1
Exhibit 10.16
CONFORMED COPY
************************************************************
RPM, INC.
FIVE-YEAR
CREDIT AGREEMENT
Dated as of July 14, 2000
$500,000,000
THE CHASE MANHATTAN BANK
as Administrative Agent
************************************************************
CHASE SECURITIES INC.
Book Manager and Lead Arranger
2
TABLE OF CONTENTS
----------
PAGE
----
SECTION 1. Definitions and Accounting Matters
---------------------------------------------
1.01 Certain Defined Terms................................................1
1.02 Accounting Terms and Determinations.................................12
1.03 Class and Types of Loans............................................12
SECTION 2. Commitments
----------------------
2.01 Loans...............................................................13
2.02 Reductions of Commitments...........................................14
2.03 Fees................................................................15
2.04 Lending Offices.....................................................16
2.05 Several Obligations.................................................16
2.06 Notes...............................................................16
2.07 Use of Proceeds.....................................................16
SECTION 3. Borrowings, Conversions and Prepayments
--------------------------------------------------
3.01 Borrowings..........................................................17
3.02 Prepayments and Conversions.........................................17
3.03 Competitive Bid Procedure...........................................17
SECTION 4. Payments of Principal and Interest
---------------------------------------------
4.02 Interest............................................................20
SECTION 5. Payments; Pro Rata Treatment; Computations; Etc
----------------------------------------------------------
5.01 Payments............................................................22
5.02 Pro Rata Treatment..................................................23
5.03 Computations........................................................23
5.04 Minimum and Maximum Amounts; Types..................................23
5.05 Certain Notices.....................................................23
5.06 Non-Receipt of Funds by the Administrative Agent....................24
5.07 Sharing of Payments, Etc............................................25
5.08 Taxes...............................................................25
SECTION 6. Yield Protection and Illegality
------------------------------------------
6.01 Additional Costs....................................................28
6.02 Limitation on Types of Loans........................................29
6.03 Illegality..........................................................30
6.04 Substitute Base Rate Loans..........................................30
6.05 Compensation........................................................30
3
PAGE
----
6.06 Capital Adequacy....................................................31
6.07 Substitution of Lender..............................................31
SECTION 7. Conditions Precedent
-------------------------------
7.01 Initial Loans.......................................................32
7.02 Initial and Subsequent Loans........................................33
SECTION 8. Representations and Warranties
-----------------------------------------
8.01 Corporate Existence.................................................34
8.02 Information.........................................................34
8.03 Litigation..........................................................35
8.04 No Breach...........................................................35
8.05 Corporate Action....................................................36
8.06 Approvals...........................................................36
8.07 Regulations U and X.................................................36
8.08 ERISA...............................................................36
8.09 Taxes...............................................................36
8.10 Subsidiaries........................................................37
8.11 Investment Company Act..............................................37
8.12 Public Utility Holding Company Act..................................37
8.13 Ownership and Use of Properties.....................................37
8.14 Environmental Matters...............................................37
SECTION 9. Covenants
--------------------
9.01 Information.........................................................38
9.02 Taxes and Claims....................................................40
9.03 Insurance...........................................................40
9.04 Maintenance of Existence; Conduct of Business.......................40
9.05 Maintenance of and Access to Properties.............................40
9.06 Compliance with Applicable Laws.....................................41
9.07 Litigation..........................................................41
9.08 Leverage Ratio......................................................41
9.09 Interest Coverage Ratio.............................................41
9.10 Mergers, Asset Dispositions, Etc....................................41
9.11 Liens...............................................................41
9.12 Investments.........................................................42
9.13 Transactions with Affiliates........................................43
9.14 Lines of Business...................................................43
9.15 Environmental Matters...............................................43
9.16 Lease Payments......................................................44
SECTION 10. Defaults
--------------------
ii
4
PAGE
----
10.01 Events of Default...................................................44
SECTION 11. The Administrative Agent
------------------------------------
11.01 Appointment, Powers and Immunities..................................47
11.02 Reliance by Administrative Agent....................................48
11.03 Defaults............................................................48
11.04 Rights as a Lender..................................................48
11.05 Indemnification.....................................................49
11.06 Non-Reliance on Administrative Agent and Other Lenders..............49
11.07 Failure to Act......................................................49
11.08 Resignation or Removal of Administrative Agent......................50
SECTION 12. Miscellaneous
-------------------------
12.01 Waiver..............................................................50
12.02 Notices.............................................................51
12.03 Expenses, Etc.......................................................51
12.04 Indemnification.....................................................51
12.05 Amendments, Etc.....................................................51
12.06 Successors and Assigns..............................................52
12.07 Confidentiality.....................................................53
12.08 Survival............................................................54
12.09 Captions............................................................54
12.10 Counterparts; Integration...........................................54
12.11 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL..........................................................54
12.12 Waiver and Termination of Existing Credit Agreements................55
iii
5
SCHEDULES
---------
PRICING SCHEDULE
SCHEDULE I - Subsidiaries and Joint Ventures
EXHIBITS
--------
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Opinion of Counsel to
the Company
EXHIBIT B-2 - Form of Opinion of General Counsel
of the Company
EXHIBIT C - Form of Opinion of Special Counsel to
the Administrative Agent
iv
6
CREDIT AGREEMENT
AGREEMENT dated as of July 14, 2000 among: RPM, INC., a corporation
duly organized and validly existing under the laws of the State of Ohio
(together with its successors, the "COMPANY"); each of the lenders which is or
which may from time to time become a signatory hereto (individually, together
with its successors, a "LENDER" and, collectively, together with their
respective successors, the "LENDERS"); and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "ADMINISTRATIVE AGENT").
The parties hereto agree as follows:
SECTION 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"ABSOLUTE RATE" shall mean, with respect to any Competitive Loan (other
than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"ACCEPTABLE INSURER" means an insurance company (i) having an A.M. Best
rating of "A-" or better and being in a financial size category of X or larger
(as such category is defined as of the date hereof) or (ii) otherwise acceptable
to the Majority Lenders. First Colonial Insurance Company, a wholly-owned
Subsidiary of the Company, is deemed to be acceptable with respect to the dollar
amount of insurance it is providing on the date of this Agreement.
"AFFILIATE" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member of
the immediate family (including parents, siblings, spouse, children,
stepchildren, nephews, nieces and grandchildren) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "CONTROL" (including, with correlative
meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or
7
otherwise), provided that, in any event, any Person which owns directly or
indirectly more than 5% of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or more than 5%
of the partnership or other ownership interests of any other Person (other than
as a limited partner of such other Person) will be deemed to control such
corporation or other Person.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the Lending Office of such Lender (or of an affiliate of such
Lender) specified by such Lender from time to time to the Administrative Agent
and the Company as the office by which its Loans of such Type are to be made
and/or issued and maintained.
"APPLICABLE MARGIN" shall mean, with respect to any Eurodollar
Committed Loan, the rate per annum determined in accordance with the Pricing
Schedule.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code, as now
or hereafter in effect, or any successor statute.
"BASE RATE" shall mean, with respect to any Base Rate Loan for any day,
the rate per annum equal to the higher as of such day of (i) the Federal Funds
Rate plus 1/2 of 1% or (ii) the Prime Rate.
"BASE RATE LOANS" shall mean Loans which bear interest at a rate based
upon the Base Rate.
"BASIC DOCUMENTS" shall mean this Agreement and the Notes.
"BUSINESS DAY" shall mean any day other than a day on which commercial
banks are authorized or required to close in New York City and, where such term
is used in the definition of "Quarterly Date" in this Section 1.01 or if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, a conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Company with respect to any such borrowing, payment,
prepayment, conversion or Interest Period, which is also a day on which dealings
in Dollar deposits are carried out in the London interbank market.
"CAPITAL LEASE OBLIGATIONS" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property to the
extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP (including Statement
of Financial
2
8
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and
regulations promulgated thereunder.
"CHASE" shall mean The Chase Manhattan Bank and its successors.
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
"CLOSING DATE" shall mean the date of the initial Loans hereunder.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, or any
successor statute.
"COMMITMENT" shall mean, as to any Lender, the obligation of such
Lender to make Loans in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount set forth opposite such Lender's
name on the signature pages hereof under the caption "Commitment" (as the same
may be increased or reduced from time to time pursuant to Section 2.01(c) or
2.02 hereof).
"COMMITMENT TERMINATION DATE" shall mean July 14, 2005 or, if such day
is not a Business Day, the next preceding Business Day.
"COMMITTED LOAN" shall mean a Revolving Loan.
"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive
Loan in accordance with Section 3.03 hereof.
"COMPETITIVE BID RATE" shall mean, with respect to any Competitive Bid,
the Competitive Margin or the Absolute Rate, as applicable, offered by the
Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request by the Company for
Competitive Bids in accordance with Section 3.03 hereof.
"COMPETITIVE LOAN" shall mean a loan made pursuant to Section 3.03
hereof.
3
9
"COMPETITIVE MARGIN" shall mean, with respect to any Eurodollar
Competitive Loan, the marginal rate of interest, if any, to be added to or
subtracted from the Eurodollar Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"CONTROLLED GROUP" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Code.
"DEFAULT" shall mean an Event of Default or an event which with notice
or lapse of time or both would, unless cured or waived, become an Event of
Default.
"DISCLOSURE DOCUMENTS" shall mean the Company's annual report on Form
10-K for 1999 and quarterly report on Form 10-Q for the quarterly period ended
February 29, 2000, in each case as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, for any period, determined on a consolidated basis
for the Company and its Subsidiaries, net operating income of the Company and
its Subsidiaries (calculated before provision for income taxes, interest
expense, extraordinary items, income attributable to equity in affiliates and
all amounts attributable to depreciation and amortization) for such period.
EBITDA for any period ending on or before May 31, 2001 which would otherwise
reflect them shall be calculated without reflecting the 2000 Restructuring
Charges. For purposes of this definition, "2000 RESTRUCTURING CHARGES" shall
mean special restructuring charges of $45,000,000 taken in the fiscal quarter
ended August 31, 1999 and of $15,000,000 taken in the fiscal quarter ending May
31, 2000.
"ENVIRONMENTAL LAWS" shall mean any and all applicable federal, state,
local and foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, orders, decrees, codes, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other governmental restrictions
relating to the environment or the effect of the environment on human health or
to emissions, discharges or release of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including, without limitation,
ambient air, surface water,
4
10
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the clean-up or
other remediation thereof.
"ENVIRONMENTAL LIABILITIES" shall mean all liabilities in connection
with or relating to the business, assets, presently or previously owned or
leased property, activities (including, without limitation, off-site disposal)
or operations of the Company and each Subsidiary, whether vested or unvested,
contingent or fixed, actual or potential, known or unknown, which arise under or
relate to matters covered by Environmental Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar
Loans, the rate per annum appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the first day
of the Interest Period for such Eurodollar Loans, as the rate for Dollar
deposits for a period comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the "Eurodollar Base
Rate" with respect to such Eurodollar Loans for such Interest Period shall be
the arithmetic mean, as calculated by the Administrative Agent, of the
respective rates per annum (rounded upwards, if necessary, to the nearest 1/16
of 1%) quoted by the Reference Lenders at approximately 11:00 a.m. London time
by the principal London branch of each of the Reference Lenders on the day two
Business Days prior to the first day of the Interest Period for such Loans for
the offering to leading banks in the London interbank market of Dollar deposits
in immediately available funds, for a period, and in an amount, comparable to
such Interest Period and the principal amount of the Eurodollar Loan which shall
be made by such Reference Lender and outstanding during such Interest Period. If
any Reference Lender is not participating in any Eurodollar Loans during the
Interest Period therefor (pursuant to Section 3.03 or 6.04 hereof or for any
other reason), the Eurodollar Base Rate for such Loans for such Interest Period
shall be determined by reference to the amount of the Loan which such Reference
Lender would have made had such Loans been Committed Loans in which it was
participating. If any Reference Lender does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations
5
11
furnished by the remaining Reference Lender or Lenders or, if none of such
quotations is available on a timely basis, the provisions of Section 6.02 shall
apply.
