EXHIBIT 10.33
--------------------------------------------------------------------------------
$300,000,000
CREDIT AGREEMENT
dated as of August 31, 1995
among
THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP,
THE LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
--------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
Arranger
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
-----------
1.1 Defined Terms...........................................................1
1.2 Accounting Terms and Determinations....................................17
1.3 Rules of Construction..................................................17
1.4. Rounding...............................................................17
ARTICLE II
THE FACILITY
------------
2.1. The Facility...........................................................17
2.1.1. Description of Facility........................................17
2.1.2. Availability of Facility; Required Payments....................18
2.2. Committed Advances.....................................................18
2.2.1. Committed Advances.............................................18
2.2.2. Types of Committed Advances....................................18
2.2.3. Method of Selecting Types and Interest Periods for New
Committed Advances.............................................18
2.2.4. Conversion and Continuation of Outstanding Committed
Advances.......................................................19
2.3. Competitive Bid Advances...............................................20
2.3.1. Competitive Bid Option; Repayment of Competitive Bid
Advances.......................................................20
2.3.2. Competitive Bid Quote Request..................................20
2.3.3. Submission and Contents of Competitive Bid Quotes..............21
2.3.4. Acceptance and Notice by the Borrower..........................22
2.3.5. Allocation by the Borrower.....................................23
2.3.6. Notice by the Borrower to the Administrative Agent.............23
2.4. Facility Fees..........................................................23
2.5. General Facility Terms.........................................24
2.5.1. Method of Borrowing............................................24
2.5.2. Minimum Amount of Each Committed Advance.......................24
2.5.3. Optional Principal Payments....................................24
2.5.4. Interest Periods...............................................25
2.5.5. Rate after Maturity............................................25
2.5.6. Interest Payment Dates; Interest Basis.........................25
2.5.7. Method of Payment..............................................26
2.5.8. Notes..........................................................26
-i-
Page
----
2.5.9. Notification of Advances, Interest Rates and Prepayments......26
2.5.10. Non-Receipt of Funds by the Administrative Agent..............26
2.5.11. Cancellation..................................................27
2.5.12. Lending Installations.........................................27
2.5.13. Currency Equivalents..........................................27
2.5.14. Taxes.........................................................28
2.5.15. Regulation D Compensation.....................................30
ARTICLE III
CHANGE IN CIRCUMSTANCES
-----------------------
3.1. Yield Protection.......................................................30
3.2. Changes in Capital Adequacy Regulations................................31
3.3. Availability of Types of Advances......................................31
3.4. Funding Indemnification................................................32
3.5. Lender Statements; Limit on Retroactivity; Survival of Indemnity.......32
3.6. Foreign Subsidiary Costs...............................................33
3.7. Replacement of Lenders.................................................33
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1. Initial Advance........................................................34
4.2. Initial Advance to each Eligible Subsidiary............................35
4.3. Each Advance...........................................................35
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
5.1. Organization and Authority.............................................36
5.2. Organization and Authority of Subsidiaries.............................37
5.3. Organization and Authority of Corporate General Partner................37
5.4. Business and Property..................................................37
5.5. Financial Statements...................................................38
5.6. Full Disclosure........................................................38
5.7. Pending Litigation.....................................................38
5.8. Loan Documents are Legal, Valid, Binding and Authorized................38
5.9. Governmental Consent...................................................39
-ii-
Page
----
5.10. Taxes...........................................................39
5.11. Employee Retirement Income Security Act of 1974.................39
5.12. Investment Company Act..........................................40
5.13. Compliance with Environmental Laws..............................40
5.14. Regulations U and X.............................................40
ARTICLE VI
COVENANTS
---------
6.1.1. Information............................................40
6.1.2. Use of Parent Information..............................41
6.2. Use of Proceeds................................................42
6.3. Notice of Default..............................................42
6.4. Inspection.....................................................42
6.5. Legal Existence, Etc...........................................42
6.6. Insurance......................................................42
6.7. Taxes, Claims for Labor and Materials, Compliance with Laws....42
6.8. Maintenance, Etc...............................................43
6.9. Nature of Business.............................................43
6.10. Restricted Payments............................................43
6.11. Payment of Dividends by Subsidiaries...........................44
6.12. Transactions with Affiliates...................................44
