EXHIBIT 4.2
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
▇▇▇▇▇▇ DODGE CORPORATION,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 25, 1997
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1 Defined Terms
1.2 Other Definitional Provisions
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments
2.2 Revolving Credit Notes
2.3 Procedure for Revolving Credit Borrowing
2.4 CAF Advances
2.5 Fees
2.6 Termination or Reduction of Commitments
2.7 Option Prepayments
2.8 Conversion and Continuation Options
2.9 Minimum Amounts and Maximum Number of Tranches
2.10 Interest Rates and Payment Dates
2.11 Computation of Interest and Fees
2.12 Inability to Determine Interest Rate
2.13 Pro Rata Treatment and Payments
2.14 Illegality
2.15 Requirements of Law
2.16 Taxes
2.17 Indemnity
2.18 Actions of Lenders
2.19 Actions of the Lenders
2.20 Extension of Termination Date
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Financial Condition
3.2 No Change
3.3 Corporate Existence
3.4 Corporate Power; Authorization; Enforceable
obligations
3.5 No Legal Bar
3.6 No Material Litigation
3.7 No Default
3.8 Ownership of Property; Liens
3.9 Compliance with Law
3.10 Taxes
3.11 Federal Regulations
3.12 ERISA
3.13 Investment Company Act; Other Regulations
3.14 Subsidiaries
3.15 Purpose of Loans
3.16 Environmental Matters
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness; Closing Date
4.2 Conditions to Each Loan
SECTION 5. AFFIRMATIVE COVENANTS
5.1 Financial Statements
5.2 Certificates; Other Information
5.3 Payment of Obligations
5.4 Conduct of Business and Maintenance of Existence
5.5 Compliance With Laws, etc
5.6 Maintenance of Property; Insurance
5.7 Inspection of Property; Books and Records;
Discussions
5.8 Notices
SECTION 6. NEGATIVE COVENANTS
6.1 Financial Condition Covenants
6.2 Limitation on Mortgages, Sale and Leaseback, etc.
SECTION 7. EVENTS OF DEFAULT
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment
8.2 Delegation of Duties
8.3 Reliance by Administrative Agent
8.5 Notice of Default
8.6 Non-Reliance on Administrative Agent and Other
Lenders
8.7 Indemnification
8.8 Administrative Agent in Its Individual Capacity
8.9 Successor Administrative Agent
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers
9.2 Notices
9.3 No Waiver; Cumulative Remedies
9.4 Survival of Representations and Warranties
9.5 Payment of Expenses and Taxes
9.6 Successors and Assigns; Participations; Purchasing
Lenders
9.7 Adjustments; Set-off
9.8 Counterparts
9.9 Severability
9.10 Integration
9.11 GOVERNING LAW
9.12 Submission To Jurisdiction; Waivers
9.13 Acknowledgements
9.14 WAIVERS OF JURY TRIAL
SCHEDULES
Schedule II ▇▇▇▇▇▇ Dodge Corporation Principal Domestic
Subsidiaries and other Subsidiaries
Schedule III Environmental Representation
Schedule IV Existing CAF Advances
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 25,
1997, among ▇▇▇▇▇▇ DODGE CORPORATION, a New York corporation (the "Borrower"),
the several banks and other financial institutions from time to time parties to
this Agreement (the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower is a party to the Amended and Restated Credit
Agreement, dated as of June 4, 1996, with the banks parties thereto and The
Chase Manhattan Bank (formerly known as Chemical Bank), as Agent (the "Existing
Credit Agreement");
WHEREAS, the Borrower wishes to amend and restate the Existing Credit
Agreement and, for that purpose, has requested the Lenders to make available to
it a revolving credit facility and a competitive advance facility in an
aggregate principal amount of up to $1,000,000,000 as more particularly
described herein; and
WHEREAS, the Lenders are willing to agree to amend and restate the
Existing Credit Agreement and to make available such facilities and to make
loans thereunder on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree that on the Closing Date, the
Existing Credit Agreement will be amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal Reserve System
(the "Board") through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it. If the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms thereof, the ABR shall be determined without regard
to clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Revolving Credit Loans the rate of interest applicable to
which is based upon the ABR.
"Accounts": "accounts" as such term is defined in Section 9-106 of the
Uniform Commercial Code of the State of New York.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 20% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Second Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Margin": for each Eurodollar Loan during each day, the rate
per annum set forth below opposite the Rating in effect on such day:
Applicable Margin-
Ratings Eurodollar Loans
------- -----------------
Rating I .0950%
Rating II .1275%
Rating III .1350%
Rating IV .1600%
Rating V .2500%
"Assignee": as defined in subsection 9.6(e).
"Assignment and Acceptance": as defined in subsection 9.6.
"Attributable Debt": at any time, the present value, discounted at a
rate per annum equal to the weighted average of the interest rates for any Loans
outstanding under the Credit Agreement, and if no Loans are outstanding under
the Credit Agreement, the Prime Rate at such time, compounded quarterly, of the
obligation of a lessee for rental payments (not including amounts payable by the
lessee for maintenance, property taxes and insurance) during the remaining term
of any lease (including any period for which such lease has been extended or
may, at the option of the lessor, be extended).
"Available Commitments": at any time, an amount equal to the excess, if
any, of (a) the aggregate amount of the Commitments over (b) the aggregate
principal amount of all Loans then outstanding.
"Board of Directors": the Board of Directors of the Borrower, or the
Executive Committee of the Board of Directors of the Borrower.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3 or 2.4 as a date on which the Borrower requests the Lenders to
make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close; provided, that when such term is used in respect of any Borrowing Date,
payment date, interest rate determination date or first or last day of an
Interest Period, in each case in respect of a Eurodollar Loan or a LIBOR Rate
CAF Advance, a Business Day shall also be a day on which dealings in foreign
currency and exchange between banks may be carried on in London, England.
"CAF Advance": each CAF Advance made pursuant to subsection 2.4; the
aggregate amount advanced by a Lender pursuant to subsection 2.4 on each
Borrowing Date shall constitute one or more CAF Advances, as specified by such
Lender pursuant to subsection 2.4(b).
"CAF Advance Assignees": as defined in subsection 9.6(c).
"CAF Advance Assignment": any assignment by a Lender to a CAF Advance
Assignee of a CAF Advance and related Individual CAF Advance Note; any such CAF
Advance Assignment to be registered in the Register must set forth, in respect
of the CAF Advance Assignee thereunder, the full name of such CAF Advance
Assignee, its address for notices, its lending office address (in each case with
telephone and facsimile transmission numbers) and payment instructions for all
payments to such CAF Advance Assignee, and must contain an agreement by such CAF
Advance Assignee to comply with the provisions of subsection 9.6 and subsection
2.16 to the same extent as any Lender.
"CAF Advance Confirmation": each confirmation by the Borrower of its
acceptance of CAF Advance Offers, which CAF Advance Confirmation shall be
substantially in the form of Exhibit D-3 and shall be delivered to the
Administrative Agent in writing or by facsimile transmission.
"CAF Advance Notes": the collective reference to the Grid CAF Advance
Notes and the Individual CAF Advance Notes; individually, a "CAF Advance Note".
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which CAF Advance Offer shall contain the
information specified in Exhibit D-2 and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Borrower for Lenders to
submit bids to make CAF Advances, which shall contain the information in respect
of such requested CAF Advances specified in Exhibit D-1 and shall be delivered
to the Administrative Agent in writing or by facsimile transmission, or by
telephone, immediately confirmed by facsimile transmission.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Capitalized Lease": any Lease of property, real, personal or mixed, in
respect of which the present value (or some other computation) of the minimum
rental commitment thereunder would, in accordance with GAAP in effect on the
date such Lease is executed, be capitalized on a balance sheet of the lessee.
"Capitalized Lease Obligation": at any time, the aggregate amounts
which, in accordance with GAAP, are shown as liabilities on the balance sheet of
the lessee with respect to the minimum rental commitment under a Capitalized
Lease of the lessee.
"C/D Assessment Rate": for any day, the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.3(d) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States.
"C/D Reserve Percentage": for any day as applied to any calculation of
the Base C/D Rate, that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) (the "Board"), for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of the
Board) in respect of new non-personal time deposits in Dollars having a maturity
of 30 days or more.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set forth in
subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender to make
Revolving Credit Loans to the Borrower hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule I, as such amount may be reduced from time to
time in accordance with the provisions of this Agreement.
"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the aggregate Commitments
(or, at any time after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Revolving
Credit Loans then outstanding constitutes of the aggregate principal amount of
the Revolving Credit Loans then outstanding or, if the Commitments have
terminated or expired and no Revolving Credit Loans are then outstanding, the
percentage which the aggregate principal amount of such Lender's CAF Advances
then outstanding constitutes of the aggregate principal amount of the CAF
Advances then outstanding).
"Commitment Period": the period from and including the date hereof to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Consolidated Tangible Net Worth": at any date, the excess at such date
of total assets over total liabilities of the Borrower and its consolidated
subsidiaries determined in accordance with GAAP, on a consolidated basis,
excluding, however, from the determination of total assets (i) all intangible
assets such as goodwill, trade names, trademarks, patents, organization
expenses, unamortized debt discount and expense and other like intangibles, (ii)
to the extent not already deducted from total assets, reserves for depreciation,
depletion, obsolescence and/or amortization of properties and all other reserves
or appropriations of retained earnings which, in accordance with GAAP, should be
established in connection with the business conducted by the relevant
corporation, and (iii) any revaluation or other write-up in book value of assets
subsequent to December 31, 1996 except in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Continuing Lenders": as defined in subsection 2.20(a)(ii).
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Environmental Laws": any and all applicable foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to (a) the rate for
deposits in Dollars with maturities equal to such Interest Period which appears
on the display designated "LIBO" of the Telerate screen page 3750 as used by the
British Bankers Association at 11:00 A.M., London time, on the date which is two
Business Days preceding the first day of such Interest Period, or (b) if no such
rate is being quoted at the time of determination, the rate per annum equal to
the average (rounded upward to the nearest 1/100th of 1%) of the respective
rates notified to the Administrative Agent by each of the Reference Lenders as
the rate at which such Reference Lender is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its Eurodollar Loans are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of its Eurodollar Loan to be outstanding during such Interest Period.
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Existing Credit Agreement": as defined in the recitals.
"Existing Termination Date": as defined in subsection 2.20(a)(i).
"Facility Fee Rate": for each day during each quarterly calculation
period, a rate per annum set forth below opposite the Rating in effect on such
day:
Facility Fee
Ratings Rate
------- ------------
Rating I .0550%
Rating II .0600%
Rating III .0650%
Rating IV .0900%
Rating V .1250%
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at a fixed rate (as opposed to a rate
composed of the LIBOR Rate plus (or minus) a margin).
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Grid CAF Advance Note": as defined in subsection 2.4(f); collectively,
the "Grid CAF Advance Notes".