"EURODOLLAR LOANS" shall mean Loans the interest on which is determined
on the basis of rates referred to in the definition of "Eurodollar Base Rate" in
this Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loans, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
the Administrative Agent to be equal to (i) the Eurodollar Base Rate for such
Loans for the Interest Period for such Loans divided by (ii) 1 minus the
Eurodollar Reserve Requirement for such Loans for such Interest Period.
"EURODOLLAR RESERVE REQUIREMENT" shall mean, for any Eurodollar Loans
for any Interest Period therefor, the average maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Eurodollar Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the Eurodollar Rate is
to be determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets which
include Eurodollar Loans.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 10.01 hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) 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 by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
Chase on such day on such transactions as determined by the Administrative
Agent.
6
12
"FIXED RATE LOANS" shall mean Eurodollar Committed Loans and, for
purposes of Section 6 hereof only, shall also mean Eurodollar Competitive Loans.
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time in the United States consistently applied.
"GUARANTY" by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise, other
than agreements to purchase goods at an arm's length price in the ordinary
course of business) or (ii) entered into for the purpose of assuring in any
other manner the holder of such Indebtedness of the payment thereof or to
protect such holder against loss in respect thereof (in whole or in part),
provided that the term Guaranty shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"HAZARDOUS SUBSTANCES" shall mean any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having constituent elements displaying
any of the foregoing characteristics, regulated under Environmental Laws.
"INDEBTEDNESS" shall mean, as to any Person (determined without
duplication): (i) indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred purchase
or acquisition price of property or services, other than accounts payable (other
than for borrowed money) incurred in the ordinary course of business; (ii)
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person (whether or not such obligations are contingent); (iii)
Capital Lease Obligations of such Person; (iv) obligations of such Person to
redeem or otherwise retire shares of capital stock of such Person; (v)
indebtedness of others of the type described in clause (i), (ii), (iii) or (iv)
above secured by a Lien on the property of such Person, whether or not the
respective obligation so secured has been assumed by such Person; and (vi)
indebtedness of others of the type described in clause (i), (ii), (iii) or (iv)
above Guaranteed by such Person.
7
13
"INTEREST EXPENSE" shall mean, for any period, the sum (determined
without duplication) of the aggregate amount of interest accruing during such
period on Indebtedness of the Company and its Subsidiaries (on a consolidated
basis), including the interest portion of payments under Capital Lease
Obligations and any capitalized interest, and excluding amortization of debt
discount and expense.
"INTEREST PERIOD" shall mean,
(1) with respect to any Eurodollar Loans, the period commencing on the
date such Loans are made or converted from other types of Loans or the last day
of the next preceding Interest Period with respect to such Loans and ending on
the numerically corresponding day in the first, second (subject to the
availability of deposits of the corresponding maturity to each of the Lenders in
the London interbank market), third or sixth calendar month thereafter, as the
Company may select as provided in Section 5.05 hereof, except that each such
Interest Period which commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month; and
(2) with respect to any Absolute Rate Competitive Loans, the period
(which shall not be less than seven days or more than 360 days) commencing on
the date such Loans are made and ending on the date specified in the applicable
Competitive Bid Request.
Notwithstanding the foregoing: (i) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (ii) each Interest Period
which begins before the Commitment Termination Date and would otherwise end
after the Commitment Termination Date shall end on the Commitment Termination
Date; and (iii) no Interest Period for any Fixed Rate Loans shall have a
duration of less than one month and, if the Interest Period for any Fixed Rate
Loan would otherwise be a shorter period, such Loans shall not be available
hereunder.
"INVESTMENTS" shall have the meaning assigned to such term in Section
9.12 hereof.
"LIEN" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Company and each of its
Subsidiaries shall be
8
14
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"LIQUID INVESTMENTS" shall mean (i) certificates of deposit maturing
within 90 days of the acquisition thereof denominated in Dollars and issued by
(X) a Lender or (Y) a bank or trust company having combined capital and surplus
of at least $500,000,000 and which has (or which is a Subsidiary of a bank
holding company which has) publicly traded debt securities rated A- or higher by
Standard & Poor's Ratings Services or A-3 or higher by ▇▇▇▇▇'▇ Investors
Service, Inc.; (ii) obligations issued or guaranteed by the United States of
America, with maturities not more than one year after the date of issue; and
(iii) commercial paper with maturities of not more than 90 days and a published
rating of not less than A-1 from Standard & Poor's Ratings Services or P-1 from
▇▇▇▇▇'▇ Investors Service, Inc.
"LOANS" shall mean the loans made by the Lenders to the Company
pursuant to this Agreement.
"MAJORITY LENDERS" shall mean, at any time while no Committed Loans are
outstanding, Lenders having at least 51% of the aggregate amount of the
Commitments and, at any time while Committed Loans are outstanding, Lenders
holding at least 51% of the outstanding aggregate principal amount of the
Committed Loans; provided that for purposes of declaring the Loans to be due and
payable pursuant to Section 10.01 and for all purposes after the Loans become
due and payable pursuant to Section 10.01 hereof or the Commitments terminate,
the outstanding principal amount of the Competitive Loans shall be added to the
outstanding principal amount of the Committed Loans in determining the Majority
Lenders.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect on the
condition (financial or otherwise), results of operations, properties, assets,
liabilities (including, without limitation, tax and ERISA liabilities and
Environmental Liabilities), business, operations, capitalization, shareholders'
equity, franchises or prospects of the Company and its Subsidiaries, taken as a
whole; or (ii) a material adverse effect on the ability of the Company to
perform its obligations under the Credit Agreement or the Notes.
"MULTIEMPLOYER PLAN" shall mean at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which the Company or
any member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
9
15
contributions, including for these purposes any Person which ceased to be a
member of the Controlled Group during such five year period.
"NOTES" shall have the meaning assigned to such term in Section 2.06
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERSON" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a trust, an unincorporated organization or
a government or any agency, instrumentality or political subdivision thereof.
"PLAN" shall mean an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained or contributed to, by the Company or any member of the Controlled
Group for employees of the Company or any member of the Controlled Group or (ii)
has at any time within the preceding five years been maintained, or contributed
to, by the Company or any Person which was at such time a member of the
Controlled Group for employees of any Person which was at such time a member of
the Controlled Group.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any Loan
or any other amount payable by the Company under this Agreement, a rate per
annum equal to the sum of 2% plus the higher of (i) the Base Rate as in effect
from time to time and (ii) in the case of any Loan, the rate of interest (if
any) otherwise applicable to such Loan.
"PRICING SCHEDULE" shall mean the Pricing Schedule attached hereto.
"PRIME RATE" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
Each change in the interest rate provided for herein resulting from a change in
the Prime Rate shall take effect at the time of such change in the Prime Rate.
"PRINCIPAL OFFICE" shall mean the principal office of Chase, presently
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"QUARTERLY DATES" shall mean the last Business Day of each March, June,
September and December.
10
16
"REFERENCE LENDERS" shall mean each of National City Bank, KeyBank
National Association and Chase.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
on or after the date of this Agreement in United States federal, state or
foreign laws or regulations (including Regulation D) or the adoption or making
on or after such date of any interpretations, directives or requests applying to
a class of lenders including such Lender of or under any United States federal
or state, or any foreign, laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"RELEASE" shall mean any discharge, emission or release, including a
"RELEASE" as defined in CERCLA at 42 U.S.C. Section 9601(22). The term
"Released" shall have a corresponding meaning.
"REVOLVING CREDIT PERIOD" shall mean the period from and including the
date hereof to but not including the Commitment Termination Date.
"REVOLVING LOAN" shall mean a Loan made pursuant to Section 2.01(a)
hereof.
"SENIOR OFFICER" shall mean the chief executive officer, president,
chief financial officer or vice president-treasurer of the Company.
"SIGNIFICANT SUBSIDIARY" shall mean at any time any Subsidiary of the
Company, except Subsidiaries of the Company which, if aggregated and considered
as a single Subsidiary at the time of occurrence with respect to such
Subsidiaries of any event or condition of the kind described in clause (e), (f)
or (g) of Section 10.01, would not meet the definition of a "significant
subsidiary" contained as of the date hereof in Regulation S-X of the Securities
and Exchange Commission; provided that for purposes of Section 9.04 only,
"Significant Subsidiary" shall mean at any time any Subsidiary which would meet
the definition of a "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation of
which at least a majority of the outstanding shares of stock having by the terms
thereof ordinary voting power to elect a majority of the board of directors of
such
11
17
corporation (irrespective of whether or not at the time stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more of the Subsidiaries of such Person
or by such Person and one or more of the Subsidiaries of such Person.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"UNFUNDED LIABILITIES" shall mean, with respect to any Plan, at any
time, the amount (if any) by which (i) the value of all benefits liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such benefits under Title IV
of ERISA (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of the Company or any member of the
Controlled Group to the PBGC or any other Person under Title IV of ERISA.
1.02 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance with GAAP;
provided that if any change in GAAP in itself materially affects the calculation
of any financial covenant in Section 9, the Company may by notice to the
Administrative Agent, or the Administrative Agent (at the request of the
Majority Lenders) may by notice to the Company, require that such covenant
thereafter be calculated in accordance with GAAP as in effect, and applied by
the Company, immediately before such change in GAAP occurs. If such notice is
given, the compliance certificates delivered pursuant to Section 9.01 after such
change occurs shall be accompanied by reconciliations of the difference between
the calculation set forth therein and a calculation made in accordance with GAAP
as in effect from time to time after such change occurs. To enable the ready
determination of compliance with the covenants set forth in Section 9 hereof,
the Company will not change from May 31 in each year the date on which its
fiscal year ends, nor from August 31, November 30 and February 28 (or 29) the
dates on which the first three fiscal quarters in each fiscal year end.
1.03 Class and Types of Loans. Loans hereunder are distinguished by
"CLASS" and "TYPE". The "CLASS" of a Loan refers to whether such Loan is a
Revolving Loan or a Competitive Loan. The "TYPE" of a Loan refers to whether
such Loan is a Eurodollar Loan or a Base Rate Loan or, in the case of a
12
18
Competitive Loan, a Eurodollar Loan or an Absolute Rate Loan. Thus, for example,
a "Eurodollar Competitive Loan" is a Competitive Loan which is also a Eurodollar
Loan.
SECTION 2. Commitments.
2.01 Loans.
(a) Revolving Loans. Each Lender severally agrees, on the terms and
subject to the conditions of this Agreement, to make Revolving Loans from time
to time during the Revolving Credit Period to the Company in an aggregate
principal amount at any one time outstanding which shall not (i) exceed its
Commitment, as reduced from time to time pursuant to Section 2.02 hereof or (ii)
result in the aggregate principal amount of Loans exceeding the aggregate amount
of the Commitments, as so reduced from time to time.
(b) Competitive Loans. In addition to Revolving Loans, the Company may
from time to time during the Revolving Credit Period request the Lenders to make
offers to make Competitive Loans to the Company as set forth in Section 3.03.
The Lenders may, but shall have no obligation to, make such offers and the
Company may, but shall have no obligation to, accept any such offers; provided
that the aggregate principal amount of all Loans shall not at any time exceed
the aggregate amount of the Commitments, as reduced from time to time pursuant
to Section 2.02 hereof.
