivered to the Banks prior to the date
hereof, or as further disclosed by the Company to the Banks and the Agent in
writing prior to the date hereof, there is no pending or, to the knowledge of
the Company, threatened action or proceeding affecting the Company or any of
its Subsidiaries before any court, governmental agency or arbitrator, in which
there is a reasonable likelihood of an adverse decision which could materially
adversely affect the consolidated financial condition or operations of the
Company and its Subsidiaries, taken as a whole. There is no pending or, to
the knowledge of the Company, threatened action or proceeding affecting the
Company which purports to affect the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.07 Regulation U; Use of Proceeds. Following the application of the
proceeds of each Loan, not more than 25% of the value of the assets of the
Company which are subject to any arrangement with the Agent or any Bank
(herein or otherwise) whereby the Company's or any Subsidiary's right or
ability to sell, pledge or otherwise dispose of assets is in any way restricted
will be Margin Stock. The Company shall not, and shall not suffer or permit
any of its Subsidiaries to, use any portion of the Loan proceeds, directly or
indirectly, to acquire any securities in connection with any transaction
subject to Section 13 (other than an Investment Transaction) or Section 14 of
the Exchange Act, unless, prior to the time such transaction becomes subject
to such Section 13 or 14, the board of directors or other applicable governing
body of the Person that is the issuer of such securities has adopted a
resolution approving such transaction and approving a Change in Control with
respect to such Person whereby the Company may acquire control of such Person.
For purposes of this Section 5.07, an "Investment Transaction" means a
transaction subject to Section 13(d), but not Section 16, of the Exchange Act,
provided that in connection with such transaction the Company or its
Subsidiary (as the case may be) has reported and at all times continues to
report to the SEC that such transaction is undertaken for investment purposes
only and not for any of the purposes specified in clauses 4(a) through (j),
inclusive, of Schedule 13D.
5.08 Investment Company Act. Neither the Company nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
5.09 ERISA. The Company is in compliance with all applicable
provisions of ERISA.
5.10 Holding Company. Neither the Company nor any of its Subsidiaries
is a "holding company", or a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
5.11 Environmental Condition. Except as disclosed in the Company's
Form 10-K Report for the year ended December 31, 1994 or in the Company's Form
10-Q Report for the quarter ended June 30, 1995, or as further disclosed by
the Company to the Banks and the Agent in writing, the aggregate contingent
and non-contingent liabilities of the Company and its Subsidiaries which are
presently known to any Responsible Officer and reasonably expected to arise in
connection with (a) the requirements of Environmental Protection Statutes or
(b) any obligation or liability to any Person in connection with any
Environmental matters, including any release or threatened release of any
Hazardous Substance or Hazardous Waste, do not exceed 10% of the Consolidated
Tangible Net Worth of the Company (excluding such liabilities to the extent
covered by insurance if the insurer has confirmed that such insurance covers
such liabilities).
5.12 No Material Adverse Change. Since December 31, 1994, there has
been no material adverse change in the business, consolidated financial
position or consolidated results of operation of the Company and its
Subsidiaries.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, the Swingline
Bank shall have any Swingline Commitment, or any Note shall remain unpaid, the
Company will unless the Majority Banks waive compliance in writing:
6.01 Compliance with Laws Etc. Comply and cause each of its
Subsidiaries to comply in all material respects with all applicable laws,
rules, regulations and orders, including compliance with the requirements of
ERISA and Environmental Protection Statutes and the payment and discharge
before delinquency of all taxes, assessments and governmental charges or
levies imposed upon the Company or any of its Subsidiaries or any property of
the Company or any of its Subsidiaries, in each case to the extent that the
failure to comply, pay or discharge would have a material adverse effect on
the Company and its Subsidiaries taken as a whole; provided that neither the
Company nor any Subsidiary of the Company shall be required to pay any such
tax, assessment, charge or levy or comply with any requirement which is being
contested in good faith and adequately reserved against to the extent required
by GAAP.
6.02 Reporting Requirements. Furnish to the Agent and each of the
Banks:
(a) promptly after the filing or sending thereof and in any
event not later than 115 days after the end of each fiscal year, a copy of the
Company's annual report which it sends to its public security holders and a
copy of the Company's report on Form 10-K which the Company files with the SEC
for such year together with a duly-completed Compliance Certificate;
(b) promptly after the filing thereof, and in any event within
60 days after the end of each of the first three fiscal quarters during each
fiscal year, the Company's report on Form 10-Q which the Company files with
the SEC for such quarter together with a duly completed Compliance Certificate;
(c) promptly, but in any event within five days after a
Responsible Officer of the Company has obtained knowledge thereof, a notice of
each Default or Event of Default, together with a statement of a Responsible
Officer setting forth the details of such Default or Event of Default and the
actions which the Company has taken and proposes to take with respect thereto;
(d) promptly after the filing thereof, copies of each of the
reports on Form 8-K and each Schedule 13D (and any amendment thereto), if any,
which the Company files with the SEC;
(e) promptly upon any Responsible Officer becoming aware thereof,
notice of any transaction or event that is, or is reasonably anticipated to
result in, a Specified Transaction or a Change in Control as to the Company;
(f) promptly upon such date becoming reasonably determinable by
any Responsible Officer (but no later than two Business Days after the
effective date of any Specified Transaction or Change in Control), notice of
the effective date of any Specified Transaction or Change in Control as to the
Company; and
(g) such other information respecting the condition or
operations, financial or otherwise, of the Company and its Subsidiaries as any
Bank through the Agent may from time to time reasonably request.
6.03 Use of Proceeds. Use the proceeds of the Loans for general
corporate purposes, including to backstop the Company's commercial paper
program.
6.04 Maintenance of Insurance. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
are usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company and its
Restricted Subsidiaries operate, provided that the Company and its Restricted
Subsidiaries may self-insure to the extent and in the manner normal for
companies of like size, type and financial condition. The Company may
maintain its Restricted Subsidiaries' insurance on behalf of them.
6.05 Corporate Existence Etc. Preserve and maintain, and cause each of
its Restricted Subsidiaries to preserve and maintain, its corporate existence,
rights and franchises; provided, however, that no Event of Default shall arise
under this Section 6.05 as a result of any Specified Transaction if any
prepayment required under Section 2.09(c) is timely made, or as a result of
the termination of existence, rights and franchises of any Restricted
Subsidiary pursuant to any merger or consolidation to which such Restricted
Subsidiary is a party, and provided, further, that the Company or any
Restricted Subsidiary shall not be required to preserve any right or franchise
if the Company or such Restricted Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company or such Restricted Subsidiary, as the case may be, and that the
loss thereof is not disadvantageous in any material respect to the Banks.
