EXECUTION COPY
CREDIT AGREEMENT
by and among
LONE STAR INDUSTRIES, INC.
(Borrower)
NBD BANK, N.A. (Agent)
and LENDERS (signatory hereto)
Dated as of June 30, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.........................................................1
ARTICLE II THE CREDITS ...........................................14
2.1.. Commitment.................................................14
2.2. Promise to Pay; Required Payments; Termination.............15
2.3. Ratable Loans; Types of Advances...........................15
2.4. Interest...................................................15
2.5. Commitment Fee; Reductions in Aggregate Commitment.........16
2.6. Minimum Amount of Each Advance.............................17
2.7. Optional Principal Payments................................17
2.8. Method of Selecting Types and Interest Periods for
New Advances........................................... 17
2.9. Conversion and Continuation of Outstanding Advances........17
2.10. Changes in Interest Rate, etc...............................18
2.11. Rates Applicable After Default..............................18
2.12. Method of Payment...........................................19
2.13. Notes; Telephonic Notices...................................19
2.14. Interest Payment Dates......................................19
2.15. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions....................................20
2.16. Lending Installations.......................................20
2.17. Non-Receipt of Funds by the Agent...........................20
2.18. Mandatory Prepayment in the Event of a Change in Control....20
2.19. Facility LCs................................................21
ARTICLE III CHANGE IN CIRCUMSTANCES...............................26
3.1. Yield Protection...........................................26
3.2. Changes in Capital Adequacy Regulations....................27
3.3. Availability of Types of Advances..........................27
3.4. Funding Indemnification....................................28
3.5. Lender Statements; Survival of Indemnity...................28
3.6. Removal of Lender..........................................28
ARTICLE IV CONDITIONS PRECEDENT; WITHHOLDING
TAX EXEMPTION...............................28
4.1. Initial Credit Extension...................................29
4.2. Each Credit Extension......................................30
4.3. Withholding Tax Exemption..................................30
ARTICLE V REPRESENTATIONS AND WARRANTIES..........................31
5.1. Corporate Existence and Standing...........................31
5.2. Authorization and Validity.................................31
5.3. No Conflict; Government Consent............................31
5.4. Financial Statements.......................................32
5.5. Material Adverse Change....................................32
5.6. Taxes......................................................32
5.7. Litigation and Contingent Obligations......................32
5.8. Subsidiaries...............................................33
5.9. ERISA......................................................33
5.10. Accuracy of Information.....................................33
5.11. Regulation U................................................33
5.12. Material Agreements.........................................33
5.13. Compliance With Laws........................................33
5.14. Ownership of Properties.....................................33
5.15. Plan Assets; Prohibited Transactions........................34
5.16. Environmental Matters.......................................34
5.17. Investment Company Act......................................34
5.18. Public Utility Holding Company Act..........................34
5.19. Post-Retirement Benefits....................................34
5.20. Insurance...................................................34
5.21. Solvency....................................................35
5.22. Environmental Warranties....................................35
ARTICLE VI COVENANTS..............................................37
6.1. Financial Reporting........................................37
6.2. Use of Proceeds............................................38
6.3. Notice of Default..........................................39
6.4. Conduct of Business........................................39
6.5. Dividend Restrictions......................................39
6.6. Taxes......................................................39
6.7. Insurance..................................................39
6.8. Compliance with Laws.......................................39
6.9. Maintenance of Properties..................................39
6.10. Inspection..................................................39
6.11. Indebtedness................................................40
6.12. Merger......................................................40
6.13. Sale of Assets..............................................41
6.14. Investments and Acquisitions................................43
6.15. Liens.......................................................44
6.16. ERISA.......................................................46
6.17. Affiliates..................................................47
6.18. Environmental Covenants.....................................47
6.19. Sale of Accounts............................................47
6.20. Financial Covenants.........................................47
ARTICLE VII DEFAULTS...............................................48
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS
AND REMEDIES..............................51
8.1. Acceleration...............................................51
8.2. Amendments.................................................52
8.3. Preservation of Rights.....................................53
ARTICLE IX GENERAL PROVISIONS.....................................53
9.1. Survival of Representations................................53
9.2. Governmental Regulation....................................53
9.3. Taxes......................................................54
9.4. Headings...................................................54
9.5. Entire Agreement...........................................54
9.6. Several Obligations; Benefits of this Agreement............54
9.7. Expenses; Indemnification..................................54
9.8. Numbers of Documents.......................................55
9.9. Accounting.................................................55
9.10. Severability of Provisions..................................55
9.11. Nonliability of Lenders.....................................55
9.12. Confidentiality.............................................55
9.13. Nonreliance.................................................55
ARTICLE X THE AGENT...............................................56
10.1. Appointment; Nature of Relationship.......................56
10.2. Powers....................................................56
10.3. General Immunity..........................................56
10.4. No Responsibility for Loans, Recitals, etc................56
10.5. Action on Instructions of Lenders.........................57
10.6. Employment of Agents and Counsel..........................57
10.7. Reliance on Documents; Counsel............................57
10.8. Agent's Reimbursement and Indemnification.................57
10.9. Notice of Default.........................................58
10.10. Rights as a Lender.........................................58
10.11. Lender Credit Decision.....................................58
10.12. Successor Agent............................................58
10.13. Agent's Fee................................................59
ARTICLE XI SETOFF; RATABLE PAYMENTS...............................59
11.1. Setoff....................................................59
11.2. Ratable Payments..........................................59
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATION............................60
12.1. Successors and Assigns....................................60
12.2. Participation.............................................60
12.3. Assignments...............................................61
12.4. Dissemination of Information..............................62
12.5. Tax Treatment.............................................62
ARTICLE XIII NOTICES..............................................62
13.1. Notices...................................................62
13.2. Change of Address.........................................62
ARTICLE XIV COUNTERPARTS..........................................63
ARTICLE XV CHOICE OF LAW, CONSENT TO JURISDICTION,
WAIVER OF JURY TRIAL......................63
15.1. CHOICE OF LAW.............................................63
15.2. CONSENT TO JURISDICTION...................................63
15.3. WAIVER OF JURY TRIAL......................................63
CREDIT AGREEMENT
This Agreement, dated as of June 30, 1997, is among Lone Star
Industries, Inc., the Lenders and NBD Bank, N.A., as Agent. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by
which the Borrower or any of its Subsidiaries (i) acquires any going
business or all or substantially all of the assets of any firm, corporation,
limited liability company, limited liability partnership, limited
partnership, partnership, entity, trust, association, joint venture or other
business organization, or division thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions)
at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the
outstanding ownership interests of a limited liability company, limited
liability partnership, limited partnership, partnership, entity, trust,
association, joint venture or other business organization.
"Advance" means a borrowing hereunder (or conversion or
continuation thereof) consisting of the aggregate amount of the several
Loans made on the same Borrowing Date (or date of conversion or
continuation) by the Lenders to the Borrower of the same Type and, in
the case of Fixed Rate Advances, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities
(or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through
ownership of stock, by contract or otherwise.
"Agent" means NBD Bank, N.A. in its capacity as agent for the
Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders, as reduced from time to time pursuant
to the terms hereof.
"Aggregate Outstanding LC Exposure" means, as of any day,
the aggregate of the Outstanding LC Exposure of all the Lenders.
"Aggregate Outstanding Credit Exposure" means, as of any day,
the aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended
or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect from time to time, applied in a manner
consistent with that used in preparing the financial statements referred
to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Commitment Fee Percentage" is defined in Section
2.5.
"Applicable Margin" is defined in Section 2.4.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Attributable Debt" means, as to any particular lease relating to
a Sale and Leaseback Transaction, the total amount of Rentals
(discounted semiannually from the respective due dates thereof in
accordance with generally accepted financial practice at the interest rate
implicit in such lease if known or, if not known, 10% per annum)
required to be paid by the lessee under such lease during the remaining
term thereof.
"Authorized Officer" means the Vice President, Chief Financial
Officer, Controller and Treasurer of Borrower, or the Chairman,
President or any Vice President of the Borrower, acting singly.
"Available Aggregate Commitment" means, for any day, the
Aggregate Commitment then in effect minus the sum of (i)the aggregate
principal amount of the outstanding Advances and (ii)the Aggregate
Outstanding LC Exposure.
"Base Tangible Net Worth" is defined in Section6.20.
"Basis Point," "basis point" or "bp" means one one-hundredth
(1/100) of one percent.
"Borrower" means Lone Star Industries, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago and
New York for the conduct of substantially all of their commercial
lending activities and on which dealings in United States dollars are
carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by
such Person as lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with Agreement Accounting
Principles.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which would
be shown as a liability on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means such time as:
(a) a "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended
("Exchange Act")) (i) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 45% of the total then
outstanding voting power of the capital stock of the Borrower, (ii) has
the right or the ability by voting right, contract or otherwise to elect or
designate for election a majority of the entire board of directors of the
Borrower or (iii) acquires all or substantially all of the properties or
assets of the Borrower; or
(b) during any period of 24 consecutive months, individuals who
at the beginning of such period constituted the board of directors of the
Borrower (together with any new directors whose election by such
board of directors, or whose nomination for election by such board of
directors, or whose nomination for election by the shareholders of the
Borrower, as the case may be, was approved by a vote of 66 2/3% of
the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason (other than death or
disability) to constitute a majority of the board of directors of the
Borrower then in office.
"Change" is defined in Section3.2.
"Change in Control Notice" is defined in Section 2.18.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such
Lender to make Loans not exceeding the amount set forth opposite its
signature below or as set forth in any Notice of Assignment relating to
any assignment that has become effective pursuant to Section 12.3(b),
as such amount may be modified from time to time pursuant to the
terms hereof.
"Commitment Fee" is defined in Section 2.5.
"Condemnation" is defined in Section 7.8.
"Consolidated Assets" means all assets shown on a consolidated
balance sheet of the Borrower and its Subsidiaries prepared in
accordance with Agreement Accounting Principals.
"Consolidated Fixed Charges" means, for any period, without
duplication, the sum of the amounts for such period of (i)Consolidated
Interest Expense, and (ii)Rentals of the Borrower and its Subsidiaries on
a consolidated basis, all as determined on a consolidated basis for the
Borrower and its Subsidiaries in conformity with Agreement
Accounting Principles.
"Consolidated Income Before Interest and Taxes" means, for
any period, the sum of (i) earnings before income taxes for such period,
plus (ii) interest expense for such period, less (iii) equity earnings of
unconsolidated Subsidiaries of the Borrower for such period,
determined on a consolidated basis for the Borrower and its Subsidiaries
in accordance with Agreement Accounting Principles.
"Consolidated Interest Expense" means, for any period, total
interest expense, whether paid or accrued, in accordance with
Agreement Accounting Principles (including that attributable to
Capitalized Leases and amortization of debt discount) of the Borrower
and its subsidiaries on a consolidated basis.
"Consolidated Net Income" means, for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a consolidated
basis for such period taken as a single accounting period determined in
conformity with Agreement Accounting Principles; provided that there
shall be excluded (i) the income (or loss) of any Affiliate of the
Borrower or other Person (other than a Subsidiary of the Borrower) in
which any Person (other than the Borrower or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or
other distributions actually paid to the Borrower, or any of its
Subsidiaries, by such Affiliate or other Person during such period, (ii)
the income (or loss) of any Person accrued prior to the date it becomes
a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries or that Person's assets are acquired
by the Borrower or any of its Subsidiaries, and (iii) the income of any
Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the
obligation or liability of any other Person, or agrees to maintain the net
worth or working capital or other financial condition of any other
Person, or otherwise assures any creditor of such other Person against
loss (including, without limitation, any comfort letter, operating
agreement or take-or-pay contract).
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Extension" means either the making of an Advance or
the issuance of a Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an
Advance or the issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time including (unless the context
otherwise requires) any rules or regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same Controlled Group as the Borrower,
including without limitation members of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as the
Borrower and all trades or businesses (whether or not incorporated)
under common control (within the meaning of Section 414(c) of the
Code) with the Borrower.
"Eurodollar Advance" means an Advance which bears interest at
a Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Eurodollar Interest Period, the rate determined
by the Agent to be the arithmetic average of the rates reported to the
Agent by each Reference Bank as the rate at which each Reference
Bank offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time)
three Business Days prior to the first day of such Eurodollar Interest
Period, in the approximate amount of such Reference Bank's relevant
Eurodollar Loan and having a maturity approximately equal to such
Eurodollar Interest Period. If any Reference Bank fails to provide such
quotation to the Agent, then the Agent shall determine the Eurodollar
Base Rate on the basis of the quotations of the remaining Reference
Bank(s).
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement.
Such Eurodollar Interest Period shall end on the day which corresponds
numerically to such date one, two, three or six months thereafter,
provided, however, that if there is no such numerically corresponding
day in such next, second, third or sixth succeeding month, such
Eurodollar Interest Period shall end on the last Business Day of such
next, second, third or sixth succeeding month. If a Eurodollar Interest
Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business
Day, provided, however, that if said next succeeding Business Day falls
in a new calendar month, such Eurodollar Interest Period shall end on
the immediately preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at a
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the relevant Eurodollar Interest Period, the sum of (i) the quotient of
(a) the Eurodollar Base Rate applicable to such Eurodollar Interest
Period, divided by (b) one minus the Reserve Requirement (expressed as
a decimal) applicable to such Eurodollar Interest Period, plus (ii) the
Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Existing LC" means the Letter of Credit issued by NBD Bank,
N.A. for the benefit of ▇▇▇▇ Carbon, Inc. in the amount of $648,725 on
March19, 1997.
"Facility LC" is defined in Section2.19(a).
"Facility LC Application Agreement" means each and every
application agreement or other instrument or agreement requested by
the LC Issuer pursuant to Section2.19(c).