6.13. Negative Pledge................................................44
6.14. Consolidations, Mergers and Sales of Assets....................46
6.15. Leverage Test..................................................46
6.16. Subsidiary Debt Limitation.....................................46
ARTICLE VII
DEFAULTS
--------
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. Acceleration....................................................48
8.2. Amendments......................................................49
8.3. Preservation of Rights..........................................49
-iii-
Page
----
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. Survival of Representations.....................................50
9.2. Headings........................................................50
9.3. Entire Agreement................................................50
9.4. Several Obligations.............................................50
9.5. Expenses; Indemnification.......................................50
9.6. Numbers of Documents............................................51
9.7. Severability of Provisions......................................51
9.8. Nonliability of Lenders.........................................51
9.9. CHOICE OF LAW...................................................52
9.10. CONSENT TO JURISDICTION.........................................52
9.11. WAIVER OF JURY TRIAL............................................52
9.12. Confidentiality.................................................52
ARTICLE X
THE AGENTS
----------
10.1. Appointment.....................................................53
10.2. Powers..........................................................53
10.3. General Immunity................................................53
10.4. No Responsibility for Loans, Recitals, etc......................53
10.5. Action on Instructions of Lenders...............................53
10.6. Employment of Agents and Counsel................................54
10.7. Reliance on Documents; Counsel..................................54
10.8. Agent's Reimbursement and Indemnification.......................54
10.9. Rights as a Lender..............................................54
10.10. Lender Credit Decision..........................................54
10.11. Successor Agent.................................................55
10.12. Agents' Fees....................................................55
ARTICLE XI
SETOFF RATABLE PAYMENTS
-----------------------
11.1. Setoff..........................................................55
11.2. Ratable Payments................................................55
-iv-
Page
----
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. Successors and Assigns..........................................56
12.2. Participations..................................................56
12.2.1. Permitted Participants; Effect.........................56
12.2.2. Voting Rights..........................................57
12.3. Assignments.....................................................57
12.3.1. Permitted Assignments..................................57
12.3.2. Effect; Effective Date.................................57
12.4. Dissemination of Information....................................57
12.5. Tax Treatment...................................................58
12.6. Increased Costs.................................................58
ARTICLE XIII
NOTICES
-------
13.1. Giving Notice...................................................58
ARTICLE XIV
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
------------------------------
14.1. Existence and Power.............................................59
14.2. Corporate or Partnership and Governmental Authorization;
Contravention...................................................59
14.3. Binding Effect..................................................59
14.4. Taxes...........................................................59
ARTICLE XV
GUARANTY
--------
15.1. The Guaranty....................................................59
15.2. Guaranty Unconditional..........................................59
15.3. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances...................................................60
15.4. Waiver by the Company...........................................61
15.5. Subrogation.....................................................61
-v-
Page
----
15.6. Stay of Acceleration..........................................61
ARTICLE XVI
COUNTERPARTS; EFFECTIVENESS
---------------------------
PRICING SCHEDULE
Schedule 6.11 Subsidiary Restrictions
Exhibit "A" Note
Exhibit "B-1" Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Exhibit "B-2" Form of Opinion of General Counsel
Exhibit "C" Form of Competitive Bid Quote Request
Exhibit "D" Form of Competitive Bid Quote
Exhibit "E" Form of Assignment Agreement
Exhibit "F" Form of Loan/Credit Related Money Transfer Instruction
Exhibit "G" Form of Election to Participate
Exhibit "H" Form of Election to Terminate
Exhibit "I" Form of Opinion of Counsel for Eligible Subsidiary
Exhibit "J" Form of Opinion of Counsel for the Agents
-vi-
CREDIT AGREEMENT
This Agreement, dated as of August 31, 1995, is among The
ServiceMaster Company Limited Partnership, the Lenders, The First National Bank
of Chicago, as Administrative Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Documentation Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Defined Terms. As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a given Lender
for the relevant Absolute Rate Interest Period, the rate of interest per annum
(rounded to the nearest 1/100 of 1%) offered by such Lender and accepted by the
Borrower pursuant to Section 2.3.4.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Borrower at the same time and for the same Absolute Rate Interest
Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute
Rate Advance or an Absolute Rate Loan, a period of not less than 7 days
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. If such Absolute Rate Interest Period would end on a day which is
not a Business Day, such Absolute Rate Interest Period shall end on the next
succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute
Rate.