6.06 Visitation Rights. From time to time and so long as any visit or
inspection will not unreasonably interfere with the operations of the Company
and its Restricted Subsidiaries, upon reasonable notice, permit the Agent and
any Bank or any agents or representatives thereof to examine the financial
records and books of account of, and visit and inspect the properties of, the
Company and any such Restricted Subsidiary, and to discuss the affairs,
finances and accounts of the Company and any such Restricted Subsidiary with
any of their respective officers or directors.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, the Swingline
Bank shall have any Swingline Commitment, or any Note shall remain unpaid, the
Company will not, unless the Majority Banks waive compliance in writing:
7.01 Consolidated Tangible Net Worth. Have Consolidated Tangible Net
Worth of less than $3,100,000,000.
7.02 Liens. Fail to perform and observe any term, covenant or
agreement contained in Section 3.7 of the Senior Debt Indenture (as modified
for purposes hereof as set forth in the proviso to the next sentence hereof).
For the purposes of this Section 7.02, Section 3.7 and the definitions of all
terms defined in the Senior Debt Indenture and used in or otherwise applicable
to such Section 3.7 are hereby incorporated in this Agreement by reference as
if such provisions and definitions were set forth in full herein; provided,
however, that solely for the purposes of this Section 7.02 the word
"Securities" as used in the Senior Debt Indenture shall mean the Notes, the
phrase "this Section 3.7" used therein shall mean this Section 7.02, and the
word "Issuer" used therein shall mean the Company.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to pay, (i) any principal on
any Note when such principal is due and payable, (ii) any interest on any Note
within five days after such interest becomes due and payable, or (iii) the
commitment fee set forth in Section 2.12 within 15 days after such commitment
fee becomes due and payable; or
(b) Representation or Warranty. Any representation or warranty
made by the Company or any Responsible Officer (including representations and
warranties deemed made pursuant to Section 4.02 hereof) under or in connection
with any Loan Document is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in any of Sections 6.02(c), 6.02(e),
6.02(f), 7.01 or 7.02; or
(d) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement, and such default shall
continue unremedied for a period of 30 days after written notice thereof is
given to the Company by the Agent at the request of any Bank; or
(e) Cross-Default. The Company or any Restricted Subsidiary (i)
fails to make any payment of principal of or premium or interest on (A) any
Debt outstanding under the 5-Year Credit Agreement, or (B) any Debt (other
than Debt described in clause (iv) of the definition of Debt) which is
outstanding in the principal amount of at least $100,000,000 in the aggregate
of the Company or such Restricted Subsidiary (as the case may be), when such
payment in respect of Debt described in clause (A) or (B) becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise), and such failure continues after the applicable grace
or notice period, if any, in effect on the date of such failure, event or
condition in the agreement or instrument relating to any such Debt; or (ii)
fails to perform or observe any other condition or covenant, or any other
event shall occur or condition exist, under any agreement or instrument
relating to any such Debt (other than Debt described in clause (iv) of the
definition of Debt) and such failure continues after the applicable grace or
notice period in effect on the date of such failure, event or condition, if
any, if the effect of such failure, event or condition is to cause any such
Debt to be declared to be due and payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Restricted Subsidiary (i) generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) commences any
Insolvency Proceeding with respect to itself; or (iii) takes any corporate
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Restricted
Subsidiary, and such Involuntary Proceeding is not released, vacated or stayed
within 60 days after the commencement or filing thereof; or
(h) Judgments. Any judgment or order for the payment of money
in excess of $50,000,000 shall be rendered against the Company and remain
unsatisfied and either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there shall be any period
of 60 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.
8.02 Remedies. If any Event of Default shall occur and be continuing,
the Agent shall, at the request of, or may, with the consent of, the Majority
Banks, (a) by notice to the Company, declare the obligation of each Bank to
make Loans, including the obligation of the Swingline Bank to make Swingline
Loans, be terminated, whereupon such obligations shall be terminated; (b) by
notice to the Company, declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document, to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company; and (c) exercise on
behalf of itself and the Banks all other rights and remedies available to it
and the Banks under the Loan Documents or applicable law; provided, however,
that upon the occurrence of any event specified in subsection (f) or (g) of
Section 8.01 (in the case of subsection (g) upon the expiration of the 60-day
period mentioned therein), the obligation of each Bank to make Loans,
including the obligation of the Swingline Bank to make Swingline Loans, shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization. Each Bank hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the Company or
any Subsidiary or Affiliate of the Company, or any officer thereof, contained
in this Agreement or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure
of the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to the Company), independent accountants and other experts selected by
the Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Majority Banks as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Majority Banks or all of the Banks if
required by Section 10.01 and such request and any action taken or failure to
act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter either sent by the Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
9.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks, unless the
Agent shall have received written notice from a Bank or the Company referring
to this Agreement, describing such Default or Event of Default and stating
that such notice is a "notice of default". The Agent will notify the Banks of
its receipt of any such notice. The Agent shall take such action with respect
to such Default or Event of Default as may be requested by the Majority Banks
in accordance with Article VIII; provided, however, that unless and until the
Agent has received any such request, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agent hereinafter taken, including any review of the affairs of
the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Company
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of
the Company. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Agent, the Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which may
come into the possession of any of the Agent-Related Persons.
9.07 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro
rata, from and against any and all 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 the Agent-Related Persons in any way relating to or arising out of the
Loan Documents or any action taken or omitted by an Agent-Related Person,
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Person's gross negligence or willful
misconduct. IT IS THE INTENTION OF THE BANKS THAT EACH AGENT-RELATED PERSON
SHALL, TO THE EXTENT PROVIDED IN THIS SECTION 9.07, BE INDEMNIFIED FOR ITS
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE. Without limitation of the
foregoing, each Bank shall reimburse the Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement, any other Loan Document,
or any document contemplated by or referred to herein, to the extent that the
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. The Bank serving as Agent and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business
with the Company and its Subsidiaries and Affiliates as though the Bank
serving as Agent were not the Agent hereunder and without notice to or consent
of the Banks. The Banks acknowledge that, pursuant to such activities, the
Bank serving as Agent or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, the Bank serving as Agent
shall have the same rights and powers under this Agreement as any other Bank
and may exercise the same as though it were not the Agent, and the terms
"Bank" and "Banks" include the Bank serving as Agent in its individual
capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' prior written notice to
the Banks and the Company. If the Agent resigns under this Agreement, the
Majority Banks shall appoint from among the Banks a successor agent for the
Banks which successor agent shall be subject to approval by the Company. If
no successor agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed
to all the rights, powers and duties of the retiring Agent and the term
"Agent" shall mean such successor agent and the retiring Agent's appointment,
powers and duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article IX and Sections
3.01, 10.04 and 10.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder and under any other Loan
Document until such time, if any, as the Majority Banks appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Agent at the request of the Majority Banks unless BofA
shall also simultaneously be replaced as Swingline Bank hereunder pursuant to
documentation in form and substance reasonably satisfactory to BofA.