"Facility Termination Date" means April30, 2002 or any earlier
date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest
rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published for such
day (or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average
of the quotations at approximately 10:00 a.m. (Chicago time) on such
day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Contract" of a Person means (i)any exchange-traded
or over-the-counter futures, forward, swap or option contract or other
financial instrument with similar characteristics, or (ii)any agreements,
devices or arrangements providing for payments related to fluctuations
of interest rates, exchange rates or forward rates, including, but not
limited to, interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (i) Consolidated Income Before Interest and Taxes, plus Rentals for
such period of the Borrower and its Subsidiaries on a consolidated basis
to (ii) Consolidated Fixed Charges.
"Fixed Rate" means the Eurodollar Rate.
"Fixed Rate Advance" means an Advance which bears interest at
a Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed
Rate.
"Floating Rate" means, for any day, a rate per annum equal to
the Alternate Base Rate for such day in each case changing when and as
the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest
at the Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the
Floating Rate.
"Guarantor" means New York Trap Rock Corporation, and its
successors and assigns.
"Guaranty" means that certain Subsidiary Guaranty dated as of
June30, 1997, executed by the Guarantor in favor of the Agent, for the
ratable benefit of the Lenders, as it may be amended or modified and in
effect from time to time.
"Hazardous Material" means (i) any "hazardous substance", as
defined by CERCLA; (ii) any "hazardous waste", as defined by the
Resource Conservation and Recovery Act, as amended; (iii) any
petroleum product; or (iv) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within the meaning
of any other federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Indebtedness" of a Person means, without duplication, such
Person's (i) obligations for borrowed money or its mandatory purchase,
redemption or other retirement obligations in respect of mandatorily
redeemable Preferred Stock, (ii)obligations representing the deferred
purchase price of Property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade, but including all liabilities created or arising
under any conditional sale or other title retention agreement with
respect to such property), (iii) obligations, whether or not assumed,
secured by any Lien with respect to any property owned by such Person
(whether or not it has assumed or become liable for such obligations) or
payable out of the proceeds or production from property now or
hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, acceptances, or other instruments, (v) Contingent
Obligations,(vi)obligations in respect of Letters of Credit (whether or
not representing obligations for borrowed money), (vii)Rate Hedging
Obligations and (viii)Capitalized Lease Obligations. Indebtedness of
any Person shall include all obligations of the character described in
clauses (i) through (viii) above, notwithstanding that any such obligation
is deemed to be extinguished under Agreement Accounting Principles if
such Person remains legally liable in respect thereof.
"Intangible Assets" is defined in the definition of "Tangible Net
Worth" in this Article I.
"Interest Period" means a Eurodollar Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made
in the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person or
payment by such Person in redemption of or to repurchase equity in
another Person, including without limitation, stock or warrants of the
other Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit
accounts and certificate of deposit owned by such Person; and
structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"LC Base Amount" is defined in Section 2.19(d).
"LC Issuer" means (i)NBD in its capacity as LC Issuer
hereunder with respect to each Facility LC issued by NBD and (ii)any
Lender (other than NBD) in its capacity as LC Issuer hereunder with
respect to any and all Facility LCs issued by such Lender in its sole
discretion upon the Borrower's request. All references contained in this
Agreement and the other Loan Documents to the "LC Issuer" shall be
deemed to apply equally to each of the institutions referred to in clauses
(i) and (ii) of this definition in their respective capacities as LC Issuer of
any and all Facility LCs issued by each such institution.
"LC Obligations" means, at any time, the sum, without
duplication, of (i)the aggregate amount available for drawing under all
Facility LCs outstanding at such time plus (ii)the aggregate unpaid
amount at such time of all Reimbursement Obligations in respect of
previous drawings made under Facility LCs.
"LC Payment Date" is defined in Section2.19(e).
"Lenders" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Agent, any office, branch, subsidiary or affiliate of such Lender or the
Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in
any way liable.
"Leverage Ratio" means the ratio of Total Debt to Total
Capitalization.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan
made pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement and the Notes, any
and all Facility LC Application Agreements, the Guaranty and the other
documents and agreements contemplated hereby and now or hereafter
executed by the Borrower (or in the case of the Guaranty, by the
Guarantor) in favor of the Agent or any Lender.
"Material Adverse Effect" means a material adverse effect on (i)
the business, Property, condition (financial or otherwise), results of
operations, or prospects of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under
the Loan Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder.
"Material Plan" shall mean a Plan or Plans the aggregate
Unfunded Vested Liabilities of which exceeds five percent (5%) of
Tangible Net Worth.
"Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which the
Borrower or any ERISA Affiliate is a party to which more than one
employer is obligated to make contributions.
"NBD" means NBD Bank, N.A. in its individual capacity, and its
successors.
"Note" means a promissory note, in substantially the form of
Exhibit "A" hereto, duly executed by the Borrower and payable to the
order of a Lender in the amount of its Commitment, including any
amendment, modification, renewal or replacement of such promissory
note.
"Notice of Assignment" is defined in Section 12.3(b).
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Notes, all LC Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations
of the Borrower to the Lenders or to any Lender, the LC Issuer, the
Agent or any indemnified party hereunder arising under the Loan
Documents.
"Outstanding Credit Exposure" means, as to any Lender at any
time, the sum of (i) the aggregate principal amount of its Loans
outstanding at such time, plus (ii) its Outstanding LC Exposure at such
time.
"Outstanding LC Exposure" means, as to any Lender at any
time, an amount equal to its Percentage of the LC Obligations at such
time.
"Participants" is defined in Section 12.2(a).
"Payment Date" means the last day of each March, June,
September and December.
"PBGC" shall mean Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the percentage
that such Lender's Commitment constitutes of the Aggregate
Commitment.
"Person" means any natural person, corporation, firm, joint
venture, partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means any employee pension benefit plan established or
maintained, or to which contributions have been made, by the Borrower
or any ERISA Affiliate for its employees and covered by Title IV of
ERISA or to which Section 412 of the Code applies.
"Preferred Stock," as applied to any corporation, means shares
of such corporation that 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, or both.
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced by NBD from time to time, changing when and as
said rate changes.
"Priority Debt" is defined in Section6.11(b).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3(a).
"Rate Hedging Agreement" means an agreement, device or
arrangement providing for payments which are related to fluctuations of
interest rates, exchange rates or forward rates, including, but not limited
to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate
options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Hedging Agreements,
and (ii) any and all cancellations, buy backs, reversals, terminations or
assignments of any Rate Hedging Agreement.
"Reference Banks" means NBD and First Chicago.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any
successor thereto or other regulation or official interpretation of said
Board of Governors relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and any
successor or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by banks for the purpose of
purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate
of all obligations of the Borrower then outstanding under Section2.19 to
reimburse the LC Issuer for amounts paid by the LC Issuer in respect of
any one or more drawings under Facility LC's, including interest and all
applicable fees, charges and expenses.
"Release" means a "release", as such term is defined in
CERCLA.
"Rentals" of a Person means the aggregate fixed amounts
payable by such Person under any lease of Property (other than a
Capitalized Lease) having an original term (including any required
renewals or any renewals at the option of the lessor or lessee) of one
year or more.
"Reportable Event" means any reportable event, as defined in
Section 4043(c) of ERISA and the regulations issued under such
Section, with respect to a Plan, as to which the PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it
be notified within thirty (30) days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of
Section 412 of the Code and of Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waivers in accordance
with either Section412(d) of the Code or Section 4043(a) of ERISA).
"Required Lenders" means Lenders in the aggregate having at
least 66 % of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding at
least 66 % of the aggregate unpaid principal amount of the outstanding
Advances.
"Reserve Requirement" means, with respect to a Eurodollar
Interest Period, the maximum aggregate reserve requirement (including
all basic, supplemental, marginal and other reserves) which is imposed
under Regulation D on Eurocurrency liabilities.
"Sale and Leaseback Transaction" means any sale or other
transfer of Property by any Person with the intent to lease such
Property, directly or by an Affiliate, as lessee.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Significant Subsidiary" means, at any date, any Subsidiary of
the Borrower the assets of which have a book value of more than
$1,000,000 (as reflected in the Borrower's most recently audited
consolidated balance sheet).
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of the
Borrower or any member of the Controlled Group.
"Subordinated Indebtedness" of a Person means any
Indebtedness of such Person the payment of which is subordinated to
payment of the Obligations to the written satisfaction of the Required
Lenders.
"Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or (ii) any firm, limited liability
partnership, limited partnership, partnership, limited liability company,
entity, trust, association, joint venture or business organization more
than 50% of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, the book value of Property which (i)for
purposes of the twelve-month period referred to in Section6.13(b)(i),
represents more than 10% of the Consolidated Assets of the Borrower
and its Subsidiaries as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the beginning of
the twelve-month period ending with the month in which such
determination is made, or (ii)for purposes of Section6.13(b)(ii),
represents more than 25% of the Consolidated Assets of the Borrower
and its Subsidiaries as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as of December31,
1996.
"Tangible Net Worth" means at any date the consolidated
stockholders' equity (net of treasury stock) of the Borrower and its
Subsidiaries determined quarterly in accordance with Agreement
Accounting Principles, less consolidated Intangible Assets of the
Borrower and its Subsidiaries, all determined as of such date. For
purposes of this definition "Intangible Assets" means the amount (to the
extent reflected in determining such consolidated stockholders' equity)
of (i)all write-ups (other than increases in deferred tax assets, 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 December31, 1996) in the book value of
any asset owned by the Borrower or a Subsidiary, (ii)all investments in
unconsolidated Subsidiaries, and (iii)all unamortized debt discount and
expense, unamortized deferred charges (except for deferred stripping),
goodwill, patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items.
"Termination Event" means any event or condition which
constitutes grounds under Section 4042 of ERISA for the termination
of, or for the appointment of a trustee to administer, any Plan or receipt
of notice from the respective Plan sponsor of the complete or partial
withdrawal pursuant to Subtitle E of Title IV of ERISA by the
Borrower or any ERISA Affiliate from any Plan to which the Borrower
or such ERISA Affiliate contributes.
"Total Capitalization" means the sum of Tangible Net Worth and
Total Debt.
"Total Debt" means the sum of all Indebtedness of the Borrower
and its Subsidiaries on a consolidated basis.
"Transaction Documents" means, collectively, the Loan
Documents and any other documents contemplated hereby.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a
Floating Rate Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under all
Single Employer Plans exceeds the fair market value of all such Plan
assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans using PBGC actuarial assumptions
for single employer plan terminations.
"Unfunded Vested Liabilities" means the amount (if any) by
which (i) the actuarial present value of accumulated Plan benefits which
are vested under all Plans exceeds (ii) such Plans' net assets available for
benefits (all as determined in accordance with Financial Accounting
Standards Board Statement No. 87 as in effect on the date hereof and as
determined in connection with the filing of the Borrower's most recent
Annual Report on Form 10-K) but only to the extent such excess would,
if such Plans were to terminate as of such date, represent a liability of
the Borrower or any ERISA Affiliate to the PBGC under Title IV of
ERISA. In each case the foregoing determination shall be made as of
the most recent date prior to the filing of said Annual Report as of
which such actuarial present value of accumulated Plan benefits is
determined.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities of which (other than
directors' qualifying shares) shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-
Owned Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitment. From and including the date of this Agreement
and prior to the Facility Termination Date, each Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make Loans
to the Borrower from time to time; provided that upon giving effect to
each such Loan, the sum of (i)the aggregate amount of all Loans made
by each Lender plus (ii)such Lender's Outstanding LC Exposure, shall
not exceed such Lender's Commitment. No Lender shall have any
obligation with respect to any other Lender's Commitment. Subject to
the terms of this Agreement, the Borrower may borrow, repay and
reborrow at any time prior to the Facility Termination Date. The
Commitments to lend hereunder shall expire on the Facility Termination
Date.
2.2 Promise to Pay; Required Payments; Termination. The
Borrower unconditionally promises to pay when due the principal
amount of each Loan and all other Obligations incurred by it, and to pay
all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Note. Any outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date, in addition to any and all dates required payments are
due pursuant to this Agreement.
2.3 Ratable Loans; Types of Advances. Each Advance hereunder
shall consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. The Advances may be Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected
by the Borrower in accordance with Sections 2.8 and 2.9. All
Obligations shall rank at least pari passu with the 7.31% Senior Notes
due 2007, dated as of March 10, 1997.
2.4 Interest. Borrower shall pay interest on each Advance at the
Fixed Rate or the Floating Rate, depending on whether the Advance is a
Floating Rate Advance or a Eurodollar Advance, or a combination
thereof, as determined for each such Advance in accordance with this
Agreement, on the terms and conditions set forth in this Agreement.
The "Applicable Margin" for purposes of calculating the
Eurodollar Rate shall vary depending on the Leverage Ratio. The
Applicable Margin, for purposes of calculating the Eurodollar Rate for
Eurodollar Advances, shall equal:
(a) .375% (37.5 basis points) if the Leverage Ratio is less
than or equal to 20% (Level I);
(b) .45% (45 basis points) if the Leverage Ratio is less than
or equal to 30%, but in excess of 20% (Level II);
(c) .625% (62.5 basis points) if the Leverage Ratio is less
than or equal to 40%, but in excess of 30% (Level III);
and
(d) .75% (75 basis points) if the Leverage Ratio is in excess
of 40% (Level IV).
The Leverage Ratio shall be determined from the financial statements
delivered by the Borrower pursuant to Section 6.1(a) and (b). The
adjustment, if any, to the Applicable Margin shall be effective as of the
first day of the first fiscal quarter beginning after the quarter in which
Borrower's quarterly financial statements have been received pursuant
to Section 6.1(b). Until adjusted pursuant to the provisions hereof, the
Applicable Margin shall be .45% (45 basis points).