"Guarantee": of a Person, at a particular date, the sum (without
duplication) of the following: (a) guarantees or endorsements (other than for
purposes of collection in the ordinary course of business) of, or obligations to
purchase goods or services for the purpose of supplying funds for the purchase
or payment of, indebtedness, liabilities or obligations of others, and other
contingent liabilities in respect of, or to purchase or otherwise acquire or
service, indebtedness, liabilities or obligations of others, provided that any
such obligation to purchase goods or services shall be treated as Indebtedness
only to the extent that payment thereunder will be required (after giving effect
to any provision limiting such payments) if such property or services are not
delivered to such Person, and (b) all indebtedness in effect guaranteed by an
agreement, contingent or otherwise, to make any loan, advance, capital
contribution or other investment in the debtor for the purpose of assuring a
minimum equity, asset base, working capital or other balance sheet condition for
any date, or to provide funds for the payment of any liability, dividend or
stock liquidation payment, or otherwise to supply funds to or in any manner
invest in the debtor, but only to the extent of the liability of such Person
thereunder.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) of the following: (a) all items of indebtedness which in accordance
with GAAP would be included in determining total liabilities as shown on the
liability side of a balance sheet of such Person as at such date, (b)
indebtedness for the repayment of borrowed money secured by any Mortgage
existing on a Principal Property owned subject to such Mortgage, whether or not
the indebtedness secured thereby shall have been assumed, (c) Guarantees, (d)
Capitalized Lease Obligations and (e) Production Payments, provided, however,
that the term "Indebtedness" shall not include liabilities in respect of advance
payments made under contracts for the sale of goods and/or services, or lease
obligations other than Capitalized Lease Obligations, or guarantees of any such
liabilities or lease obligations.
"Indebtedness for Money Borrowed": of a Person, at a particular date,
the sum (without duplication) of the following (a) all Indebtedness, whether or
not represented by bonds, debentures, notes, commercial paper or other
securities, for the repayment of borrowed money, (b) all deferred obligations
for the payment of the purchase price of property or assets purchased and
secured by a purchase money mortgage, conditional sale agreement, security
agreement or any title retention agreement, (c) Indebtedness of the character
described in clauses (b) and (c) of the definition of "Indebtedness" in
subsection 1.1 if such Indebtedness relates to Indebtedness for Money Borrowed
of others, (d) Capitalized Lease Obligations and (e) Production Payments.
"Individual CAF Advance Note": as defined in subsection 2.4(g).
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding, (b)
as to any Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three months, or a
whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending one,
two, three or six months thereafter or, to the extent available (as determined
by the Administrative Agent), nine or twelve months thereafter, as selected by
the Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one,
two, three or six months thereafter or, to the extent available (as determined
by the Administrative Agent), nine or twelve months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not less than
three Business Days prior to the last day of the then current Interest Period
with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest Period for such
Loan.
"LIBOR Rate": in respect of any CAF Advance requested pursuant to a
LIBOR CAF Advance Request, the rate for deposits in Dollars for the period
commencing on the date of such CAF Advance and ending on the maturity date
thereof which appears on the display designated "LIBO" of the Telerate screen
page 3750 as used by the British Bankers Association at 11:00 A.M., London time,
on the date which is two Business Days preceding the first day of such period.
"LIBOR Rate CAF Advance": any CAF Advance made pursuant to a LIBOR Rate
CAF Advance Request.
"LIBOR Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the LIBOR
Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Lease" or "lease": any lease or other similar arrangement for the use
of property and "lessee" thereunder shall include any lessee or user thereunder.
"Loan": any Revolving Credit Loan or CAF Advance made by any Lender
pursuant to this Agreement.
"Loan Documents": this Agreement and the Notes.
"Material Adverse Change": a material adverse change in the financial
condition of the Borrower and its consolidated subsidiaries taken as a whole
from that reflected in the Borrower's consolidated balance sheet as at December
31, 1996 referred to in subsection 3.1.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any applicable Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Mortgage": any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement), provided that the sale of Accounts pursuant to hold-back
arrangements entitling the purchaser of such Accounts to offset against the
hold-back losses arising from defaults by account debtors shall not be deemed a
Mortgage.
"Moody's": ▇▇▇▇▇'▇ Investor Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 2.16.
"Notes": the collective reference to the Revolving Credit Notes and the
CAF Advance Notes.
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate": the rate of interest per annum publicly announced from
time to time by Chase as its prime rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of interest
charged by Chase in connection with extensions of credit to debtors).
"Principal Domestic Subsidiary": each of the Subsidiaries designated as
a "Principal Domestic Subsidiary" on Schedule II attached hereto.
"Principal Property": (a) any mineral property, located within the
United States of America or its territories or possessions, of the Borrower or
any Principal Domestic Subsidiary which is in production, under development or
included in estimates of reserves published by the Borrower, (b) any
concentrator, smelter, refinery, rod mill, metal fabricating plant or similar
processing or manufacturing facility, located within the United States of
America or its territories or possessions, of the Borrower or any Principal
Domestic Subsidiary, or (c) any Capital Stock of, or any Indebtedness for Money
Borrowed owing to the Borrower or any other Principal Domestic Subsidiary of,
any Principal Domestic Subsidiary which owns any Principal Property; provided,
that Principal Property shall in any event not include any property, facility or
Principal Domestic Subsidiary determined by the Board of Directors not to be of
material importance to the operations of the Borrower and the Principal Domestic
Subsidiaries taken as a whole.
"Production Payment": any arrangement providing for the sale, transfer
or other disposition of (a) minerals (including coal and hydrocarbons) until the
transferee thereof shall realize therefrom a specified amount of money (however
determined) or a specified amount of such minerals (however determined) or (b)
any interest in minerals (including coal and hydrocarbons) of the character
commonly referred to as a "production payment."
"Rating Agencies": collectively, S&P and ▇▇▇▇▇'▇.
"Rating I", "Rating II", "Rating III", "Rating IV" and "Rating V": the
respective Ratings set forth below:
S&P ▇▇▇▇▇'▇
Rating I AA- or higher Aa3 or higher
Rating II Lower than AA- Lower than Aa3 but
but higher than or higher than or
equal to A+ equal to A1
Rating III Lower than A+ Lower than A1 but
but higher than or higher than or equal
equal to A- to A3
Rating IV Lower than A- but Lower than A3 but higher
higher than or equal than or equal to
to BBB+ Baa1
Rating V BBB or lower Baa2 or lower
; provided, that if on any day the Ratings of the Rating Agencies do not
coincide for any rating category, the higher Rating will be the applicable
Rating for purposes of determining the Applicable Margin and the Facility Fee
Rate with respect to any Interest Period or quarterly period, as the case may
be.
"Ratings": the ratings of the Rating Agencies applicable to the
long-term senior unsecured debt of the Borrower, as announced by the Rating
Agencies.
"Reference Lenders": Chase, The Bank of Nova Scotia and ▇▇▇▇▇▇ Guaranty
Trust Company of New York.
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .12, .13, .14, .16, .18, .19 or .20 of PBGC Reg. SS
2615.
"Required Lenders": at any time, Lenders the Commitment Percentages of
which aggregate at least 66-2/3%.
"Requirement of Law": as to any Person, any applicable law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the president or
any vice-president of the Borrower or, with respect to financial matters, the
chief financial officer, any vice-president with responsibility primarily for
accounting or financial matters, the treasurer or the controller of the
Borrower.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Sale and Lease-Back Transactions": any arrangement with any Person
providing for the leasing by the Borrower or a Principal Domestic Subsidiary of
any Principal Property (except for temporary leases for a term of not more than
three years), title to which property has been or is to be sold or transferred
by the Borrower or such Principal Domestic Subsidiary to such Person, except for
arrangements with any Governmental Authority of the United States of America or
any of its territories or possessions entered into for the purpose of financing
all or any part of the purchase price or the cost of constructing or improving
the property subject to such arrangement.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Service, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Terminating Lender": as defined in subsection 2.20(a)(i).
"Termination Date": June 25, 2002 or such later date to which the
Termination Date may be extended pursuant to subsection 2.20.
"Total Capitalization": at any date, the sum of Consolidated Tangible
Net Worth at such date and Indebtedness for Money Borrowed of the Borrower and
its consolidated subsidiaries determined in accordance with GAAP, on a
consolidated basis, at such date.
"Tranche": the reference to Eurodollar Loans the then current Interest
Period with respect to which begins on the same date and ends on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Transferee": as defined in subsection 9.6(h).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan or a
Eurodollar Loan.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed the amount of such Lender's Commitment provided that no Revolving
Credit Loan shall be made if, after giving effect thereto, the aggregate
outstanding principal amount of Revolving Credit Loans and CAF Advances would
exceed the Commitments. During the Commitment Period the Borrower may use the
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with subsections
2.3 and 2.8, provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each
Lender shall be evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit A-1, with appropriate insertions as to payee, date and
principal amount (a "Revolving Credit Note"), payable to the order of such
Lender and in a principal amount equal to the lesser of (a) the amount of the
initial Commitment of such Lender and (b) the aggregate unpaid principal amount
of all Revolving Credit Loans made by such Lender. Each Lender is hereby
authorized to record the date, Type and amount of each Revolving Credit Loan
made by such Lender, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of Eurodollar Loans, the length
of each Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its Revolving Credit Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided, however, that the failure to make any such recordation shall not
affect the obligations of the Borrower hereunder or under any Revolving Credit
Note. Each Revolving Credit Note shall (x) be dated the Closing Date, (y) be
stated to mature on the Termination Date and (z) provide for the payment of
interest in accordance with subsection 2.10.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Commitments during the Commitment Period on any Business Day, provided
that the Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 1:00 P.M., New York
City time, (a) three Business Days prior to the requested Borrowing Date, if all
or any part of the requested Revolving Credit Loans are to be initially
Eurodollar Loans or (b) on the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
amount of each such Eurodollar Loan and the length of the initial Interest
Period therefor. Each borrowing under the Commitments shall be in an aggregate
amount equal to (x) in the case of ABR Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then Available Commitments are less
than $5,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the office of the Administrative Agent specified in subsection
9.2 prior to 2:00 P.M., New York City time, on the Borrowing Date requested by
the Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.4 CAF Advances. (a) The Borrower may borrow CAF Advances from time to
time on any Business Day during the period from the Closing Date until the date
occurring 14 days prior to the Termination Date in the manner set forth in this
subsection 2.4 and in amounts such that the aggregate amount of Revolving Credit
Loans and CAF Advances outstanding at any time shall not exceed the aggregate
amount of the Commitments at such time. Prior to the Closing Date, the Borrower
will have borrowed existing CAF Advances as set forth on Schedule IV. As of the
Closing Date, such existing CAF Advances shall be deemed to be CAF Advances
under this Agreement.
(b) (i) The Borrower shall request CAF Advances by delivering a CAF
Advance Request to the Administrative Agent, not later than 12:00 Noon (New York
City time) four Business Days prior to the proposed Borrowing Date (in the case
of a LIBOR Rate CAF Advance Request), and not later than 10:00 A.M. (New York
City time) one Business Day prior to the proposed Borrowing Date (in the case of
a Fixed Rate CAF Advance Request). Each CAF Advance Request may solicit bids for
CAF Advances in an aggregate principal amount of $5,000,000 or increments of
$1,000,000 in excess thereof and for not more than three alternative maturity
dates for such CAF Advances. The maturity date for each CAF Advance shall be not
less than 7 days nor more than 360 days after the Borrowing Date therefor (and
in any event not after the Termination Date). The Administrative Agent shall
promptly notify each Lender by facsimile transmission of the contents of each
CAF Advance Request received by it.