9.10 Withholding Tax. (a) If any Bank is a foreign corporation,
foreign partnership or foreign trust within the meaning of the Code and such
Bank claims exemption from, or a reduction of, United States withholding tax
under Sections 1441 or 1442 of the Code, such Bank agrees with and in favor of
the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, two properly
completed and executed IRS Forms 1001 and W-8 at least 30 days before
the payment of any interest is due in the first calendar year and at
least 30 days before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224 at
least 30 days before the payment of any interest is due in the first
taxable year of such Bank and in each succeeding taxable year of such
Bank during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
The Agent shall deliver one copy of each such form to the Company.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
and such Bank sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such Bank, such
Bank agrees to notify the Agent (which in turn shall notify the Company) of the
percentage amount in which it is no longer the beneficial owner of Obligations
of the Company to such Bank. To the extent of such percentage amount, the
Agent (and the Company) will treat such Bank's IRS Form 1001 as no longer
valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of
the Company to such Bank, such Bank agrees to notify the Agent (which in turn
shall notify the Company) of the percentage amount in which it is no longer
the beneficial owner of Obligations of the Company to such Bank. To the
extent of such percentage amount, the Agent (and the Company) will treat such
Bank's Form 4224 as no longer valid.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into
account such reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Bank not providing such forms
or other documentation an amount equivalent to the applicable withholding tax
(without taking into account such reduction).
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank (because the
appropriate form was not delivered, was not properly executed, or because such
Bank failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Bank shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
9.11 Co-Agent. Any Bank identified on the facing page and signature
page of this Agreement as "co-agent" shall have no right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Banks as such. Each Bank acknowledges that it has not
relied, and will not rely, on any Bank so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure by the Company therefrom, shall be effective unless the same
shall be in writing and signed by the Majority Banks and acknowledged by the
Agent, and then such waiver shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by all the
Banks and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (except as
provided in Section 2.06) or reinstate any Commitment terminated pursuant to
Section 8.02 or subsections (b) or (c) of Section 2.09;
(b) postpone or delay any date fixed for any payment of
principal, interest or fees due to the Banks (or any of them) hereunder or
under any Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Revolving Loan, or any fees payable hereunder or under any other
Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes which is required for the Banks or any of
them to take any action hereunder; or
(e) amend this Section or any provision herein providing for
consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Agent in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the Agent under
this Agreement or any other Loan Document, and (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swingline Bank in addition
to the Majority Banks or all the Banks, as the case may be, affect the rights
or duties of the Swingline Bank under this Agreement or any other Loan
Document.
10.02 Notices. (a) All notices, requests and other communications shall
be in writing (including, unless the context expressly otherwise provides, by
telecopier transmission, provided that any matter transmitted by telecopier
shall be immediately preceded or confirmed by a telephone call to the
recipient at the number specified on the applicable signature page hereof),
and mailed, telecopied or delivered, to the address or telecopier number
specified for notices on Schedule 10.02; or, as directed to the Company or the
Agent, to such other address as shall be designated by such party in a written
notice to the other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall be
effective, if sent by overnight courier, one Business Day after delivery to
the courier company; if sent by telecopier, when received in legible form by
the receiving telecopier equipment; if mailed, upon the second Business Day
after the date deposited into the U.S. mail; or if delivered, upon delivery;
provided that (i) notices pursuant to Article II or IX shall not be effective
until actually received by the Agent, and (ii) telecopied notices received by
any party after its normal business hours (or on a day other than a Business
Day) shall be effective on the next Business Day.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action taken or not
taken by the Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans shall not be
affected in any way or to any extent by any failure by the Agent and the Banks
to receive written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which is at variance with
the terms understood by the Agent and the Banks to be contained in the
telephonic or facsimile notice.
10.03 No Waiver: Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay for all reasonable costs and expenses incurred by the Agent
in connection with the preparation, delivery, administration and execution of,
and any amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation
of the transactions contemplated hereby and thereby; limited, however, in the
case of the preparation, execution and delivery of the Loan Documents, to the
reasonable Attorney Costs of one law firm and, to the extent not duplicative,
internal counsel, for the Agent as more fully provided in a letter agreement
between the Company and the Agent; and
(b) pay or reimburse the Agent and each Bank within five
Business Days after demand for all costs and expenses (including reasonable
Attorney Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding
or appellate proceeding).
10.05 Indemnity. The Company agrees, to the fullest extent permitted by
law, to indemnify and hold harmless the Agent-Related Persons, and each Bank
and its respective directors, officers, employees and agents, from and against
any and all claims, damages, liabilities and expenses (including, without
limitation, reasonable Attorney Costs) for which any of them may become liable
or which may be incurred by or asserted against the Agent-Related Persons, or
such Bank or any such director, officer, employee or agent (other than by
another Bank or any successor or assign of another Bank), in each case in
connection with or arising out of or by reason of any investigation,
litigation, or proceeding, whether or not the Agent or such Bank or any such
director, officer, employee or agent is a party thereto, arising out of,
related to or in connection with any Loan Document or any transaction in which
any proceeds of all or any part of the Loans are applied, EXPRESSLY INCLUDING
ANY SUCH CLAIM, DAMAGE, LIABILITY OR EXPENSE ARISING OUT OF THE ORDINARY, SOLE
OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PERSON (but excluding any such
claim, damage, liability or expense to the extent attributable to the gross
negligence or willful misconduct of, or violation of any law or regulation by,
any such indemnified Person). The undertaking in this Section shall survive
the payment of all Obligations hereunder.
10.06 Payments Set Aside. To the extent that the Company makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such set-off had not occurred, and (b) each Bank severally agrees to
pay to the Agent upon demand its pro rata or other applicable share of any
amount so recovered from or repaid by the Agent.
10.07 Binding Effect; Assignments; Participations. (a) This Agreement
shall become effective when it shall have been executed by the Company and the
Agent and when the Agent shall have, as to each Bank, received a copy
(including one transmitted by telecopier) of a signature page hereof executed
by such Bank and thereafter shall be binding upon and inure to the benefit of
and be enforceable by the Company, the Agent and each Bank and their respective
successors and assignees, subject to Section 10.07(e) and except that the
Company shall not have the right to assign its rights or obligations hereunder
or any interest herein without the prior written consent of the Banks (other
than an assignment effectuated by operation of law pursuant to a Specified
Transaction).
(b) Each Bank may grant participations to one or more commercial
banks or other Persons, in each case in accordance with applicable law, in or
to all or any part of, the Loans owing to, or the Commitment of, such Bank and
the Note held by such Bank subject to Section 10.07(e), and to the extent of
any such participation (unless otherwise stated therein) the purchaser of such
participation shall, to the fullest extent permitted by law, have the same
rights to payment hereunder and under such Loan and Note as it would have if
it were such Bank hereunder, provided that (x) the originating Bank's
obligations under this Agreement, including, without limitation, its
commitment to make loans to the Company hereunder, shall remain unchanged,
such Bank shall remain solely responsible for the performance thereof, such
Bank shall remain the holder of any such Note for all purposes under this
Agreement, and the Company, the other Banks and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement; (y) no such participant shall be
entitled to receive any greater payment pursuant to Sections 3.01, 3.03 and
3.05 hereof than such Bank would have been entitled to receive with respect to
the rights assigned except as a result of circumstances arising after the date
of such participation to the extent that such circumstances affect other Banks
and participants generally; and (z) no Bank shall grant a participation that
conveys to the participant the right to vote or consent under this Agreement,
other than the right to vote upon or consent to (i) any increase in the amount
of such Bank's Commitment; (ii) any reduction of the principal amount of, or
interest to be paid on, such Bank's Loan or Note; (iii) any reduction of the
commitment fee; or (iv) any postponement of the due date in respect of any
amounts owed to such Bank under any Loan Document.