"Acquiring Person" means any Person (other than the Parent, the
Surviving Parent and the Surviving Company) or group of two or more Persons
acting as a partnership, limited partnership, syndicate, or other group for the
purpose of acquiring, holding or disposing of Equity Interests of the Company,
the Surviving Company, the Parent or the surviving Parent, together with all
affiliates and associates (as defined in Rule 12b-2 under the Securities and
Exchange Act of 1934, as amended) of such Person or Persons.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as contractual representative for the Lenders pursuant to Article X,
and not in its individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article X.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in a form satisfactory to the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Company) duly
completed by each Lender.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the Borrower
of the same Type (or on the same interest basis in the case of Competitive Bid
Advances) and, in the case of Fixed Rate Advances, for the same Interest Period
and includes a Competitive Bid Advance.
"Affected Lender" is defined in Section 3.7.
"Affiliate" means any Person (other than a Subsidiary) which directly
or indirectly controls, or is controlled by, or is under common control with,
the Company. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of Voting Equity Interest, by contract
or otherwise.
"Agent" means the Administrative Agent or the Documentation Agent and
"Agents" means both of the foregoing.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders hereunder, as reduced from time to time pursuant to the terms
hereof.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Base Rate" means, on any date and with respect to all
Floating Rate Advances, a fluctuating rate of interest per annum equal to the
higher of (i) the Federal Funds Effective Rate most recently determined by the
Administrative Agent plus 1/2% per annum and (ii) the Corporate Base Rate.
Changes in the rate of interest on each Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. The Administrative
Agent will give notice promptly to the Borrowers and the Lenders of changes in
the Alternate Base Rate, provided, however, that the Administrative Agent's
failure to give any such notice will not affect any Borrower's obligation to pay
interest to the Lenders on Floating Rate Advances at the then effective
Alternate Base Rate.
"Alternative Currency" means British Sterling, German Marks, French
Francs, Japanese Yen, Dutch Guilders, Swedish Kronor and any other currency
(other than Dollars) which is freely transferable and convertible into Dollars
in the London interbank market which has been expressly approved in writing as
an Alternative Currency for purposes hereof by all Lenders.
-2-
"Applicable Margin" means the respective margin percentages for each
Committed Fixed Rate Advance determined in accordance with the Pricing Schedule.
"Approved Multiple" means (a) in respect of any borrowing or
prepayment of a Floating Rate Advance, $1,000,000 or any larger integral
multiple of $1,000,000, (b) in the case of any other Advance denominated in
Dollars, $5,000,000 or any larger integral multiple of $1,000,000 and (c) in the
case of any Advance denominated in an Alternative Currency, such multiples of
such currency as the Administrative Agent deems appropriate and reasonably
comparable to a $3,000,000 minimum Dollar Amount.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Assessment Rate" means, for any CD Interest Period, the net
assessment rate per annum payable to the Federal Deposit Insurance Corporation
(or any successor) for the insurance of domestic deposits of the Administrative
Agent during the calendar year in which the first day of such CD Interest Period
falls, as estimated by the Administrative Agent on the first day of such CD
Interest Period.
"Board of Directors" prior to the Effective Date of the Reorganization
means the Board of Directors of the Corporate General Partner and on or after
the Effective Date of the Reorganization means the Board of Directors of the
Company.
"Borrower" means any obligor in its capacity as borrower of a Loan or
Advance hereunder, and "Borrowers" means all such borrowers. References to "the
Borrower" in relation to any Loan or Advance are to the Borrower which has
borrowed or which proposes to borrow such Loan or Advance.
"Borrowing Date" means a date on which an Advance is made or to be
made hereunder.
"British Sterling" means the lawful currency of the United Kingdom.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurocurrency Committed Advances or Eurocurrency Bid Rate
Advances, a day other than Saturday or Sunday on which banks are open for
business in Chicago and New York City and on which dealings in the relevant
currency are carried on in the London interbank market and, where funds are to
be paid or made available in an Alternative Currency, on which commercial banks
are open for domestic and international business in the place where such funds
are paid or made available and (ii) for all other purposes, a day other than
Saturday or Sunday on which banks are open for business in Chicago and New York
City.