(ii) In the case of a LIBOR Rate CAF Advance Request, upon receipt
of notice from the Administrative Agent of the contents of such CAF Advance
Request, any Lender that elects, in its sole discretion, to do so, shall
irrevocably offer to make one or more CAF Advances at the LIBOR Rate plus or
minus a margin determined by such Lender in its sole discretion for each such
CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) three Business Days before the proposed Borrowing Date, setting forth the
maximum amount of CAF Advances for each maturity date, and the aggregate maximum
amount for all maturity dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.4(a), exceed such Lender's Commitment) and
the margin above or below the LIBOR Rate at which such Lender is willing to make
each such CAF Advance; the Administrative Agent shall advise the Borrower before
11:15 A.M. (New York City time) three Business Days before the proposed
Borrowing Date, of the contents of each such CAF Advance Offer received by it.
If the Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall advise the Borrower of the
contents of its CAF Advance Offer before 10:15 A.M. (New York City time) three
Business Days before the proposed Borrowing Date.
(iii) In the case of a Fixed Rate CAF Advance Request, upon receipt
of notice from the Administrative Agent of the contents of such CAF Advance
Request, any Lender that elects, in its sole discretion, to do so, shall
irrevocably offer to make one or more CAF Advances at a rate of interest
determined by such Lender in its sole discretion for each such CAF Advance. Any
such irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent, before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth the maximum amount of CAF Advances for each
maturity date, and the aggregate maximum amount for all maturity dates, which
such Lender would be willing to make (which amounts may, subject to subsection
2.4(a), exceed such Lender's Commitment) and the rate of interest at which such
Lender is willing to make each such CAF Advance; the Administrative Agent shall
advise the Borrower before 10:15 A.M. (New York City time) on the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall advise the Borrower of the
contents of its CAF Advance Offer before 9:15 A.M. (New York City time) on the
proposed Borrowing Date.
(iv) The Borrower shall before 11:45 A.M. (New York City time)
three Business Days before the proposed Borrowing Date (in the case of CAF
Advances requested by a LIBOR Rate CAF Advance Request) and before 10:45 A.M.
(New York City time) on the proposed Borrowing Date (in the case of CAF Advances
requested by a Fixed Rate CAF Advance Request) either, in its absolute
discretion:
(A) cancel such CAF Advance Request by giving the Administrative Agent
telephone notice to that effect, or
(B) accept one or more of the offers made by any Lender or Lenders
pursuant to clause (ii) or clause (iii) above, as the case may be, by giving
telephone notice to the Administrative Agent (immediately confirmed by delivery
to the Administrative Agent of a CAF Advance Confirmation) of the amount of CAF
Advances for each relevant maturity date to be made by each Lender (which amount
for each such maturity date shall be equal to or less than the maximum amount
for such maturity date specified in the CAF Advance Offer of such Lender, and
for all maturity dates included in such CAF Advance Offer shall be equal to or
less than the aggregate maximum amount specified in such CAF Advance Offer for
all such maturity dates) and reject any remaining offers made by Lenders
pursuant to clause (ii) or clause (iii) above, as the case may be; provided,
however, that (x) the Borrower may not accept offers for CAF Advances for any
maturity date in an aggregate principal amount in excess of the maximum
principal amount requested in the related CAF Advance Request, (y) if the
Borrower accepts any of such offers, it must accept offers strictly based upon
pricing for such relevant maturity date and no other criteria whatsoever and (z)
if two or more Lenders submit offers for any maturity date at identical pricing
and the Borrower accepts any of such offers but does not wish to (or by reason
of the limitations set forth in subsection 2.4(a) or in clause (x) of the
proviso, cannot) borrow the total amount offered by such Lenders with such
identical pricing, the Borrower shall accept offers from all of such Lenders in
amounts allocated among them pro rata according to the amounts offered by such
Lenders (unless such pro rata allocation would result in a violation of the
requirement that CAF Advances made by a Lender on a Borrowing Date for each
relevant maturity date shall be in a principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, in which event the Borrower
shall be permitted to make such allocations on a basis other than pro rata to
the extent necessary to comply with such requirement).
(v) If the Borrower notifies the Administrative Agent that a CAF
Advance Request is cancelled pursuant to clause (iv) (A) above, the
Administrative Agent shall give prompt telephone notice thereof to the Lenders,
and the CAF Advances requested thereby shall not be made.
(vi) If the Borrower accepts pursuant to clause (iv) (B) above one
or more of the offers made by any Lender or Lenders, the Administrative Agent
shall promptly notify each Lender which has made such an offer, of the aggregate
amount of such CAF Advances to be made on such Borrowing Date for each maturity
date and of the acceptance or rejection of any offers to make such CAF Advances
made by such Lender. Each Lender which is to make a CAF Advance shall, before
12:00 Noon (New York City time) on the Borrowing Date specified in the CAF
Advance Request applicable thereto, make available to the Administrative Agent
at its office set forth in subsection 9.2 the amount of CAF Advances to be made
by such Lender, in immediately available funds. The Administrative Agent will
make such funds available to the Borrower as soon as practicable on such date at
the Administrative Agent's aforesaid address. As soon as practicable after each
Borrowing Date, the Administrative Agent shall notify each Lender of the
aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.4, the Borrower may from time to time borrow under this subsection
2.4, repay pursuant to paragraph (d) below, and reborrow under this subsection
2.4.
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender which has made a CAF Advance (or the CAF Advance Assignee
in respect thereof, as the case may be) on the maturity date of each CAF Advance
(such maturity date being that specified by the Borrower for repayment of such
CAF Advance in the related CAF Advance Request) the then unpaid principal amount
of such CAF Advance. The Borrower shall not have the right to prepay any
principal amount of any CAF Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each CAF Advance from the Borrowing Date to the stated maturity date thereof, at
the rate of interest determined pursuant to paragraph (b) above (calculated on
the basis of a 360 day year for actual days elapsed), payable on the interest
payment date or dates specified by the Borrower for such CAF Advance in the
related CAF Advance Request as provided in the CAF Advance Note evidencing such
CAF Advance. If all or a portion of the principal amount of any CAF Advance
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall, without limiting any rights of
any Lender under this Agreement, bear interest from the date on which such
payment was due at a rate per annum which is 2% above the rate which would
otherwise be applicable pursuant to the CAF Advance Note evidencing such CAF
Advance until the scheduled maturity date with respect thereto as set forth in
the CAF Advance Note evidencing such CAF Advance, and for each day thereafter at
a rate per annum which is 2% above the ABR until paid in full (as well after as
before judgment).
(f) The CAF Advances made by each Lender shall be evidenced initially
by a promissory note of the Borrower, substantially in the form of Exhibit A-2
with appropriate insertions (a "Grid CAF Advance Note"), payable to the order of
such Lender and representing the obligation of the Borrower to pay the unpaid
principal amount of all CAF Advances made by such Lender, with interest on the
unpaid principal amount from time to time outstanding of each CAF Advance
evidenced thereby as prescribed in subsection 2.4(e). Each Lender is hereby
authorized to record the date and amount of each CAF Advance made by such
Lender, the maturity date thereof, the date and amount of each payment of
principal thereof and the interest rate with respect thereto on the schedule
annexed to and constituting part of its Grid CAF Advance Note, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided, however, that the failure to make any such
recordation shall not affect the obligations of the Borrower hereunder or under
any Grid CAF Advance Note. Each Grid CAF Advance Note shall be dated the Closing
Date, and each CAF Advance evidenced thereby shall bear interest for the period
from and including the Borrowing Date thereof on the unpaid principal amount
thereof from time to time outstanding at the applicable rate per annum
determined as provided in, and such interest shall be payable as specified in,
subsection 2.4(e).
(g) Amounts advanced by a Lender pursuant to this subsection 2.4 on a
Borrowing Date which have the same maturity date and interest rate shall be
deemed to constitute one CAF Advance so long as such amounts remain evidenced by
the Grid CAF Advance Note of such Lender; any such Lender that wishes such
amounts to constitute more than one CAF Advance and to have each such CAF
Advance evidenced by a separate promissory note payable to such Lender,
substantially in the form of Exhibit A-3 with appropriate insertions as to
Borrowing Date, principal amount and interest rate (an "Individual CAF Advance
Note"), shall notify the Administrative Agent and the Borrower by facsimile
transmission of the respective principal amounts of the CAF Advances (which
principal amounts shall not be less than $5,000,000 for any of such CAF
Advances) to be evidenced by each such Individual CAF Advance Note. Not later
than three Business Days after receipt of such notice, the Borrower shall
deliver to such Lender an Individual CAF Advance Note payable to the order of
such Lender in the principal amount of each such CAF Advance and otherwise
conforming to the requirements of this Agreement. Upon receipt of such
Individual CAF Advance Note, such Lender shall endorse on the Schedule attached
to its Grid CAF Advance Note the transfer of such CAF Advance from its Grid CAF
Advance Note to such Individual CAF Advance Note.
2.5 Fees. (a) The Borrower will pay to the Administrative Agent for the
account of each Lender a facility fee computed for each day during the
Commitment Period at a rate per annum equal to the Facility Fee Rate in effect
for such day on the amount of the Commitment of such Lender, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Termination Date or such earlier date on which the Commitments shall
terminate as provided herein, commencing on the first of such dates to occur
after the date hereof.
(b) The Borrower will pay to the Administrative Agent for its own
account in connection with the utilization by the Borrower of the CAF Advance
procedures pursuant to subsection 2.4, an auction fee in the amount previously
agreed in writing between the Borrower and the Administrative Agent, such fee to
be paid concurrently with the delivery of each CAF Advance Request.
(c) The Borrower will pay to the Administrative Agent for its own
account such other fees in the amounts and on the dates as have been previously
agreed in writing between the Borrower and the Administrative Agent.
2.6 Termination or Reduction of Commitments. The Borrower shall have
the right, upon not less than five Business Days' written notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments. Any such reduction shall be in an amount
equal to $5,000,000 or a whole multiple thereof and shall reduce permanently the
Commitments then in effect. The Administrative Agent shall promptly send a copy
of any notices of reduction or termination of the Commitments to each of the
Lenders.
2.7 Optional Prepayments. The Borrower may at any time and from time to
time prepay the ABR Loans and the Eurodollar Loans, in whole or in part, without
premium or penalty, by giving irrevocable notice to the Administrative Agent at
or before 1:00 P.M. on the third Business Day prior to prepayment, such notice
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with any amounts payable pursuant to
subsection 2.17; provided that any Lender entitled to claim any amounts payable
pursuant to subsection 2.17 shall have provided the Borrower with a certificate,
through the Administrative Agent, setting forth in reasonable detail such
amounts.
2.8 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof. All or any part of outstanding Eurodollar Loans and ABR
Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a conversion is not appropriate and (ii) no Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the
Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date and
provided, further, that if the Borrower shall fail to give any required notice
as described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
( c) Any notice required by this subsection 2.8 to be given to the
Administrative Agent on any Business Day must be received by the Administrative
Agent prior to 11:00 A.M., New York City time, on such Business Day.