(c) In accordance with applicable law, any Bank may assign a
portion, in an amount of at least $10,000,000 of its Commitment, together with
a ratable portion of its Loans and other rights and obligations hereunder to
an Eligible Assignee, with the prior written consents of the Agent and (unless
there has occurred and is continuing an Event of Default) the Company, which
consents shall not be unreasonably withheld, subject to Section 10.07(e);
provided, however, that neither the Company's nor the Agent's consent shall be
required for, and the minimum amount for assignment shall not apply to, any
assignment to an Eligible Assignee which already is a Bank party to this
Agreement. In connection with the assignment by the Swingline Bank of all of
its Commitment and Loans hereunder, the Swingline Commitment and Swingline
Loans shall be included as part of the assignment transaction. Each such
Eligible Assignee to which an assignment has been made pursuant to this
Section 10.07(c) which is not already a Bank shall become a party to this
Agreement as a Bank by executing and delivering to the Agent an amendment to
this Agreement or a supplemental agreement with the assigning Bank, which
amendment or supplemental agreement shall be in form and substance reasonably
satisfactory to the Agent and shall (among other matters) specify the CD
Lending Office, Domestic Lending Office and Eurodollar Lending Office of such
Eligible Assignee, provided that, in the case of each such assignment, (i) at
such time the signature pages to this Agreement shall be deemed to be modified
to reflect the Commitments of such assignee Bank and of the existing Banks,
(ii) the Company shall issue new Notes to such assignee Bank and to the
assigning Bank to reflect the revised Commitments and (iii) the Agent shall
receive at the time of such assignment, from the assigning or assignee Bank, a
non-refundable assignment fee of $2,500. To the extent of any assignment
pursuant to this Section 10.07(c), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned Commitment.
(d) In addition to the assignments and participations permitted
under Section 10.07(b) and (c), any Bank may at any time create a security
interest in, or pledge, all or any portion of its rights under this Agreement
and the Notes held by it in favor of any Federal Reserve Bank in accordance
with Regulation A of the FRB, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
(e) Unless an Event of Default has occurred and is continuing,
no assignments or participations shall result in a Bank (together with its
Affiliates) holding Commitments, or participations therein, in excess of
$100,000,000 without the prior written consent of the Company.
10.08 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, to the fullest extent permitted by applicable law each Bank is
authorized at any time and from time to time, without prior notice to the
Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the
account of the Company against any and all Obligations owing to such Bank, now
or hereafter existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document and although
such Obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made
by such Bank; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application.
10.09 Interest. (a) It is the intention of the parties hereto that the
Agent and each Bank shall conform strictly to usury laws applicable to it, if
any. Accordingly, if the transactions with the Agent or any Bank contemplated
hereby would be usurious under applicable law, if any, then, in that event,
notwithstanding anything to the contrary in this Agreement, the Notes or any
other agreement entered into in connection with this Agreement or the Notes,
it is agreed as follows: (i) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received by the Agent or such Bank, as the case may be,
under this Agreement, the Notes or under any other agreement entered into in
connection with this Agreement or the Notes shall under no circumstances
exceed the maximum amount allowed by such applicable law and any excess shall
be cancelled automatically and, if theretofore paid, shall be refunded by the
Agent or such Bank, as the case may be, to the Company, and (ii) in the event
that the maturity of any Loan or other obligation payable to the Agent or such
Bank, as the case may be, is accelerated or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to the Agent or such Bank, as the case may be, may never
include more than the maximum amount allowed by such applicable law and excess
interest, if any, to the Agent or such Bank, as the case may be, provided for
in this Agreement or otherwise shall be cancelled automatically as of the date
of such acceleration or prepayment and, if theretofore paid, shall, at the
option of the Agent or such Bank, as the case may be, be credited by the Agent
or such Bank, as the case may be, on the principal amount of the obligations
owed to the Agent or such Bank, as the case may be, by the Company or refunded
by the Agent or such Bank, as the case may be, to the Company. To the extent
that Article 5069-1.04 of the Texas Revised Civil Statutes is relevant to any
Bank for the purposes of determining the Highest Lawful Rate, such Bank hereby
elects to determine the applicable rate ceiling under such Article by the
indicated (weekly) rate ceiling from time to time in effect, subject to such
Bank's right to subsequently change such rate ceiling in accordance with
applicable law. Tex. Rev. Civ. Stat. ▇▇▇. art. 5069, ch. 15 (which regulates
certain revolving credit loan accounts and revolving triparty accounts) shall
not apply to this Agreement or the Notes.
(b) In the event that at any time the interest rate applicable
to any Loan made by any Bank would exceed the Highest Lawful Rate, the rate of
interest to accrue on the Loans by such Bank shall be limited to the Highest
Lawful Rate, but shall accrue, to the extent permitted by law, on the
principal amount of the Loans made by such Bank from time to time outstanding,
if any, at the Highest Lawful Rate allowed by applicable law until the total
amount of interest accrued on the Loans made by such Bank equals the amount of
interest which would have accrued if the interest rates applicable to the
Loans pursuant to Article II had at all times been in effect. In the event
that upon the final payment of the Loans made by any Bank and termination of
the Commitment of such Bank, the total amount of interest paid to such Bank
hereunder is less than the total amount of interest which would have accrued
if the interest rates applicable to such Loans pursuant to Article II had at
all times been in effect, then the Company agrees to pay to such Bank, to the
extent permitted by law, an amount equal to the excess of (a) the lesser of
(i) the amount of interest which would have accrued on such Loans if the
Highest Lawful Rate had at all times been in-effect or (ii) the amount of
interest which would have accrued if the interest rates applicable to such
Loans pursuant to Article II had at all times been in effect over (b) the
amount of interest otherwise accrued on such Loans in accordance with this
Agreement.
10.10 Confidentiality. (a) Each Bank and the Agent acknowledge that
certain confidential and proprietary information of the Company (the
"Information") is a valuable, special, and a unique asset of the Company.