-3-
"CD Interest Period" means, with respect to a Fixed CD Rate Advance or
a Fixed CD Rate Loan, a period of 30, 60, 90 or 180 days commencing on a
Business Day selected by the Borrower pursuant to this Agreement. if such CD
Interest Period would end on a day which is not a Business Day, such CD Interest
Period shall end on the next succeeding Business Day.
"Change of Control" shall be deemed to have occurred: (a) prior to the
Effective Date of the Reorganization, on the date on which:
(i) the Corporate General Partner ceases to have a Controlling General
Partnership Interest in both the Company and the Parent; or
(ii) Voting Stock of the Corporate General Partner sufficient to elect
at least a majority of its board of directors ceases to be subject to the
voting trust arrangement described in the Form 10-K; or
(iii) Continuing Directors cease to constitute a majority of the board
of directors of the Corporate General Partner; or
(iv) an Acquiring Person shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of more than 30% (or if such Acquiring Person is WMX
Technologies, Inc. or one of its subsidiaries, 40%) of the Limited
Partnership Interests in the Company or the Parent; and
(b) on and after the Effective Date of the Reorganization, on the date
on which:
(i) Continuing Directors cease to constitute a majority of the board
of directors of the Surviving Parent or, if the Surviving Parent and the
Surviving Company shall have merged or consolidated, of the Surviving
Company; or
(ii) the Surviving Company shall cease to be a subsidiary of the
Surviving Parent (except by reason of a merger or consolidation between
them); or
(iii) an Acquiring Person shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of more than 30% (or if such Acquiring Person is WMX
Technologies, Inc. or one of its subsidiaries, 40%) of the Voting Stock in
the Surviving Company or the Surviving Parent.
For avoidance of doubt, the Reorganization and related transactions described in
the Proxy Statement do not in and of themselves give rise to a Change of
Control.
-4-
"Commitment" means, for each Lender, the obligation of the Lender to
make Loans to the Borrowers not exceeding the amount set forth opposite its
signature below or as set forth in an applicable Assignment Agreement
substantially in the form of Exhibit 'IF" hereto received by the Administrative
Agent under the terms of Section 12.3, as such amount may be modified from time
to time pursuant to the terms of this Agreement.
"Committed Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Committed Loans made by the Lenders to the
Borrower at the same time, of the same Type and, in the case of Fixed Rate
Advances, for the same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.2.3.
"Committed Fixed Rate Advance" means a Fixed CD Rate Advance or a
Eurocurrency Committed Advance.
"Committed Loan" means a Loan made by a Lender pursuant to Section
2.2.
"Company" means The ServiceMaster Company Limited Partnership, a
Delaware limited partnership and its permitted successors and assigns including
the Surviving Company following the assumption of the obligations of the Company
hereunder pursuant to Section 6.14.
"Competitive Bid Advance" means a borrowing hereunder consisting of
the aggregate amount of the several Competitive Bid Loans made by some or all of
the Lenders to the Borrower at the same time, at the same interest basis, and
for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.4.
"Competitive Bid Loan" means a Eurocurrency Bid Rate Loan or an
Absolute Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the
applicable Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan,
expressed as a percentage (rounded to the nearest 1/100 of 1%) to be added or
subtracted from such Eurocurrency Base Rate.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of Exhibit I'D" hereto completed and delivered by a Lender to the
Borrower in accordance with Section 2.3.3
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit 'IC" hereto completed and delivered by the
Borrower in accordance with Section 2.3.3.
-5-
"Consolidated Debt" means at any date, without duplication, the Debt
of the Company and its Consolidated Subsidiaries, determined on a consolidated
basis as of such date.
"Consolidated EBIT" means, for any fiscal period, without duplication,
Consolidated Net Income for such period plus, to the extent deducted in
determining Consolidated Net Income for such period, the aggregate amount of (i)
Consolidated Interest Expense and (ii) income tax expense.
"Consolidated EBITDA" means, for any fiscal period, without
duplication, Consolidated EBIT for such period plus to the extent deducted in
determining Consolidated Net Income for such period, the aggregate amount of
depreciation and amortization. In the event of a purchase by the Company or a
Consolidated Subsidiary of all or any portion of the minority interest in SMCS,
Consolidated EBITDA for any period of four consecutive fiscal quarters ending on
or after the date of such purchase and prior to the first anniversary thereof
shall be determined as if such purchase had been made on the first day of such
four-quarter period.