2.9 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Tranche shall be equal to $5,000,000 or a multiple
of $1,000,000 in excess thereof. The Borrower shall be entitled to maintain no
more than ten Tranches at any one time.
2.10 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR.
( c) If all or a portion of (i) the principal amount of any Revolving
Credit Loan, (ii) any interest payable thereon or (iii) any facility fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection plus 2% or (y) in the case of overdue interest, facility fee or
other amount, the ABR plus 2%, in each case from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest on each Revolving Credit Loan shall be payable in arrears
on each Interest Payment Date, provided that interest accruing pursuant to
paragraph (c) of this subsection shall be payable from time to time on demand.
(e) Interest on CAF Loans will be payable as provided in subsection
2.4.
2.11 Computation of Interest and Fees. (a) Whenever interest is
accruing at the ABR, calculated on the basis of the Prime Rate, such interest,
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; and, otherwise, interest shall be calculated
on the basis of a 360-day year for the actual days elapsed. Facility fees shall
be calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR shall become effective as of
the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.10(a).
(c ) If any Reference Lender shall for any reason no longer have a
Commitment, such Reference Lender shall thereupon cease to be a Reference
Lender, and if, as a result, there shall only be one Reference Lender remaining,
the Administrative Agent (after consultation with the Borrower and the Lenders)
shall, by notice to the Borrower and the Lenders, designate another Lender as a
Reference Lender so that there shall at all times be at least two Reference
Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest shall,
subject to the provisions of subsection 2.12, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender.
2.12 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Administrative Agent shall give notice thereof by telephone or facsimile
transmission to the Borrower and the Lenders as soon as practicable thereafter.
If such notice is given (x) any Eurodollar Loans requested to be made on the
first day of such Interest Period shall be made as ABR Loans, (y) any Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as ABR Loans and (z) any
outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Loans to Eurodollar
Loans.
2.13 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower of Revolving Credit Loans, each payment by the Borrower on account of
any facility fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of the
Lenders. Each payment (other than prepayments) by the Borrower on account of
principal of and interest on the Loans shall be made pro rata according to the
respective amounts then due and owing. Each prepayment in respect of the
Revolving Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of Revolving Credit Loans then held by the
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders entitled thereto, at the
Administrative Agent's office specified in subsection 9.2, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower.
2.14 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Revolving Credit Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to ABR Loans on the respective last days of the
then current Interest Periods with respect to such Revolving Credit Loans or
within such earlier period as required by law. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such Lender such
amounts, if any, as may be required pursuant to subsection 2.17.
2.15 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender of principal, interest, fees of any other amount payable
in respect thereof (except for Non-Excluded Taxes covered by subsection 2.16 and
changes in taxes imposed on or measured by the overall net income of such Lender
or its lending office for such Loan);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition (except for
any condition covered by clauses (i) or (ii) above and not specifically excluded
from the coverage of such clauses by the terms thereof);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Borrower in writing, through the
Administrative Agent, of the event by reason of which it has become so entitled;
provided, that the Borrower shall not be required to compensate a Lender for
costs in respect of any period beginning before the date which is 120 days prior
to the date on which the Borrower receives notice that such costs have been
imposed, or if such costs have been imposed retroactively, the period beginning
on such earlier date on which such costs shall have become effective (excluding,
however, any portion of such period which is after the date of adoption of or
change in the relevant Requirement of Law and more than 120 days prior to the
date on which the Borrower had received notice that such costs had been
imposed). A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender, through the Administrative Agent, to the
Borrower shall be conclusive in the absence of manifest error.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a written request therefor, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
( c) Covenants of the Borrower in this subsection 2.15 shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
2.16 Taxes. (a) All payments made by the Borrower under this Agreement
and the Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority ("Taxes"), excluding (i) Taxes imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such Tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or the
Notes) and (ii) Taxes imposed by the United States on any Lender other than as a
result of a Change in Law relating to such Lender (any such non-excluded Taxes,
"Non-Excluded Taxes"). If any Taxes are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under the Notes,
(A) the Borrower or the Administrative Agent shall withhold and deduct any such
Taxes from such amounts, (B) the Borrower or the Administrative Agent shall pay
to or deposit with the appropriate taxing authority in a timely manner the full
amount of Taxes so withheld or deducted, (C) the Borrower or the Administrative
Agent shall reasonably promptly send to the Administrative Agent or such Lender
a certified copy of an original official receipt received by the Borrower (or
other documentation reasonably acceptable to the Administrative Agent or such
Lender) showing payment thereof, and (D) if such Taxes are Non-Excluded Taxes,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes, provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
subsection. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required documentary evidence set forth in clause (C) above, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental Taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) on or prior to the date such Lender becomes a Lender hereunder
deliver to the Borrower and the Administrative Agent (A) two duly completed and
accurate copies of United States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further duly completed and accurate copies of any such form or certification on
or before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or the
Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. As provided in subsection 9.6(i), each Person
that shall become a Lender pursuant to subsection 9.6 and that is not
incorporated under the laws of the United States of America or any state thereof
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms and statements required pursuant to this subsection. In
addition, each Lender shall, upon the written request of the Borrower, provide
the Borrower with such other forms, certificates or documentation as may be
reasonably necessary to claim any exemption from, or reduced rate of, Taxes for
which the Borrower is liable under this subsection 2.16; provided that such
action shall not cause the imposition on such Lender of any material additional
costs or legal, regulatory or administrative burdens. If an event occurs after
the date on which any form, certificate or documentation is submitted by a
Lender that renders such item or the information set forth therein incorrect,
such Lender shall promptly notify the Borrower and the Administrative Agent in
writing of such incorrectness.
(c) For purposes of this subsection 2.16, "Change in Law" shall mean,
with respect to any Lender, a change in the Code, the Treasury Regulations
thereunder or any official interpretation thereof (or any officially proposed
changes in the interpretation thereof) or an amendment or revocation of an
applicable United States income tax treaty after the date such Lender acquired
its Notes.
2.17 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of a Eurodollar
Loan after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder.
2.18 Eurocurrency Liabilities. The Borrower agrees to pay to each
Lender which requests compensation under this subsection 2.18 (by notice to the
Borrower), on the last day of each Interest Period with respect to any
Eurodollar Loan made by such Lender, so long as such Lender shall be required to
maintain reserves against "Eurocurrency liabilities" under Regulation D of the
Board of Governors of the Federal Reserve System (or, so long as such Lender may
be required by such Board of Governors or by any other Governmental Authority to
maintain reserves against any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Loans is
determined as provided in this Agreement or against any category of extensions
of credit or other assets of such Lender which includes any Eurodollar Loans),
an additional amount (determined by such Lender and notified to the Borrower)
representing such Lender's calculation or, if an accurate calculation is
impracticable, reasonable estimate (using such reasonable means of allocation as
such Lender shall determine) of the actual costs, if any, incurred by such
Lender during such Interest Period as a result of the applicability of the
foregoing reserves to such Eurodollar Loans, which amount in any event shall not
exceed the product of the following for each day of such Interest Period:
(a) the principal amount of the Eurodollar Loans made by such
Lender to which such Interest Period relates outstanding on such day; and
(b) the difference between (x) a fraction the numerator of
which is the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loan and the denominator of which is one minus the maximum rate
(expressed as a decimal) at which such reserve requirements are imposed by such
Board of Governors or other Governmental Authority on such date minus (y) such
numerator; and
( c) a fraction the numerator of which is one and the
denominator of which is 360.
2.19 Actions of the Lenders. (a) Each Lender shall take all reasonable
action (including, without limitation, providing to the Borrower any forms,
documents, or certificates) necessary to avoid or minimize any amounts which
might otherwise be payable pursuant to subsection 2.15 or 2.16 or the effect of
any event referred to in subsection 2.14 including, without limitation,
designating a different lending office; provided that such action shall not
cause the imposition on such Lender of any material additional costs or legal,
regulatory or administrative burdens.
(b) At any time when an event referred to in subsection 2.14
has occurred, or the payment of increased amounts pursuant to subsection 2.15 or
2.16 to any Lender is required, if the Borrower shall provide a Person
reasonably acceptable to the Administrative Agent willing to purchase the
Revolving Credit Notes held by such Lender and assume the Commitment of such
Lender, such Lender shall transfer its Revolving Credit Notes and its Commitment
to such Person, pursuant to documentation reasonably satisfactory to such
Lender, such Person, the Borrower and the Administrative Agent, on any Business
Day specified by the Borrower not earlier than 7 Business Days after the
Borrower shall have provided such Person, in exchange for a purchase price equal
to the principal amount of such Revolving Credit Notes thereon to such date,
together with accrued interest and all other amounts that would be payable with
respect to such Revolving Credit Notes if such purchase were a prepayment under
subsection 2.7. Upon such transfer such Lender shall be relieved of its
Commitment and other obligations to the Borrower hereunder.
2.20 Extension of Termination Date. (a)(i) The Borrower may request, in
a notice given as herein provided to the Administrative Agent and each of the
Lenders during the 30 day period commencing on the date that is 13 months prior
to the Termination Date then in effect (the "Existing Termination Date"), that
the Termination Date be extended, which notice shall specify the new Termination
Date (which shall be 12 months after the Existing Termination Date) to be in
effect following such extension (the "Requested Termination Date"); provided,
however, that the Borrower may request only two such extensions of the
Termination Date. Each Lender, acting in its sole discretion, shall, not later
than a date 20 days after its receipt of any such notice from the Borrower,
notify the Borrower and the Administrative Agent in writing of its election to
extend or not to extend the Termination Date with respect to its Commitment. Any
Lender which shall not timely notify the Borrower and the Administrative Agent
of its election to extend the Termination Date shall be deemed to have elected
not to extend the Termination Date with respect to its Commitment (any Lender
who timely notifies the Borrower and the Administrative Agent of an election not
to extend its commitment and any Lender so deemed to have elected not to extend
its commitment being referred to as a "Terminating Lender"). The election of any
Lender to agree to a requested extension shall not obligate any other Lender to
agree.
(ii) If and only if Lenders holding Commitments that aggregate at
least 66-2/3% of the aggregate amount of the Commitments, on the date of the
notice delivered by the Borrower pursuant to subparagraph (i) above (including
Commitments of all Terminating Lenders on such date) shall have agreed during
the 20 day period referred to in such subparagraph (i) to extend the Existing
Termination Date, then (A) the Commitments of the Lenders other than Terminating
Lenders (the "Continuing Lenders") shall, subject to the other provisions of
this Agreement, be extended to the Requested Termination Date specified in the
notice from the Borrower, and as to such Lenders the term "Termination Date", as
used herein shall on and after the date as of which the requested extension is
effective mean such Requested Termination Date, provided that if such date is
not a Business Day, then such Requested Termination Date shall be the next
preceding Business Day and (B) the Commitments of the Terminating Lenders shall
continue until the Existing Termination Date, and shall then terminate, and as
to the Terminating Lenders, the term "Termination Date", as used herein, shall
continue to mean such Existing Termination Date.