(c) Additional Commitments. At any time during the Revolving Credit
Period, if no Default shall have occurred and be continuing at such time, the
Company may, if it so elects, increase the aggregate amount of the Commitments,
by agreeing with one or more existing Lenders that such Lenders' Commitments
shall be increased. Upon execution and delivery by the Company and each such
Lender of an instrument of assumption in form and amount satisfactory to the
Administrative Agent, each such Lender shall have a Commitment as therein set
forth; provided that (i) such increase may only occur once, on a single date,
(ii) the Company shall provide prompt notice of such increase to the
Administrative Agent, which shall promptly notify the other Lenders, (iii) the
aggregate amount of such increase shall not exceed $75,000,000, (iv) the
aggregate amount of the Commitments shall at no time exceed $575,000,000 and (v)
the aggregate amount of the sum of the Commitments and the commitments under the
364-Day Credit Agreement dated as of July 14, 2000 among the Company, the
lenders party thereto and Chase, as administrative agent, shall at no time
exceed $775,000,000. Upon any increase in the aggregate amount of the
Commitments pursuant to this subsection (c), within five Business Days in the
case of all Base Rate Loans outstanding, and at the end of the then current
Interest Period with respect thereto
13
19
in the case of all Eurodollar Loans then outstanding, the Company shall prepay
such Committed Loans in their entirety, and, to the extent the Company elects to
do so and subject to the conditions specified in Article 7, the Company shall
reborrow Committed Loans from the Lenders in proportion to their respective
Commitments after giving effect to such increase, until such time as all
outstanding Committed Loans are held by the Lenders in such proportion
(d) Funding by SPC. Notwithstanding anything to the contrary contained
herein, all or any part of a Loan that any Lender (a "GRANTING LENDER") may be
obligated to fund pursuant to this Agreement may be funded on such Lender's
behalf by a special purpose funding vehicle (an "SPC"); provided that if an SPC
fails to fund all or any part of such Loan, the Granting Lender shall be
obligated to fund such Loan pursuant to the terms hereof. The funding of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were funded by such Granting Lender, and for
purposes of this Agreement such Loan shall be deemed to have been made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable
for any indemnity or payment under this Agreement for which a Lender would
otherwise be liable and (ii) prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (x) at any time and without paying any processing fee
therefor, assign or participate all or a portion of its interest in any Loans to
its Granting Lender or to any financial institutions providing liquidity or
credit support to or for the account of such SPC to support the funding of
Loans, and (y) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial paper dealer
or provider of any surety or guarantee for such SPC's obligations. This
subsection (d) may not be amended without the prior written consent of each
Granting Lender which has notified the Company that all or any part of any of
its Loans is being funded by an SPC at the time of such amendment.
2.02 Reductions of Commitments.
(a) Mandatory. The Commitments shall terminate on the Commitment
Termination Date; provided, that if the Closing Date shall not have occurred by
July 25, 2000, the Commitments shall terminate on such date.
(b) Optional. The Company shall have the right to terminate or reduce
the Commitments at any time or from time to time, provided that: (i) the
14
20
Company shall give notice of each such termination or reduction to the
Administrative Agent as provided in Section 5.05 hereof and (ii) each partial
reduction shall be in an aggregate amount equal to $10,000,000 or any greater
multiple of $5,000,000.
(c) No Reinstatement. Commitments once terminated or reduced may not
be reinstated.
2.03 Fees.
(a) Facility Fees. The Company shall pay to the Administrative Agent
for the account of each Lender facility fees on the daily average amount of such
Lender's Commitment (whether used or unused), for the period from the Closing
Date to but excluding the earlier of the date the Commitments are terminated or
the Commitment Termination Date, at a facility fee rate per annum determined in
accordance with the Pricing Schedule; provided that, if such Lender continues to
have any Committed Loans outstanding after its Commitment terminates, then such
facility fee shall continue to accrue on the daily outstanding principal amount
of such Lender's Committed Loans from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to
have any Committed Loans outstanding. Accrued facility fees shall be payable on
the Quarterly Dates and on the date the Commitments are terminated (and, if
later, on the date the Loans shall be repaid in their entirety); provided that
any facility fees accruing after the date on which the Commitments terminate
shall be payable on demand.
(b) Utilization Fees. During any period when the aggregate outstanding
principal amount of the Loans exceeds 33% of the aggregate amount of the
Commitments or the Commitments have been terminated but Loans are outstanding,
the Company shall pay to the Administrative Agent for the account of each Lender
utilization fees at a rate of 0.125% per annum. Such utilization fee shall
accrue on the average daily aggregate outstanding principal amount of such
Lender's Loans and shall be payable on the Quarterly Dates and on the date the
Commitments are terminated (and, if later, on the date the Loans shall be repaid
in their entirety); provided that any utilization fees accruing after the date
on which the Commitments terminate shall be payable on demand.
(c) Other Fees. The Company shall pay to the Administrative Agent on
the Closing Date other fees in the amounts heretofore mutually agreed. The
Company shall pay to the Administrative Agent on the Closing Date and on each
anniversary thereof, so long as any of the Commitments are in effect and until
payment in full of all Loans hereunder, all interest thereon and all other
amounts
15
21
payable hereunder, an annual administrative agency fee in the amount heretofore
mutually agreed.
2.04 Lending Offices. The Loans of each Type made by each Lender shall
be made and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
2.05 Several Obligations. The failure of any Lender to make any Loan to
be made by it on the date specified therefor shall not relieve any other Lender
of its obligation to make its Loan on such date, but neither the Administrative
Agent nor any Lender shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender.
2.06 Notes. The Loans made by each Lender shall be evidenced by a
single Note of the Company (each a "NOTE") in substantially the form of Exhibit
A hereto, dated the Closing Date, payable to the order of such Lender in an
amount equal to the aggregate unpaid principal amount of such Lender's Loans and
otherwise duly completed. Each Lender may, by notice to the Company and the
Administrative Agent, request that its Loans of a particular Class or Type be
evidenced by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect the fact that
it evidences solely Loans of the relevant Class or Type. Each reference in this
Agreement to the "Note" of such Lender shall be deemed to refer to and include
any or all of such Notes, as the context may require. Each Lender is hereby
authorized by the Company to endorse on the schedule (or a continuation thereof)
attached to each Note of such Lender, to the extent applicable, the date, amount
and Class or Type of and the Interest Period (if any) for each Loan made by such
Lender to the Company hereunder, and the date and amount of each payment or
prepayment of principal of such Loan received by such Lender, provided that any
failure by such Lender to make any such endorsement or any error in such
endorsement shall not affect the obligations of the Company under such Note or
hereunder in respect of such Loan.
2.07 Use of Proceeds. The proceeds of the Loans shall be used by the
Company to backstop the issuance of commercial paper by the Company, the
proceeds of which shall be used to refinance existing indebtedness for borrowed
money and for working capital and other general corporate purposes. None of such
proceeds shall be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any margin stock
(within the meaning of Regulation U or X of the Board of Governors of the
Federal Reserve System).
16
22
SECTION 3. Borrowings, Conversions and Prepayments.
3.01 Borrowings.
(a) Committed Loans. The Company shall give the Administrative Agent
notice of each borrowing of Committed Loans to be made hereunder as provided in
Section 5.05 hereof. Not later than 11:00 a.m. (or, in the case of Base Rate
Loans, 1:00 p.m.) New York time on the date specified for each such borrowing
hereunder, each Lender shall make available the amount of the Committed Loan to
be made by it on such date to the Administrative Agent, at the Principal Office,
in immediately available funds, for the account of the Company. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account designated by the Company maintained
with the Administrative Agent at the Principal Office.
(b) Competitive Loans. Requests by the Company of offers to make
Competitive Loans shall be made as provided in Section 3.03.
3.02 Prepayments and Conversions.
(a) Optional Prepayments and Conversions. The Company shall have the
right to prepay Committed Loans or to convert Committed Loans of one Type into
Committed Loans of another Type, at any time or from time to time, provided
that: (i) the Company shall give the Administrative Agent notice of each such
prepayment or conversion as provided in Section 5.05 hereof, and (ii) except to
the extent required pursuant to Section 6.04 hereof, Fixed Rate Loans may be
prepaid or converted only on the last day of an Interest Period for such Loans.
The Company may not prepay Competitive Loans or convert Competitive Loans from
one Type to a different Type, except that the Company may prepay Competitive
Loans to the extent required pursuant to Section 3.02(b).
(b) Mandatory Prepayments. On the date of each reduction of
Commitments pursuant to Section 2.02(b), the Company shall prepay Loans,
together with accrued interest on the principal amount prepaid, to the extent
(if any) required so that the aggregate principal amount of Loans outstanding
immediately after such prepayment will not exceed the aggregate amount of the
Commitments after giving effect to such reduction. Any prepayment pursuant to
this subsection (b) shall be applied, first, to Revolving Loans and second, to
Competitive Loans, pro rata.
3.03 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Revolving Credit
Period the
17
23
Company may request Competitive Bids and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Loans; provided that the
aggregate principal amount of outstanding Loans at any time shall not exceed the
total Commitments. To request Competitive Bids, the Company shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Rate borrowing, not later than 11:00 a.m., New York City time, four Business
Days before the date of the proposed borrowing, and, in the case of an Absolute
Rate borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed borrowing; provided that the Company may submit
up to (but not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after the
date of any previous Competitive Bid Request, unless any and all such previous
Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the Company. Each such telephonic and
written Competitive Bid Request shall specify the following information:
(i) the aggregate amount of the requested borrowing;
(ii) the date of such borrowing, which shall be a Business Day;
(iii) whether such borrowing is to be a Eurodollar Rate borrowing or a
Absolute Rate borrowing; and
(iv) the Interest Period to be applicable to such borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period".
Promptly following receipt of a Competitive Bid Request in accordance
with this Section, the Administrative Agent shall notify the Lenders of the
details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Company in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Rate borrowing, not later than 10:00 a.m.,
New York City time, three Business Days before the proposed date of such
borrowing, and in the case of an Absolute Rate borrowing, not later than 10:00
a.m., New York City time, on the proposed date of such borrowing.
18
24
Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the borrowing requested by the
Company) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make
such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company may
accept or reject any Competitive Bid. The Company shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Rate borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed borrowing, and in the case of an Absolute Rate borrowing, not
later than 11:00 a.m., New York City time, on the proposed date of the
borrowing; provided that (i) the failure of the Company to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) the Company
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
the Company rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by the Company
shall not exceed the aggregate amount of the requested Competitive Bid borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Company may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular
19
25
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner determined by the Company. A notice
given by the Company pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telephone (to be followed by telecopy) whether or not its Competitive Bid has
been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and
each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Company at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to subsection (b) of this Section.
SECTION 4. Payments of Principal and Interest.
4.01 Repayment of Loans. (a) The Revolving Loans shall mature on the
last day of the Revolving Credit Period.
(b) Each Competitive Loan shall mature on the last day of the Interest
Period applicable thereto.
4.02 Interest. The Company will pay to the Administrative Agent for the
account of each Lender interest on the unpaid principal amount of each Loan made
by such Lender for the period commencing on the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following rates per
annum:
(a) if such Loan is a Base Rate Loan, the Base Rate;
(b) if such Loan is a Eurodollar Revolving Loan, the Eurodollar Rate
PLUS the Applicable Margin;
(c) if such Loan is a Eurodollar Competitive Loan, the Eurodollar Rate
PLUS (or MINUS) the Competitive Margin quoted by the Lender making such Loan in
accordance with Section 3.03 hereof; and
(d) if such Loan is an Absolute Rate Loan, the Absolute Rate for such
Loan for the Interest Period therefor quoted by the Lender making such Loan in
accordance with Section 3.03 hereof.
20
26
Notwithstanding any of the foregoing, the Company will pay to the
Administrative Agent for the account of each Lender interest at the applicable
Post-Default Rate on the principal of any Loan made by such Lender and on any
other amount payable by the Company hereunder to or for the account of such
Lender (but, if such amount is interest, only to the extent legally
enforceable), which shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise) for the period commencing on the due
date thereof until the same is paid in full.
Accrued interest on each Loan shall be payable (i) if such Loan is a
Base Rate Loan, on each Quarterly Date, (ii) if such Loan is a Fixed Rate Loan
or Competitive Loan, on the last day of the Interest Period for such Loan (and,
if such Interest Period exceeds 90 days' (in the case of an Absolute Rate Loan)
or three months' (in the case of a Eurodollar Loan) duration, quarterly,
commencing on the first quarterly anniversary of the first day of such Interest
Period), and (iii) in any event, upon the payment, prepayment or conversion
thereof, but only on the principal so paid or prepaid or converted; provided
that interest payable at the Post-Default Rate shall be payable from time to
time on demand of the Administrative Agent or the Majority Lenders. Promptly
after the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall notify the Lenders and the Company
thereof.
Notwithstanding the foregoing provisions of this Section 4.02, if at
any time the rate of interest set forth above on any Loan of or other obligation
payable to any Lender (the "STATED RATE") exceeds the maximum non-usurious
interest rate permissible for such Lender to charge commercial borrowers under
applicable law (the "MAXIMUM RATE" for such Lender), the rate of interest
charged on such Loan of or other obligation payable to such Lender hereunder
shall be limited to the Maximum Rate for such Lender.