Each Bank and the Agent agree that they will use the care specified below to
keep all Information in confidence, and will not use any Information except as
provided in this Section, or disclose any portion of the Information to any
third party without the prior written consent of the Company except as
provided in this Section. Each Bank and the Agent covenant to use the care
specified below to not disclose such Information on behalf of itself, its
officers, directors, agents, employees, and affiliates. Each Bank and the
Agent shall use the same degree of care to protect the confidentiality of all
Information as such Bank or the Agent, as the case may be, uses to protect its
own confidential and proprietary information (which it does not wish to have
published or disseminated).
(b) Information provided by the Company to any Bank or the
Agent, which the Company in good faith regards as Information hereunder shall
be clearly marked by the Company as "Confidential," "Proprietary," or bear any
other appropriate notice indicating the sensitive nature of the Information.
Any tangible Information not easily markable shall be transmitted by the
Company to such Bank or the Agent under cover of written letter which clearly
identifies the Information and designates it as confidential "Information".
All information conveyed to such Bank or the Agent orally relating to plans,
forecasts, products or other non-public information shall be deemed
confidential "Information".
(c) If any Bank or the Agent is confronted with legal action to
disclose Information received under this Agreement or otherwise makes
disclosures of confidential information under clauses (ii), (iii) or (iv) of
Section 10.10(e) (other than any disclosure to a regulatory authority pursuant
to an examination of the books, records or affairs of such Bank or Agent),
such Bank or the Agent, as the case may be, shall (to the extent permitted by
applicable law) promptly notify the Company.
(d) All Information disclosed or furnished under this Agreement
shall remain the property of the Company. At the Company's request, the
Information in tangible form shall be promptly returned or destroyed, together
with all copies thereof unless such return or destruction is contrary to law,
regulation, legal process, administrative order, or administrative request
having, or deemed to have, the force of law. Upon request, the appropriate
Bank or the Agent, as the case may be, shall provide written certification of
the destruction.
(e) Notwithstanding the foregoing, each Bank and the Agent may
disclose Information (i) as has become generally available to the public, (ii)
as may be required or appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over such Bank or to the FRB, or the FDIC or
similar organizations (whether in the United States or elsewhere), (iii) as
may be required or appropriate in response to any summons or subpoena or in
connection with any litigation, (iv) in order to comply with any law, order,
regulation or ruling applicable to such Bank, (v) to any regulatory authority
pursuant to an examination of the books, records or affairs of any Bank or the
Agent, (vi) to the prospective transferee in connection with any contemplated
transfer of any of the Notes or any interest therein by such Bank, provided,
that such prospective transferee executes an agreement with the Company or the
transferor containing provisions substantially identical to those contained in
this Section, (vii) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Bank or their respective
Affiliates may be party, (viii) to such Bank's independent auditors and other
professional advisors, (ix) to the extent reasonably necessary to disclose in
connection with the exercise of any remedy hereunder and under the Notes, or
(x) as to any Bank, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the Company is party
or is deemed party with such Bank.
10.11 Preservation of Certain Matters. Notwithstanding any other term
or provision hereof to the contrary, any entity ceasing to be a "Bank" for
purposes of this Agreement, by virtue of any matter or event contemplated by
Section 2.07, 2.08, 3.06 or 10.07 shall retain any and all rights arising
under Section 10.05, and shall continue to remain responsible to the Agent for
all liabilities under Section 9.07 and Section 9.10 relating to matters
occurring prior to the termination of such entity as a "Bank."
10.12 Notification of Addresses, Lending Offices Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same agreement.
10.14 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.15 Governing Law; Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF
THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT
AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND
THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT AND THE BANKS EACH WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
10.16 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE COMPANY, THE BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A
TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.17 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS,
AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
COMPAQ COMPUTER CORPORATION
By:__________________________________
Title:_______________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By:__________________________________
Commitment: $22,380,952.35 Title:_______________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Swingline Bank and as a
Bank
By:__________________________________
Title:_______________________________
Commitment: $16,666,666.67 NATIONSBANK TEXAS, N.A., as Co-Agent and
as a Bank
By:__________________________________
Title:_______________________________
Commitment: $16,666,666.67 CITIBANK, N.A., as Co-Agent and as a Bank
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 ABN AMRO BANK N.V.
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 BANKERS TRUST COMPANY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 CHEMICAL BANK
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 COMMERZBANK AG, ATLANTA AGENCY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 DRESDNER BANK AG
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 FIRST INTERSTATE BANK OF TEXAS, N.A.
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 THE FIRST NATIONAL BANK OF CHICAGO
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 PNC BANK, N.A.
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 ROYAL BANK OF CANADA
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 THE SANWA BANK LIMITED,
DALLAS AGENCY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 SHAWMUT BANK, N.A.
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 SOCIETE GENERALE, SOUTHWEST AGENCY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 THE SUMITOMO BANK, LIMITED, HOUSTON AGENCY
By:__________________________________
Title:_______________________________
Commitment: $11,428,571.43 TORONTO DOMINION (TEXAS), INC.
By:__________________________________
Title:_______________________________
EXHIBIT A
NOTICE OF BORROWING
Bank of America National Trust and
Savings Association, as Administrative Agent
Agency Management Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Compaq SAO [Date]
Ladies and Gentlemen:
This Notice of Borrowing is delivered pursuant to Section [2.03] [2.05]
of the $250,000,000 Revolving Credit Agreement, dated as of October 31, 1995
(together with all amendments, if any, from time to time made thereto, the
"Credit Agreement"), among Compaq Computer Corporation, a Delaware corporation
(the "Company"), certain Banks parties thereto and Bank of America National
Trust and Savings Association, as administrative agent for such Banks. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
The Company hereby irrevocably requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section [2.03(a)]
[2.05(a)] of the Credit Agreement:
(i) The Borrowing Date of the Proposed Borrowing is
________________, 199___.
(*)[(ii)The type of Revolving Loans comprising the Proposed
Borrowing is [Base Rate Revolving Loans] [Adjusted CD Rate Revolving
Loans] [LIBOR Revolving Loans].]
(**)[(ii)The type of Swingline Loan comprising the Proposed
Borrowing is a [Base Rate Swingline Loan] [Adjusted CD Rate Swingline
Loan] [LIBO Rate Swingline Loan].]
(iii) The [aggregate] amount of the Proposed Borrowing is
$___________.
(iv) The duration of the Interest Period for each CD Loan or
Offshore Loan made as part of the Proposed Borrowing is _______ (days)
(months).
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Article V of
the Credit Agreement are true and correct on and as of such Borrowing
Date with the same effect as if made on and as of such Borrowing Date
(except to the extent such representations and warranties expressly
refer to an earlier date, in which case they are true and correct as of
such earlier date); and
(B) no Default or Event of Default exists or shall result from
such Proposed Borrowing.
Very truly yours,
COMPAQ COMPUTER CORPORATION
By:__________________________________
Name:_______________________________
Title:_______________________________
EXHIBIT B
CONVERSION/CONTINUATION NOTICE
Bank of America National Trust and
Savings Association, as Administrative Agent
Agency Management Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Compaq SAO [Date]
(*)To be included for a Proposed Borrowing comprised of Revolving Loans.