"Consolidated Interest Expense" means, for any fiscal period, without
duplication, the interest expense of the Company and its Consolidated
Subsidiaries plus dividends accrued on preferred stock of the Company or a
Consolidated Subsidiary which constitutes Debt, all determined on a consolidated
basis for such period.
"Consolidated Net Income" means, for any fiscal period, without
duplication, the net income of the Company and its Consolidated Subsidiaries
(before dividends on preferred stock of the Company) determined on a
consolidated basis for such period, exclusive of the effect of (i) any
extraordinary or other unusual gain and (ii) any extraordinary or other unusual
losses, write-offs or writedowns to the extent that such losses, write-offs or
writedowns do not represent a cash expenditure in such period and will not
represent a cash expenditure in any future period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity which would be consolidated with the Company in its consolidated
financial statements if such statements were prepared as of such date in
accordance with GAAP.
"Continuing Director" means (i) a director of the Corporate General
Partner at the date of this Agreement and (ii) an individual who after the date
of this Agreement becomes a director of the Corporate General Partner (including
any successor Corporate General Partner) or, after the Effective Date of the
Reorganization, of the Company and/or the Parent (x) in connection with the
death, disability or retirement of an incumbent director, or otherwise in the
ordinary course of the affairs of the corporation and (y) whose election was
effected or recommended by a majority of the Continuing Directors then in office
(or by a nominating committee appointed by such a majority of Continuing
Directors). For avoidance of doubt, the foregoing definition contemplates that
the same individuals would successively constitute the Continuing Directors of
the Corporate General Partner, any successor Corporate General Partner
-6-
and, upon consummation of the Reorganization, the Parent and/or the Company,
subject to normal turnover.
"Controlling General Partner Interest" means a General Partnership
Interest which permits the owner of such General Partnership Interest to direct
the management of a general partnership or a limited partnership.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by the Administrative Agent from time to time,
changing when and as said corporate base rate changes.
"Corporate General Partner" means ServiceMaster Management
Corporation, a Delaware corporation, and its successors.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable or accrued expenses arising in the
ordinary course of business, (iv) all obligations of such Person as lessee which
are capitalized in accordance with GAAP, (v) all obligations (absolute or
contingent) of such Person to reimburse any bank or other Person issuing a
letter of credit or similar instrument, (vi) any preferred stock issued by such
Person which is redeemable otherwise than at the sole option of such Person for
consideration other than Equity Interests in such Person, in the Company or in
the Parent, (vii) all Debt secured by a Lien on any asset of such Person,
whether or not such Debt is otherwise an obligation of such Person, and (viii)
all Guaranties by such Person of Debt of others.
"Debt Limit" means, at any date, the product of (a) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending at the date of
the balance sheet most recently delivered (or required to be delivered) on or
prior to such date pursuant to section 5.5 or 6.1 and (b) the applicable
Leverage Factor.
"Default" means an event described in Article VII.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
Any determination of the amount
-7-
of Derivatives Obligations owing at any time shall be calculated net of offsets
available at such time under any applicable netting agreement.
"Disclosure Documents" is defined in Section 5.4.
"Documentation Agent" means ▇▇▇▇▇▇, in its capacity as the contractual
representative for all of the Banks for purposes of this Agreement, as
designated and appointed in accordance with Article X, any successor thereto as
provided herein.
"Dollar Amount" means (i) in relation to any Advance denominated in
Dollars, the aggregate principal amount thereof and (ii) in relation to any
Advance denominated in an Alternative Currency, the equivalent amount thereof in
Dollars determined by the Administrative Agent pursuant to Section 2.5.13. The
Dollar Amount of any Advance denominated in an Alternative Currency at any date
is the Dollar Amount thereof determined as of such date or, if no Dollar Amount
is determined as of such date in accordance with Section 2.5.13, then determined
as of the then most recent date for which such a determination has been made.
Each Advance denominated in an Alternative currency shall be deemed a
utilization of the Commitments in an amount equal to the Dollar Amount thereof.
"Dollars" and the sign "$" mean the lawful currency of the United
States of America.
"D&P" means Duff & ▇▇▇▇▇▇, Inc.
"Dutch Gilders" means the lawful currency of The Netherlands.
"Effective Date of the Reorganization" means the date upon which the
Reorganization shall be effective.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit "GI' hereto.