If the Stated Rate for any Loan of a Lender that has theretofore been
subject to the preceding paragraph at any time is less than the Maximum Rate for
such Lender, the principal amount of such Loan shall bear interest at the
Maximum Rate for such Lender until the total amount of interest paid to such
Lender or accrued on its Loans hereunder equals the amount of interest which
would have been paid to such Lender or accrued on such Lender's Loans hereunder
if the Stated Rate had at all times been in effect.
If, upon payment in full of all amounts payable hereunder, the total
amount of interest paid to any Lender or accrued on such Lender's Loans under
the terms of this Agreement is less than the total amount of interest which
would have been paid to such Lender or accrued on such Lender's Loans if the
Stated Rate had, at
21
27
all times, been in effect, then the Company shall, to the extent permitted by
applicable law, pay to the Administrative Agent for the account of such Lender
an amount equal to the difference between (a) the lesser of (i) the amount of
interest which would have accrued on such Lender's Loans if the Maximum Rate for
such Lender had at all times been in effect or (ii) the amount of interest which
would have accrued on such Lender's Loans if the Stated Rate had at all times
been in effect and (b) the amount of interest actually paid to such Lender or
accrued on its Loans under this Agreement.
If any Lender ever receives, collects or applies as interest any sum in
excess of the Maximum Rate for such Lender, such excess amount shall be applied
to the reduction of the principal balance of its Loans or to other amounts
(other than interest) payable hereunder, and if no such principal is then
outstanding, such excess or part thereof remaining shall be paid to the Company.
SECTION 5. Payments; Pro Rata Treatment; Computations; Etc.
5.01 Payments. Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Company
hereunder and under the Notes shall be made in Dollars, in immediately available
funds, to the Administrative Agent at the Principal Office, not later than 11:00
a.m. New York time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day). The Administrative Agent, or any Lender for
whose account any such payment is made, may (but shall not be obligated to)
debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Company with the Administrative Agent or such
Lender, as the case may be. The Company shall, at the time of making each
payment hereunder or under any Note, specify to the Administrative Agent the
Loans or other amounts payable by the Company hereunder to which such payment is
to be applied (and in the event that it fails to so specify, or if an Event of
Default has occurred and is continuing, the Administrative Agent may apply such
payment as it may elect in its sole discretion to amounts then due, but subject
to the other terms and conditions of this Agreement, including, without
limitation, Section 5.02 hereof). Each payment received by the Administrative
Agent hereunder or under any Note for the account of a Lender shall be paid
promptly to such Lender, in immediately available funds, for the account of such
Lender's Applicable Lending Office. If the due date of any payment hereunder or
under any Note would otherwise fall on a day which is not a Business Day such
date shall be extended to the next succeeding Business Day and interest shall be
payable for any principal so extended for the period of such extension.
22
28
5.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing from the Lenders under Section 2.01(a) hereof shall
be made from the Lenders, each payment of facility and utilization fees under
Section 2.03 hereof shall be made for the account of the Lenders, and each
termination or reduction of the Commitments under Section 2.02 hereof shall be
applied to the Commitments of the Lenders, pro rata according to the Lenders'
respective percentages of the Commitments; (b) each payment by the Company of
principal of or interest on Committed Loans of a particular Type (other than
payments in respect of Committed Loans of individual Lenders provided for by
Section 6 hereof) shall be made to the Administrative Agent for the account of
the Lenders pro rata in accordance with the respective unpaid principal amounts
of such Committed Loans held by the Lenders; and (c) each conversion of
Committed Loans of a particular Type (other than conversions of Committed Loans
of individual Lenders pursuant to Section 6.04 hereof) shall be made pro rata
among the Lenders in accordance with the respective principal amounts of such
Committed Loans held by the Lenders.
5.03 Computations. Interest and fees shall be computed on the basis of
a year of 360 days and actual days elapsed, except that interest on Base Rate
Loans when the Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 or 366 days and actual days elapsed (in each case,
including the first day but excluding the last day), in the period for which
payable.
5.04 Minimum and Maximum Amounts; Types. Each borrowing, conversion
and prepayment of principal of Committed Loans shall be in an aggregate
principal amount equal to (a) in the case of Eurodollar Loans, $5,000,000 or any
larger multiple of $1,000,000, and (b) in the case of Base Rate Loans, at least
$5,000,000, except that any borrowing of Committed Loans may be in the aggregate
amount of the unused portion of the Commitments (borrowings, conversions or
prepayments of Committed Loans of different Types or, in the case of Fixed Rate
Loans, having different Interest Periods, at the same time hereunder to be
deemed separate borrowings, conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period). Notwithstanding anything to
the contrary contained in this Agreement there shall not be, at any one time,
more than ten Interest Periods in effect with respect to Fixed Rate Loans.
5.05 Certain Notices. Except as specified in Section 3.03 with respect
to Competitive Loans, notices to the Administrative Agent of terminations or
reductions of Commitments, of borrowings, conversions and prepayments of Loans
and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later than 12:00 noon
(or, in the case of borrowings or prepayments of Base Rate Loans, 10:30 a.m.)
23
29
New York time on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, conversion and/or prepayment specified below:
NUMBER OF
BUSINESS DAYS
NOTICE PRIOR
------ -------------
Termination or reduction of Commitments 3
Borrowing or prepayment of Base Rate Loans 0
Borrowing or prepayment of, conversion of, or into, or
duration of Interest Period for, Fixed Rate Loans 3
Each notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each notice of borrowing, conversion or
prepayment shall specify the amount and Type of the Loans to be borrowed,
converted or prepaid (subject to Sections 3.02 and 5.04 hereof), the date of
borrowing, conversion or prepayment (which shall be a Business Day) and, in the
case of Fixed Rate Loans, the duration of the Interest Period therefor (subject
to the definition of Interest Period). Each such notice of duration of an
Interest Period shall specify the Loans to which such Interest Period is to
relate. The Administrative Agent shall promptly notify the affected Lenders of
the contents of each such notice. In the event that the Company fails to select
the duration of any Interest Period for any Fixed Rate Loans within the time
period and otherwise as provided in this Section 5.05, such Loans (if
outstanding as Fixed Rate Loans) will be automatically converted into Base Rate
Loans on the last day of the then current Interest Period for such Loans or (if
outstanding as Base Rate Loans) will remain as, or (if not then outstanding)
will be made as, Base Rate Loans.
5.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Company (the
"PAYOR") prior to the date on (or, in the case of Base Rate Loans, prior to the
time by) which such Lender is to make payment to the Administrative Agent of the
proceeds of a Loan to be made by it hereunder or the Company is to make a
payment to the Administrative Agent for the account of one or more of the
Lenders, as the case may be (such payment being herein called the "REQUIRED
PAYMENT"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has been made and may,
in reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date (or at such time) and,
if the Payor has not in fact made the Required Payment to the Administrative
Agent, the recipient of such payment shall, on demand, pay to the Administrative
Agent the amount made available to it together with interest thereon in respect
of the period commencing on the date such amount was so made available by the
24
30
Administrative Agent until the date the Administrative Agent receives such
amount at a rate per annum equal to the Federal Funds Rate for such period.
5.07 Sharing of Payments, Etc. The Company agrees that, in addition to
(and without limitation of) any right of set-off, bankers' lien or counterclaim
a Lender may otherwise have, each Lender shall be entitled, at its option, to
offset balances held by it for the account of the Company at any of its offices,
in Dollars or in any other currency, against any principal of or interest on any
of such Lender's Loans to the Company hereunder which is not paid when due
(regardless of whether such balances are then due to the Company), in which case
it shall promptly notify the Company and the Administrative Agent thereof,
provided that such Lender's failure to give such notice shall not affect the
validity thereof. If a Lender shall obtain payment of any principal of or
interest on any Committed Loan made by it under this Agreement, through the
exercise of any right of set-off, banker's lien, counterclaim or similar right,
or otherwise, it shall promptly purchase from the other Lenders participations
in the Committed Loans made by the other Lenders in such amounts, and make such
other adjustments from time to time as shall be equitable, to the end that all
the Lenders shall share the benefit of such payment (net of any expenses which
may be incurred by such Lender in obtaining or preserving such benefit) pro rata
in accordance with the unpaid principal and interest on the Committed Loans then
due to each of them. To such end all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored. The Company agrees,
to the fullest extent it may effectively do so under applicable law, that any
Person purchasing a participation in the Loans made by another Person, whether
or not acquired pursuant to the foregoing arrangements, may exercise all rights
of set-off, bankers' lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or other
obligations in the amount of such participation. Nothing contained herein shall
require any Lender to exercise any such right or shall affect the right of any
Lender to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of the Company.
5.08 Taxes. (a) Any and all payments by the Company hereunder shall be
made, in accordance with Section 5.01, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable
25
31
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "TAXES"). If the Company shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender
or the Administrative Agent, (i) except as provided in subsection (g) below, the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 5.08), such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Notes or any other document referred to herein or therein (hereinafter referred
to as "OTHER TAXES").
(c) The Company will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including related penalties,
interest and expenses) imposed by any jurisdiction on amounts payable under this
Section 5.08 paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. It is understood that Taxes do not include any
withholdings or other obligations imposed on a Lender with respect to payments
by such Lender to a participant in such Lender's Loans.
(d) Within 30 days after the date of any payment of Taxes, the Company
or a Lender, in the case of any Taxes paid by such Lender, will furnish to the
Administrative Agent, at its address referred to in Section 12.02, the original
or a certified copy of a receipt evidencing payment thereof.
(e) At the reasonable request of the Company, a Lender or the
Administrative Agent shall apply at the Company's expense for a refund in
respect of Taxes or Other Taxes previously paid by the Company pursuant to this
Section 5.08 if in the opinion of such Lender or Administrative Agent there is a
reasonable basis for such refund. Notwithstanding the foregoing, none of the
Lenders or the Administrative Agent shall be obligated to pursue such refund if,
in its sole good
26
32
faith judgment, such action would be disadvantageous to it. If any Lender
subsequently receives from a taxing authority a refund of any Tax previously
paid by the Company and for which the Company has indemnified the Lender
pursuant to this Section 5.08, such Lender shall within 30 days after receipt of
such refund, and to the extent permitted by applicable law, pay to the Company
the net amount of any such recovery after deducting taxes and expenses
attributable thereto.
(f) Not later than the Closing Date or, in the case of any bank or
financial institution that becomes a Lender after the Closing Date pursuant to
Section 12.06, the date of the instrument of assignment pursuant to which such
bank or financial institution became a Lender, and annually thereafter or at
such other times as the Administrative Agent or the Company may request, each
Lender organized under the laws of a jurisdiction outside the United States
shall provide the Administrative Agent and the Company with duly completed
copies of Form 1001 or Form 4224 or any successor form prescribed by the
Internal Revenue Service of the United States certifying that such Lender is
exempt from United States withholding taxes with respect to all payments to be
made to such Lender hereunder or other documents satisfactory to the Company and
the Administrative Agent indicating that all payments to be made to such Lender
hereunder are not subject to such taxes (an "EXEMPTION CERTIFICATE"). In the
case of payments to or for any Lender organized under the laws of a jurisdiction
outside the United States, unless the Administrative Agent and the Company have
received an Exemption Certificate from such Lender, the Company, or the
Administrative Agent if the Company has not withheld, may withhold taxes from
such payments at the applicable statutory rate; provided that if the Company has
withheld it shall so notify the Administrative Agent. If the Company is required
to pay additional amounts to any Lender pursuant to this Section 5.08, such
Lender shall use reasonable efforts to designate a different Applicable Lending
Office if such designation will thereafter avoid the need for any additional
payments under this Section 5.08 and will not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender. A Lender which ceases to be
exempt from United States withholding taxes shall notify the Administrative
Agent and the Company promptly thereof.
(g) If a Lender organized under the laws of a jurisdiction outside the
United States fails to comply with the provisions of subsection (f) above, then
the Company shall not have any obligation to increase the sum payable to such
Lender pursuant to Section 5.08(a) or to indemnify such Lender pursuant to
Section 5.08(b) for Taxes (including related penalties, interest and expenses)
imposed by the United States or any political subdivision thereof.
SECTION 6. Yield Protection and Illegality.