2.5 Commitment Fee; Reductions in Aggregate Commitment. The
Borrower agrees to pay to the Agent for the account of each Lender a
commitment fee ("Commitment Fee") equal to the Applicable
Commitment Fee Percentage per annum, as set forth below, on the daily
amount of the unborrowed portion of such Lender's Commitment, from
the date hereof to and including the Facility Termination Date, payable
for the immediately preceding fiscal quarter on each Payment Date
hereafter and on the Facility Termination Date. The Applicable
Commitment Fee Percentage shall equal: (i).125% (12.5 basis points) if
the Leverage Ratio is less than or equal to 20% (Level I); (ii).15% (15
basis points) if the Leverage Ratio is less than or equal to 30%, but in
excess of 20% (Level II); (iii).20% (20 basis points) if the Leverage
Ratio is less than or equal to 40%, but in excess of 30% (Level III); and
(iv).25% (25 basis points) if the Leverage Ratio is in excess of 40%
(Level IV). For purposes of determining the Applicable Commitment
Fee Percentage for a fiscal quarter, the Leverage Ratio shall be
determined from the financial statements delivered by the Borrower
pursuant to Section 6.1(a) and (b). The Commitment Fee shall be
calculated by the Agent for a fiscal quarter based on the Applicable
Commitment Fee Percentage as of the last day of that fiscal quarter.
The adjustment, if any, to the Applicable Commitment Fee Percentage
shall be effective as of the first day of the first fiscal quarter beginning
after the quarter in which Borrower's quarterly financial statements have
been received pursuant to Section 6.1(b). The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in integral multiples of Five Million Dollars
($5,000,000), upon at least three Business Days' written notice to the
Agent, which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate Commitment may
not be reduced below the Aggregate Outstanding Credit Exposure. All
accrued Commitment Fees shall be payable on the effective date of any
termination of the Commitments of the Lenders.
For illustrative purposes, the following grid summarizes the
determination of the Commitment Fee, the Floating Rate, the Fixed Rate
and the LC Fee (see Section 2.19(d)) based on the Leverage Ratio
(Commitment Fee, Applicable Margin and LC Fee expressed in basis
points ((bp) per annum):
LEVEL I LEVEL II LEVEL III LEVEL IV
if Total if Total if Total if Total
Debt to Debt to Debt to Debt to
Total Total Total Total
Capitalization Capitalization Capitalization Capitalization
is: <= 20% is: 20% <= 30% is: 30% <= 40% is:> 40%
Commitment Fee 12.5 ▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇ bp
Floating Rate:
Alternate Base
Rate, plus 0.00 bp 0.00 bp 0.00 bp 0.00 bp
Fixed Rate:
Eurodollar Applicable Applicable Applicable Applicable
Base Margin Margin Margin Margin
Rate, plus 37.5 ▇▇ ▇▇ ▇▇ ▇▇.▇ ▇▇ ▇▇ ▇▇
▇▇ Fee for
Standby
Facility LC's 52.5 ▇▇ ▇▇ ▇▇ ▇▇.▇ ▇▇ ▇▇ ▇▇
Note: Shaded region (Level II) represents the Applicable Commitment
Fee Percentage, the Applicable Margin and the Applicable LC
Fee Percentage on the date hereof and until any adjustment
thereto pursuant to the terms and conditions of this Agreement.
2.6 Minimum Amount of Each Advance. Each Fixed Rate
Advance or Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof),
provided, however, that any Floating Rate Advance may be in the
amount of the Available Aggregate Commitment.
2.7 Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all outstanding Floating Rate
Advances, or, in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Floating Rate Advances, in either case, upon one Business
Day's prior notice to the Agent. A Fixed Rate Advance may not be paid
prior to the last day of the applicable Interest Period, except upon
(i)terms and conditions specified by the Agent that fully compensate and
indemnify the Agent and the Lenders against the financial impact of the
payment prior to the last day of the applicable Interest Period and (ii)at
least five Business Day's prior notice.
2.8 Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in the
case of each Fixed Rate Advance, the Interest Period applicable to each
Advance from time to time. The Borrower shall give the Agent
irrevocable notice (a "Borrowing Notice") not later than 11:00 a.m.
(Indianapolis time) at least one Business Day before the Borrowing
Date of each Floating Rate Advance and three Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day, of
such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected, and
(d) in the case of each Fixed Rate Advance, the Interest
Period applicable thereto.
Not later than 12:00noon (Indianapolis time) on each Borrowing Date,
each Lender shall make available its Loan or Loans, in funds
immediately available in Indianapolis to the Agent at its address
specified pursuant to Article XIII. The Agent will make the funds so
received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Fixed Rate
Advances. Each Fixed Rate Advance of any Type shall continue as a
Fixed Rate Advance of such Type until the end of the then applicable
Interest Period therefor, at which time such Fixed Rate Advance shall be
automatically converted into a Floating Rate Advance unless the
Borrower shall have given the Agent a Conversion/Continuation Notice
requesting that, at the end of such Interest Period, such Fixed Rate
Advance either continue as a Fixed Rate Advance of such Type for the
same or another Interest Period or be converted into an Advance of
another Type. Subject to the terms of Section 2.6, the Borrower may
elect from time to time to convert all or any part of an Advance of any
Type into any other Type or Types of Advances; provided that any
conversion of any Fixed Rate Advance shall be made on, and only on,
the last day of the Interest Period applicable thereto except upon
(i)terms and conditions specified by the Agent that fully compensate and
indemnify the Agent and the Lenders against the financial impact of the
payment prior to the last day of the applicable Interest Period and (ii)at
least five Business Day's prior notice. The Borrower shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of an Advance or continuation of a Fixed Rate Advance not
later than 11:00a.m. (Indianapolis time) at least one Business Day, in the
case of a conversion into a Floating Rate Advance or three Business
Days, in the case of a conversion into or continuation of a Eurodollar
Advance, prior to the date of the requested conversion or continuation,
specifying:
(a) the requested date which shall be a Business Day, of such
conversion or continuation,
(b) the aggregate amount and Type of the Advance which is
to be converted or continued, and
(c) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case
of a conversion into or continuation of a Fixed Rate
Advance, the duration of the Interest Period applicable
thereto.
2.10 Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each
day from and including the date such Advance is made or is converted
from a Fixed Rate Advance into a Floating Rate Advance pursuant to
Section 2.9 to but excluding the date it becomes due or is converted
into a Fixed Rate Advance pursuant to Section 2.9 hereof, at a rate per
annum equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate
Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Fixed Rate Advance shall bear interest on
the outstanding principal amount thereof from and including the first day
of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined as applicable
to such Fixed Rate Advance. No Interest Period may end after the
Facility Termination Date.
2.11 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to reductions in
interest rates), declare that no Advance may be made as, converted into
or continued as a Fixed Rate Advance. During the continuance of a
Default, the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to reductions in interest rates),
declare that (i) each Fixed Rate Advance shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum and (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to
the Floating Rate otherwise applicable to the Floating Rate Advance
plus 2% per annum.
2.12 Method of Payment. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Agent at the Agent's address
specified pursuant to Article XIII, or at any other Lending Installation
of the Agent specified in writing by the Agent to the Borrower, by noon
(local time) on the date when due and shall be applied ratably by the
Agent among the Lenders. Any payment received by the Agent after
such time shall be deemed to have been received on the next Business
Day. Each payment delivered to the Agent for the account of any
Lender shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. The Agent is hereby
authorized to charge any account of the Borrower maintained with
NBD or First Chicago for each payment of principal, interest and fees as
it becomes due hereunder. Each reference to the Agent in this
Section2.12 shall also be deemed to refer, and shall apply equally, to the
LC Issuer, in the case of payments required to be made by the Borrower
to the LC Issuer pursuant to Section2.19.
2.13 Notes; Telephonic Notices. Each Lender is hereby authorized
to record the principal amount of each of its Loans and each repayment
on the schedule attached to its Note or otherwise on its internal records,
provided, however, that neither the failure to so record nor any error in
such recordation shall affect the Borrower's obligations under such
Note. All such recordations shall constitute prima facie evidence of the
information contained therein. The Borrower hereby authorizes the
Lenders and the Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons the Agent or any
Lender in good faith believes to be acting on behalf of the Borrower.
The Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If
the written confirmation differs in any material respect from the action
taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
2.14 Interest Payment Dates. Interest accrued on each Floating
Rate Advance shall be payable on each Payment Date, commencing with
the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted
into a Fixed Rate Advance on a day other than a Payment Date shall be
payable on the date of conversion. Interest accrued on each Fixed Rate
Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Fixed Rate Advance is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued
on each Fixed Rate Advance having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval
during such Interest Period. Interest and commitment fees shall be
calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the
day of any payment on the amount paid if payment is received prior to
noon (local time) at the place of payment. If any payment of principal
of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of
time shall be included in computing interest in connection with such
payment.
2.15 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. The Agent will notify
each Lender of the interest rate applicable to each Fixed Rate Advance
promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Alternate Base Rate. Each
Reference Bank agrees to furnish timely information for the purpose of
determining the Eurodollar Rate.
2.16 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Notes shall be
deemed held by each Lender for the benefit of such Lending Installation.
Each Lender may, by written or telex notice to the Agent and the
Borrower, designate a Lending Installation through which Loans will be
made by it and for whose account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on
which it is scheduled to make payment to the Agent of (i) in the case of
a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a
payment of principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may
assume that such payment has been made. The Agent may, but shall not
be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or
the Borrower, as the case may be, has not in fact made such payment to
the Agent, the recipient of such payment shall, on demand by the Agent,
repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the
date such amount was so made available by the Agent until the date the
Agent recovers such amount at a rate per annum equal to (i) in the case
of payment by a Lender, the Federal Funds Effective Rate for such day
or (ii) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.
2.18 Mandatory Prepayment in the Event of a Change in Control.
Notwithstanding any other provision to the contrary: within 30 Business
Days prior to the consummation of any transaction which would cause a
Change in Control, the Borrower shall notify (a "Change in Control
Notice") the Agent and each Lender of such expected transaction,
including within such Change in Control Notice the expected closing
date of such transaction. Within 30 Business Days of receipt of such
Change in Control Notice by any Lender, or if the Change in Control
Notice is not received within the required 30 Business Days prior to the
consummation of any such transaction, then at any time prior to the
expiration of 30 Business Days following receipt of written notice of the
consummation of such transaction, such Lender may, at its option, give
notice to the Agent and the Borrower that such Lender elects to
terminate its Commitment hereunder. Unless an earlier date is
otherwise agreed upon between the Borrower, the Agent and the
terminating Lender, such Lender's Commitment shall terminate
simultaneously with the closing of such transaction and the Borrower
shall repay at such time all of such Lender's outstanding Loans, together
with accrued interest thereon, any accrued fees with respect to such
Lender's Commitment, any costs, losses or expenses incurred by such
Lender in connection with such prepayment payable by the Borrower
pursuant to Section3.4 and any other obligations of the Borrower to
such Lender hereunder.
2.19 Facility LCs.
(a) The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue stand-by
and commercial letters of credit (each, a "Facility LC")
and to renew, extend, increase, decrease or otherwise
modify each Facility LC (each a "Modification"), from
time to time from and including the date of this
Agreement and prior to the Facility Termination Date
upon the request of the Borrower; provided that
immediately after each such Facility LC is issued or
Modified, (i) the aggregate amount of the outstanding
LC Obligations shall not exceed $20,000,000 ("LC
Sublimit") and (ii) the Aggregate Outstanding Credit
Exposure shall not exceed the Aggregate Commitment;
provided, further, that if the Borrower has requested a
Lender other than NBD to act as LC Issuer with respect
to the issuance or Modification of a particular Facility
LC, such issuance or Modification shall be made only in
the sole discretion of such Lender. No Facility LC shall
have an expiry date later than the earlier of (i) the fifth
Business Day prior to the Facility Termination Date and
(ii) the day which is one year after the date of issuance
(or the most recent Modification) thereof.
(b) Upon the issuance or Modification by the LC Issuer of a
Facility LC in accordance with this Section2.19, the LC
Issuer shall be deemed, without further action by any
party hereto, to have sold to each Lender, and each
Lender shall be deemed, without further action by any
party hereto, to have purchased from the LC Issuer, a
participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to
its Percentage.
(c) Subject to subsection (a), the Borrower shall give the LC
Issuer notice prior to 11:00a.m. (Indianapolis time) at
least three Business Days prior to the proposed date of
issuance or Modification of each Facility LC, specifying
the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC,
and describing the proposed terms of such Facility LC
and the nature of the transactions proposed to be
supported thereby. Upon receipt of such notice, the LC
Issuer shall promptly notify the Agent, and the Agent
shall promptly notify each Lender, of the contents
thereof and of the amount of such Lender's participation
in such proposed Facility LC. The issuance or
Modification by the LC Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in
ArticleIV (the satisfaction of which the LC Issuer shall
have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to
the LC Issuer and that the Borrower shall have executed
and delivered such application agreement and/or such
other instruments and agreements relating to such
Facility LC as the LC Issuer shall have reasonably
requested (each, a "Facility LC Application Agreement").
In the event of any conflict between the terms of this
Agreement and the terms of any Facility LC Application
Agreement, the terms of this Agreement shall control.
(d) The Borrower shall pay to the Agent a letter of credit fee
("LC Fee") equal to (i) a percentage equal to the
Applicable LC Fee Percentage in effect from time to time
on the average daily aggregate amount available for
drawings under all stand-by Facility LCs (the "LC Base
Amount"), and (ii) a fee equal to the standard fee
charged by the LC Issuer then in effect for Commercial
Facility LCs for companies of comparable credit quality.
Each such fee under clause (i) shall be payable in arrears
on each Payment Date and on the Facility Termination
Date, and each such fee under clause (ii) shall be payable
on the date of the relating drawing. The Borrower shall
pay to the LC Issuer such additional fees and expenses
relating to issuance, Modification and payment of Facility
LCs in the amounts and at the times agreed between the
Borrower and the LC Issuer. The LC Issuer shall furnish
to the Agent upon request its calculations with respect to
the amount of any fee payable under this subsection (d).