"Election to Terminate" means an Election to Terminate substantially
in the form of Exhibit "HI' hereto.
"Eligible Subsidiary" means any Subsidiary of the Company as to which
an Election to Participate shall have been delivered to the Agents and as to
which an Election to Terminate shall not have been delivered to the Agents.
Each such Election to Participate and Election to Terminate shall be duly
executed on behalf of such Subsidiary and the Company. The delivery of an
Election to Terminate with respect to an Eligible Subsidiary shall not affect
any obligation of such Eligible Subsidiary theretofore incurred. The
Administrative Agent shall promptly give notice to the Lenders of the receipt of
any Election to Participate or Election to Terminate.
-8-
"Equity Interest" means, in the case of a corporation, stock of any
class, and in the case of a partnership or a limited partnership, a General
Partnership Interest or Limited Partnership Interest, but excluding preferred
stock which constitutes Debt.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurocurrency Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.3.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency
Committed Advance, a Eurocurrency Committed Loan, a Eurocurrency Bid Rate
Advance or a Eurocurrency Bid Rate Loan for the relevant Eurocurrency Interest
Period, the average of the respective rates per annum at which deposits in
Dollars or, in the case of any Eurocurrency Loan denominated in an Alternative
Currency, the relevant Alternative Currency are offered to each of the Reference
Banks in the London interbank market at approximately 11:00 a.m. (London time)
two Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Loan of such Reference Bank
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period (or, in the case of a Competitive Bid Advance, the amount
which would have been the amount of the Loan of such Reference Bank if such
Advance were a Committed Advance).
"Eurocurrency Bid Rate" means, with respect to a Loan made by a given
Lender for the relevant Eurocurrency Interest Period, the sum of (i) the
Eurocurrency Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the Borrower pursuant to Section 2.3.4(i).
"Eurocurrency Bid Rate Advance" means a Competitive Bid Advance which
bears interest at a Eurocurrency Bid Rate.
"Eurocurrency Bid Rate Loan" means a competitive Bid Loan which bears
interest at a Eurocurrency Bid Rate.
"Eurocurrency Committed Advance" means an Advance which bears interest
at a Eurocurrency Rate requested by the Borrower pursuant to Section 2.2.
"Eurocurrency Committed Loan" means a Loan which bears interest at a
Eurocurrency Rate requested by the Borrower pursuant to Section 2.2.
"Eurocurrency Interest Period" means, with respect to a Eurocurrency
Committed Advance, a Eurocurrency Committed Loan, a Eurocurrency Bid Rate
Advance or a Eurocurrency Bid Rate Loan, a period of one, two, three or six
months commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such Eurocurrency Interest Period shall
-9-
end on the day which corresponds numerically to such date of commencement one,
two, three or six months thereafter, provided, however, that any such period
which 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 period) shall end on the last Business Day of a calendar month. If a
Eurocurrency Interest Period would otherwise end on a day which is not a
Business Day, such Eurocurrency Interest Period shall end on the next succeeding
Business Day, provided, however, that if such next succeeding Business Day falls
in a new month, such Eurocurrency Interest Period shall end on the immediately
preceding Business Day.
"Eurocurrency Loan" means a Eurocurrency committed Loan or a
Eurocurrency Bid Rate Loan, as applicable.
"Eurocurrency Rate" means, with respect to a Eurocurrency Committed
Advance or a Eurocurrency Committed Loan for the relevant Eurocurrency Interest
Period, the sum of (a) the Eurocurrency Base Rate applicable to such
Eurocurrency Interest Period plus (b) the Applicable Margin.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to (i) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York; or (ii) if such rate is
not so published for any day which is a Business Day, the average of the
quotations at approximately 10:00 a.m. (Chicago time) for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by the Administrative Agent.
"Financial Officers" means with respect to the Company and any
Eligible Subsidiary, prior to the Effective Date of the Reorganization, the
Chief Financial Officer or Treasurer of the Corporate General Partner and
subsequent to the Effective Date of the Reorganization, the Chief Financial
Officer or Treasurer of the Company.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors and assigns (by merger or otherwise).