27
33
6.01 Additional Costs.
(a) The Company shall pay to the Administrative Agent for the account
of each Lender from time to time such amounts as such Lender may determine to be
necessary to compensate it for any costs incurred by such Lender which such
Lender determines are attributable to its making or maintaining of any Fixed
Rate Loans hereunder or its obligation to make any of such Loans hereunder, or
any reduction in any amount receivable by such Lender hereunder in respect of
any of such Loans or such obligation (such increases in costs and reductions in
amounts receivable being herein called "ADDITIONAL COSTS"), in each case
resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or its Notes in respect of any of such
Loans (other than changes which affect taxes measured by or imposed on
the overall net income of such Lender or of its Applicable Lending
Office for any of such Loans by the jurisdiction in which such Lender
has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit, insurance
assessment or similar requirements relating to any extensions of credit
or other assets of, or any deposits with or other liabilities of, such
Lender (including any of such Loans or any deposits referred to in the
definitions of "Eurodollar Base Rate" in Section 1.01 hereof but
excluding, with respect to any such Fixed Rate Loan, any such
requirements included in the applicable Domestic Reserve Requirement or
Eurodollar Reserve Requirement); or
(iii) imposes any other condition affecting this Agreement (or any of
such extensions of credit or liabilities).
Each Lender will notify the Company through the Administrative Agent of
any event occurring after the date of this Agreement which will entitle such
Lender to compensation pursuant to this Section 6.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, and (if so requested by the Company through the Administrative
Agent) will designate a different Applicable Lending Office for the relevant
Type of Fixed Rate Loans of such Lender if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Lender, be disadvantageous to such Lender (provided that such
Lender shall have no obligation to so designate an Applicable Lending Office
located in the United States of America). Each Lender will furnish the Company
with a statement setting forth the basis and amount of each request by such
Lender for
28
34
compensation under this Section 6.01(a). If any Lender requests compensation
from the Company under this Section 6.01(a), the Company may, by notice to such
Lender through the Administrative Agent, suspend the obligation of such Lender
to make additional Fixed Rate Loans of the relevant Type to the Company until
the Regulatory Change giving rise to such request ceases to be in effect (in
which case the provisions of Section 6.04 hereof shall be applicable).
(b) Without limiting the effect of the foregoing provisions of this
Section 6.01, if, by reason of any Regulatory Change, any Lender either (i)
incurs Additional Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other liabilities of such
Lender which includes deposits by reference to which the interest rate on any
Type of Fixed Rate Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of such Lender which includes
any Type of Fixed Rate Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold, then, if
such Lender so elects by notice to the Company (with a copy to the
Administrative Agent), the obligation of such Lender to make Fixed Rate Loans of
the relevant Type hereunder shall be suspended until the date such Regulatory
Change ceases to be in effect (in which case the provisions of Section 6.04
hereof shall be applicable).
(c) Determinations and allocations by any Lender for purposes of this
Section 6.01 of the effect of any Regulatory Change on its costs of maintaining
its obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate such Lender in respect of any Additional Costs, shall be presumed
correct absent manifest error.
(d) Notwithstanding the foregoing, the Company shall not be required
to compensate any Lender for any Additional Costs incurred more than one year
prior to the date that such Lender notifies the Company thereof, unless such
Additional Costs were caused by the retroactive application of a Regulatory
Change to a date more than one year prior to the date of such notice.
6.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, with respect to any Fixed Rate Loans:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of "Eurodollar Base Rate" in Section 1.01 hereof are not
being provided by the Reference Lenders in the relevant amounts or for the
relevant maturities for purposes of determining the rate of interest for such
Loans for Interest Periods therefor as provided in this Agreement; or
29
35
(b) the Majority Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof upon the basis of which the rates of interest for such Loans are to be
determined do not accurately reflect the cost to such Lenders of making or
maintaining such Loans for Interest Periods therefor;
then the Administrative Agent shall promptly notify the Company and each Lender
thereof, and so long as such condition remains in effect, the Lenders shall be
under no obligation to make Fixed Rate Loans of the relevant Type or to convert
Base Rate Loans into Fixed Rate Loans of the relevant Type and the Company
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Fixed Rate Loans of the relevant Type, either prepay such Loans or
convert such Loans into Base Rate Loans in accordance with Section 3.02 hereof.
6.03 Illegality. Notwithstanding any other provision of this Agreement
to the contrary, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to (a) honor its obligation to make Fixed Rate Loans
of any Type hereunder, or (b) maintain Fixed Rate Loans of any Type hereunder,
then such Lender shall promptly notify the Company thereof through the
Administrative Agent and such Lender's obligation to make Fixed Rate Loans of
such Type hereunder shall be suspended until such time as such Lender may again
make and maintain Fixed Rate Loans of such Type (in which case the provisions of
Section 6.04 hereof shall be applicable).
6.04 Substitute Base Rate Loans. If the obligation of any Lender to
make Fixed Rate Loans of any Type shall be suspended pursuant to Section 6.01,
6.02 or 6.03 hereof, all Loans which would otherwise be made by such Lender as
Fixed Rate Loans of such Type shall be made instead as Base Rate Loans (and, if
an event referred to in Section 6.01(b) or 6.03 hereof has occurred and such
Lender so requests by notice to the Company with a copy to the Administrative
Agent, each Fixed Rate Loan of such Type of such Lender then outstanding shall
be automatically converted into a Base Rate Loan on the date specified by such
Lender in such notice) and, to the extent that Fixed Rate Loans of such Type are
so made as (or converted into) Base Rate Loans, all payments of principal which
would otherwise be applied to such Fixed Rate Loans of such Type shall be
applied instead to such Base Rate Loans.
6.05 Compensation. The Company shall pay to the Administrative Agent
for the account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
30
36
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Fixed Rate Loan made by
such Lender on a date other than the last day of an Interest Period for such
Loan; or
(b) any failure by the Company to borrow a Fixed Rate Loan to be made
by such Lender on the date for such borrowing specified in the relevant notice
of borrowing under Section 5.05 hereof or Section 3.03 hereof.
Notwithstanding the foregoing, the Company shall not be required to compensate
any Lender for any such loss, cost or expense incurred more than one year prior
to the date that such Lender notifies the Company thereof.
6.06 Capital Adequacy. If any Lender shall determine that the adoption
or implementation of any applicable law, rule, regulation or treaty regarding
capital adequacy, or any change therein, 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 any Lender (or its Applicable Lending Office) with any request or directive
issued after the date hereof regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on capital of such
Lender or any Person controlling such Lender (a "PARENT") as a consequence of
its obligations hereunder to a level below that which such Lender (or its
Parent) could have achieved but for such adoption, change or compliance (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Company shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction. A statement of any Lender claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be presumed correct absent manifest
error. In determining such amount, such Lender may use any reasonable averaging
and attribution methods.
6.07 Substitution of Lender. If (i) the Company is required to withhold
with respect to any Lender pursuant to Section 5.08, (ii) any Lender has
demanded compensation under Section 6.01(a) or Section 6.06 or (iii) the
obligation of any Lender to make Fixed Rate Loans has been suspended pursuant to
Section 6.01(b)(ii) or Section 6.03, and so long as no Default shall have
occurred and be continuing, the Company shall have the right to request one or
more substitute banks, financial institutions or funds (which may be one or more
of the Lenders)
31
37
reasonably satisfactory to the Administrative Agent to purchase such Lender's
Note and assume such Lender's Commitment hereunder by paying to such Lender an
amount equal to all of the obligations of the Company to such Lender hereunder
including, without limitation, principal and accrued interest and fees. Any
costs or expenses incurred by the Administrative Agent in connection with
assisting the Company pursuant hereto shall be paid upon demand by the Company.
The Administrative Agent shall respond promptly to any request by the Company
for its consent to a substitute for a Lender.
SECTION 7. Conditions Precedent.
7.01 Initial Loans. The obligation of each Lender to make the initial
Loans to be made by it hereunder is subject to the following conditions
precedent, each of which shall have been fulfilled to the satisfaction of the
Administrative Agent on or prior to July 25, 2000:
(a) Corporate Action. The Administrative Agent shall have received
certified copies of the Articles of Incorporation and Code of Regulations of the
Company and of all corporate action taken by the Company authorizing the
execution, delivery and performance of this Agreement and the Notes (including,
without limitation, a certificate of the Company setting forth the resolutions
authorizing the transactions contemplated thereby).
(b) Incumbency. The Company shall have delivered to the Administrative
Agent a certificate in respect of the name and signature of each of the officers
(i) who is authorized to sign on its behalf this Agreement and the Notes and
(ii) who will, until replaced by another officer or officers duly authorized for
that purpose, act as its representative for the purposes of signing documents
and giving notices and other communications in connection with this Agreement
and the Notes. The Administrative Agent and each Lender may conclusively rely on
such certificates until it receives notice in writing from the Company to the
contrary.
(c) Notes. The Administrative Agent shall have received a Note for
each Lender, duly completed and executed.
(d) Fees and Expenses. The Company shall have paid to the
Administrative Agent for its account fees in the amount previously agreed upon
by the Company.
(e) Opinion of Counsel to the Company. The Administrative Agent shall
have received an opinion of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP, counsel to the
32
38
Company, and the General Counsel of the Company, substantially in the form of
Exhibit B-1 and B-2 hereto, respectively.
(f) Opinion of Special Counsel to the Administrative Agent. The
Administrative Agent shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel to the Administrative Agent, substantially in the form of
Exhibit C hereto.
(g) Counterparts. The Administrative Agent shall have received
counterparts of this Agreement executed and delivered by or on behalf of each of
the parties hereto (or, in the case of any Lender as to which the Administrative
Agent shall not have received such a counterpart, the Administrative Agent shall
have received evidence satisfactory to it of the execution and delivery by such
Lender of a counterpart hereof).
(h) Commercial Paper Ratings. The Administrative Agent shall have
received evidence that the Company's commercial paper shall have been rated at
least A-2 by Standard & Poor's Ratings Services and P-2 by ▇▇▇▇▇'▇ Investors
Service, Inc.
(i) Existing Credit Agreements. The Administrative Agent shall have
received evidence that all amounts outstanding under the credit agreements dated
as of February 3, 1997 and July 29, 1999, in each case among the Company, the
lenders party thereto and Chase, as administrative agent, as amended, shall have
been paid in full and all commitments thereunder shall have terminated.
(j) Other Documents. The Administrative Agent shall have received such
other documents relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request.
7.02 Initial and Subsequent Loans. The obligation of each Lender to
make any Loan to be made by it hereunder is subject to the conditions precedent
that, as of the date of such Loan, and before and after giving effect thereto:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in this
Agreement shall be true on and as of the date of the making of such Loan, with
the same force and effect as if made on and as of such date (except, in the case
of the representation and warranty contained in Section 8.02(d), as disclosed by
the Company to the Lenders in writing in the notice of borrowing relating to
such Loan).
33
39
Each notice of borrowing by the Company hereunder or Competitive Bid Request
shall constitute a certification by the Company to the effect set forth in the
preceding sentence (both as of the date of such notice or Competitive Bid
Request and as of the date of such borrowing).
SECTION 8. Representations and Warranties. The Company represents and
warrants to the Lenders and the Administrative Agent as follows:
8.01 Corporate Existence. Each of the Company and its Subsidiaries: (a)
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation; (b) has all requisite corporate
power, and has all governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted, except in the case of such licenses, authorizations,
consents and approvals, where the failure to obtain them would not have a
Material Adverse Effect; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
8.02 Information. (a) All information heretofore furnished by the
Company to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby did not as
of the date thereof and will not as of the Closing Date contain any untrue
statement of a material fact or assumption or omit to state a material fact or
assumption necessary in order to make the statements contained therein not
misleading;
(b) Without limiting the generality of paragraph (a):
(i) The audited consolidated balance sheet of the Company and its
Subsidiaries as of May 31, 1999 and the audited consolidated
statements of income, shareholders' equity and cash flows for the
fiscal year ended May 31, 1999 (collectively, the "FINANCIAL
STATEMENTS") have been prepared in accordance with generally accepted
accounting principles consistently applied. The Financial Statements
fairly present the financial position of the Company and its
Subsidiaries as of May 31, 1999 and the results of their operations
and their cash flows for the fiscal year ended May 31, 1999 in
conformity with generally accepted accounting principles.