The Applicable LC Fee Percentage shall equal: (i).525%
(52.5 basis points) if the Leverage Ratio is less than or
equal to 20% (Level I); (ii) .60% (60 basis points) if the
Leverage Ratio is less than or equal to 30% but in excess
of 20% (Level II); (iii) .775% (77.5 basis points) if the
Leverage Ratio is less than or equal to 40%, but in
excess of 30% (Level III); and (iv) .90% (90 basis
points) if the Leverage Ratio is in excess of 40% (Level
IV). For purposes of determining the Applicable LC Fee
Percentage for a fiscal quarter, the Leverage Ratio shall
be determined from the financial statements delivered by
the Borrower pursuant to Section6.1 (a) and (b). The
LC Fee for stand-by Facility LCs shall be calculated by
the Agent for a fiscal quarter based on the Applicable LC
Fee Percentage as of the last day of that fiscal quarter.
The adjustment, if any, to the Applicable LC Fee
Percentage shall be effective as of the first day of the
fiscal quarter immediately following the quarter for
which the most recent Applicable LC Fee Percentage has
been determined. Upon receipt, the Agent shall apply
the LC Fee for stand-by Facility LCs as follows: (i) a
portion of the LC Fee equal to .15% (15 basis points) of
the LC Base Amount shall be retained by Agent as a fee
for its services in connection with this Section 2.19, and
(ii) the remaining portion of the LC Fee shall be paid
over to the Lenders, including NBD, ratably in
accordance with their respective Percentages. Upon
receipt, the Agent shall apply the LC Fee for commercial
Facility LCs as follows: (i) a portion of the LC Fee equal
to .125% (12.5 basis points) of the amount available for
drawings under each such commercial Facility LC shall
be retained by the Agent as a fee for its services in
connection with this Section2.19, and (ii) the remaining
portion of the LC Fee shall be paid over to the Lenders,
including NBD, ratably in accordance with their
respective Percentages.
(e) Upon receipt from the beneficiary of any Facility LC of
any demand for payment under such Facility LC, the LC
Issuer shall notify the Agent and the Agent shall
promptly notify the Borrower and each other Lender as
to the amount to be paid by the LC Issuer as a result of
such demand and the proposed payment date (the "LC
Payment Date"). The responsibility of the LC Issuer to
the Borrower and each Lender shall be only to determine
that the documents (including each demand for payment)
delivered under each Facility LC in connection with such
presentment shall be in conformity in all material respects
with such Facility LC. The LC Issuer shall endeavor to
exercise the same care in the issuance and administration
of the Facility LCs as it does with respect to letters of
credit in which no participations are granted, it being
understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to
the occurrence of any Default or any condition precedent
whatsoever, to reimburse the LC Issuer on demand for
(i) such Lender's Percentage of the amount of each
payment made by the LC Issuer under each Facility LC
to the extent such amount is not reimbursed by the
Borrower pursuant to subsection (f) below plus (ii)
interest on the foregoing amount to be reimbursed by
such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such
demand is made after 11:00a.m. (Indianapolis time) on
such date, from the next succeeding Business Day) to the
date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to
the Federal Funds Effective Rate for such day.
(f) The Borrower shall be irrevocably and unconditionally
obligated to immediately reimburse the LC Issuer on or
by the applicable LC Payment Date for any amounts to
be paid by the LC Issuer upon any drawing under any
Facility LC, without presentment, demand, protest or
other formalities of any kind; provided that neither the
Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential)
damages suffered by the Borrower or such Lender to the
extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any
Facility LC issued by it complied with the terms of such
Facility LC, or (ii) the LC Issuer's failure to pay under
any Facility LC issued by it after the presentation to it of
a request strictly complying with the terms and
conditions of such Facility LC. All such amounts paid by
the LC Issuer and remaining unpaid by the Borrower
shall bear interest, payable by Borrower on demand, for
each day until paid at a rate per annum equal to (i) the
rate applicable to Floating Rate Advances for such day if
such day falls on or before the applicable LC Payment
Date and (ii) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls
after such LC Payment Date. The LC Issuer will pay to
each Lender ratably in accordance with its Percentage all
amounts received by it from the Borrower for application
in payment, in whole or in part, of the Reimbursement
Obligation (including interest) in respect of any Facility
LC issued by the LC Issuer, but only to the extent such
Lender has made payment to the LC Issuer in respect of
such Facility LC pursuant to subsection (e). Subject to
the terms and conditions of this Agreement (including
without limitation the submission of a Borrowing Notice
in compliance with Section2.8 and the satisfaction of the
applicable conditions precedent set forth in ArticleIV),
the Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
(g) If after the date hereof, the adoption of any applicable
law, rule or regulation, or any change in any applicable
law, rule or regulation, or any change in the
interpretation or administration thereof by any
governmental authority, central bank or comparable
agency charged with the interpretation or administration
thereof, or compliance by the LC Issuer or any Lender
with any request or directive (whether or not having the
force of law) of any such authority, central bank or
comparable agency shall impose, modify or deem
applicable any tax, reserve, special deposit or similar
requirement against or with respect to or measured by
reference to Facility LCs issued or to be issued hereunder
or participation therein, and the result shall be to increase
the cost to the LC Issuer or any Lender of issuing or
maintaining any Facility LC or any participation therein,
or reduce any amount receivable hereunder by the LC
Issuer or any Lender in respect of any Facility LC (which
increase in cost, or reduction in amount receivable, shall
be the result of such Lender's or the LC Issuer's
reasonable allocation of the aggregate of such increases
or reductions resulting from such event), then, upon
demand by the LC Issuer or such Lender, the Borrower
agrees to pay to the LC Issuer or such Lender, from time
to time as specified by the LC Issuer or such Lender,
such additional amounts as shall be sufficient to
compensate the LC Issuer or such Lender for such
increased costs or reductions in amounts received by the
LC Issuer or such Lender. A certificate of the LC Issuer
or such Lender submitted by the LC Issuer or such
Lender to the Borrower shall be conclusive as to the
amount thereof in the absence of manifest error.
(h) The Borrower's obligations under this Section2.19 shall
be absolute and unconditional under any and all
circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower
may have or have had against the LC Issuer, any Lender
or any beneficiary of a Facility LC. The Borrower
further agrees with the LC Issuer and the Lenders that
the LC Issuer and the Lenders shall not be responsible
for, and the Borrower's Reimbursement Obligation in
respect of any Facility LC shall not be affected by,
among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Subsidiaries,
the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may
be transferred or any claims or defenses whatsoever of
the Borrower or of any of its Subsidiaries against the
beneficiary of any Facility LC or any such transferee.
The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in
connection with any Facility LC. The Borrower agrees
that any action taken or omitted by the LC Issuer or any
Lender under or in connection with each Facility LC and
the related drafts and documents, including without
limitation, honoring of requests for drawings that do not
comply with the terms of the Facility LC if done in good
faith and without gross negligence, shall be binding upon
the Borrower and shall not put the LC Issuer or any
Lender under any liability to the Borrower. Nothing in
this subsection (h) is intended to limit the right of the
Borrower to make a claim against the LC Issuer for
damages as contemplated by the proviso to the first
sentence of subsection (f) above.
(i) To the extent not inconsistent with subsection (h) above,
the LC Issuer shall be entitled to rely, and shall be fully
protected in relying upon, any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document 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, independent accountants
and other experts selected by the LC Issuer. The LC
Issuer shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first have
received such advice or concurrence of the Required
Lenders as it reasonably deems appropriate or it shall
first be indemnified to its reasonable satisfaction by the
Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing
to take any such action. Notwithstanding any other
provision of this Section2.19, the LC Issuer shall in all
cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a
written request of the Required Lenders, and such
request and any action taken or failure to act pursuant
thereto shall be binding upon the Lenders and all future
holders of participation in any Facility LCs.
(j) The Borrower hereby agrees to indemnify and hold
harmless each Lender, the LC Issuer and the Agent, and
their respective directors, officers, agents and employees
from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Lender, the LC
Issuer or the Agent may incur (or which may be claimed
against such Lender, the LC Issuer or the Agent by any
Person whatsoever) by reason of or in connection with
the execution and delivery or transfer of or payment or
failure to pay under any Facility LC or any actual or
proposed use of any Facility LC, including, without
limitation, any claims, damages, losses, liabilities, costs
or expenses which the LC Issuer may incur by reason of
or in connection with (i) the failure of any other Lender
to fulfill or comply with its obligations to the LC Issuer
hereunder (but nothing herein contained shall affect any
rights the Borrower may have against any defaulting
Lender) or (ii)by reason of or on account of the LC
Issuer issuing any Facility LC which specifies that the
term "Beneficiary" included therein includes any
successor by operation of law of the named Beneficiary,
but which Facility LC does not require that any drawing
by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer,
evidencing the appointment of such successor
Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, the LC Issuer or the
Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by
(i) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under
any Facility LC complied with the terms of such Facility
LC, or (ii)the LC Issuer's failure to pay under any Facility
LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility
LC. Nothing in this subsection (j) is intended to limit the
obligations of the Borrower under any other provision of
this Agreement.
(k) Each Lender shall, ratably in accordance with its
Percentage, indemnify the LC Issuer, its affiliates and
their respective directors, officers, agents and employees
(to the extent not reimbursed by the Borrower) against
any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross
negligence or willful misconduct or the LC Issuer's
failure to pay under any Facility LC after the presentation
to it of a request strictly complying with the terms and
conditions of the Facility LC) that such indemnitees may
suffer or incur in connection with this Section2.19 or any
action taken or omitted by such indemnitees hereunder.
(l) In its capacity as a Lender, the LC Issuer shall have the
same rights and obligations as any other Lender.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any law or any governmental or quasi-
governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the
compliance of any Lender therewith,
(a) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or
from payments due from the Borrower (excluding federal
or state taxation of the overall net income of any Lender
or applicable Lending Installation), or changes the basis
of taxation of payments to any Lender in respect of its
Loans or other amounts due it hereunder, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the
interest rate applicable to Fixed Rate Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining
loans or reduces any amount receivable by any Lender or
any applicable Lending Installation in connection with
loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference
to the amount of loans held or interest received by it, by
an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay
such Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans and its
Commitment.
3.2 Changes in Capital Adequacy Regulations. If any Lender
determines the amount of capital required or expected to be maintained
by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change,
then, within 15 days of demand by such Lender, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital which such
Lender determines is attributable to this Agreement, its Loans or its
obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "Change" means (i) any
change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after
the date of this Agreement which affects the amount of capital required
or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report
of the Base Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements
and Capital Standards," including transition rules, and any amendments
to such regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender determines
that maintenance of any of its Fixed Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or
directive, whether or not having the force of law, the Agent shall
suspend the availability of the affected Type of Advance and require any
Fixed Rate Advances of the affected Type to be repaid; or if the
Required Lenders determine that (i) deposits of a type or maturity
appropriate to match fund Fixed Rate Advances are not available or
(ii)the interest rate applicable to a Type of Advance does not accurately
reflect the cost of making or maintaining such Advance, then the Agent
shall suspend the availability of the affected Type of Advance and
require any Fixed Rate Advances of the affected Type to be repaid.
3.4 Funding Indemnification. If any payment of a Fixed Rate
Advance occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment or
otherwise, or a Fixed Rate Advance is not made on the date specified by
the Borrower for any reason other than default by the Lenders, the
Borrower will, in addition to such other requirements contemplated by
this Agreement, indemnify each Lender for any loss or cost incurred by
it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Fixed
Rate Advance.
3.5 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Fixed Rate Loans to reduce any liability
of the Borrower to such Lender under Sections 3.1 and 3.2 or to avoid
the unavailability of a Type of Advance under Section 3.3, so long as
such designation is not disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2
or 3.4. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections
in connection with a Fixed Rate Loan shall be calculated as though each
Lender funded its Fixed Rate Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference
in determining the Fixed Rate applicable to such Loan, whether in fact
that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2 and 3.4 shall
survive payment of the Obligations and termination of this Agreement.
3.6 Removal of Lender. If a Lender has requested compensation
pursuant to Section3.1 or 3.2 or is unable to make or maintain Fixed
Rate Loans pursuant to Section3.3, the Borrower may elect to terminate
the Commitment of such Lender upon not less than five (5) days written
notice to such Lender and the Agent. On the date selected for
repayment, the Borrower shall pay to such Lender all principal, interest,
fees and other Obligations owing to such Lender and such Lender's
Commitment shall thereupon terminate. The Borrower may not
terminate a Lender's Commitment hereunder if at the time of such
termination, a Default or Unmatured Default exists.
ARTICLE IV
CONDITIONS PRECEDENT; WITHHOLDING TAX
EXEMPTION
4.1 Initial Credit Extension. The Lenders shall not be required to
make the initial Advance hereunder, and the LC Issuer shall not be
required to issue the initial Facility LC hereunder, unless the Borrower
has furnished to the Agent with sufficient copies for the Lenders:
(a) Copies of the articles of incorporation of the Borrower,
together with all amendments, and a certificate of good
standing, both certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its by-laws and of its Board of
Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by counsel for any Lender)
authorizing the execution of the Loan Documents.
(c) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify
by name and title and bear the signature of the officers of
the Borrower authorized to sign the Loan Documents
and to make borrowings hereunder, upon which
certificate the Agent, the LC Issuer and the Lenders shall
be entitled to rely until informed of any change in writing
by the Borrower.
(d) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Borrowing Date no
Default or Unmatured Default has occurred and is
continuing.
(e) A written opinion of the Borrower's counsel, addressed
to the Lenders in substantially the form of Exhibit "B"
hereto.
(f) Notes payable to the order of each of the Lenders.
(g) A compliance certificate in the form of Exhibit"C" hereto
signed by the Borrower's chief financial officer showing
the calculations necessary to determine compliance with
Section6.20 of this Agreement.
(h) Written money transfer instructions, in substantially the
form of Exhibit "E" hereto, addressed to the Agent and
signed by an Authorized Officer, together with such
other related money transfer authorizations as the Agent
may have reasonably requested.
(i) The Guaranty.
(j) Such other documents as any Lender or its counsel may
have reasonably requested.