(b) In the event that the Termination Date shall have been
extended for the Continuing Lenders in accordance with paragraph (a) above and,
in connection with such extension, there are Terminating Lenders, the Borrower
may, at its own expense, require any Terminating Lender to transfer and assign
in whole or in part, without recourse (in accordance with subsection 9.6) all or
part of its interests, rights and obligations under this Agreement to an
assignee (which assignee may be another Lender, if another Lender accepts such
assignment) that shall assume such assigned obligations and that shall agree
that its Commitment will expire on the Termination Date in effect for Continuing
Lenders pursuant to such paragraph (a); provided, however, that (i) the Borrower
shall have received a written consent of the Administrative Agent in the case of
an assignee that is not a Lender (which consent shall not unreasonably be
withheld) and (ii) the assigning Lender shall have received from the Borrower or
such assignee full payment in immediately available funds of the principal of
and interest accrued to the date of such payment on the Loans made by it
hereunder to the extent that such Loans are subject to such assignment and all
other amounts owed to it hereunder (including any amounts that would be payable
to the assigning Lender pursuant to subsection 2.17 if such assignment were,
instead, a prepayment of the Loans of such Lender). Any such assignee's initial
Termination Date shall be the Termination Date in effect at the time of such
assignment for the Continuing Lenders. The Borrower shall not have any right to
require a Lender to assign any part of its interests, rights and obligations
under this Agreement pursuant to this paragraph (b) unless it has notified such
Lender of its intention to require the assignment thereof at least ten days
prior to the proposed assignment date.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:
3.1 Financial Condition. The consolidated balance sheet of the Borrower
and its consolidated subsidiaries as at December 31, 1996 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by Price Waterhouse, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly the
consolidated financial condition of the Borrower and its consolidated
subsidiaries as at such dates, and the consolidated results of their operations
and their consolidated cash flows for the fiscal years then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated subsidiaries as
at March 31, 1997 and the related unaudited consolidated statements of income
and of cash flows for the three-month period ended on such date, certified by a
Responsible Officer, copies of which have heretofore been furnished to each
Lender, are complete and correct and present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein).
3.2 No Change. No event or circumstance has occurred or is existing
which has resulted in, or after giving effect to the reasonably projected
outcome or effect thereof will result in, a Material Adverse Change.
3.3 Corporate Existence. The Borrower (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged and (c) is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to be so qualified would not result in a Material Adverse Change.
3.4 Corporate Power; Authorization; Enforceable Obligations. The
Borrower has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of the Loan Documents. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents except such as have been obtained or made
and are in full force and effect. This Agreement has been, and each Note will
be, duly executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each Note when executed and delivered will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents, the borrowings hereunder and the use of the proceeds thereof will not
violate the Certificate of Incorporation or By-Laws of the Borrower or any
Requirement of Law or Contractual Obligation of the Borrower or of any of its
Principal Domestic Subsidiaries and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any provision of such Certificate of Incorporation or
By-Laws or any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, overtly threatened by or against the Borrower or any
of its Principal Domestic Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) which after giving
effect to the reasonably projected outcome or effect thereof, will result in a
Material Adverse Change.
3.7 No Default. Neither the Borrower nor any of its Principal Domestic
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which has resulted in or, after giving effect to the
reasonably projected outcome or effect thereof, will result in, a Material
Adverse Change. No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and its
Principal Domestic Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property, and none of
such property is subject to any Lien except as permitted by subsection 6.2
except to the extent that the absence of such title or leasehold interest has
not resulted in, and after giving effect to the reasonably projected outcome or
effect thereof, will not result in, a Material Adverse Change.
3.9 Compliance with Law. The Borrower and each of its Principal
Domestic Subsidiaries is in compliance with all Requirements of Law and
Contractual Obligations except to the extent that the failure to comply
therewith has not resulted in, and, after giving effect to the reasonably
projected outcome or effect thereof, will not result in, a Material Adverse
Change.
3.10 Taxes. Each of the Borrower and its Principal Domestic
Subsidiaries has filed or caused to be filed all tax returns which, to the
knowledge of the Borrower, are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Principal Domestic Subsidiaries, as
the case may be) and, to the knowledge of the Borrower, no tax Lien (other than
a Lien for Taxes that are not yet due and payable) has been filed, with respect
to any such tax, fee or other charge which, in any case, has resulted in, or
after giving effect to the reasonably projected outcome or effect thereof will
result in, a Material Adverse Change.
3.11 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors. If requested by any Lender or the Administrative Agent,
the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in said Regulation U.
3.12 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) nor any other event has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan which has resulted in or, after giving effect to the reasonably projected
outcome or effect thereof, will result in, a Material Adverse Change.
3.13 Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or state statute or
regulation which limits its ability to incur indebtedness of the type being
incurred by it pursuant to this Agreement.
3.14 Subsidiaries. Set forth in Schedule II is a complete and accurate
list showing all Subsidiaries (other than inactive Subsidiaries) existing as of
the date of this Agreement, designating certain Subsidiaries as Principal
Domestic Subsidiaries and showing the jurisdiction of incorporation of each
Principal Domestic Subsidiary and the percentage of the outstanding shares of
Capital Stock of such Subsidiaries owned (directly or indirectly) by the
Borrower or any Subsidiary. All of the outstanding Capital Stock of each
Principal Domestic Subsidiary has been validly issued, is fully paid and
non-assessable and is owned by the Borrower or one or more of the Principal
Domestic Subsidiaries free and clear of all Liens. Each Principal Domestic
Subsidiary is duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation.
3.15 Purpose of Loans. The proceeds of the Loans shall be used by the
Borrower for its general corporate purposes, including working capital and
acquisitions.
3.16 Environmental Matters. Except as disclosed in the Borrower's
Annual Report on Form 10-K for fiscal year 1996 or on Schedule III, to the best
knowledge of the Borrower, the Borrower and each Principal Domestic Subsidiary
has complied with all applicable Environmental Laws, except for failures to
comply which have not resulted in, and after giving effect to the reasonably
projected outcome or effect thereof will not result in, a Material Adverse
Change. Except as disclosed in the Borrower's Annual Report on Form 10-K for
fiscal year 1996 or on Schedule III, to the best knowledge of the Borrower,
there are no events, conditions or circumstances involving the Borrower, any of
its Principal Domestic Subsidiaries or any Subsidiaries of such Principal
Domestic Subsidiaries with respect to management of any Materials of
Environmental Concern, environmental pollution or contamination or employee
health or safety which have resulted in, or after giving effect to the
reasonably projected outcome or effect thereof will result in, a Material
Adverse Change.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness; Closing Date. The obligations
hereunder of each Lender and of the Administrative Agent shall become effective
upon the satisfaction of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of the
Borrower and each Lender, with a counterpart for each Lender and (ii) for the
account of each Lender, each of the Notes conforming to the requirements hereof
and executed by a duly authorized officer of the Borrower.
(b) Compliance Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the Borrower,
dated as of the date of this Agreement, substantially in the form of Exhibit C,
with appropriate insertions and attachments, reasonably satisfactory in form and
substance to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Borrower.
(c ) Corporate Proceedings of the Borrower. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of the Borrower authorizing (i) the execution, delivery
and performance of this Agreement and the other Loan Documents to which it is a
party and (ii) the borrowings contemplated hereunder, certified by the Secretary
or an Assistant Secretary of the Borrower as of the date of this Agreement,
which certificate shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(d) Borrower Incumbency Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a Certificate of the
Borrower, dated as of the date of this Agreement, as to the incumbency and
signature of the officers of the Borrower executing any Loan Document reasonably
satisfactory in form and substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
the Borrower.
(e) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws of the Borrower, certified as of the
date of this Agreement as complete and correct copies thereof by the Secretary
or an Assistant Secretary of the Borrower.
(f) Fees. The Administrative Agent shall have received such fees
payable on or before the Closing Date as have been agreed to in writing by the
Borrower and the Administrative Agent.
(e) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender an executed legal opinion of (i) Debevoise &
▇▇▇▇▇▇▇▇, special counsel to the Borrower, substantially in the form of Exhibit
B-1 and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel to the Borrower,
substantially in the form of Exhibit B-2. Such legal opinions shall cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(h) Existing Credit Agreement. Except for existing CAF Advances
listed on Schedule IV, the Borrower shall have paid in full all of its
indebtedness and obligations under the Existing Credit Agreement (or shall pay
such indebtedness and obligations with all or a portion of the proceeds of the
initial Loans hereunder), and all commitments of the banks under the Existing
Credit Agreement shall have been cancelled.
(i) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent and
its counsel. If the Administrative Agent intends to request any documents other
than those described above in this subsection 4.1 in connection with the Closing
Date, it will make such request to the Borrower not later than three days before
the Closing Date.
4.2 Conditions to Each Loan. The agreement of each Lender to make any
Loan requested to be made by it on any date (including, without limitation, its
initial Loan whether or not made on the Closing Date) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower and the Subsidiaries in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date (other than, in the case of any Loan made
after the Closing Date, the representation and warranty contained in subsection
3.2).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Additional Matters. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be reasonably satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and legal
opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this subsection 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any other amount is owing to
any Lender or the Administrative Agent hereunder, the Borrower shall:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 100 days after
the end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its consolidated subsidiaries as at the end of such
year and the related consolidated statements of income and retained earnings and
of cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Price Waterhouse or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 55 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows of the Borrower and its consolidated subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default (including calculations demonstrating compliance with Section
6.1), except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and 5.1(b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, the Borrower
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and in
the Notes to be observed, performed or satisfied by it (including calculations
demonstrating compliance with Section 6.1), and that such Officer has obtained
no knowledge of any Default or Event of Default except as specified in such
certificate;
( c) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its stockholders,
and within ten days after the same are filed, copies of all financial statements
and periodic financial reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous Governmental
Authority; and
(d) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy, in all
material respects, and cause its Principal Domestic Subsidiaries to pay,
discharge or otherwise satisfy, in all material respects, at or before maturity
or otherwise in accordance with reasonable business practices, all its material
obligations of whatever nature; provided, that the Borrower or its Principal
Domestic Subsidiaries, as the case may be, may contest its obligations in good
faith by appropriate proceedings if it maintains reserves in conformity with
GAAP with respect thereto.
5.4 Conduct of Business and Maintenance of Existence. Continue to
engage in businesses of the same general types as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except that nothing
in this subsection 5.4 shall prevent (a) the Borrower from discontinuing any
business if, in the opinion of the Board of Directors, such discontinuance is in
the best interests of the Borrower and not disadvantageous in any material
respect to any Lender or the holder of any Note or (b) the abandonment,
modification or termination of rights, privileges and franchises of the
Borrower, if, in the opinion of the Board of Directors, such abandonment,
modification or termination is in the best interests of the Borrower and not
disadvantageous in any material respect to any Lender or the holder of any Note.
5.5 Compliance With Laws, etc. Use commercially reasonable efforts to
comply, and to cause each Principal Domestic Subsidiary to comply, in all
material respects with all Requirements of Law and Contractual Obligations
except to the extent that failure to so comply would not, in the reasonable
judgment of the Borrower, be expected to result in a Material Adverse Change,
provided, however, that neither the Borrower nor any Principal Domestic
Subsidiary shall be required to comply with any Requirements of Law or
Contractual Obligations if the applicability or validity thereof shall currently
be contested in good faith by appropriate proceedings.