(**)To be included for a Proposed Borrowing comprised of a Swingline Loan.
Ladies and Gentlemen:
This Conversion/Continuation Notice is delivered pursuant to Section
2.04 of the $250,000,000 Revolving Credit Agreement, dated as of October 31,
1995 (together with all amendments, if any, from time to time made thereto,
the "Credit Agreement"), among Compaq Computer Corporation, a Delaware
corporation (the "Company"), certain Banks parties thereto and Bank of America
National Trust and Savings Association, as administrative agent for such
Banks. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Credit Agreement.
The Company hereby requests that on _________ ____, 199__,
(1) $__________ of the presently outstanding principal amount of
the Revolving Loans originally made on ___________, 199__ [and
$______________ of the presently outstanding principal amount of the
Revolving Loans originally made on __________________, 199__],
(2) all presently being maintained as (*)[Adjusted CD Rate
Revolving Loans] [Base Rate Revolving Loans] [LIBOR Revolving Loans],
(3) be [converted into] [continued as],
(4) (**)[Adjusted CD Rate Revolving Loans having as
Interest Period of ___ days] [LIBOR Revolving Loans having an Interest
Period of ___ months] [Base Rate Revolving Loans].
The Company has caused this Conversion/Continuation Notice to be
executed and delivered this _____ day of _____________, 199__.
COMPAQ COMPUTER CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT C
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section 6.02 of the
$250,000,000 Revolving Credit Agreement dated as of October 31, 1995 (together
with all amendments, if any, from time to time made thereto, the "Credit
Agreement") among Compaq Computer Corporation, a Delaware corporation (the
"Company"), certain Banks parties thereto and Bank of America National Trust
and Savings Association, as administrative agent for such Banks. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
The undersigned certifies, represents and warrants as follows:
(a) The Consolidated Tangible Net Worth of the Company as of
(*)Select appropriate interest rate option.
(**)Unless otherwise agreed, a Revolving Loan cannot be converted into or
continued as an Adjusted CD Rate Revolving Loan or a LIBOR Revolving
Loan with an Interest Period exceeding one month (in the case of a LIBOR
Revolving Loan) or 30 days (in the case of an Adjusted CD Rate Revolving
Loan) during the existence of a Default or Event of Default.
______________, 19__ was $_________________.
[Insert calculation in reasonable detail]
(b) There exists on the date of this Compliance Certificate no
Default or Event of Default under the Credit Agreement.
EXECUTED AND DELIVERED this ____ day of ______________, 199__.
COMPAQ COMPUTER CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT D-1
October 31, 1995
To each of the Banks parties to the
$250,000,000 Revolving Credit Agreement
dated as of October 31, 1995 among
Compaq Computer Corporation, said Banks
and Bank of America National Trust and Savings
Association, as Administrative Agent for such Banks,
and to such Administrative Agent
Re: Compaq Computer Corporation Revolving Credit Agreement
Ladies and Gentlemen:
As Senior Vice President, General Counsel and Secretary of Compaq Computer
Corporation, a Delaware corporation (the "Company"), I am familiar with the
$250,000,000 Revolving Credit Agreement dated as of October 31, 1995 (the
"Credit Agreement") among the Company, the Banks listed on the signature pages
thereof and Bank of America National Trust and Savings Association, as
administrative agent for such Banks (the "Agent"). In such capacity, I am
also familiar with the Certificate of Incorporation and Bylaws of the Company
and the corporate records of the Company. This opinion is being furnished to
you pursuant to Section 4.01(d) of the Credit Agreement. Terms used herein
but not defined herein shall have the same meaning ascribed to such terms in
the Credit Agreement.
Before rendering this opinion, I (or other attorneys with the Company's
legal department acting under my direction) have examined the Credit Agreement
and the Loan Documents, and have examined and relied upon originals or
photostatic or certified copies of such corporate records, certificates of
officers of the Company and of public officials, and such agreements,
documents and instruments, and have made such investigations of law, as I or
such other attorneys have deemed relevant and necessary as the basis for the
opinion hereinafter expressed. In such examination, I or such other attorneys
assumed the genuineness of all signatures (other than signatures of officers
of the Company on the Loan Documents), the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as photostatic or certified copies.
On the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business
as now conducted, except to the extent failure to obtain such licenses,
authorizations, consents or approvals would not materially adversely
affect the business, consolidated financial position or consolidated
results of operations of the Company and its Subsidiaries taken as a
whole.
2. The execution, delivery and performance by the Company of
the Loan Documents are within the Company's corporate powers, have been
duly authorized by all necessary corporate action on the part of the
Company, and do not contravene, or constitute a default under, (a) the
Certificate of Incorporation or Bylaws of the Company, (b) any
contractual restriction contained in any material (meaning for the
purposes of this opinion those creating a monetary liability of
$50,000,000 or more) indenture, loan or credit agreement, receivables
sale or financing agreement, lease financing agreement, capital lease,
mortgage, security agreement, bond or note, or any guaranty of any of such
obligations to which the Company is a party, or, to my knowledge, any
other agreement or instrument to which the Company is a party, or (c) any
judgment, injunction, order or decree known to me to be binding upon the
Company. The execution, delivery and performance by the Company of the
Loan Documents will not result in the creation or imposition of any lien,
security interest or other charge or encumbrance on any asset of the
Company. The Credit Agreement and the Notes have been duly executed and
delivered by the Company.
3. No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required to be made or obtained by the Company for the execution,
delivery and performance by the Company of the Loan Documents.
4. None of the execution, delivery or performance by the
Company of the Loan Documents contravenes any provision of law or
regulation (including, without limitation, Regulation X issued by the
FRB) applicable to the Company or of Regulation U issued by the FRB.
5. The Loan Documents constitute the legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms.
6. Except as disclosed in the Company's Form 10-K for the year
ended December 31, 1994, or the Company's Form 10-Q for the quarter ended
June 30, 1995, there is no action, suit or proceeding pending or, to my
knowledge, threatened against the Company or any of its Subsidiaries
before any court or arbitrator or any governmental agency, in which there
is a reasonable possibility of an adverse decision which could materially
adversely affect the consolidated financial condition or operations of the
Company and its Subsidiaries taken as a whole or which in any manner
draws into question the validity of the Credit Agreement or any other
Loan Document.
7. Neither the Company nor any Subsidiary is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
8. Neither the Company nor any Subsidiary is a "holding
company", a "subsidiary company" of a "holding company", an "affiliate"
of a "holding company" or an "affiliate" of a "subsidiary company" of a
"holding company", in each case as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended.
The opinions set forth above are subject to the following
qualifications:
(a) In rendering the opinions expressed in paragraph 2 above,
neither I nor any other attorney acting under my direction have made any
examination of any accounting or financial matters related to financial
covenants contained in certain documents to which the Company may be
subject, and I express no opinion with respect thereto.