4.2 Each Credit Extension. The Lenders shall not be required to
make any Advance (other than an Advance that, after giving effect
thereto and to the application of the proceeds thereof, does not increase
the aggregate amount of outstanding Advances), and the LC Issuer shall
not be required to issue any Facility LC, unless on the applicable Credit
Extension Date, both immediately prior to, and immediately after giving
effect to, such Credit Extension:
(a) Either (i) in the case of an Advance, the Agent shall have
received a Notice of Borrowing in compliance with
Section2.8 or (ii) in the case of a Facility LC, the LC
Issuer shall have received a request for the issuance of a
Facility LC in compliance with Section2.19 (together
with any Facility LC Application Agreement requested
by the LC Issuer pursuant to Section2.19(c)).
(b) The Aggregate Outstanding Credit Exposure does not
and would not exceed the Aggregate Commitment.
(c) There exists no Default or Unmatured Default.
(d) The representations and warranties contained in Article
V are true and correct in all material respects as of such
Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an
earlier date, in which case such representation or
warranty shall be true and correct on and as of such
earlier date, and except as contemplated in the last
paragraph of this Section4.2.
(e) All legal matters incident to the making of such Advance
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance, and
each request for the issuance of a Facility LC pursuant to Section2.19,
shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 4.2(a) through and including (d) have
been satisfied. The Borrower may submit (in writing) at least seven
Business Days prior to any Notice of Borrowing, a statement that one
or more representations and warranties will not be true and correct in
any material respect as of such Borrowing Date and the circumstances
giving rise thereto. The Required Lenders may decline any subsequent
Credit Extension if they find any such statement by Borrower to be
unacceptable in their sole discretion. Any Lender may require a duly
completed compliance certificate in substantially the form of Exhibit"C"
hereto as a condition to making a Credit Extension.
4.3 Withholding Tax Exemption. At least five Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the
laws of the United States of America, or a state thereof, agrees that it
will deliver to each of the Borrower and the Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding
of any United States federal income taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Borrower and the Agent two additional copies of such form (or a
successor form) on or before the date that such form expires (currently,
three successive calendar years for Form 1001 and one calendar year for
Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Agent, in each case
certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form with respect to it
and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Corporate Existence and Standing. Each of the Borrower and
its Subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2 Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan
Documents and to perform its obligations thereunder. The Guarantor
has the corporate power and authority and legal right to execute and
deliver the Guaranty and to perform its obligations thereunder. The
execution and delivery by the Borrower and the Guarantor of the Loan
Documents and the performance of their respective obligations
thereunder have been duly authorized by proper corporate proceedings,
and the Loan Documents constitute legal, valid and binding obligations
of the Borrower and the Guarantor, as the case may be, enforceable
against the Borrower and the Guarantor, as the case may be, in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by the Borrower or the Guarantor of the Loan Documents, nor
the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding
on the Borrower or any of its Subsidiaries or the Borrower's or any
Subsidiary's articles of incorporation or by-laws or the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in
the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, or other action in respect of any governmental or
public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4 Financial Statements. The December31, 1996 consolidated
financial statements (the "1996 Statements") of the Borrower and its
Subsidiaries, and all interim financial statements, heretofore delivered to
the Lenders were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
5.5 Material Adverse Change. Since December31, 1996, there has
been no change in the business, Property, prospects, condition (financial
or otherwise) or results of operations of the Borrower and its
Subsidiaries which could have a Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which have been
required to be filed and have paid all taxes due pursuant to said returns
or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no
Lien exists. The United States income tax returns of the Borrower and
its Subsidiaries are closed under Section 6501 of the Code through the
fiscal year ended December31, 1992 and no federal income tax liabilities
are currently being contested by the Internal Revenue Service. No tax
liens have been filed and no claims are being asserted with respect to
any such taxes. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7 Litigation and Contingent Obligations. Except as set forth in
Note 25 to the 1996 Statements (the "Note 25 Litigation"), there is no
litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against
or affecting the Borrower or any of its Subsidiaries which could have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the
making of the Loans or Advances. Based on the current status of the
Note 25 Litigation, in the opinion of management of the Company, the
Note 25 Litigation should not have a Material Adverse Effect, and does
not seek to prevent, enjoin or delay the making of the Loans or
Advances. The Borrower has no material contingent obligations not
provided for or disclosed in the 1996 Statements.
5.8 Subsidiaries. Schedule "1" hereto contains an accurate list of
all Subsidiaries of the Borrower as of the date of this Agreement, setting
forth their respective jurisdictions of incorporation and the percentage
of their respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of
such Subsidiaries have been duly authorized and issued and are fully
paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed the level at which the same would have a
Material Adverse Effect. Neither the Borrower nor any other member
of the Controlled Group has incurred, or is reasonably expected to
incur, any withdrawal liability to Multiemployer Plans in excess of the
level at which the same would have a Material Adverse Effect in the
aggregate. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, neither the Borrower nor any other
members of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan. The Borrower and each ERISA Affiliate has
satisfied the minimum funding standards under ERISA with respect to
its plans.
5.10 Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to
any Lender in connection with the negotiation of, or compliance with,
the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
5.11 Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12 Material Agreements. Neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject to any
charter or other corporate restriction which could have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in
the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to which it is a
party, which default could have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13 Compliance With Laws. The Borrower and its Subsidiaries
have complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction
over the conduct of their respective businesses or the ownership of their
respective Property.
5.14 Ownership of Properties. On the date of this Agreement, the
Borrower and its Subsidiaries have good title, free of all Liens other
than those permitted by Section 6.15, to all of the Property and assets
reflected in the financial statements as owned by it.
5.15 Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. para.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of
ERISA) which is subject to Title I of ERISA or any plan (within the
meaning of Section 4975 of the Code); and neither the execution of this
Agreement and the making of Loans hereunder do not give rise to a
prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code. The Borrower is an "operating company" as
defined in 29 C.F.R 2510-101(c) and "benefit plan investors" (as defined
in 29 C.F.R. para. 2510.3-101(f)) do not own 25% or more of the value of
any class of equity interests in the Borrower.
5.16 Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws
on the business of the Borrower and its Subsidiaries, in the course of
which they identify and evaluate potential risks and liabilities accruing to
the Borrower due to Environmental Laws. On the basis of this
consideration, the Borrower has reasonably concluded that
Environmental Laws in existence on the date as of which this
representation is made from time to time are not expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental
Laws or are the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which non-
compliance or remedial action could have a Material Adverse Effect.
5.17 Investment Company Act. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. Neither the Borrower
nor any Subsidiary 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", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
5.19 Post-Retirement Benefits. The present value of the expected
cost of post-retirement medical and insurance benefits payable by the
Borrower and its Subsidiaries to its employees and former employees, as
estimated by the Borrower in accordance with the Agreement
Accounting Principles, does not exceed the level at which the same
would have a Material Adverse Effect.
5.20 Insurance. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and
adequacy of, and summarizes, the property and casualty insurance
program carried by the Borrower and that has been furnished by the
Borrower to the Agent and the Lenders, is complete and accurate. This
summary includes the insurer's or insurers' name(s), policy number(s),
expiration date(s), amount(s) of coverage, type(s) of coverage,
exclusion(s), and deductibles. This summary also includes similar
information, and describes any reserves, relating to any self-insurance
program that is in effect.
5.21 Solvency.
(a) Immediately after the consummation of the transactions
to occur on the date hereof and immediately following
the making of each Loan, if any, made on the date hereof
and after giving effect to the application of the proceeds
of such Loans:
(i) the fair value of the assets of the Borrower and
the Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the
Borrower and the Subsidiaries on a consolidated
basis;
(ii) the present fair saleable value of the property of
the Borrower and the Subsidiaries on a
consolidated basis will be greater than the amount
that will be required to pay the probable liability
of the Borrower and the Subsidiaries on a
consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become
absolute and matured;
(iii) the Borrower and the Subsidiaries on a
consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become
absolute and matured; and
(iv) the Borrower and the Subsidiaries on a
consolidated basis will not have unreasonably
small capital with which to conduct the
businesses in which they are engaged as such
businesses are now conducted and are proposed
to be conducted after the date hereof.
(b) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay
such debts as they mature, taking into account the timing
of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be
payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
5.22 Environmental Warranties. Except as set forth in Note 24 to
the 1996 Statements:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any
of its Subsidiaries have been, and continue to be, owned
or leased by the Borrower and its Subsidiaries in material
compliance with all Environmental Laws;
(b) there has been no past, and there are no pending or
threatened:
(i) claims, complaints, notices or requests for
information received by the Borrower or any of
its Subsidiaries with respect to any alleged
violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower
or any of its Subsidiaries regarding potential
liability under any Environmental Law;
that, singly or in the aggregate have, or may reasonably
be expected to have, a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at,
on or under any property now or previously owned or
leased by the Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be
expected to have, a Material Adverse Effect;
(d) the Borrower and its Subsidiaries have been issued and
are in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to
environmental matters and necessary or desirable for
their businesses;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or proposed
for listing (with respect to owned property only) on the
National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring
investigation or clean-up ("Listed Properties") that,
singly or in the aggregate, have, or may reasonably be
expected to have, a Material Adverse Effect; Borrower
agrees to provide prompt notice of any properties
becoming Listed Properties;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or
under any property now or previously owned or leased
by the Borrower or any of its Subsidiaries that, singly or
in the aggregate, have, or may reasonably be expected to
have, a Material Adverse Effect;
(g) without independent investigation of historic offsite
waste site disposal practices, neither the Borrower nor
any Subsidiary of the Borrower has directly transported
or directly arranged for the transportation of any
Hazardous Material to any location which is listed or
proposed for listing on the National Priorities List
pursuant to CERCLA, on CERCLIS or on any similar
state list or which is the subject of federal, state or local
enforcement actions or other investigations which may
lead to claims against the Borrower or such Subsidiary
thereof for any remedial work, damage to natural
resources or personal injury, including, but not limited
to, claims under CERCLA which claims, singly or in the
aggregate, have, or may reasonably be expected to have,
a Material Adverse Effect; and
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or
leased by the Borrower or any Subsidiary of the
Borrower that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse
Effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to
the Lenders:
(a) Within 105 days after the close of each of its fiscal years,
an unqualified (except for qualifications relating to
changes in accounting principles or practices reflecting
changes in generally accepted principles of accounting
and required or approved by the Borrower's independent
certified public accountants) audit report certified by
Borrower's independent certified public accountants,
(Borrower's current independent certified public
accountants and any other Big 6 accounting firm are
conclusively deemed acceptable) prepared in accordance
with Agreement Accounting Principles on a consolidated
basis for itself and the Subsidiaries, including balance
sheets as of the end of such period, related profit and
loss and reconciliation of surplus statements, and a
statement of cash flows (provided that delivery within
the time period specified above of copies of the
Borrower's Annual Report on Form 10-K prepared in
compliance with the requirements therefor and filed with
the Securities and Exchange Commission shall be
deemed to satisfy the foregoing requirements of this
Section6.1(a)), accompanied (irrespective of whether a
Form 10-K or separate financial statements are provided)
by a certificate of said accountants that, in the course of
their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any
Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
(b) Within 60 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and the
Subsidiaries, consolidated unaudited balance sheets as at
the close of each such period and consolidated profit and
loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning
of such fiscal year to the end of such quarter (provided
that delivery within the time period specified above of
copies of the Borrower's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor
and filed with the Securities and Exchange Commission
shall be deemed to satisfy the foregoing requirements of
this Section6.1(b)), all certified by its chief financial
officer.
(c) Together with the financial statements required under
Sections 6.1(a) and (b), a compliance certificate in
substantially the form of Exhibit "C" hereto signed by its
chief financial officer showing the calculations necessary
to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature
and status thereof.
(d) As soon as possible and in any event within 10 days after
the Borrower knows that any Reportable Event has
occurred with respect to any Plan, a statement, signed by
the chief financial officer of the Borrower, describing
said Reportable Event and the action which the
Borrower proposes to take with respect thereto.
(e) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (i) any material notice
or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result
of the release by the Borrower, any of its Subsidiaries, or
any other Person of any toxic or hazardous waste or
substance into the environment, and (ii) any material
notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries.
(f) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements,
reports and proxy statements so furnished.
(g) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or
other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange
Commission.
(h) Such other information (including non-financial
information) as the Agent or any Lender may from time
to time reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances for any one or more of
the following purposes: working capital, general corporate purposes,
and Acquisitions allowed under Section6.14(g), and to repay
outstanding Advances; provided, however, that within 15 days prior to
funding any Acquisition with proceeds of any Advance in excess of
$10,000,000, the Borrower shall provide the Agent and each of the
Lenders with a summary of the terms and conditions of the Acquisition
and information concerning the target, including such information
concerning the target as would be the subject of a report under
Section6.1 if the target were then a Subsidiary. The Borrower will not,
nor will it permit any Subsidiary to, use any of the proceeds of the
Advances to purchase or carry any "margin stock" (as defined in
Regulation U).
6.3 Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the
occurrence of any Default or Unmatured Default and of any other
development, financial or otherwise, which could have a Material
Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as they are
presently conducted and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its
business is conducted; provided, however, the Borrower may allow any
Subsidiary to merge with the Borrower or another Subsidiary or
dissolve or disqualify itself from its authority to conduct business, to the
extent consistent with sound business practice.
6.5 Dividend Restrictions. The Borrower will not, and will not
authorize any Subsidiary to, issue dividends, repurchase stock or make
other distributions, if there is or would be a Default or Unmatured
Default prior to or as a result of such issuance of dividends, repurchase
of stock or other distribution.
6.6 Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all
taxes, assessments and governmental charges and levies upon it or its
income, profits or Property, except those which are being contested in
good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside in accordance with Agreement
Accounting Principles.
6.7 Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks
as is consistent with sound business practice, and the Borrower will
furnish to any Lender upon request full information as to the insurance
carried.
6.8 Compliance with Laws. The Borrower will, and will cause
each Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject.