5.6 Maintenance of Property; Insurance. Keep all Principal Properties
in good working order and condition except that nothing in this subsection 5.6
shall prevent the Borrower or any of its Principal Domestic Subsidiaries from
discontinuing the operation and maintenance of any of its Principal Properties
if, in the opinion of the Board of Directors of the Borrower, such
discontinuance is in the best interest of the Borrower and not disadvantageous
in any material respect to any Lender or the holder of any Note; maintain, and
cause each Principal Domestic Subsidiary to maintain, with financially sound and
reputable insurance companies insurance on all its property of a character
usually insured by companies similarly situated and operating like properties in
at least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to each Lender, upon written request, full information as
to the insurance carried. The Borrower and any Principal Domestic Subsidiary may
self-insure (which term shall include insurance by an affiliated insurance
company) against any of the risks required to be insured against pursuant to
this subsection 5.6 so long as such self-insurance is not excessive in the light
of self-insurance by companies similarly situated and operating like properties,
provided, in the case of any insurance required by law, that such risk is
permitted to be self-insured under applicable law and such self-insurance
complies with applicable law.
5.7 Inspection of Property; Books and Records; Discussions. Keep, and
cause each Principal Domestic Subsidiary to keep, proper books of records and
account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation
to its business and activities; and permit, and cause any Principal Domestic
Subsidiary to permit, representatives of any Lender, at such Lender's own
expense, to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired and, after reasonable notice to the Borrower, to
discuss the business, operations, properties and financial and other condition
of the Borrower and its Principal Domestic Subsidiaries with officers and
employees of the Borrower and its Principal Domestic Subsidiaries and with its
independent certified public accountants.
5.8 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, unless in either case,
the Borrower has determined that such event has not resulted in, or after giving
effect to the reasonably projected outcome or effect thereof will not result in,
a Material Adverse Change; and
(c ) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or reasonably expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or
the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii)
the institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan which with respect to the events in clause (i) or (ii),
individually or in the aggregate, could reasonably be expected to involve an
amount of $15,000,000 or more.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any other amount is owing to
any Lender or the Administrative Agent hereunder, the Borrower shall not:
6.1 Financial Condition Covenants.
(a) Maintenance of Tangible Net Worth. Permit Consolidated Tangible
Net Worth at any time to be less than $1,100,000,000.
(b) Indebtedness for Money Borrowed to Total Capitalization. Permit
the ratio of Indebtedness for Money Borrowed of the Borrower and its
consolidated subsidiaries, determined on a consolidated basis in accordance with
GAAP, to Total Capitalization at any time to be greater than 0.5:1.
6.2 Limitation on Mortgages, Sale and Leaseback, etc.
(a) The Borrower will not, nor will it permit any Principal
Domestic Subsidiary to, (i) issue, assume or guarantee any Indebtedness for
Money Borrowed, if such Indebtedness for Money Borrowed is secured by a
mortgage, pledge, security interest or lien (any mortgage, pledge, security
interest or lien being hereinafter in this subsection 6.2 referred to as a
"mortgage" or "mortgages") upon, or (ii) directly or indirectly secure any
outstanding Indebtedness for Money Borrowed by a mortgage upon, any Principal
Property now owned or hereinafter acquired; provided, however, that the
foregoing restriction shall not apply to:
(i) mortgages on any Principal Property acquired, constructed
or improved by the Borrower or any Principal Domestic Subsidiary after the date
of this Agreement which are created or assumed contemporaneously with, or within
90 days after, such acquisition, construction or improvement to secure or
provide for the payment of any part of the purchase price of such property or
the cost of such construction or improvement incurred after the date of this
Agreement, or, in addition to mortgages contemplated by clause (ii) below,
mortgages on any Principal Property existing at the time of acquisition thereof,
provided, that in the case of any such acquisition, construction or improvement
the mortgage shall not apply to any property theretofore owned by the Borrower
or any Principal Domestic Subsidiary, other than in the case of any such
construction or improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located;
(ii) mortgages on any Principal Property acquired from a
corporation which is merged with or into the Borrower or a Principal Domestic
Subsidiary;
(iii) mortgages to secure Indebtedness for Money Borrowed of a
Principal Domestic Subsidiary to the Borrower or to another Principal Domestic
Subsidiary;
(iv) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any mortgage
referred to in the foregoing clauses (i) to (iii), inclusive; provided, however,
that the principal amount of Indebtedness for Money Borrowed secured thereby
shall not exceed the principal amount of Indebtedness for Money Borrowed so
secured at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or part of the
property which secured the mortgage so extended, renewed or replaced (plus
improvements on such property); and
(v) the issuance, assumption or guarantee of secured
Indebtedness for Money Borrowed which would otherwise be subject to the
foregoing restrictions of this subsection 6.2(a) in an aggregate amount which,
together with all other such Indebtedness for Money Borrowed of the Borrower and
its Principal Domestic Subsidiaries and the Attributable Debt in respect of Sale
and Lease-Back Transactions (other than Sale and Lease-Back Transactions
permitted because the Borrower would be entitled to incur Indebtedness for Money
Borrowed secured by a mortgage on the property to be leased pursuant to the
provisions of this subsection 6.2 and other than Sale and Lease-Back
Transactions the proceeds of which have been applied in accordance with the
limitations on Sale and Lease-Back Transactions set forth in subsection 6.2(c)
below) does not at the time exceed 10% of Consolidated Tangible Net Worth.
(b) For the purposes of this subsection 6.2, the following types of
transactions, among others, shall not be deemed to create Indebtedness for Money
Borrowed secured by a mortgage:
(i) Production Payments; and
(ii) mortgages in favor of the United States of America, any
of its territories or possessions, or any State thereof, or any department,
agency, instrumentality or political subdivision of any thereof, or any
department, agency or instrumentality of any such political subdivision, to
secure partial progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of constructing or improving the
property subject to such mortgages.
(c ) The Borrower will not, nor will it permit any Principal
Domestic Subsidiary to, enter into any Sale and Lease-Back Transaction, unless
the proceeds of such sale or transfer are at least equal to the fair value (as
determined by the Board of Directors) of such property and either (i) the
Borrower or such Principal Domestic Subsidiary would be entitled to incur
Indebtedness for Borrowed Money secured by a mortgage on the property to be
leased pursuant to this subsection 6.2 or (ii) the Borrower shall, and in any
such case the Borrower covenants that it will, apply an amount equal to the fair
value (as determined by the Board of Directors) of the property so leased to the
retirement (other than any mandatory retirement), within 90 days of the
effective date of any such Sale and Lease-Back Transaction, of Indebtedness for
Money Borrowed of the Borrower or such Principal Domestic Subsidiary which by
its terms matures at, or is extendible or renewable at the option of the obligor
to, a date more than twelve months after the date of the creation of such
Indebtedness for Money Borrowed and which ranks prior to or on a parity with the
Loans; provided, however that the Borrower or any Principal Domestic Subsidiary
may enter into any Sale and Lease-Back Transaction which would otherwise be
subject to the foregoing restrictions of this subsection 6.2(c) if the amount of
the Attributable Debt in respect of such Sale and Lease-Back Transactions for
such transaction, together with all secured Indebtedness for Money Borrowed of
the Borrower and its Principal Domestic Subsidiaries and all other Attributable
Debt in respect of Sale and Lease-Back Transactions existing at such time (other
than Sale and Lease-Back Transactions permitted because the Borrower would be
entitled to incur Indebtedness for Money Borrowed secured by a mortgage on the
property to be leased and other than Sale and Lease-Back Transactions the
proceeds of which have been applied in accordance with the clause (ii) of this
subsection), does not at the time exceed 10% of Consolidated Tangible Net Worth.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Note when
due in accordance with the terms thereof or hereof; or the Borrower shall fail
to pay any interest on any Note, or any other amount payable hereunder, within
five Business Days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(c ) The Borrower shall default in the observance or performance of
any agreement contained in Section 6; or
(d) The Borrower shall default in the observance or performance of
any other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after notice thereof has been given to the
Borrower in accordance with this Agreement; or
(e) The Borrower or any of its Principal Domestic Subsidiaries
shall (i) default in any payment of principal of or interest of any Indebtedness
for Money Borrowed (other than the Notes), beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness for Money Borrowed was created (except for any such payments
on account of Indebtedness for Money Borrowed in an aggregate amount at any one
time of up to $20,000,000); or (ii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness for Money
Borrowed (except for any such Indebtedness in an aggregate principal amount at
any one time of up to $20,000,000) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness for Money
Borrowed (or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice if required, such Indebtedness for Money Borrowed to
become due prior to its stated maturity; or
(f) (i) The Borrower or any of its Principal Domestic Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any of its Principal Domestic Subsidiaries shall make
a general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of its Principal Domestic Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against the Borrower or any of its
Principal Domestic Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Borrower or any of its Principal Domestic Subsidiaries shall take any action
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of its Principal Domestic Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, has resulted in, or
after giving effect to the reasonably projected outcome or effect thereof will
result in, a Material Adverse Change; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Principal Domestic Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of $30,000,000 or
more, and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) This Agreement or any of the Notes shall, at any time while any
Note shall remain unpaid or any Lender shall have any Commitment hereunder,
cease to be in full force and effect or shall be declared to be null and void,
or the validity or enforceability thereof shall be contested by the Borrower, or
the Borrower shall deny that it has any or further liability or obligation under
this Agreement or any of the Notes;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints
The Chase Manhattan Bank as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
The Chase Manhattan Bank, as the Administrative Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or any
other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes and the other Loan
Documents in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
8.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required 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 or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents 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 credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Notes and all other amounts payable
hereunder.
8.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Loan
Documents. With respect to its Loans made or renewed by it and any Note issued
to it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any Note, nor any
terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. The Required Lenders may, or,
with the written consent of the Required Lenders, the Administrative Agent may,
from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the Notes for the purpose of adding
any provisions to this Agreement, the Notes or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Borrower hereunder or
thereunder or (b) waive, on such terms and conditions as the Required Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the Notes or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (i) reduce the amount or extend
the scheduled date of maturity of any Note or of any installment thereof, or
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the consent of
each Lender affected thereby, or (ii) amend, modify or waive any provision of
this subsection or reduce the percentage specified in the definition of Required
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all the Lenders, or (iii) amend, modify
or waive any provision of Section 8 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Notes. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes and any other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
The Borrower ▇▇▇▇▇▇ Dodge Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative
Agent: Chase Agency Services Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Reference: ▇▇▇▇▇▇ Dodge Corporation
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.4, 2.6, 2.7, 2.8, 2.13 or 2.20
shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans hereunder.