(ii) The unaudited consolidated balance sheet of the Company and
its Subsidiaries as of February 29, 2000 and the unaudited
consolidated statements of income, shareholders' equity and cash flows
for the nine months then ended have been prepared in accordance with
34
40
generally accepted accounting principles consistently applied, and
fairly present the financial position of the Company and its
Subsidiaries as of February 29, 2000 and the results of their
operations and their cash flows for the nine months then ended in
conformity with generally accepted accounting principles (subject to
normal year-end adjustments).
(iii) The Company and its Subsidiaries did not on the date of the
balance sheet referred to in clause (i) above, and will not on the
Closing Date, have any material contingent liabilities, material
liabilities for taxes, unusual and material forward or long-term
commitments or material unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or
provided for in said balance sheet.
(c) The Company has disclosed to the Lenders in writing any and all
facts (other than general economic and industry conditions) which have or may
have a Material Adverse Effect.
(d) Since May 31, 1999 no event has occurred and no condition has come
into existence which has had, or is reasonably likely to have, a Material
Adverse Effect.
8.03 Litigation. Except as disclosed in the Disclosure Documents, there
are no legal or arbitral proceedings or any proceedings by or before any
governmental or regulatory authority or agency, now pending or, to the knowledge
of the Company, threatened against or affecting the Company or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which in any manner draw into question the validity of the Credit
Agreement or the Notes. The disclosure of litigation to the Lenders pursuant to
this Section does not necessarily mean that such litigation is of the type
described in this Section or that the Company believes that such litigation has
any merit whatsoever.
8.04 No Breach. None of the execution and delivery of the Basic
Documents, the consummation of the transactions therein contemplated or
compliance with the terms and provisions thereof will conflict with or result in
a breach of, or require any consent under, the Articles of Incorporation or
Codes of Regulation or comparable instruments of the Company or any of its
Subsidiaries, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
Basic Document or other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which it is bound or to which it is
subject, or constitute a default under any such material agreement or
instrument, or result in the creation or
35
41
imposition of any Lien upon any of the revenues or assets of the Company or any
of its Subsidiaries pursuant to the terms of any such agreement or instrument.
8.05 Corporate Action. The Company has all necessary corporate power
and authority to execute, deliver and perform its obligations under the Basic
Documents to which it is a party; the execution, delivery and performance by the
Company of the Basic Documents to which it is a party have been duly authorized
by all necessary corporate action; and this Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company and, on the Closing Date, each of the other
Basic Documents to which the Company is to be a party will constitute its legal,
valid and binding obligation, in each case enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or moratorium or other similar laws relating to the
enforcement of creditors' rights generally and by general equitable principles.
8.06 Approvals. Each of the Company and its Subsidiaries has obtained
all authorizations, approvals and consents of, and has made all filings and
registrations with, any governmental or regulatory authority or agency and any
third party necessary for the execution, delivery or performance by it of any
Basic Document to which it is a party, or for the validity or enforceability
thereof.
8.07 Regulations U and X. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U or X of the Board of Governors
of the Federal Reserve System) and no part of the proceeds of any Loan hereunder
will be used to purchase or carry any such margin stock.
8.08 ERISA. The Company and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. No such Person has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA (other than a liability to the
PBGC for premiums under Section 4007 of ERISA).
8.09 Taxes. Each of the Company and its Subsidiaries has filed all
United States Federal income tax returns and all other material tax returns
which are
36
42
required to be filed by it and has paid all taxes due pursuant to such returns
or pursuant to any assessment received by it, except to the extent the same may
be contested as permitted by Section 9.02 hereof. There are no material tax
disputes or contests pending as of the Closing Date. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of taxes
and other governmental charges are, in the opinion of the Company, adequate.
8.10 Subsidiaries. Schedule I hereto is a complete and correct list, as
of the date of this Agreement, of all Subsidiaries of the Company and of all
Investments held by the Company or any of its Subsidiaries in any material joint
venture or other similar Person. The Company owns, free and clear of Liens, all
outstanding shares of its Subsidiaries and all such shares are validly issued,
fully paid and non-assessable and the Company (or the respective Subsidiary of
the Company) also owns, free and clear of Liens, all such Investments.
8.11 Investment Company Act. Neither the Company nor any of its
Subsidiaries is an investment company within the meaning of the Investment
Company Act of 1940, as amended, or, directly or indirectly, controlled by or
acting on behalf of any Person which is an investment company, within the
meaning of said Act.
8.12 Public Utility Holding Company Act. Neither the Company nor any of
its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.13 Ownership and Use of Properties. Each of the Company and its
Subsidiaries will have on the Closing Date and at all times thereafter, legal
title or ownership of, or the right to use pursuant to enforceable and valid
agreements or arrangements, all tangible property, both real and personal, and
all franchises, licenses, copyrights, patents and know-how which is material to
the operation of its business as proposed to be conducted.
8.14 Environmental Matters. Except as disclosed in the Disclosure
Documents, neither the Company nor any of its Subsidiaries has (i) failed to
obtain any permits, certificates, licenses, approvals, registrations and other
authorizations which are required under any applicable Environmental Law where
failure to have any such permit, certificate, license, approval, registration or
authorization would have a Material Adverse Effect; (ii) failed to comply with
the terms and conditions of all such permits, certificates, licenses, approvals,
registrations and authorizations, and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
37
43
Law or in any notice or demand letter from any regulatory authority issued,
entered, promulgated or approved thereunder where failure to comply would have a
Material Adverse Effect; or (iii) failed to conduct its business so as to comply
in all respects with applicable Environmental Laws where failure to so comply
would have a Material Adverse Effect. The disclosure of any failure or alleged
failure to the Lenders pursuant to this Section does not necessarily mean that
such failure is of the type described in this Section or that any such
allegation has any merit whatsoever.
SECTION 9. Covenants. The Company agrees that, so long as any of the
Commitments are in effect and until payment in full of all Loans hereunder, all
interest thereon and all other amounts payable hereunder, unless the Majority
Lenders shall agree otherwise as contemplated by Section 12.05 hereof:
9.01 Information. The Company shall deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Company, consolidated statements of income,
shareholders' equity and cash flows of the Company and its Subsidiaries for such
year and the related consolidated balance sheet as at the end of such year,
setting forth in each case in comparative form the corresponding figures for the
preceding fiscal year, and accompanied by an opinion thereon of ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇ LLP or other independent certified public accountants of recognized
national standing, which opinion shall state that said consolidated financial
statements fairly present in all material respects the consolidated financial
condition and results of operations of the Company and its Subsidiaries as at
the end of, and for, such fiscal year;
(b) as soon as available and in any event within 60 days after the end
of each fiscal quarter of the Company other than the last fiscal quarter in each
fiscal year, consolidated statements of income, shareholders' equity and cash
flows of the Company and its Subsidiaries for such fiscal quarter and for the
portion of the fiscal year ended at the end of such fiscal quarter, and the
related consolidated balance sheet as at the end of such fiscal quarter,
accompanied, in each case, by a certificate of a Senior Officer, which
certificate shall state that said consolidated financial statements fairly
present in all material respects the consolidated financial condition and
results of operations of the Company in accordance with GAAP (except for
footnotes of the type required by the Securities and Exchange Commission to be
included in quarterly reports on Form 10-Q), consistently applied, as at the end
of, and for, such period (subject to normal year-end audit adjustments);
38
44
(c) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(d) promptly upon the filing thereof, copies of all registration
statements (other than any registration statements on Form S-8 or its
equivalent) and any reports which the Company shall have filed with the
Securities and Exchange Commission;
(e) if and when the Company or any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC, (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA or notice that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives notice
of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of a Senior Officer setting forth details as to such
occurrence and action, if any, which the Company or member of the Controlled
Group is required or proposes to take;
(f) promptly after management of the Company knows that any Default has
occurred and is continuing, a notice of such Default, describing the same in
reasonable detail; and
(g) from time to time such other information regarding the financial
condition, operations, prospects or business of the Company as the
Administrative Agent or any Lender through the Administrative Agent may
reasonably request.
The Company will furnish to each Lender, at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a Senior Officer (i) to the effect that, to the best of his
knowledge after due inquiry, no Default has occurred and is continuing (or, if
any Default has occurred and is
39
45
continuing, describing the same in reasonable detail) and (ii) setting forth in
reasonable detail the computations necessary to determine whether it was in
compliance with Sections 9.08 to 9.12, inclusive, and 9.16 hereof as of the end
of the respective fiscal quarter or fiscal year.
9.02 Taxes and Claims. The Company will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any property belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon the property of the Company or such Subsidiary, provided that
neither the Company nor such Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim the payment of which is being contested in
good faith and by proper proceedings if it maintains adequate reserves with
respect thereto and if such contest, proceedings and reserves have been
described in a certificate of a Senior Officer delivered to the Lenders.
9.03 Insurance. The Company will maintain, and will cause each of its
Subsidiaries to maintain, insurance with responsible companies in such amounts
and against such risks as is usually carried by companies of established repute
engaged in the same or similar businesses, owning similar properties, and
located in the same general areas as the Company and its Subsidiaries.
9.04 Maintenance of Existence; Conduct of Business. The Company will
preserve and maintain, and will cause each of its Subsidiaries to preserve and
maintain, its corporate existence and all of its rights, privileges and
franchises necessary or desirable in the normal conduct of its business, and
will conduct its business in a regular manner; provided that nothing herein
shall prevent (i) the merger and dissolution of any Subsidiary of the Company
into the Company so long as the Company is the surviving corporation, (ii) the
merger of any Subsidiary of the Company into any other Subsidiary of the
Company, or (iii) the sale of any Subsidiary of the Company which is not a
Significant Subsidiary. It is understood that the preservation and maintenance
of rights, privileges and franchises shall not prevent the Company and its
Subsidiaries from disposing of assets in any transaction not otherwise
prohibited pursuant to this Section 9.04 or Section 9.10 hereof.
9.05 Maintenance of and Access to Properties. The Company will keep,
and will cause each of its Subsidiaries to keep, all of its properties necessary
in its business in good working order and condition (having regard to the
condition of such properties at the time such properties were acquired by the
Company or such Subsidiary), ordinary wear and tear excepted, and proper books
of record and account in which full, true and correct entries in conformity with
GAAP shall be
40
46
made of all dealings and transactions in relation to its business activities,
and will permit representatives of the Lenders to inspect such properties and,
upon reasonable notice and at reasonable times, to examine and make extracts and
copies from the books and records of the Company and any such Subsidiary.
9.06 Compliance with Applicable Laws. The Company will comply, and will
cause each of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental body or
regulatory authority (including, without limitation, all Environmental Laws), a
breach of which would have a Material Adverse Effect, except where contested in
good faith and by proper proceedings.
9.07 Litigation. The Company will promptly give to the Administrative
Agent (which shall promptly notify each Lender) notice in writing of all
litigation and of all proceedings of which it is aware before any courts,
arbitrators or governmental or regulatory agencies affecting the Company or any
of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
9.08 Leverage Ratio. The Company will not permit Indebtedness of the
Company and its Subsidiaries, determined on a consolidated basis, on any date to
exceed 65% of the sum of such Indebtedness and consolidated shareholders' equity
of the Company and its Subsidiaries on such date.
9.09 Interest Coverage Ratio. The Company will not permit the ratio,
calculated as at the end of each fiscal quarter ending after the Closing Date
for the four fiscal quarters then ended, of EBITDA for such period to Interest
Expense for such period to be less than 3.5:1.
9.10 Mergers, Asset Dispositions, Etc. The Company will not (i)
consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, in one transaction or a series of
related transactions, all or substantially all of its business or assets;
provided that the Company may merge with another Person if (A) the Company is
the corporation surviving such merger and (B) immediately after giving effect to
such merger, no Default shall have occurred and be continuing.