"Fixed CD Base Rate" means, with respect to a Fixed CD Rate Advance or
a Fixed CD Rate Loan for the relevant CD Interest Period, the rate determined by
the Administrative Agent to be the arithmetic average of the rates reported to
the Administrative Agent as the prevailing bid rate for the purchase at face
value at or before 10:00 a.m. (Chicago time) on the first day of such CD
Interest Period by three certificate of deposit dealers in New York or Chicago
of recognized standing selected by the Administrative Agent of certificates of
deposit of each Reference Bank in the approximate amount of such Reference
Bank's relevant Fixed CD Rate Loan and having a maturity approximately equal to
such CD Interest Period.
-10-
"Fixed CD Rate" means, with respect to a Fixed CD Rate Advance or
Fixed CD Rate Loan for the relevant CD Interest Period, a rate per annum equal
to the sum of (i) the quotient of (a) the Fixed CD Base Rate applicable to that
CD Interest Period, divided by (b) one minus the Reserve Requirement (expressed
as a decimal) applicable to that CD Interest Period, plus (ii) the Assessment
Rate applicable to that CD Interest Period, plus (iii) the Applicable Margin.
"Fixed CD Rate Advance" means an Advance which bears interest at a
Fixed CD Rate.
"Fixed CD Rate Loan" means a Loan which bears interest at a Fixed CD
Rate.
"Fixed Rate" means the Fixed CD Rate, the Eurocurrency Rate, the
Eurocurrency Bid Rate or the Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Form 10-K" is defined in Section 5.4.
"French Francs" means the lawful currency of France.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America.
"General Partnership Interest" means the interest of a general partner
in a general partnership and the interest of a general partner in a limited
partnership.
"German Marks" means the lawful currency of Germany.
"Guaranties" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Debt of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, all obligations incurred
-11-
through an agreement, contingent or otherwise, by such Person: (i) to purchase
such Debt or any property or assets constituting security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of such Debt, (y) to
maintain income, working capital or other balance sheet condition or otherwise
to advance or make available funds for the purchase or payment of such Debt, or
(iii) to lease property or to purchase Securities or other property or services
primarily for the purpose of assuring the owner of such Debt of the ability of
the primary obligor to make payment of the Debt, or (iv) otherwise to assure the
owner of the Debt of the primary obligor against loss in respect thereof. For
the purposes of all computations made under this Agreement, a Guaranty in
respect of any Debt shall be deemed to be Debt equal to the principal amount of
such Debt which has been guaranteed.
"Interest Coverage Ratio" means, as at the last day of any fiscal
quarter, the ratio of Consolidated EBIT for the period of four fiscal quarters
then ended to Consolidated Interest Expense for such four-quarter period.
"Interest Period" means a CD Interest Period, a Eurocurrency Interest
Period or an Absolute Rate Interest Period.
"Japanese Yen" means the lawful currency of Japan.
"Lenders" means the financial institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"Lending Installation" means any office, branch, subsidiary or
affiliate of any Lender or the Administrative Agent.
"Leverage Factor" means, with respect to any period of four
consecutive fiscal quarters, if such period ends (a) prior to the fiscal quarter
in which the Effective Date of the Reorganization occurs, 4.5, (b) with the
fiscal quarter in which the Effective Date of the Reorganization occurs, 4.275,
(c) with the fiscal quarter immediately following the fiscal quarter in which
the Effective Date of the Reorganization occurs, 4.05, (d) with the second
fiscal quarter following the fiscal quarter in which the Effective Date of
Reorganization occurs, 3.825 and (e) with any fiscal quarter thereafter, 3.6.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purpose of this Agreement, the Company or any Subsidiary shall be deemed
to own subject to a Lien (i) any asset that it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement or other
title retention agreement relating to such asset or any capital lease or (ii)
any account receivable transferred by it with recourse for collectibility
(including any such transfer subject to a holdback or similar arrangement which
effectively imposes the risk of collectibility upon the transferor).
-12-
"Limited Partnership Interest" means the interest of a limited partner
in a limited partnership.
"Loan" means, with respect to a Lender, such Lender's portion, if any,
of any Advance.
"Loan Documents" means this Agreement, the Notes and each Election to
Participate and Election to Terminate.
"Material Adverse Effect" means (i) a material adverse effect on the
properties, business, operations or financial condition of the Company and its
Subsidiaries taken as a whole, (ii) a material adverse effect on the ability of
the Company to perform its obligations under the Loan Documents or (iii) any
material impairment of the rights and remedies of the Agents and the Lenders
against the obligors under the Loan Documents.