9.5 Payment of Expenses and Taxes; Indemnities. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement, the Notes
and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the fees and disbursements of counsel to
the Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the Notes
and any such other documents, including, without limitation, the fees and
disbursements of counsel to the Administrative Agent and to the several Lenders,
and (c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the Notes and any such other documents, and (d) to pay, indemnify,
and hold each Lender and the Administrative Agent harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes and any such other documents,
including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or any Principal
Property (all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of the
Administrative Agent or any such Lender, (ii) legal proceedings commenced
against the Administrative Agent or any such Lender by any security holder or
creditor thereof arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such or (iii) legal proceedings
commenced by any Bank, the Administrative Agent or any Transferee (as defined in
subsection 9.6(h)) against any other Bank, the Administrative Agent or any other
Transferee. The agreements in this subsection shall survive repayment of the
Notes and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Lenders. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent, all future holders of the Notes, and
their respective successors and assigns, except that the Borrower may not assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement, such Lender shall be solely responsible for
any withholding taxes or any filing or reporting requirements relating to such
Participant and shall indemnify and hold harmless the Borrower and the
Administrative Agent and their respective successors, permitted assigns,
officers, directors, employees, agents and representatives for and against any
Taxes (including interest and penalties thereon and additions thereto), losses,
costs and expenses incurred in connection with such withholding taxes or filing
or reporting requirements, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. The Borrower agrees that
if amounts outstanding under this Agreement and the Notes are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note; provided, that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 9.7(a) as fully as if it
were a Lender hereunder. All amounts payable by the Borrower to such Lender
under subsection 2.15, 2.17, 2.18 and 9.5 shall be determined as if such Lender
had not sold or agreed to sell such participation.
(c ) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time assign, (i)
so long as, to the knowledge of the assignor Lender, such assignment will not,
and there is no substantial likelihood that in the future it will, result in
adverse consequences to the Borrower including without limitation payment
obligations under Sections 2.15 and 2.16, to any Lender or any Affiliate thereof
or, (ii) with the consent of the Borrower and the Administrative Agent (which
consent in each case shall not be unreasonably withheld) to one or more banks or
other entities ("CAF Advance Assignees") any CAF Advance owing to such Lender
and any Individual CAF Advance Note held by such Lender evidencing such CAF
Advance, pursuant to a CAF Advance Assignment executed by the assignor Lender
and the CAF Advance Assignee. Upon such execution, from and after the date of
such CAF Advance Assignment, the CAF Advance Assignee shall, to the extent of
the assignment provided for in such CAF Advance Assignment, be deemed to have
the same rights and benefits of payment and enforcement with respect to such CAF
Advance and Individual CAF Advance Note and the same rights of setoff and
obligation to share pursuant to subsection 9.7 as it would have had if it were a
Lender hereunder; provided, that unless such CAF Advance Assignment shall
otherwise specify and a copy of such CAF Advance Assignment shall have been
delivered to the Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 9.6(d), the assignor thereunder shall act
as collection agent for the CAF Advance Assignee thereunder, and the
Administrative Agent shall pay all amounts received from the Borrower which are
allocable to the assigned CAF Advance or Individual CAF Advance Note directly to
such assignor without any further liability to such CAF Advance Assignee. A CAF
Advance Assignee under a CAF Advance Assignment shall not, by virtue of such CAF
Advance Assignment, become a party to this Agreement or have any rights to
consent to or refrain from consenting to any amendment, waiver or other
modification of any provision of this Agreement or any related document;
provided, that (x) the assignor under such CAF Advance Assignment and such CAF
Advance Assignee may, in their discretion, agree between themselves upon the
manner in which such assignor will exercise its rights under this Agreement and
any related document, and (y) if a copy of such CAF Advance Assignment shall
have been delivered to the Administrative Agent for its acceptance and recording
in the Register in accordance with subsection 9.6(d), neither the principal
amount of, the interest rate on, nor the maturity date of any CAF Advance or
Individual CAF Advance Note assigned to the CAF Advance Assignee thereunder will
be modified without the written consent of such CAF Advance Assignee. If a CAF
Advance Assignee has caused a CAF Advance Assignment to be recorded in the
Register in accordance with subsection 9.6(d), such CAF Advance Assignee may
thereafter, in the ordinary course of its business and in accordance with
applicable law, assign such Individual CAF Advance Note to any Lender, to any
affiliate or subsidiary of such CAF Advance Assignee or to any other financial
institution that has total assets in excess of $1,000,000,000 and that in the
ordinary course of its business extends credit of the type evidenced by such
Individual CAF Advance Note, and the foregoing provisions of this paragraph (c)
shall apply, mutatis mutandis, to any such assignment by a CAF Advance Assignee.
Except in accordance with the preceding sentence, CAF Advances and Individual
CAF Advance Notes may not be further assigned by a CAF Advance Assignee, subject
to any legal or regulatory requirement that the CAF Advance Assignee's assets
must remain under its control.
(d) Upon its receipt of a CAF Advance Assignment executed by an
assignor Lender and a CAF Advance Assignee, together with payment to the
Administrative Agent of a registration and processing fee of $3,500, the
Administrative Agent shall promptly accept such CAF Advance Assignment, record
the information contained therein in a register (the "Register") and give notice
of such acceptance and recordation to the assignor Lender, the CAF Advance
Assignee and the Borrower.
(e) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign (i) so long as, to the knowledge of the assignor Lender,
such assignment will not, and there is no substantial likelihood that in the
future it will, result in adverse consequences to the Borrower including without
limitation payment obligations under Sections 2.15 and 2.16, to any Lender or
any Affiliate thereof or, (ii) with the consent of the Borrower and the
Administrative Agent (which in each case shall not be unreasonably withheld), to
another bank or financial institution ("an Assignee") all or any part of its
rights and obligations under this Agreement and the Notes pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit E, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Borrower and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
On or prior to such effective date, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent (in exchange for the Revolving
Credit Note of the assigning Lender) a new Revolving Credit Note to the order of
such Assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Revolving Credit Note, to the order of the assigning
Lender in an amount equal to the Commitment, retained by it hereunder. Such new
Notes shall be dated the Closing Date, and shall otherwise be in the form of the
Note replaced thereby.
(g) The Administrative Agent shall maintain at its address referred
to in subsection 9.2 a copy of each CAF Advance Assignment and each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of (i) the names and addresses of the Lenders and the Commitment of,
and principal amount of the Loans owing to, each Lender from time to time, and
(ii) with respect to each CAF Advance Assignment delivered to the Administrative
Agent, the name and address of the CAF Advance Assignee and the principal amount
of each CAF Advance owing to such CAF Advance Assignee. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender or CAF Advance Assignee at any reasonable time and
from time to time upon reasonable prior notice.
(h) The Borrower authorizes each Lender to disclose to any
Participant, CAF Advance Assignee or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement. Notwithstanding the
foregoing, without the prior written consent of the Borrower, no Lender may
disclose to any Participant or CAF Advance Assignee or any proposed Transferee
information which has been designated in writing by the Borrower to such Lender
as non-public information. The Borrower agrees to respond promptly to any
request by a Lender pursuant to the preceding sentence for the Borrower's
consent to disclose non-public information and agrees to give such consent
unless it has reason to believe that the proposed recipient of such information
would not treat such information in a confidential manner or unless the Borrower
otherwise deems that a banking relationship with such proposed recipient would
be detrimental to its interests or inconsistent with its corporate policy as
determined by the Borrower. The Borrower agrees to be reasonable in making
determinations pursuant to this paragraph (h). In addition, no such non-public
information shall be disclosed by any Lender to any Participant, CAF Advance
Assignee or proposed Transferee unless such Participant, CAF Advance Assignee or
proposed Transferee shall have agreed in writing for the benefit of the Borrower
to comply with the requirements of this paragraph (h) as if it were a Lender.
(i) If, pursuant to this subsection, any interest in this Agreement
or any Note is transferred to any Transferee which is organized under the laws
of any jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender (for
the benefit of the transferor Lender, the Administrative Agent and the Borrower)
that under applicable law and treaties no taxes will be required to be withheld
by the Administrative Agent, the Borrower or the transferor Lender with respect
to any payments to be made to such Transferee in respect of the Loans, (ii) to
furnish to the transferor Lender (and, in the case of any Purchasing Lender and
any CAF Advance Assignee registered in the Register, the Administrative Agent
and the Borrower) the documents and certifications required by subsection
2.16(b) to be furnished by each Lender that is an original party hereto and
(iii) to agree (for the benefit of the transferor Lender, the Administrative
Agent and the Borrower) to furnish the transferor Lender (and, in the case of
any Purchasing Lender and any CAF Advance Assignee registered in the Register,
the Administrative Agent and the Borrower) the documents and certifications
required by subsection 2.16(b) to be furnished by each Lender that is an
original party hereto subsequent to the date of effectiveness of such transfer.
(j) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
9.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder or under the Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the Notes, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c ) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 9.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the Notes;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
( c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
▇▇▇▇▇▇ DODGE CORPORATION
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a
Lender
By:
------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS
By:
------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
------------------------------
Name:
Title:
CIBC INC.
By:
------------------------------
Name:
Title:
CITIBANK, N.A.