(b) The opinion in paragraph 5 above is subject, as to
enforceability, to the effect of general principles of equity (regardless
of whether considered in a proceeding in equity or at law), including
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing, and also to the possible unavailability of specific
performance or injunctive relief. Such principles of equity are of
general application, and in applying such principles a court, among other
things, might not allow a creditor to accelerate maturity of a debt upon
the occurrence of a default deemed immaterial or might decline to order
the Company to perform covenants.
(c) I express no opinion with respect to the following
provisions to the extent that the same are contained in the Loan
Documents: (i) provisions releasing, exculpating or exempting a party
from, or requiring the indemnification of a party for, liability for its
own action or inaction, to the extent that the same are inconsistent with
public policy, and (ii) provisions purporting to waive rights to notice,
legal defenses, or other benefits that cannot be waived under applicable
law.
(d) This opinion is limited in all respects to the laws of the
State of Texas and the General Corporation Law of the State of Delaware
and Federal law.
(e) In rendering the opinion expressed in paragraph 6 above, I
(or the other attorneys acting under my direction) have only reviewed the
files and records of the Company and its Subsidiaries, and we have
consulted with such senior officers of the Company and its Subsidiaries
as we have deemed necessary.
This opinion is solely for the benefit of the Banks, the Agent, their
respective successors, assigns and participants and may not be relied upon in
connection with any other transaction or by any other person.
Very truly yours,
Wilson B. Fargo
Senior Vice President,
General Counsel and Secretary
EXHIBIT D-2
October 31, 1995
To each of the Banks parties to the
$250,000,000 Revolving Credit Agreement
dated as of October 31, 1995 among
Compaq Computer Corporation, said Banks
and Bank of America National Trust and Savings
Association, as Administrative Agent
for such Banks, and Nationsbank of Texas,
National Association and Citibank, N.A., as Co-Agents
for such Banks, and to such Agents
Re: Compaq Computer Corporation Revolving Credit Agreement
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4.01(d) of
the $250,000,000 Revolving Credit Agreement, dated as of October 31, 1995 (the
"Credit Agreement"), among Compaq Computer Corporation (the "Company"), the
Banks parties thereto, Bank of America National Trust and Savings Association,
as Administrative Agent for such Banks, and Nationsbank of Texas, National
Association and Citibank, N.A., as Co-Agents for such Banks. Except as
otherwise defined herein, terms defined in the Credit Agreement are used
herein as therein defined.
I have acted as counsel for the Company in connection with the
preparation, execution, delivery and effectiveness of the Credit Agreement and
the other Loan Documents.
In that connection, I have examined:
(1) The Credit Agreement;
(2) The Notes and other documents furnished by the Company
pursuant to the conditions precedent set forth in Section
4.01 of the Credit Agreement; and
(3) Such other materials as I have deemed necessary to render
the opinions provided herein.
In rendering the opinion herein set forth, I have assumed (i) the
due authorization, execution and delivery of each document referred to in
clauses (1) and (2) of the third paragraph of this opinion by all parties to
such documents other than the Company and that each such document is valid,
binding and enforceable (subject to limitations on enforceability of the types
referred to in paragraphs (a) and (b) below) against the parties thereto other
than the Company, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents
submitted to me as originals and (v) the conformity to original documents of
all documents submitted to me as copies. In addition, I have (i) investigated
such questions of law and (ii) relied as to factual matters on such
certificates from officers and representatives of the Company and from public
officials, as I have deemed necessary or appropriate for the purposes of this
opinion.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the opinion that the Credit Agreement and the Notes
constitute the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
The opinion set forth above is subject to the following qualifications:
(a) My opinion is subject, as to enforceability, to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally.
(b) My opinion is subject, as to enforceability, to the effect
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including without limitation, concepts
of materiality, reasonableness, good faith and fair dealing, and also to
the possible unavailability of specific performance or injunctive relief.
Such principles of equity are of general application, and in applying
such principles a court, among other things, might not allow a creditor
to accelerate maturity of a debt upon the occurrence of a default deemed
immaterial or might decline to order the Company to perform covenants.
(c) I express no opinion with respect to the enforceability
under Texas law of the provisions of the Credit Agreement and the Notes
stating that such documents shall be governed by, and construed in
accordance with, the laws of the state of New York.
(d) I express no opinion with respect to the following
provisions to the extent that the same are contained in the Credit
Agreement or the Notes: (i) provisions releasing, exculpating or
exempting a party from, or requiring the indemnification of a party for,
liability for its own action or inaction, to the extent that the same are
inconsistent with public policy, and (ii) provisions purporting to waive
rights to notice, legal defenses, or other benefits that cannot be waived
under applicable law.
In rendering the opinions expressed herein, I have relied upon the
opinions stated in paragraphs 1, 2 (so far as such paragraph 2 relates to the
corporate powers of, and due authorization of the Loan Documents by, the
Company), 4 and 5 of the opinion, dated today, of the General Counsel of the
Company which is being delivered to you pursuant to Section 4.01(d) of the
Credit Agreement.
I express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Bank may be located
or where any enforcement of the Loan Documents may be sought which limits the
rates of interest legally chargeable or collectible.
This opinion is limited to the laws of the State of New York.
The opinion herein has been furnished at your request and is
solely for your benefit and the benefit of your respective successors, assigns
and participants in connection with the subject transaction and may not be
relied upon by any other person or by you or any other person in any other
context without the prior written consent of the undersigned.
Very truly yours,
▇▇▇▇▇▇▇▇▇ ▇. Lucie
Corporate Counsel
Securities Compliance
EXHIBIT E
PROMISSORY NOTE
U.S. $ Dated: October 31, 1995
FOR VALUE RECEIVED, the undersigned, Compaq Computer Corporation, a
Delaware corporation (the "Company"), HEREBY PROMISES TO PAY to the order
of (the "Bank") for the account of its applicable Lending Office (as defined
in the Credit Agreement referred to below) on the Revolving Termination
Date (as defined in the Credit Agreement) the principal sum of
U.S. dollars (U.S. $__________) or, if less, the aggregate unpaid
principal amount of the [Revolving] Loans (as defined in the $250,000,000
Revolving Credit Agreement dated as of October 31, 1995 among the Company, the
Bank, certain other lenders parties thereto and Bank of America National Trust
and Savings Association, as Administrative Agent for the Bank and such other
lenders; such Revolving Credit Agreement, as amended from time to time being
herein referred to as the "Credit Agreement") owing to the Bank outstanding on
the Revolving Termination Date (as defined in the Credit Agreement) [,
together with the principal amount of any outstanding Swingline Loans (as
defined in the Credit Agreement) made by the Bank as Swingline Bank (as
defined in the Credit Agreement)].
The Company promises to pay interest on the unpaid principal amount of
each Loan owing to the Bank from the date of such Loan until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Bank of America National Trust and Savings Association,
as Administrative Agent, at the Agent's Payment Office (as defined in the
Credit Agreement), in immediately available funds. Each Loan owed to the Bank
by the Company pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Bank and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Company
hereunder or under the Credit Agreement.