6.9 Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, and
make all necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly
conducted at all times.
6.10 Inspection. The Borrower will, and will cause each Subsidiary
to, permit the Agent and the Lenders, by their respective representatives
and agents, to inspect any of the Property, corporate books and financial
records of the Borrower and each Subsidiary, to examine and make
copies of the books of accounts and other financial records of the
Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised
as to the same by, their respective officers at such reasonable times and
intervals as the Lenders may designate.
6.11 Indebtedness.
(a) Borrower will not, nor will it permit any Subsidiary to,
create, assume, incur, guarantee, suffer to exist or
otherwise become liable in respect of any Indebtedness if
the aggregate outstanding amount of Indebtedness of
Borrower and its Subsidiaries exceeds fifty (50%)
percent of Total Capitalization, and further provided,
that if such Indebtedness is secured by a Lien, such Lien
is permitted by Section 6.15 hereof.
(b) Borrower will not, nor will not permit any Subsidiary to,
create, assume, incur, guarantee, suffer to exist or
otherwise become liable in respect of any Priority Debt
unless, immediately after giving effect thereto and to the
application of the proceeds of such Priority Debt, the
aggregate amount of Priority Debt does not exceed 10%
of Tangible Net Worth.
As used herein, "Priority Debt" means (without
duplication) (A) all secured Indebtedness not permitted
under clauses (a) through (i) of Section6.15, (B) all
Indebtedness and Preferred Stock of Subsidiaries (other
than Indebtedness or Preferred Stock owing to or held
by the Borrower or a Wholly-Owned Subsidiary or
Indebtedness of the Borrower guaranteed by the
Guarantor) and (C) all Attributable Debt of the Borrower
and its Subsidiaries with respect to all Sale and
Leaseback Transactions (other than Attributable Debt in
respect of an obligation owed to the Borrower or a
Wholly-Owned Subsidiary).
For purposes of this Section6.11, a Subsidiary shall be
deemed to have incurred Indebtedness or Attributable
Debt in respect of any obligation previously owed to the
Borrower or to a Wholly-Owned Subsidiary and to have
issued Preferred Stock previously held by the Borrower
or a Wholly-Owned Subsidiary on the date the obligee or
holder ceases for any reason to be the Borrower or a
Wholly-Owned Subsidiary, and a Person that hereafter
becomes a Subsidiary shall be deemed at that time to
have incurred all of its outstanding Indebtedness and
Attributable Debt and to have issued all of its
outstanding Preferred Stock.
6.12 Merger. Borrower will not, nor will it permit any Subsidiary,
to merge or consolidate with or into any other Person, except that:
(a) any Subsidiary may merge with Borrower or any other
Subsidiary, provided that Borrower is the surviving
entity following such merger involving the Borrower;
(b) Borrower may merge with any other Person, provided
that (i) the Borrower is the surviving entity, (ii) at the
time of, and after giving effect to such merger, no
Default or Unmatured Default exists and is continuing,
and (iii) after giving effect thereto, Borrower could incur
One Dollar ($1) of Indebtedness pursuant to Section
6.11; and
(c) any Subsidiary may merge with another Person, provided
that Borrower owns a portion of the surviving entity, and
if such portion is less than fifty (50%) percent, the net
book value of all assets so merged during the term of this
Agreement shall not exceed ten (10%) percent of the
book value (at date of determination) of Borrower's
Consolidated Assets; provided, however, that no merger
of a Subsidiary shall be permitted if there is or would be
a Default or Unmatured Default prior to or as a result of
the merger.
Whether or not a transaction, act or omission is permissible under this
Section 6.12, Section 6.13 or Section 6.14 shall not effect, restrict or in
any way limit the effectiveness of any other provisions of this
Agreement pertaining to a Change in Control.
6.13 Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any
other Person, except:
(a) Sales of inventory in the ordinary course of business.
(b) Leases, sales or other dispositions of its Property
(including without limitations Sale and Leaseback
Transactions) that in the good faith opinion of the
Borrower are in exchange for consideration to the
Borrower or its applicable Subsidiary, as the case may
be, having a fair market value at least equal to that of
the property transferred and is in the best interest of the
Borrower or such Subsidiary, and that (i)together with
all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than
inventory in the ordinary course of business) as permitted
by this Section during the twelve-month period ending
with the month in which any such lease, sale or other
disposition occurs (and in the case of any such sale or
other disposition occurring during the first year of this
Agreement, such shorter period as begins on the date
hereof but ends with the month in which such lease, sale
or other disposition occurs), do not constitute a
Substantial Portion of the Property of the Borrower and
its Subsidiaries, and (ii)together with all other Property
of the Borrower and its Subsidiaries previously leased,
sold or disposed of (other than inventory in the ordinary
course of business) as permitted by this Section after the
date hereof, do not constitute a Substantial Portion of
the Property of the Borrower and its Subsidiaries;
provided, however, that Borrower will not be permitted
to lease, sell or otherwise dispose of its Property if a
Default or Unmatured Default exists prior to or would
exist as a result of the proposed disposition of Property.
In the event that all or substantially all of the capital stock or
assets of the Guarantor is leased, sold or otherwise disposed of in
accordance with the provisions of this Section 6.13, the Guarantor, at
the Borrower's request, shall be discharged from all of its obligations
and liabilities under the Guaranty by the Lenders entering into a release
in form and substance reasonably satisfactory to the Borrower and the
Agent; provided, however, that this sentence shall not apply (i) if a
Default or Unmatured Default then exists or would exist as a result of
the lease, sale or other disposition, (ii) if any amount is then due and
payable under the Guaranty, or (iii)if the Guarantor at the time of the
disposition of all or substantially all of its capital stock or assets is a
guarantor of any other debt or obligation of the Borrower that is not
also concurrently being released.
For purposes of Section6.13(b)(i) and (ii), (x) any portion of the
proceeds of a lease, sale or other disposition of Property that is applied
to a Debt Prepayment Application within one hundred and eighty days
(180) days after the effective date of the transaction and/or (y) any
portion of such proceeds applied to a Property Reinvestment
Application shall be deducted for purposes of determining whether a
Substantial Portion of the Property of the Borrower and its Subsidiaries
has been leased, sold or otherwise disposed of; provided, however, that
the aggregate amount of any and all deductions under clause (y) above
for purposes of determining whether a Substantial Portion of the
Property of Borrower and its Subsidiaries has been leased, sold or
otherwise disposed of, excluding the sale of all or substantially all of the
capital stock or assets of Guarantor, shall not exceed 5% of the
Consolidated Assets of the Borrower and its Subsidiaries as of
December31, 1996 for purposes of the calculations in clause (ii) in the
definition of "Substantial Portion." "Debt Prepayment Application"
means, with respect to any sale, lease or other disposition of Property,
the application by the Borrower or one of its Subsidiaries of cash in any
amount equal to any portion of the proceeds therefrom to pay senior
Indebtedness of the Company (other than senior Indebtedness in respect
of any revolving credit or similar credit facility providing the Borrower
or a Subsidiary with the right to obtain loans or other extensions of
credit from time to time, except to the extent that in connection with
such payment of Indebtedness the availability of credit under such credit
facility is permanently reduced by an amount not less than the amount of
such proceeds applied to the payment of such Indebtedness), provided
that in the course of making such application the Borrower shall prepay
pursuant to Section2.7 principal of the Advances, and shall reduce the
Aggregate Commitment pursuant to Section2.5, in an amount at least
equal to the product of (x) the amount of proceeds being so applied to
the payment of senior Indebtedness multiplied by (y) a fraction, the
numerator of which is the unpaid principal amount of the Advances at
the time outstanding and the denominator of which is the aggregate
unpaid principal amount of all senior Indebtedness of the Borrower.
"Property Reinvestment Application" means, with respect to any sale,
lease or other disposition of Property, the application of a portion of the
proceeds therefrom to the acquisition by the Borrower or any Subsidiary
of operating assets to be used in the ordinary course of business by the
Borrower or such Subsidiary provided:
(i) the board of directors of the Borrower shall have
approved the construction, acquisition or improvement
of a non-current operating asset within 12 months before
or six months after such transaction, and
(ii) the Borrower or a Subsidiary shall have entered into a
definitive agreement for such construction, acquisition or
improvement of a non-current operating asset or shall
have commenced such construction, acquisition or
improvement of a non-current operating asset within 12
months after such transaction.
6.14 Investments and Acquisitions. The Borrower will not, nor will
it permit any Subsidiary to, make or suffer to exist any Investments, or
commitments therefor or to become a partner or member in any
partnership, limited liability company or joint venture, or to make any
Acquisition, except:
(a) Short-term obligations of, or fully guaranteed by, the
United States of America.
(b) Commercial paper rated A-1 or better by Standard and
Poor's Ratings Group, a division of McGraw Hill, Inc. or
P-1 or better by ▇▇▇▇▇'▇ Investors Service, Inc.
(c) Demand deposit accounts maintained in the ordinary
course of business.
(d) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having
capital and surplus in excess of $100,000,000.
(e) Existing Investments in existence on the date hereof and
described in Schedule "1" hereto and additional
investments in Kosmos Cement Company.
(f) Investments in Subsidiaries or Persons that concurrently
with such Investment become a Subsidiary, provided that
(i) the aggregate transfer of value to a Subsidiary or a
Person that concurrently becomes a Subsidiary in
connection with any such Investments under this clause
(f) shall in no event exceed 10% of Consolidated Assets,
and (ii) if such Investment results in such Subsidiary or
Person becoming a Significant Subsidiary, then the
Borrower shall cause such Subsidiary or Person to
become a guarantor of Borrower's Obligations under this
Agreement by the execution and delivery of a guaranty in
substantially the form of Guaranty, as acceptable to the
Agent.
(g) Any Acquisition to the extent that such Acquisition
involves only one or more businesses in which the
Borrower and its Subsidiaries are engaged on the date of
this Agreement as described in the reports and proxy
statements filed by Borrower with the Securities and
Exchange Commission since December 31, 1995, or
substantially similar businesses, provided that if as a
result of such Acquisition, the acquired Person or
acquisition entity becomes a Significant Subsidiary, then
such Person or entity shall become a guarantor of
Borrower's Obligations under this Agreement by the
execution and delivery of a guaranty in substantially the
form of Guaranty, as acceptable to the Agent.
(h) Investments in repurchase agreements not exceeding
ninety (90) days in duration collateralized by obligations
of the United States of America or any agency or
instrumentality thereof, entered into with a commercial
bank meeting the requirements of clause (d) above,
provided that such repurchase agreements are secured by
a perfected transfer of and security interest in such
obligations.
(i) Investments in tax-exempt obligations of any state of the
United States, or any municipality of any such state, in
each case rated "AA" or better by Standard & Poors
Ratings Service, a division of The McGraw Hill
Companies, Inc., "Aa2" or better by ▇▇▇▇▇'▇ Investors
Service, Inc. or an equivalent rating by any other credit
rating agency of recognized national standing, provided
that such obligations mature within three hundred and
sixty five (365) days from the date of acquisition thereof.
(j) Investments arising from the sale of goods or services in
the ordinary course of business.
(k) Purchases of the Borrower's Common Stock or
Warrants.
(l) All other Investments not listed in clauses (a) - (k) to the
extent that the aggregate amount of such Investments
owned at any time by the Borrower and all Subsidiaries
would not exceed 10% of Tangible Net Worth.
Borrower shall not be permitted to make any Investments or
Acquisitions listed in clauses (e), (f), (g), (k) or (l) of this Section 6.14,
if there is or would be a Default or Unmatured Default prior to or as a
result of such Investment or Acquisition.
6.15 Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of
the Borrower (including without limitation the stock of any
Subsidiaries) or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings and for which adequate reserves in
accordance with generally accepted principles of
accounting shall have been set aside on its books.
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside
on its books.
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits,
or similar legislation.
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Borrower or the
Subsidiaries.
(e) Liens created to secure all or any part of the purchase
price, or to secure Indebtedness incurred or assumed to
pay all or any part of the purchase price or cost of
construction, of tangible property (or any improvement
thereon) acquired or constructed by the Borrower or a
Subsidiary after the date hereof, provided that:
(i) any such Lien shall extend solely to the item or
items of such property (or improvement thereon)
so acquired or constructed and, if required by the
terms of the instrument originally creating such
Lien, other property (or improvement thereon)
which is an improvement to or is acquired for
specific use in connection with such acquired or
constructed property (or improvement thereon)
or which is real property being improved by such
acquired or constructed property (or
improvement thereon),
(ii) the principal amount of the Indebtedness secured
by all such Liens in respect of any such property
shall at no time exceed an amount equal to the
lesser of (x) the cost to the Borrower or such
Subsidiary of the property (or improvement
thereon) so acquired or constructed and (y) the
fair market value (as determined in good faith by
the board of directors of the Borrower) of such
property (or improvement thereon) at the time of
such acquisition or construction, and
(iii) any such Lien shall be created
contemporaneously with or within one hundred
eighty (180) days after, the acquisition or
construction of such property.
(f) Any Lien existing on property of a Person immediately
prior to its being consolidated with or merged into the
Borrower or a Subsidiary or its becoming a Subsidiary,
or any Lien existing on any property acquired by the
Borrower or any Subsidiary at the time such property is
so acquired (whether or not the Indebtedness secured
thereby shall have been assumed), provided that (i) no
such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such
Person's becoming a Subsidiary or such acquisition of
property, and (ii) each such Lien shall extend solely to
the item or items of property so acquired and, if required
by the terms of the instrument originally creating such
Lien, other property which is an improvement to or is
acquired for specific use in connection with such
acquired property.
(g) Any Lien renewing, extending or refunding any Lien
permitted by clause (e) or (f) above, provided that (i) the
principal amount of Indebtedness secured by such Lien
immediately prior to such extension, renewal or
refunding is not increased or the maturity thereof
reduced, (ii) such Lien is not extended to any other
property, and (iii) immediately after such renewal,
extension or refunding no Default or Unmatured Default
would exist.