9.11 Liens. The Company will not, and will not permit any of its
Subsidiaries to, create or suffer to exist any Lien upon any property or assets,
now owned or hereafter acquired, securing any Indebtedness or other obligation,
except:
41
47
(i) Liens existing on the Closing Date and securing Indebtedness
in an aggregate principal amount not exceeding $10,000,000;
(ii) Liens existing on other assets at the date of acquisition
thereof or which attach to such assets concurrently with or within 90
days after the acquisition thereof, securing Indebtedness incurred to
finance the acquisition thereof in an aggregate principal amount at any
time outstanding not exceeding $15,000,000;
(iii) any Lien existing on any asset of any corporation at the
time such corporation becomes a Subsidiary of the Company or is merged
or consolidated with or into the Company or one of its Subsidiaries and
not created in contemplation of such event;
(iv) any Lien arising out of the refinancing, extension, renewal
or refunding of any Indebtedness secured by any Lien permitted by any
of the foregoing clauses of this Section 9.11, provided that such
Indebtedness is not increased and is not secured by any additional
assets;
(v) other Liens arising in the ordinary course of the business of
the Company or such Subsidiary which are not incurred in connection
with the borrowing of money or the obtaining of advances or credit, do
not secure any obligation in an amount exceeding $15,000,000 and do not
materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business; and
(vi) Liens not otherwise permitted by the foregoing clauses of
this Section 9.11 securing Indebtedness in an aggregate principal or
face amount at any date not to exceed $15,000,000.
9.12 Investments. The Company will not, and will not permit any of its
Subsidiaries to, make or permit to remain outstanding any advances, loans or
other extensions of credit or capital contributions (other than prepaid expenses
in the ordinary course of business) to (by means of transfers of property or
assets or otherwise), or purchase or own any stocks, bonds, notes, debentures or
other securities of, any Person (all such transactions being herein called
"INVESTMENTS"), except: (i) operating deposit accounts; (ii) Liquid Investments;
(iii) subject to Section 9.13 hereof, Investments in accounts and notes
receivable acquired in the ordinary course of business as presently conducted;
(iv) Investments existing on the Closing Date in Subsidiaries or joint ventures,
and Investments after the Closing Date by First Colonial Insurance Company, a
wholly-owned Subsidiary of the Company, in the ordinary course of its business;
(v) Investments not otherwise permitted by the foregoing clauses of this Section
42
48
9.12 in Subsidiaries of the Company and in Persons which become Subsidiaries of
the Company as the result of such Investments; (vi) Investments not otherwise
permitted by the foregoing clauses of this Section 9.12 in joint ventures in an
aggregate amount not to exceed $35,000,000; and (vii) Investments not otherwise
permitted by the foregoing clauses of this Section 9.12 in an aggregate amount
not to exceed $5,000,000.
9.13 Transactions with Affiliates. Except as expressly permitted by
this Agreement the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly: (i) make any Investment in an Affiliate of the
Company (other than a Subsidiary of the Company); (ii) transfer, sell, lease,
assign or otherwise dispose of any assets to an Affiliate of the Company (other
than a Subsidiary of the Company); (iii) merge into or consolidate with or
purchase or acquire assets from an Affiliate of the Company (other than a
Subsidiary of the Company); or (iv) enter into any other transaction directly or
indirectly with or for the benefit of an Affiliate of the Company (other than a
Subsidiary of the Company) (including, without limitation, Guaranties and
assumptions of obligations of an Affiliate of the Company (other than a
Subsidiary of the Company)); provided that (a) any Affiliate of the Company who
is an individual may serve as a director, officer or employee of the Company and
receive reasonable compensation or indemnification in connection with his or her
services in such capacity; and (b) any transaction entered into by the Company
or a Subsidiary of the Company with an Affiliate of the Company which is not a
Subsidiary of the Company providing for the leasing of property, the rendering
or receipt of services or the purchase or sale of inventory and other assets in
the ordinary course of business must be for a monetary or business consideration
which would be substantially as advantageous to the Company or such Subsidiary
as the monetary or business consideration which would obtain in a comparable
arm's length transaction with a Person not an Affiliate of the Company.
9.14 Lines of Business. The Company and its Subsidiaries, taken as a
whole, shall not engage to any substantial extent in any line or lines of
business activity other than present or related product lines.
9.15 Environmental Matters. The Company will promptly give to the
Lenders notice in writing of any complaint, order, citation, notice or other
written communication from any Person with respect to, or if the Company becomes
aware after due inquiry of, (i) the existence or alleged existence of a
violation of any applicable Environmental Law or Environmental Liability at,
upon, under or within any property now or previously owned, leased, operated or
used by the Company or any of its Subsidiaries or any part thereof, or due to
the operations or activities of the Company, any Subsidiary on or in connection
with such property or any part thereof (including receipt by the Company or any
Subsidiary of any
43
49
notice of the happening of any event involving the Release of a reportable
quantity under any applicable Environmental Law or cleanup of any Hazardous
Substance), (ii) any Release on such property or any part thereof in a quantity
that is reportable under any applicable Environmental Law, (iii) the
commencement of any cleanup pursuant to or in accordance with any applicable
Environmental Law of any Hazardous Substances on or about such property or any
part thereof and (iv) any pending or threatened proceeding for the termination,
suspension or non-renewal of any permit required under any applicable
Environmental Law, in each case which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
9.16 Lease Payments. Neither the Company nor any of its Subsidiaries
has incurred or assumed or will incur or assume (whether pursuant to a Guaranty
or otherwise) any liability for rental payments under a lease with a lease term
(as defined in Financial Accounting Standards No. 13 of the Financial Accounting
Standards Board, as in effect on the date hereof) if (i) such lease is of an
asset previously owned by the Company or any of its Subsidiaries and (ii) after
giving effect thereto, the aggregate amount of minimum lease payments that the
Company and its Subsidiaries have so incurred or assumed will exceed, on a
consolidated basis, $15,000,000 for any calendar year under all such leases.
SECTION 10. Defaults.
10.01 Events of Default. If one or more of the following events (herein
called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) default in the payment of (i) any principal of any Loan when due
or of (ii) any interest on any Loan or other amount payable hereunder within
five Business Days after the due date thereof; or
(b) the Company or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on Indebtedness having an
aggregate outstanding principal amount of at least $20,000,000 (other than the
Loans); or any event or condition shall occur which results in the acceleration
of the maturity of any such Indebtedness or enables (or, with the giving of
notice or lapse of time or both, would enable) the holder of any such
Indebtedness or any Person acting on such holder's behalf to accelerate the
maturity thereof; or
(c) any representation or warranty made or deemed made by the Company
or any Subsidiary herein, or in any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof, shall prove to have been
false or misleading in any material respect as of the time made or furnished; or
44
50
(d) (i) the Company shall default in the performance of any of its
obligations under Section 2.07 or Sections 9.08 through 9.13 and 9.16 hereof; or
(ii) the Company or any Subsidiary shall default in the performance of any of
its other obligations hereunder, and such default described in this subclause
(ii) shall continue unremedied for a period of 30 days after notice thereof to
the Company by the Administrative Agent or any Lender (through the
Administrative Agent); or
(e) the Company or any of its Significant Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as such debts
become due; or
(f) the Company or any of its Significant Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code, (iv) file
a petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code, or (vi) take any corporate or partnership action for the
purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the application
or consent of the Company or any of its Significant Subsidiaries in any court of
competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution
or winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such
Person or of all or any substantial part of its assets, or (iii) similar relief
in respect of such Person under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 90 days; or an order for relief against
such Person shall be entered in an involuntary case under the Bankruptcy Code;
or
(h) a final judgment or judgments for the payment of money shall be
rendered by a court or courts against the Company or any of its Subsidiaries in
excess of $35,000,000 in the aggregate (excluding any amount of such judgment as
to which an Acceptable Insurer has acknowledged liability), and the same shall
not be discharged (or provision shall not be made for such discharge), or a stay
of execution thereof shall not be procured, within 10 days from the date of
entry
45
51
thereof, or the Company or such Subsidiary shall not, within said period of 10
days, or such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) the Company or any member of the Controlled Group shall fail to
pay when due an amount or amounts aggregating in excess of $20,000,000 for which
it shall have become liable under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of
$20,000,000 shall be filed under Title IV of ERISA by the Company or any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer, any
Plan or Plans having aggregate Unfunded Liabilities in excess of $20,000,000; or
a condition shall exist by reason of which the PBGC would be entitled to obtain
a decree adjudicating that any Plan or Plans having aggregate Unfunded
Liabilities in excess of $20,000,000 must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause the Company or one or more members of the Controlled Group to incur
a current payment obligation in excess of $20,000,000; or
(j) (i) as a result of one or more transactions after the date of this
Agreement, any "person" or "group" of persons shall have "beneficial ownership"
(within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended, and the applicable rules and regulations thereunder) of 30% or
more of the outstanding common stock of the Company; or (ii) without limiting
the generality of the foregoing, during any period of 12 consecutive months,
commencing after the date of this Agreement, individuals who at the beginning of
such 12-month period were directors of the Company shall cease for any reason to
constitute a majority of the board of directors of the Company;
THEREUPON: the Administrative Agent may (and, if directed by the Majority
Lenders, shall) by notice to the Company (a) declare the Commitments terminated
(whereupon the Commitments shall be terminated) and/or (b) declare the principal
amount then outstanding of and the accrued interest on the Loans and fees and
all other amounts payable hereunder and under the Notes to be forthwith due and
payable, whereupon such amounts shall be and become immediately due and payable,
without other notice, presentment, demand, protest or other formalities of any
kind (all of which are hereby expressly waived by the Company); provided that in
the case of the occurrence of an Event of Default with respect to the Company
referred to in clause (f) or (g) of this Section 10.01, the
46
52
Commitments shall be automatically terminated and the principal amount then
outstanding of and the accrued interest on the Loans and fees and all other
amounts payable hereunder and under the Notes shall be and become automatically
and immediately due and payable, without notice (including, without limitation,
notice of intent to accelerate), presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company. Each Lender hereby agrees that, unless so requested by the
Administrative Agent with the consent of the Majority Lenders, it shall not take
or cause to be taken any action to declare the Commitments terminated or to
declare payable or collect the amounts referred to above that is independent
from any action taken or to be taken by the Administrative Agent, unless such
action is taken in connection with an Event of Default described in clause (a),
(e), (f) or (g) of this Section 10.01.
SECTION 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the Notes with such powers as are specifically delegated to the
Administrative Agent by the terms hereof and thereof, together with such other
powers as are reasonably incidental thereto. The Administrative Agent (which
term as used in this Section 11 shall include reference to its affiliates and
its and its affiliates' officers, directors, employees and agents): (a) shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the Notes, and shall not by reason of this Agreement or any Note
be a trustee for any Lender; (b) shall not be responsible to the Lenders for any
recitals, statements, representations or warranties contained in this Agreement
or the Notes, or in any certificate or other document referred to or provided
for in, or received by any of them under, this Agreement or any the Notes, or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any Note or any other document referred to or
provided for herein or therein or for any failure by the Company or any of its
Subsidiaries or any other Person to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any Note except to the extent
requested by the Majority Lenders, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any Note or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
47
53
11.02 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or the Notes, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with instructions
signed by the Majority Lenders and such instructions of the Majority Lenders and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders.
11.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on Loans or facility or utilization fees) unless the
Administrative Agent has received notice from a Lender or the Company specifying
such Default and stating that such notice is a "NOTICE OF DEFAULT". In the event
that the Administrative Agent receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the
Lenders (and shall give each Lender prompt notice of each such non-payment). The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interests of the Lenders.
11.04 Rights as a Lender. With respect to its Commitment and the Loans
made by it, Chase in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
(without having to account therefor to any Lender) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Company (and any of its Affiliates) as if it were not acting as the
Administrative Agent and the Administrative Agent may accept fees and other
consideration from the Company (in addition to the agency fees and arrangement
fees heretofore agreed to between
48
54
the Company, the Administrative Agent) for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the Administrative
Agent (to the extent not reimbursed under Section 12.03 or 12.04 hereof, but
without limiting the obligations of the Company under said Sections 12.03 and
12.04), ratably in accordance with their respective Commitments, for any and all
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 Administrative Agent in any way
relating to or arising out of this Agreement or any other Basic Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses which the Company is obligated to pay under Sections 12.03
and 12.04 hereof but excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
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 party to be indemnified.
11.06 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or its Note or Notes. The Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by the Company or any other Person of this Agreement or any of the
other Basic Documents or any other document referred to or provided for herein
or therein or to inspect the properties or books of the Company or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or under the Notes, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company or any
other Person (or any of their affiliates) which may come into the possession of
the Administrative Agent.