This Promissory Note is one of the Notes referred to in, and is subject
to and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of [Revolving]
Loans by the Bank to the Company from time to time in an aggregate amount not
to exceed the U.S. dollar amount first above mentioned [and the making of
Swingline Loans by the Bank as Swingline Bank to the Company from time to time
in an aggregate amount not to exceed the Swingline Commitment (as such terms
are defined in the Credit Agreement)], the indebtedness of the Company
resulting from each Loan owing to the Bank being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
This Promissory Note shall be governed by, and construed in accordance
with, the internal laws of the State of New York.
COMPAQ COMPUTER CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount Principal Unpaid
of Type of Paid or Principal Notation
Date Loan Loan Prepaid Balance Made By
---- ------ ------- --------- --------- ---------
SCHEDULE 10.02
NOTICE ADDRESSES, PAYMENT AND LENDING OFFICES
Addresses for Notices Address for Payments
___________________________________________________________________________________________________________
BANK OF AMERICA NATIONAL TRUST Bank of America N.T. & S.A. Bank of America N.T. & S.A.
AND SAVINGS ASSOCIATION, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (▇▇▇ 121-000-358)
as Administrative Agent ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Agency Management
Attn: Agency Management Services Services #5596
#5596 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ For credit to account:
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ No. 12335 14314
Ref: Compaq Computer Corporation
With a copy to:
Bank of America N.T. & S.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Banking
High Technology
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bank Commitment Domestic/CD/LIBOR Lending Addresses for Notices
Offices
___________________________________________________________________________________________________________
BANK OF AMERICA $22,380,952.35 Bank of America N.T. & S.A. Bank of America N.T. & S.A.
NATIONAL TRUST AND ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 555 California Street
SAVINGS ASSOCIATION, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 41st Floor
as Swingline Bank and ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
as a Bank Attn: Corporate Banking
High Technology
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/2514
ABN AMRO BANK N.V. $11,428,571.43 ABN AMRO Bank N.V. Credit Matters:
Houston Agency Houston Agency ----------------------------------
Three Riverway, Suite 1600 ABN AMRO Bank N.V.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Houston Agency
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
ABN AMRO BANK N.V.
Houston Agency
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY $11,428,571.43 Bankers Trust Company Credit Matters:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Bankers Trust Company
Attn: ▇▇▇▇▇▇▇▇▇ ▇. Judge ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇. Judge
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY
(Continued) Operations/Administration:
----------------------------------
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE NATIONALE $11,428,571.43 Banque Nationale de Paris Credit Matters:
DE ▇▇▇▇▇ ▇▇▇▇▇▇▇ Agency ----------------------------------
Houston Agency ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Banque Nationale de Paris
Suite 3400 Houston Agency
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇ Suite 3400
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
Banque Nationale de ▇▇▇▇▇
▇▇▇▇▇▇▇ Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CHEMICAL BANK $11,428,571.43 Chemical Bank Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Media & Telecommunications Group
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Ninth Floor
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ Cupid
Account Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A., as $16,666,666.67 Citibank, N.A. Credit Matters:
Co-Agent and as a Bank ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
4th Floor, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, N.A.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇ 4th Floor, Zone 17
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
Citibank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COMMERZBANK AG $11,428,571.43 Commerzbank AG Credit Matters:
Atlanta Agency Atlanta Agency ----------------------------------
2 World Financial Center Commerzbank AG
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Atlanta Agency
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Assistant Vice President Suite 3500
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
Commerzbank AG
Atlanta Agency
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK AG $11,428,571.43 Deutsche Bank AG Credit Matters:
New York and/or New York Branch ----------------------------------
Cayman Island ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Deutsche Bank AG
Branches ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ 24th Floor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
Deutsche Bank AG
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
DRESDNER BANK AG $11,428,571.43 Dresdner Bank AG Credit Matters:
New York Branch and ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ----------------------------------
Grand ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Dresdner Bank AG
Attn: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
Dresdner Bank AG
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST INTERSTATE BANK $11,428,571.43 First Interstate Bank of Credit Matters:
OF TEXAS, N.A. Texas, N.A. ----------------------------------
Beaverton Loan Center First Interstate Bank of Texas,
P.O. Box 4195 N.A.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 1000 Louisiana
Attn: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Syndications Manager Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
First Interstate Bank of Texas,
N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL $11,428,571.43 The First National Bank Credit Matters:
BANK OF CHICAGO of Chicago ----------------------------------
One First National Plaza The First National Bank
Suite 0088 of Chicago
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
The First National Bank
of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE FUJI BANK, LIMITED $11,428,571.43 The Fuji Bank, Limited Credit Matters:
Houston Agency Houston Agency ----------------------------------
One Houston Center The Fuji Bank, Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Agency
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
The Fuji Bank, Limited
Houston Agency
One Houston Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK TEXAS, $16,666,666.67 NationsBank Texas, N.A. Credit Matters:
N.A., as Co-Agent ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ----------------------------------
and as a Bank ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ NationsBank Texas, N.A.
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ 8th Floor
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Forest ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
NationsBank Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PNC BANK, N.A. $11,428,571.43 PNC Bank, N.A. Credit Matters:
5th Avenue & Wood St. ----------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ PNC Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Operations/Administration:
----------------------------------
PNC Bank, N.A.
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Administrative Assistant
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ROYAL BANK OF CANADA $11,428,571.43 Royal Bank of Canada Credit Matters:
One Financial Square ----------------------------------
23rd Floor Royal Bank of Canada
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▇▇▇▇▇▇ ▇. Mimaki
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/5348
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Operations/Administration:
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Royal Bank of Canada
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Reconciliation Clerk
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THE SANWA BANK $11,428,571.43 The Sanwa Bank Limited, Credit Matters:
LIMITED, Dallas Agency Dallas Agency ----------------------------------
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Operations/Administration:
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The Sanwa Bank Limited,
Dallas Agency
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Vice President
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SHAWMUT BANK, N.A. $11,428,571.43 Shawmut Bank, N.A. Shawmut Bank, N.A.
One Federal Street One Federal Street
Mail Stop OF-0323 Mail Stop OF-0323
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Director
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Operations/Administration:
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Shawmut Bank, N.A.
One Federal Street
Mail Stop OF-0305
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SOCIETE GENERALE $11,428,571.43 Societe Generale, Credit Matters:
Southwest Agency Southwest Agency ----------------------------------
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Vice President Attn: Thierry Namuroy
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Operations/Administration:
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Societe Generale
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Attn: Tequlla English
Loan Specialist
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THE SUMITOMO BANK, $11,428,571.43 Credit Matters:
LIMITED, HOUSTON ----------------------------------
AGENCY Societe Generale
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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Operations/Administration:
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Societe Generale
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Loan Administrator
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TORONTO DOMINION $11,428,571.43 Toronto Dominion Bank Toronto Dominion Bank
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President Director
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Toronto Dominion Bank
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