(h) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business to
secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety
bonds, appeal bonds (not in excess of $10,000,000) bids,
leases (other than Capitalized Leases), performance
bonds, purchase, construction or sales contracts and
other similar obligations, in each case not incurred or
made in connection with the borrowing of money, the
obtaining of advances or credit or the payment of the
deferred purchase price of property.
(i) Any attachment or judgment Lien, unless the judgment it
secures (i) shall not, within thirty (30) days after the
entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall not have been discharged
within thirty (30) days after the expiration of any such
stay or (ii) exceeds $10,000,000.
(j) Other Liens not otherwise permitted by clauses (a)
through (i) above, provided that after giving effect
thereto and to the Indebtedness secured by any such
Liens the aggregate amount of Priority Debt secured by
any Lien in, of or on Property of the Borrower or any of
its Subsidiaries does not exceed ten (10%) percent of
Tangible Net Worth.
6.16 ERISA. The Borrower will, and will cause each of its
Subsidiaries to:
(a) maintain all Plans of the Borrower and each of its
Subsidiaries so that the aggregate Unfunded Vested
Liabilities of all such Plans determined in accordance
with Financial Accounting Standards Board Statement
No.87 does not exceed the level at which the same
would have a Material Adverse Effect; and
(b) as soon as reasonably possible after the Borrower knows
or has reason to know that any Reportable Event or any
Termination Event with respect to any Plan of the
Borrower or an ERISA Affiliate has occurred, furnish to
each Bank a statement signed by a senior officer of the
Borrower setting forth details as to such Reportable
Event or Termination Event and the action, if any, which
the Borrower or the ERISA Affiliate proposes to take
with respect thereto, together with a copy of any notice
of such Reportable Event or Termination Event furnished
to PBGC.
6.17 Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except in the ordinary course of
business (it being agreed that purchases of the Borrower's Common
Stock and Warrants are in the ordinary course of business) and pursuant
to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than the Borrower or such Subsidiary
would obtain in a comparable arms-length transaction. Neither the
Borrower nor any Subsidiary shall agree to any provision in any
agreement placing any limitation, restriction or prohibition on the ability
of any Subsidiary to make any distribution or loan to the Borrower.
6.18 Environmental Covenants. The Borrower will, and will cause
each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep
all necessary permits, approvals, certificates and licenses
in effect and remain in material compliance therewith,
and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Agent and provide copies upon
receipt of all material written claims, complaints, notices
or inquiries relating to the condition of its facilities and
properties or compliance with Environmental Laws, and
shall promptly cure and have dismissed with prejudice
any such actions and proceedings; and
(c) provide such information and certifications which the
Agent may reasonably request from time to time to
insure compliance with this Section 6.18.
6.19 Sale of Accounts. The Borrower will not, nor will it permit
any Subsidiary to, sell or otherwise dispose of any notes receivable or
accounts receivable, with or without recourse, except (a) ancillary
dispositions to facilitate collection of problem pay receivables in the
ordinary course of business, and (b) sale of accounts incident to a sale of
a business made in accordance with Section6.13.
6.20 Financial Covenants.
(a) Leverage Ratio. The ratio of Total Debt to Total
Capitalization shall not exceed 50% at any time;
compliance testing shall be on a quarterly basis,
determined as of the last day of each calendar quarter
beginning as of March 31, 1997.
(b) Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio shall not be less than 2.50:1.00 at any
time, as determined on the last day of each calendar
quarter beginning as of March31, 1997 for the four
immediately preceding consecutive calendar quarters
then ended; compliance testing shall be on a quarterly
basis.
(c) Tangible Net Worth. Tangible Net Worth shall not be at
any time less than the sum of (i)Two Hundred Million
Dollars ($200,000,000) (the "Base Tangible Net
Worth"), plus (ii) fifty percent(50%) of cumulative
quarterly Consolidated Net Income (without any
reduction in the event such cumulative quarterly
Consolidated Net Income is negative) after December
31, 1996, plus (iii)eighty percent (80%) of the net
proceeds from any equity offering by the Borrower
(excluding proceeds realized upon exercise of warrants
outstanding on the date of this Agreement and proceeds
realized upon exercises of management or directors stock
options whenever issued under current Board
authorization); compliance testing shall be on a quarterly
basis, as determined on the last day of each calendar
quarter beginning as of March31, 1997; provided,
however, that if the Borrower does not repurchase,
redeem or otherwise acquire $25,000,000 of its capital
stock or warrants prior to December31, 1998, then on
January 1, 1999 the amount of the Base Tangible Net
Worth for purposes of this Section6.20(c) shall be
increased by $25,000,000 less the purchase price of any
capital stock or warrants of the Borrower repurchased,
redeemed or otherwise acquired between January 1,
1997 and December31, 1998.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made
by or on behalf of the Borrower or any of its Subsidiaries to the
Lenders, the LC Issuer or the Agent under or in connection with this
Agreement, any Credit Extension, the Guaranty, or any certificate or
information delivered in connection with this Agreement or any other
Loan Document shall be materially false on the date as of which made.
7.2. Nonpayment of any Reimbursement Obligation or the
principal of any Note when due, or nonpayment of interest upon any
Note or Reimbursement Obligation or of any Commitment Fee, LC Fee
or other payment obligations under any of the Loan Documents within
five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or
provisions of Article VI.
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms
or provisions of this Agreement which is not remedied within ten days
after written notice from the Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries or any
Guarantor to pay when due any Indebtedness aggregating in excess of
$3,000,000 ("Material Indebtedness"); or the default by the Borrower or
any of its Subsidiaries or any Guarantor in the performance of any term,
provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event
shall occur or condition exist, the effect of which is to cause, or to
permit the holder or holders of such Material Indebtedness to cause,
such Material Indebtedness to become due prior to its stated maturity;
or any Material Indebtedness of the Borrower or any of its Subsidiaries
or any Guarantor shall be declared to be due and payable or required to
be prepaid or repurchased (other than by a regularly scheduled payment)
prior to the stated maturity thereof; or the Borrower or any of its
Significant Subsidiaries or any Guarantor shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
7.6. The Borrower or any of its Significant Subsidiaries or
any Guarantor shall (i)have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii)
make an assignment for the benefit of creditors, (iii) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (iv) institute any proceeding seeking an order
for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer
or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi)
fail to contest in good faith any appointment or proceeding described in
Section 7.7.
7.7. Without the application, approval or consent of the
Borrower or any of its Subsidiaries, or any Guarantor, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for the
Borrower or any of its Significant Subsidiaries or any Guarantor or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Significant
Subsidiaries or any Guarantor and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for
a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of
(each a "Condemnation"), all or any portion of the Property of the
Borrower and its Significant Subsidiaries or any Guarantor which, when
taken together with all other Property of the Borrower and its
Subsidiaries or any Guarantor so condemned, seized, appropriated, or
taken custody or control of, during the twelve-month period ending
with the month in which any such Condemnation occurs, constitutes a
Substantial Portion.
7.9. The Borrower or any of its Significant Subsidiaries shall
fail within 30 days to pay, bond or otherwise discharge any judgment or
order for the payment of money in excess of $3,000,000, which is not
stayed on appeal or otherwise being appropriately contested in good
faith.
7.10 The Borrower, any ERISA Affiliate or the administrators
of one or more Plans constituting a Material Plan shall receive notice
from the PBGC indicating that the PBGC has made a determination that
it will invoke its rights to terminate such Material Plan under Section
4042 of ERISA or one or more Plans constituting a Material Plan shall
be terminated under Section 4042 of ERISA or a trustee shall be
appointed to administer one or more Plans constituting a Material Plan
under Section 4042 of ERISA or PBGC shall institute proceedings to
terminate, or to have a trustee appointed to administer, one or more
Plans constituting a Material Plan or the Borrower or any ERISA
Affiliate shall have failed to pay any installment in respect of any
withdrawal liability of the Borrower or any ERISA Affiliate arising
under Subtitle E of Title IV of ERISA if such withdrawal liability is at
the time of such failure in excess of five percent (5%) of Tangible Net
Worth in respect of any Multiemployer Plan from which the Borrower
or any ERISA Affiliate has withdrawn pursuant to Subtitle E of Title IV
of ERISA or proceedings shall have been instituted by the trustee or
administrator of such Multiemployer Plan against the Borrower or any
ERISA Affiliate in respect thereof.
7.11. The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred withdrawal liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Borrower or any other member of
the Controlled Group as withdrawal liability (determined as of the date
of such notification), exceeds $15,000,000 or requires payments
exceeding $15,000,000 per annum.
7.12. The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of the
Borrower and the other members of the Controlled Group (taken as a
whole) to all Multiemployer Plans which are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the respective plan years of
each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding
$5,000,000.
7.13. The Borrower or any of its Significant Subsidiaries shall
be subject to or the subject of any proceeding or investigation pertaining
to a Release by the Borrower or any of its Subsidiaries, or any other
Person of any Hazardous Material into the environment, or any violation
of any Environmental Laws, which, in either case, reasonably could be
expected to have a Material Adverse Effect.
7.14. The occurrence of any "default", as defined in any Loan
Document (other than this Agreement or the Notes) or the breach of
any of the terms or provisions of any Loan Document (other than this
Agreement or the Notes), which default or breach continues beyond any
period of grace therein provided.
7.15. The Borrower shall cease to own 100% of the
outstanding capital stock of any Subsidiary which has executed a
Guaranty; or any Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply
with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor denies that it has any further liability under any
Guaranty to which it is a party, or gives notice to such effect; provided,
however, that a release of the Guarantor in accordance with Section
6.13 hereof shall not constitute a Default.
7.16. Nonpayment by the Borrower or any Subsidiary of any
Rate Hedging Obligation or Letter of Credit when due or the breach by
the Borrower or any Subsidiary of any term, provision or condition
contained in any Rate Hedging Agreement or Letter of Credit.
7.17. The representations and warranties set forth in
"Section5.15 Plan Assets; Prohibited Transactions" shall at any time not
be true and correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES
8.1 Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the Commitments of the Lenders
hereunder (and the obligations of the LC Issuer to issue Facility LCs)
shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of
the Agent, the LC Issuer or any Lender. If any other Default occurs,
the Required Lenders (or the Agent with the consent of the Required
Lenders) may terminate or suspend the Commitments of the Lenders
hereunder (and the obligation of the LC Issuer to issue Facility LCs), or
declare the Obligations to be due and payable, (whereupon the
Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives) or both.
If, within 14 days after acceleration of the maturity of the
Obligations or termination of the Commitments of the Lenders
hereunder as a result of any Default (other than any Default as described
in Section 7.6 or 7.7 with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations due shall have
been obtained or entered, the Required Lenders (in their sole discretion)
shall so direct, the Agent (or the LC Issuer) shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
If the Obligations become due and payable under this Section
8.1, the Borrower shall immediately deposit with the Agent for the
benefit of each LC Issuer (and each Lender participating in Facility LCs)
cash equal to the total aggregate exposure of each LC Issuer (including
each participating Lender in Facility LCs) under any and all Facility LCs
then outstanding, to be held by the Agent in a reimbursement account to
secure and satisfy any and all reimbursement obligations of Borrower
hereunder with respect to outstanding Facility LCs. The Agent, for the
ratable benefit of each of the LC Issuers (and Lenders participating in
such Facility LCs) shall have a perfected lien, security interest and offset
right in such reimbursement account and the monies therein to secure all
reimbursement obligations in respect of such Facility LCs.
8.2 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent or the LC Issuer with the consent in
writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying
any provisions to the Loan Documents or changing in any manner the
rights of the Lenders or the Borrower hereunder or waiving any Default
hereunder; provided, however, that no such supplemental agreement
shall, without the consent of each Lender affected thereby:
(a) Increase any Lender's Commitment, or extend the
maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the
rate or extend the time of payment of any interest or fees
hereunder.
(b) Reduce the percentage specified in the definition of
Required Lenders, or otherwise modify in any manner
the number or percentage of Lenders required to make
any determinations or waive any rights hereunder or to
modify the provisions of this Agreement.
(c) Reduce the amount or extend the payment date for, the
mandatory payments required under Section 2.2, or
increase the amount of the Commitment of any Lender
hereunder, or permit the Borrower to assign its rights
under this Agreement.
(d) Release the Guarantor of any of its guaranty liability
under the Guaranty, except for a release of the
Guarantor's liability and obligations under the Guaranty
in accordance with the provisions of Section 6.13.
(e) Amend this Section 8.2 or Section 11.2.
(f) Release any guarantor (other than the Guarantor) of its
obligations with respect to any Advance (principal or
interest) or Reimbursement Obligation.
(g) Reduce the amount or change the payment date of any
Reimbursement Obligation which may be outstanding
under Section2.19.
(h) Change the amount of the LC Sublimit.
(i) Amend the conditions precedent under Sections4.1 and
4.2.
(j) Amend the assignment provisions under Sections 12.1
and12.3 hereof.
(k) Amend the "Change in Control" definition or related
provisions under Section2.18 hereof.
(l) Amend any payment date under this Agreement
(including any mandatory prepayment).
(m) Amend the provisions of Section6.14, providing that any
Significant Subsidiary of Borrower shall execute a
guaranty under this Agreement, substantially in the form
of the Subsidiary Guaranty dated as of June30,1997.
No amendment of any provision of this Agreement relating to the Agent
or the LC Issuer shall be effective without the written consent of the
Agent or the LC Issuer, as the case may be. The Agent may waive
payment of the fee required under Section 12.3(b) without obtaining the
consent of any other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders,
the Agent or the LC Issuer to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any
Default or an acquiescence therein, and the making of a Credit
Extension notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of
any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders
required pursuant to Section 8.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be
available to the Agent, the LC Issuer and the Lenders until the
Obligations have been paid in full. Notwithstanding the fact that certain
enforcement powers reside with the Agent, each Lender has, to the
extent permitted by law, a separate right of payment and shall be
considered a separate "creditor" holding a separate "claim" within the
meaning of Section 101(5) of the United States Bankruptcy Code or any
other insolvency statute.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of
the Notes and the making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower in violation of any limitation
or prohibition provided by any applicable statute or regulation.