11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under any Note, the Administrative Agent
49
55
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Lenders of their indemnification obligations under Section 11.05 hereof
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
11.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Company and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent reasonably acceptable to the Company. If no
successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent (the "NOTICE DATE"), then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent reasonably acceptable to the Company. Any
successor Administrative Agent shall be (i) a Lender or (ii) if no Lender has
accepted such appointment within 40 days after the Notice Date, a bank which has
an office in New York, New York with a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section 11 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
SECTION 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Administrative Agent or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or the Notes
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
provided in this Agreement and the Notes are cumulative and not exclusive of any
remedies provided by law.
50
56
12.02 Notices. All notices and other communications provided for herein
(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex, telegraph, telecopy,
cable or other writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to the Company and the
Administrative Agent given in accordance with this Section 12.02. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
12.03 Expenses, Etc. If an Event of Default occurs, the Company agrees
to pay or reimburse each of the Lenders and the Administrative Agent for paying
all costs and expenses of each of the Lenders and the Administrative Agent
(including counsels' fees) incurred as a result of such Event of Default and
collection, enforcement, bankruptcy, insolvency and other proceedings resulting
therefrom.
12.04 Indemnification. The Company shall indemnify the Administrative
Agent, the Lenders and each affiliate thereof and their respective directors,
officers, employees, attorneys and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims or damages to which any of them
may become subject, insofar as such losses, liabilities, claims or damages arise
out of or result from (i) any actual or proposed use by the Company of the
proceeds of any extension of credit by any Lender hereunder or breach by the
Company of this Agreement or any other Basic Document, (ii) any Environmental
Liabilities or (iii) any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, whether or not the indemnified Person is a party thereto, and the
Company shall reimburse the Administrative Agent and each Lender, and each
affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including legal fees and fees of
engineers, environmental consultants and similar technical personnel) incurred
in connection with any such investigation or proceeding; but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
12.05 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor any consent to any departure by the Company
therefrom, shall in any event be effective unless the same shall be agreed or
consented to by the Majority Lenders and the Company, and each such waiver or
51
57
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, that no amendment, waiver or consent shall
(i) increase any Commitment of any Lender or subject any Lender to any
additional obligations, without the written consent of such Lender; (ii) reduce
the principal of, or interest on, any Loan, or any fees hereunder, without the
written consent of each Lender affected thereby; (iii) postpone any date fixed
for any payment of principal of, or interest on, any Loan, or any fee hereunder
pursuant to Sections 2.03, 4.01 or 4.02 hereof, without the written consent of
each Lender affected thereby; (iv) change the percentage of any of the
Commitments or of the aggregate unpaid principal amount of any of the Loans, or
the number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Agreement, without the written consent of each
Lender; or (v) change any provision contained in Sections 2.07, 6, 12.03 or
12.04 hereof or this Section 12.05 or Section 12.08 hereof. Notwithstanding
anything in this Section 12.05 to the contrary, no amendment, waiver or consent
shall be made with respect to Section 11 without the consent of the
Administrative Agent.
12.06 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns except that the Company may not assign its rights or obligations
hereunder or under the Notes without the prior written consent of all of the
Lenders. Each Lender may assign any Loan or Loans or all or any part of its
Commitment (i) to any affiliate thereof, (ii) to any other Lender, or (iii) with
the consent of the Company and the Administrative Agent, which consents shall
not be unreasonably withheld, to any other bank or financial institution or
fund; provided that (x) any assignment shall not be less than $5,000,000 or, if
less, shall constitute an assignment of all of such Lender's Commitment and
Loans and (y) the Company shall be deemed to be reasonable in withholding
consent if the assignee is not exempt from United States withholding taxes. Upon
execution by the assignor and the assignee of an instrument pursuant to which
the assignee assumes such rights and obligations, payment by such assignee to
such assignor of an amount equal to the purchase price agreed between such
assignor and such assignee and delivery to the Administrative Agent and the
Company of an executed copy of such instrument together with payment by such
assignee to the Administrative Agent of a processing fee of $2,500, such
assignee shall have, to the extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would have if it were a Lender
hereunder and the assignor shall be, to the extent of such assignment (unless
otherwise provided therein) released from its obligations under this Agreement.
Upon the consummation of such assignment, the Company shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. If such assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the effectiveness of
the applicable instrument of assumption, deliver to the
52
58
Company and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 5.08(f). Each Lender may (without the consent of any other party to
this Agreement) sell participations in all or any part of any Loan or Loans made
by it to another bank or other entity, in which event the participant shall not
have any rights under this Agreement (except as provided in the next succeeding
sentence hereof), or in the case of a Loan, such Lender's Note (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto, which agreement shall not give the participant the
right to consent to any modification, amendment or waiver other than one
described in clause (i), (ii) or (iii) of Section 12.05 hereof). The Company
agrees that each participant shall be entitled to the benefits of Sections 5.07
and 6 with respect to its participation; provided that no participant shall be
entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such participant
had no such transfer occurred. Each Lender may furnish any information
concerning the Company and its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective assignees
and participants) which have agreed in writing to be bound by the provisions of
Section 12.07 hereof. The Administrative Agent and the Company may, for all
purposes of this Agreement, treat any Lender as the holder of any Note drawn to
its order (and owner of the Loans evidenced thereby) until written notice of
assignment or other transfer shall have been received by them from such Lender.
Notwithstanding anything to the contrary, any Lender may at any time assign all
or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank. No such assignment shall release the transferor Lender from its
obligations hereunder.
12.07 Confidentiality. Each Lender agrees to keep confidential any
information delivered or made available by the Company to it prior to the end of
the term of this Agreement which is clearly indicated to be confidential
information; provided that nothing herein shall prevent any Lender from
disclosing such information (i) to any other Lender, (ii) to its officers,
directors, employees, affiliates, agents, attorneys and accountants who have a
need to know such information in accordance with customary banking practices and
who receive such information having been made aware of the restrictions set
forth in this Section, (iii) upon the order (which, for avoidance of doubt,
includes any subpoena) of any court or administrative agency, (iv) upon the
request or demand of any regulatory agency or authority having jurisdiction over
such Lender, (v) which has been publicly disclosed, (vi) to the extent
reasonably required in connection with any litigation to which the
Administrative Agent, any Lender, the Company or their respective affiliates may
be a party, (vii) to the extent
53
59
reasonably required in connection with the exercise of any remedy hereunder,
(viii) to such Lender's legal counsel and independent auditors, and (ix) to any
actual or proposed participant or assignee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 12.07.
12.08 Survival. The obligations of the Company under Sections 5.08,
6.01, 6.05, 12.03 and 12.04 hereof and the obligations of the Lenders under
Sections 11.05 and 12.07 shall survive the repayment of the Loans and the
termination of the Commitments.
12.09 Captions. The table of contents and the captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.10 Counterparts; Integration. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral and written, relating to the subject matter
hereof (except to the extent specific reference is made to any such agreement in
Section 2.03 hereof).
12.11 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. THE COMPANY HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
54
60
12.12 Waiver and Termination of Existing Credit Agreements. The Company
and each of the Lenders that is also a "Lender" party to the credit agreements
dated as of February 3, 1997 and July 29, 1999, as amended, in each case among
the Company, the lenders party thereto and Chase, as administrative agent
(collectively, the "EXISTING CREDIT AGREEMENTS"), waives compliance with Section
9.09 of the Existing Credit Agreements for the period ended May 31, 2000, and
agrees that the "Commitments" as defined in the Existing Credit Agreements shall
be terminated in their entirety in accordance with the terms thereof on the date
the conditions precedent set forth in Section 7.01 of this Agreement have been
fulfilled (the "NEW AGREEMENTS DATE"), subject only to this Section 12.12. Each
of such Lenders waives any requirement of notice of such termination pursuant to
Section 5.05 of the Existing Credit Agreements and any claim to any facility
fees or other fees under the Existing Credit Agreements for any day on or after
the New Agreements Date. The Company represents and warrants that (x) after
giving effect to the preceding sentences of this Section 12.12, the commitments
under the Existing Credit Agreements will be terminated effective not later than
the New Agreements Date and (y) no loans are, as of the date hereof, or will be,
as of the New Agreements Date, outstanding under the Existing Credit Agreements,
and covenants that all accrued and unpaid facility fees and any other amounts
due and payable under the Existing Credit Agreements shall have been paid on or
prior to the New Agreements Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
RPM, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
55
61
Commitment: THE CHASE MANHATTAN BANK
$59,285,714.29
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Managing Director
Address for Notices:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
56
62
Commitment: KEYBANK NATIONAL ASSOCIATION
$59,285,714.29
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
57
63
Commitment: NATIONAL CITY BANK
$59,285,714.29
By /s/ ▇▇▇▇▇ ▇. Cable
---------------------------------
Title: Senior Vice President
Address for Notices:
National City Bank
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇. #▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
58
64
Commitment: BANK OF AMERICA, N.A.
$46,428,571.43
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Title: Managing Director
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
59
65
Commitment: BANK ONE, MICHIGAN
$46,428,571.43
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: First Vice President
Address for Notices:
Bank One, Michigan
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
60
66
Commitment: WACHOVIA BANK, N.A.
$46,428,571.43
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
61
67
Commitment: FIRST UNION NATIONAL BANK
$32,142,857.14
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Plaza 6th Floor
Charlotte, NC 28288
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
62
68
Commitment: MELLON BANK, N.A.
$25,000,000.00
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Lending Officer
Address for Notices:
Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
63
69
Commitment: FIFTH THIRD BANK, NORTHEASTERN
OHIO
$17,857,142.86
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
64
70
Commitment: THE INDUSTRIAL BANK OF JAPAN,
LIMITED
$17,857,142.86
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Joint General Manager
Address for Notices:
The Industrial Bank of Japan, Ltd.
New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Credit Administration
Department
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
65
71
Commitment: SUNTRUST BANK
$17,857,142.86
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
Mail Code 1928
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
66
72
Commitment: FIRSTAR BANK, N.A.
$15,000,000.00
By /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
Firstar Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
67
73
Commitment: THE BANK OF NEW YORK
$14,285,714.29
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
The Bank of New York
One Wall Street, 21 Fl.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
68
74
Commitment: THE FUJI BANK, LIMITED
$10,714,285.71
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President & Group
Head
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
69
75
Commitment: KBC BANK N.V.
$10,714,285.71
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: First Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: First Vice President
Address for Notices:
KBC Bank N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
70
76
Commitment: THE SANWA BANK, LIMITED
$10,714,285.71
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address for Notices:
The Sanwa Bank, Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
71
77
Commitment: FIRST COMMERCIAL BANK
$10,714,285.71
By /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇
-----------------------
Title: SVP & GM
Address for Notices:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
Total Commitments:
$500,000,000
72
78
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Managing Director
Address for Notices:
The Chase Manhattan Bank
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Loan and Agency Services
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
73
79
PRICING SCHEDULE
The Applicable Margin and facility fee rate for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
================================================================================
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ I II III IV V
--------------------------------------------------------------------------------
Eurodollar Loans .40% .50% .60% .70% .625%
--------------------------------------------------------------------------------
Facility Fee Rate .10% .125% .15% .175% .375%
================================================================================
For purposes of this Schedule, the following terms have the following
meanings:
"Applicable Indebtedness" means senior unsecured long-term debt of the
Company.
"Level I Status" exists at any date if, at such date, the Applicable
Indebtedness is rated A- or higher by S&P and A3 or higher by Moody's.
"Level II Status" exists at any date if, at such date, (i) the
Applicable Indebtedness is rated BBB+ or higher by S&P and Baa1 or higher by
Moody's and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Applicable Indebtedness is rated BBB or higher by S&P and Baa2 or higher by
Moody's and (ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Applicable Indebtedness is rated BBB- or higher by S&P and Baa3 or higher by
Moody's and (ii) none of Level I Status, Level II Status or Level III Status
exists.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
80
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at any
date.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to senior unsecured long-term debt securities without third-party
credit enhancement, and any rating assigned to any other debt security shall be
disregarded. The rating in effect at any date is that in effect at the close of
business on such date.