By:
------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
By:
------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By:
------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By:
------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
------------------------------
Name:
Title:
SOCIETE GENERALE
By:
------------------------------
Name:
Title:
Schedule II
▇▇▇▇▇▇ DODGE CORPORAT10N
PRINCIPAL DOMESTIC SUBSIDIARIES
Percentage
of Voting
Securities held
by PDC and its
Associated jurisdiction
Name Companies of Incorporation
---- ---------- ----------------
Accuride Corporation 100.00 Delaware
Columbian Chemicals Company 100.00 Delaware
▇▇▇▇▇▇ Dodge Chino, Inc. 100.00 Delaware
▇▇▇▇▇▇ Dodge Industries, Inc. 100.00 Delaware
▇▇▇▇▇▇ Dodge Morenci, Inc. 100.00 Delaware
▇▇▇▇▇▇ Dodge Refining Corporation 100.00 New York
▇▇▇▇▇▇ DODGE CORPORATION
SUBSIDIARIES
(Other than Principal Domestic Subsidiaries)
Percentage
of Voting
Securities held
by PDC and its
Associated
Name Companies
Accuride Canada Inc. 100.00
Accuride Texas Inc. 100.00
Aislamientos Plasticos, C.A. (PLASTICA) 80.08
Ajo Improvement Company 100.00
Alambres y Cables de Panama, S.A. (ALCAP) 78.08
Alambres y Cables Venezolanos, C.A. (ALCAVE) 80.08
ALCAP Commercial, S.A. (ALCOMER) 78.08
Alcave Trading 80.08
Alicanto, S.A. 100.00
AOT, Inc. 50.00
Apache Nitrogen Products, Inc. 38.70
Arizona Community Investment Corporation 100.00
Armasa 60.52
Ashfork Mines Limited 100.00
Asian Telecommunications Products 39.99
▇▇▇▇▇▇ Queen Mining Company 65.90
Black Mountain Mineral Development (PTY) Ltd. 44.56
Burro Chief Copper Company 100.00
Busa Mining Co., Inc. 100.00
Cables Electricos Ecuatorianos, C.A. (CABLEC) 67.10
Cahosa, S.A. 78.08
Celbac, S.A. 66.63
Chino Mines Company 66.67
Cobre Cerrillos, S.A. (COCESA) 90.04
Cobre Colada Continua, C.C.C., C.A. 40.04
Cobre del ▇▇▇▇, ▇.▇. de C.V. 70.00
Cocesa Ingenieria y Construccion, S.A. (COCETEL) 63.03
Cocesa Trading 90.00
Cocetel del Plata, S.A. 59.88
Cocetel El ▇▇▇▇▇▇▇▇▇ 63.03
Cocetel Ingenieria y Construccion, C.A. 63.03
Colada Continua Chilena 36.92
Columbian (U.K.) Limited (CUKL) 100.00
Columbian Carbon Deutschland GmbH 100.00
Columbian Cargon Europa S.R.L. 100.00
Columbian Carbon International (France), S.A. 100.00
Columbian Carbon Japan Ltd. 50.00
Columbian Carbon Philippines, Inc. 88.20
Columbian Carbon Spain, S.A. 100.00
Columbian Chemicals Canada, Ltd. 100.00
Columbian Chemicals Europa, Gmbh 100.00
Columbian Foreign Export Corporation 100.00
Columbian Holding Company 100.00
Columbian International Chemicals Corporation 100.00
Columbian International Trading Company 100.00
Columbian Technology Company 100.00
Columbian Tiszai Carbon Ltd. 60.00
Comercial ECOHSA, S.A. de C.V. 60.52
Cominesa, Ltd. 100.00
Compania Contractual ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 80.00
Compania Contractual Minera Ojos del Salado 100.00
CONAL, Conductores y Aluminio, C.A. 80.08
CONDUCEN, S.A. 78.57
CONDUCOMER, S.A. (formerly INDELEC) 78.57
Conductores Electricos de Centro America, S.A. (CONELCA)57.57
Condutel 78.57
Corobong Mining Co., Inc. 100.00
Coronado Power & Water, Inc. 100.00
Dagma Mining Co., Inc. 100.00
Dodge & ▇▇▇▇▇ Insurance Company, LTD. 100.00
Dongguan Keystone Elec. Wire & Cable ▇▇.▇▇▇. 16.00
Dongguan Keystone Machinery Co. Ltd. 16.00
Dulugan Mining Co., Inc. 100.00
Electroconductores de Honduras, S.A. de C.V. (ECOHSA) 60.52
Elektrodraht Mureck, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ GmbH 51.00
Erawan Mining Limited 100.00
Fabrica de Conductores Electricos, S.A. (FACELEC) 57.57
Habirshaw Cable and Wire Corporation 100.00
▇▇▇▇▇▇ International Conductors 100.00
▇▇▇▇▇▇ International Conductors Japan, Ltd. 100.00
▇▇▇▇▇▇ Wire - Europe, Inc. 100.00
Industria de Conductores Electricos, C.A. (ICONEL) 80.08
Iponan Mining Co., Inc. 100.00
Isulan Mining Co., Inc. 100.00
Kalahari Investments Limited 100.00
Kalayaan Realty Company, Inc. 35.28
Kasamahan Power Corporation 20.00
Kasamahan Realty Development Corp. 35.00
Keystone Electric Wire and Cable Company Limited 20.00
Kidapawan Mining Co., Inc. 100.00
Kumakata Mining Co., Inc. 100.00
Kyruso Mining Co., Inc. 100.00
Lumintao Mining Co., Inc. 100.00
Macote Mining Co., Inc. 100.00
Makilala Mining Co., Inc. 100.00
Malampay Mining Co., Inc. 100.00
Malibato Mining Co., Inc. 100.00
Mambalili Mining Co., Inc. 100.00
Marico Fluorspar (PTY) Limited 100.00
Metal Fabricators of Zambia Limited (ZAMEFA) 51.00
Minera Aguas Calientes, S.A. 100.00
Minera Cerro ▇▇▇▇▇, ▇.▇. 55.00
Minera Las Claditas, S.A. 85.00
Minera Pampa de Cobre, S.A. 70.00
Minera Papago, S.A. de C.V. 100.00
▇▇▇▇▇▇ ▇▇▇▇▇▇ Dodge de Colombia, Inc. 100.00
▇▇▇▇▇▇ ▇▇▇▇▇▇ Dodge del Peru S.A. 100.00
▇▇▇▇▇▇ ▇▇▇▇▇▇ Dodge Mexico, S. de ▇.▇. de C.V. 100.00
Minera Pilares, S.A. de C.V. 49.00
MineX, Inc. 100.00
Minuet Realty Corporation 39.99
Mosega Fluorspar Works (PTY) Limited 100.00
Nesor Alloy Corporation 100.00
Norala Mining Co., Inc. 100.00
Oclaves Limited 100.00
Pacific Western Land Company 100.00
Pakham Exploration and Mining Limited 49.00
Palimbang Mining Co., Inc. 100.00
Patong Exploration and Mining Limited 49.00
PD - Siam Rod Company Limited 39.36
PD Bolivia, Inc. 100.00
▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. 100.00
PD Cobre del Mayo, Inc. 100.00
PD Explorations, Inc. 100.00
PD Indonesia Corporation 100.00
PD Las ▇▇▇▇▇▇ Corporation 100.00
PD Mineral Development Co (U.K.) Ltd. 100.00
PD Ojos del Salado, Inc. 100.00
PD Peru,Inc. 100.00
PD Puthep Limited 100.00
PDMTR de El Salvador 57.57
PDMTR de Guatemala 57.57
PDTL Trading Company Limited 40.00
Peru Mining Expl & Development Company 16.25
▇▇▇▇▇▇ Dodge (Namibia) (Pty) Ltd. 100.00
▇▇▇▇▇▇ Dodge Africa Cable Corporation 100.00
▇▇▇▇▇▇ Dodge Australasia, Inc. 100.00
▇▇▇▇▇▇ Dodge Chapi, Inc. 100.00
▇▇▇▇▇▇ Dodge Corporation of Canada, Limited 100.00
▇▇▇▇▇▇ Dodge Development Corporation 100.00
▇▇▇▇▇▇ Dodge Do Brasil Mineracao LTDA 100.00
▇▇▇▇▇▇ Dodge Enfield Corporation 100.00
▇▇▇▇▇▇ Dodge Europa, Ltd. 100.00
▇▇▇▇▇▇ Dodge Exploration Corporation 100.00
▇▇▇▇▇▇ Dodge Exploration De Argentina S.A. 100.00
▇▇▇▇▇▇ Dodge Exploration East, Inc. 100.00
▇▇▇▇▇▇ Dodge Foundation -
▇▇▇▇▇▇ Dodge Fuel Development Corporation 100.00
▇▇▇▇▇▇ Dodge ▇▇▇▇▇▇▇, Inc. 100.00
▇▇▇▇▇▇ Dodge Industries Gesellschaft m.b.H 100.00
▇▇▇▇▇▇ Dodge International Corporation 100.00
▇▇▇▇▇▇ Dodge Madagascar S.A.R.L. 100.00
▇▇▇▇▇▇ Dodge Mercantile Company 100.00
▇▇▇▇▇▇ Dodge Mining (Pty) Limited 100.00
▇▇▇▇▇▇ Dodge Mining (Zambia) Limited 100.00
▇▇▇▇▇▇ Dodge Mining Services, Inc. 100.00
▇▇▇▇▇▇ Dodge Molybdenum Corporation 100.00
▇▇▇▇▇▇ Dodge of Africa, Ltd. 100.00
▇▇▇▇▇▇ Dodge of Botswana (Pty) Ltd. 100.00
▇▇▇▇▇▇ Dodge of Portugal, Ltd. 100.00
▇▇▇▇▇▇ Dodge of Turkey, Inc. 100.00
▇▇▇▇▇▇ Dodge Overseas Capital Corporation 100.00
▇▇▇▇▇▇ Dodge Overseas Marketing Corporation 100.00
▇▇▇▇▇▇ Dodge Philippines, Inc. 39.99
▇▇▇▇▇▇ Dodge Sales Company, Incorporated 100.00
▇▇▇▇▇▇ Dodge Thailand Limited 55.47
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. 100.00
▇▇▇▇▇▇ Dodge Yantai Cable Company Limited 40.00
▇▇▇▇▇▇ Dodge Yantai China Holdings Inc. 66.67
Pietersburg Iron Company (Proprietary) Limited 50.00
Pollac Mining Co., Inc. 100.00
PT Kutaraja Tembaga Raya 75.00
Puthep Limited 49.00
Representaciones de Industries Venezdanas, C.A.
(REDIVENCA) 80.08
RPG Telecom, Ltd .80
Sabang Mining Co., Inc. 100.00
Savanna Development Co., Ltd. 100.00
Sevalco Limited 100.00
Seven-Up ▇▇▇▇ Venture 72.30
Siam Electric Industries, Co. Ltd. 9.43
Skyline Estates, Inc. 100.00
Soner, Inc. 100.00
Sonoran Mining Company 100.00
Southern Peru Copper Corporation 16.25
Southern Peru Copper Sales Corporation 16.00
SPD Magnet Wire Company 50.00
St. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dodge Exploration Pty. Ltd. 50.00
Tambali Mining Co., Inc. 100.00
T.I.E. (Trading Import Export) 100.00
Thai Copper Rod Company Limited 13.09
The Morenci Water & Electric Company 100.00
Tucson, ▇▇▇▇▇▇▇▇ and Gila Bend Railroad Co. 100.00
Tulipan Company, Inc. 16.25
Viohalco 2.80
▇▇▇▇▇▇ Company 100.00
Western Nuclear Australia Limited 100.00
Western Nuclear, Inc. 100.00
Western Nuclear Mines, Ltd. 100.00
Woodlawn Properties 33.33
SCHEDULE III
ENVIRONMENTAL REPRESENTATION
As indicated in the Borrower's Form 10-K Report for the 1996 calendar
year, ▇▇▇▇▇▇ Dodge Corporation and its consolidated subsidiaries have been
identified as a potentially responsible party at 36 sites identified on the
National Priorities List (NPL) under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) or a state equivalent. ▇▇▇▇▇▇ Dodge
Corporation and its consolidated subsidiaries also own or operate 13 sites
identified in the Comprehensive Environmental Response, Compensation, and
Liability Information System (CERCLIS), which consists of approximately 35,000
sites throughout the United States that are being reviewed by the EPA to
determine if they qualify for inclusion on the NPL. Among the sites being
reviewed by the EPA are mining sites or portions thereof in Arizona and New
Mexico. Some of these mining sites are owned and/or operated by ▇▇▇▇▇▇ Dodge
Corporation and its subsidiaries, including ▇▇▇▇▇▇ Dodge Morenci, Inc., ▇▇▇▇▇▇
Dodge Chino, Inc., and Burro Chief Copper Company. Whether any of the CERCLIS
sites which are owned or operated by ▇▇▇▇▇▇ Dodge Corporation and its
subsidiaries, including the Arizona or New Mexico mining sites, will be included
on the NPL, or will become the subject of state environmental response action,
cannot be determined at this time.
SCHEDULE IV
-----------
EXISTING CAF ADVANCES
Lender Amount Maturity
------ ------ --------
Date
----
▇▇▇▇▇▇ Guaranty Trust Company
of New York $50,000,000 July 1, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ $25,000,000 July 16,
1997
The Chase Manhattan Bank $50,000,000 July 16,
1997
SCHEDULE OF CAF ADVANCES
Date of
Transer
Date Amount Interest to Indi-
of of Interest Payment Maturity Payment vidual Author-
Loan Loan Rate Dates Date Date Note ization
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