9.3 Taxes. Any taxes (excluding federal and state income taxes on
the overall net income of any Lender) or other similar assessments or
charges made by any governmental or revenue authority in respect of
the Loan Documents shall be paid by the Borrower, together with
interest and penalties, if any.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, the LC
Issuer and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent, the LC Issuer and the
Lenders relating to the subject matter thereof other than the fee letter
described in Section10.13.
9.6 Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint
and no Lender shall be the partner or agent of any other (except to the
extent to which the Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve
any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective
successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall reimburse the
Agent and the LC Issuer for any costs, internal charges and out-of-
pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent or the LC Issuer, which attorneys may be employees of
the Agent or the LC Issuer) paid or incurred by the Agent or the LC
Issuer in connection with the preparation, negotiation, execution,
delivery, review, amendment, modification, and administration of the
Loan Documents. The Borrower also agrees to reimburse the Agent,
the LC Issuer and the Lenders for any costs, internal charges and out-
of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Agent, the LC Issuer and the Lenders, which attorneys
may be employees of the Agent, the LC Issuer or the Lenders) paid or
incurred by the Agent or any Lender in connection with the collection
and enforcement of the Loan Documents. The Borrower further agrees
to indemnify the Agent, the LC Issuer and each Lender, its directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all
expenses of litigation or preparation therefor whether or not the Agent,
the LC Issuer or any Lender is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any
Credit Extension hereunder except to the extent that they are
determined by a court of competent jurisdiction in a final and non-
appealable order to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the
Borrower under this Section shall survive the termination of this
Agreement.
9.8 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles.
9.10 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
9.11 Nonliability of Lenders. The relationship between the
Borrower, on one hand, and the Lenders, the Agent and the LC Issuer
on the other hand, shall be solely that of borrower and lender. Neither
the Agent, nor the LC Issuer, nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent, nor the LC Issuer,
nor any Lender undertakes any responsibility to the Borrower to review
or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations. The Borrower agrees that
neither the Agent, nor the LC Issuer, nor any Lender shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined by a court of
competent jurisdiction in a final and non-appealable order that such
losses resulted from the gross negligence or willful misconduct of the
party from which recovery is sought. Neither the Agent, nor the LC
Issuer, nor any Lender shall have any liability with respect to, and the
Borrower hereby waives, releases and agrees not to ▇▇▇ for, any special,
indirect or consequential damages suffered by the Borrower in
connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.12 Confidentiality. Each Lender agrees to use all confidential
information only for purposes of the Loan Documents and the parties'
obligations thereunder and to hold any confidential information which it
may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other
Lenders and their respective Affiliates, (ii) to legal counsel, accountants,
and other professional advisors to that Lender or to a Transferee, (iii) to
regulatory officials or, any other Person as requested pursuant to or as
required by law, regulation, or legal process, (iv) to any Person in
connection with any legal proceeding to which that Lender is a party,
and (v) permitted by Section 12.4.
9.13 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of
the Board of Governors of the Federal Reserve System) for the
repayment of the Loans provided for herein.
ARTICLE X
THE AGENT
10.1 Appointment; Nature of Relationship. NBD Bank, N.A. is
hereby appointed by the Lenders as the Agent hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes
the Agent to act as the contractual representative of such Lender with
the rights and duties expressly set forth herein and in the other Loan
Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall have not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other
Loan Document and that the Agent is merely acting as the
representative of the Lenders with only those duties as are expressly set
forth in this Agreement and the other Loan Documents. In its capacity
as the Lenders' contractual representative, the Agent (i) does not hereby
assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly
set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any
agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.
10.2 Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents to be
taken by the Agent.
10.3 General Immunity. Neither the Agent, nor the LC Issuer nor
any of their respective directors, officers, agents or employees shall be
liable to the Borrower, the Lenders or any Lender for any action taken
or omitted to be taken by it or them hereunder or under any other Loan
Document or in connection herewith or therewith except for its or their
own gross negligence or willful misconduct.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Agent,
nor the LC Issuer nor any of their respective directors, officers, agents
or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (i) any statement, warranty or representation made
in connection with any Loan Document or any borrowing hereunder; (ii)
the performance or observance of any of the covenants or agreements of
any obligor under any Loan Document, including, without limitation,
any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered to the Agent or the LC
Issuer, as the case may be; (iv)the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; or (v) the value,
sufficiency, creation, perfection or priority of any interest in any
collateral security. The Agent and the LC Issuer shall have no duty to
disclose to the Lenders information that is not required to be furnished
by the Borrower to the Agent or the LC Issuer at such time, but is
voluntarily furnished by the Borrower to the Agent or the LC Issuer
(either in its capacity as Agent, LC Issuer or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent and the LC
Issuer shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance
with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders and on all holders of Notes. The
Lenders hereby acknowledge that the Agent and the LC Issuer shall be
under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement or any other Loan
Document unless it shall be requested in writing to do so by the
Required Lenders. The Agent and the LC Issuer shall be fully justified
in failing or refusing to take any action hereunder and under any other
Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.
10.6 Employment of Agents and Counsel. The Agent and the LC
Issuer may execute any of its duties as Agent and the LC Issuer
hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent and the
LC Issuer shall be entitled to advice of counsel concerning all matters
pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Agent and the LC
Issuer shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed or sent
by the proper person or persons, and, in respect to legal matters, upon
the opinion of counsel selected by the Agent or the LC Issuer, which
counsel may be employees of the Agent or the LC Issuer.
10.8 Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify each of the Agent and the LC Issuer,
in their capacities as such, ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in
proportion to their Commitments immediately prior to such termination)
(i) for any amounts not reimbursed by the Borrower for which the
Agent or the LC Issuer is entitled to reimbursement by the Borrower
under the Loan Documents, (ii) for any other expenses incurred by the
Agent or the LC Issuer on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the
Loan Documents and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent or the LC Issuer
in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or
of any such other documents, provided that no Lender shall be liable for
any of the foregoing to the extent they arise from the gross negligence
or willful misconduct of the Agent or the LC Issuer. The obligations of
the Lenders under this Section10.8 shall survive payment of the
Obligations and termination of this Agreement.
10.9 Notice of Default. The Agent and the LC Issuer shall not be
deemed to have knowledge or notice of the occurrence of any Default
or Unmatured Default hereunder unless the Agent and the LC Issuer has
received written notice from a Lender or the Borrower referring to this
Agreement describing such Default or Unmatured Default and stating
that such notice is a "notice of default". In the event that the Agent and
the LC Issuer receive such a notice, the Agent and the LC Issuer shall
give prompt notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Agent or the LC Issuer is
a Lender, the Agent and the LC Issuer shall have the same rights and
powers hereunder and under any other Loan Document as any Lender
and may exercise the same as though it were not the Agent or the LC
Issuer, and the term "Lender" or "Lenders" shall, at any time when the
Agent or the LC Issuer is a Lender, unless the context otherwise
indicates, include the Agent or the LC Issuer in its individual capacity.
The Agent and the LC Issuer may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby from
engaging with any other Person.
10.11 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent, the LC Issuer
or any other Lender and based on the financial statements prepared by
the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon the
Agent, the LC Issuer or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such
resignation to be effective upon the appointment of a successor Agent
or, if no successor Agent has been appointed, forty-five days after the
retiring Agent gives notice of its intention to resign. Upon any such
resignation, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders
within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Agent. If the Agent has
resigned and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrower shall
make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No
successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor
Agent shall be a commercial bank having capital and retained earnings
of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Agent. Upon the effectiveness of
the resignation of the Agent, the resigning Agent shall be discharged
from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent hereunder and under the other Loan
Documents.
10.13 Agent's Fee. The Borrower agrees to pay to the Agent, for its
own account, and to First Chicago Capital Markets, Inc., as Arranger
the fees agreed to by the Borrower, the Agent and the Arranger
pursuant to that certain letter agreement dated March12, 1997, or as
otherwise agreed from time to time.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether
or not collected or available) and any other Indebtedness at any time
held or owing by any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or
any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit
Exposure (other than payments received pursuant to Section 3.1, 3.2 or
3.4) in a greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the
Aggregate Outstanding Credit Exposure held by the other Lenders so
that after such purchase each Lender will hold its Percentage of the
Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or
such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to
their respective Percentages of the Aggregate Outstanding Credit
Exposure. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made. If an amount
to be setoff is to be applied to Indebtedness of the Borrower to a
Lender, other than Indebtedness evidenced by any of the Notes or
Reimbursement Obligations hereunder held by such Lender, such
amount shall be applied ratably to such other Indebtedness and to the
Indebtedness evidenced by such Notes or Reimbursement Obligations
hereunder.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATION
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the
Borrower and the Lenders and their respective successors and assigns,
except that (i) the Borrower shall not have the right to assign its rights
or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time,
without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment to a Federal
Reserve Bank shall release the transferor Lender from its obligations
hereunder. The Agent may treat the payee of any Note as the owner
thereof for all purposes hereof unless and until such payee complies with
Section 12.3 in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the Agent.
Any assignee or transferee of a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making
such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in
exchange therefor.
12.2 Participation.
(a) Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in
any Outstanding Credit Exposure owing to such Lender,
any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the
performance of such obligations, such Lender shall
remain the holder of any such Note for all purposes
under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if
such Lender had not sold such participating interests, and
the Borrower, the LC Issuer and the Agent shall continue
to deal solely and directly with such Lender in
connection with such Lender's rights and obligations
under the Loan Documents.
(b) Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of
the Loan Documents, other than any amendment,
modification or waiver which requires the unanimous
consent of the Lenders under Section 8.2.
(c ) Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff
provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to
the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain
the right of setoff provided in Section 11.1 with respect
to the amount of participating interests sold to each
Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right
of setoff provided in Section 11.1, agrees to share with
each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared
in accordance with Section 11.2 as if each Participant
were a Lender.
12.3 Assignments.
(a) Permitted Assignments. Any Lender may, in accordance
with applicable law, at any time assign to one or more
banks or other entities ("Purchasers") all or any part of
its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of
Exhibit "D" hereto or in such other form as may be
agreed to by the parties thereto. The consent of the
Borrower, the Agent and the LC Issuer shall be required
prior to an assignment becoming effective with respect to
a Purchaser which is not a Lender or an Affiliate thereof;
provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be
required. No such consent shall be unreasonably
withheld or delayed. Each such assignment shall be in an
amount not less than the lesser of (i) $10,000,000 or (ii)
the remaining amount of the assigning Lender's
Commitment (calculated as at the date of such
assignment).
(b) Effect; Effective Date. Upon (i) delivery to the Agent of
a notice of assignment, substantially in the form attached
as Exhibit "I" to Exhibit "D" hereto (a "Notice of
Assignment"), together with any consents required by
Section 12.3(a), and (ii)payment of a $2,500 fee to the
Agent for processing such assignment, such assignment
shall become effective on the effective date specified in
such Notice of Assignment. The Notice of Assignment
shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the
purchase of the Commitment and Loans under the
applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of
the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any
other Loan Document executed by the Lenders and shall
have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by
the Borrower, the Lenders, the Agent or the LC Issuer
shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment
and Outstanding Credit Exposure assigned to such
Purchaser. Upon the consummation of any assignment
to a Purchaser pursuant to this Section 12.3(b), the
transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that replacement
Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued
to such Purchaser, in each case in principal amounts
reflecting their Commitment, as adjusted pursuant to
such assignment.
12.4 Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of the
Borrower and its Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.12 of this
Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section
4.3.
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.13 with
respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing (including
bank wire, facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of the Borrower, the LC Issuer or the
Agent, at its address or facsimile number set forth on the signature
pages hereof, (y) in the case of any Lender, at its address or facsimile
number set forth below its signature hereto or (z) in the case of any
party, such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the
Borrower. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as
aforesaid or (iii) if given by any other means, when delivered at the
address specified in this Section; provided that notices to the Agent
under Article II shall not be effective until received.
13.2 Change of Address. The Borrower, the Agent, the LC Issuer
and any Lender may each change the address for service of notice upon
it by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of
the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been
executed by the Borrower, the Agent and the Lenders and each party
has notified the Agent by telex or telephone, that it has taken such
action.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER
OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER
THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE
OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE
LAW OF CONFLICTS) OF THE STATE OF INDIANA, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR
INDIANA STATE COURT SITTING IN ▇▇▇▇▇▇ COUNTY IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT
AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT,
THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE
BORROWER AGAINST THE AGENT, THE LC ISSUER OR ANY
LENDER OR ANY AFFILIATE OF THE AGENT, THE LC ISSUER
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN ▇▇▇▇▇▇ COUNTY, INDIANA.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE
AGENT, THE LC ISSUER AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Lenders, the
Agent and the LC Issuer have executed this Agreement as of the date
first above written.
LONE STAR INDUSTRIES, INC.
as Borrower
By:
Printed Name
Title
Address:
300 First Stamford Place
P.O. Box 120014
Stamford, Connecticut 06912-0014
Attention:
$ 25,000,000 NBD BANK, N.A.,
Individually, as Lender, as Agent and as LC
Issuer
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President,
Corporate & Institutional Banking
Address:
One Indiana Square, M.S. 7028
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$20,000,000 FLEET NATIONAL BANK,
as Lender
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$10,000,000 THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH
as Lender
By:
Aaki Yamagishi
Chief Manager
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ Strike, Corporate
Finance Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$20,000,000 WACHOVIA BANK, N.A.
as Lender
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, N.E., MC ▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$10,000,000 UNION PLANTERS NATIONAL BANK
as Lender
By:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Address:
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 THE SANWA BANK LIMITED,
NEW YORK BRANCH
as Lender
By:
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Address:
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