"Material Commitment" means a legally binding commitment by one or
more banks or other financial institutions to extend credit to the Company
and/or its subsidiaries in an aggregate amount of $25,000,000 or more pursuant
to a written agreement signed by the Company or a Subsidiary.
"Material Subsidiary" means (i) any Eligible Subsidiary and (ii) any
other Subsidiary which has consolidated assets or consolidated annual revenues
of more than $10,000,000.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of New York in its
individual capacity, and its successors and assigns.
"Note" means a promissory note in substantially the form of Exhibit
"All hereto, duly executed and delivered to the Documentation Agent by the
Borrower for the account of a Lender and payable to the order of such Lender,
including any amendment, modification, renewal or replacement of such promissory
note.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all other reimbursements,
indemnities or other obligations of the obligors to any Lender or Agent arising
under the Loan Documents.
"Obligor" means the Company or any Eligible Subsidiary, and "Obligors"
means all of them.
-13-
"Parent" means The ServiceMaster Limited Partnership, a Delaware
limited partnership, and its successors, including any corporate successor
resulting from the Reorganization.
"Partnership Interest" means Limited Partnership Interests and General
Partnership Interests.
"Payment Date" means the fifteenth day of each March, June, September,
and December.
"Person" means any corporation, limited liability company, natural
person, firm, joint venture, partnership, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
"Plans" is defined in Section 5.11.
"Pricing Level" is defined in the Pricing Schedule.
"Pricing Schedule" means the Schedule hereto entitled "Pricing
Schedule".
"Proxy Statement" means the Proxy Statement/Prospectus dated December
11, 1991 of the Parent.
"Reference Banks" means ABN AMRO Bank, First Chicago and ▇▇▇▇▇▇. If
any such Reference Bank ceases to be a Lender, the Company and the Agents shall
designate another Lender as a replacement Reference Bank.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulations U and X" means Regulations U and X of the Board of
Governors of the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretations of said
Board of Governors relating to the extension of credit by banks for the purpose
of purchasing or carrying margin stock applicable to member banks of the Federal
Reserve System.
"Reorganization" means the change in the organizational structure of
the ServiceMaster enterprise substantially as described in the Proxy Statement.
"Replacement Lender" is defined in Section 3.7.
-14-
"Required Lenders" means Lenders in the aggregate having at least 66-
2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a Eurocurrency Interest
Period or a CD Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on new non-personal time deposits of $100,000 or more
with a maturity equal to that of the CD Interest Period (in the case of Fixed CD
Rate Advances or Fixed CD Rate Loans) or on Eurocurrency liabilities (in the
case of Eurocurrency Committed Advances or Eurocurrency Committed Loans). The
Reserve Requirement shall be adjusted automatically on and as of the effective
date of any change in the applicable reserve requirement.
"Restricted Payments" means, without duplication:
(a) the declaration or payment by the Company of any dividends or
distributions, either in cash or property, on any Equity Interest of
the Company (except dividends or other distributions to the extent
payable solely in Partnership Interests of the Company or capital
stock of the Company);
(b) the purchase, acquisition, redemption or retirement by the
Company directly or indirectly, or through any Subsidiary, of any
Equity Interest of the Company or the Parent or any warrants, rights
or options to purchase or acquire any Equity Interest of the Company
or the Parent; and
(c) to the extent not included in clause (a) or (b) above, any
other payment or distribution by the Company, either directly or
indirectly or through any Subsidiary, in respect of any Equity
Interest of the Company or the Parent.
"SMCS" means ServiceMaster Consumer Services Limited Partnership, a
Delaware limited partnership.
"SMMS" means ServiceMaster Management Services Limited Partnership, a
Delaware limited partnership.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Security" shall have the same meaning as in Section (2)(1) of the
Securities Act of 1933, as amended.
"S&P" means Standard & Poor's Ratings Group.
-15-
The term "subsidiary" means, as to any particular parent business
entity, any business entity of which such parent business entity and/or one or
more business entities which are themselves subsidiaries of such parent business
entity, (i) in the case of any corporation, own more than 50% of the Voting
Stock, or (ii) in the case of any partnership other than SMCS and SMMS, own a
Controlling General Partnership Interest and, if any such partnership is a
limited partnership, own more than 50% of the Limited Partnership Interest;
provided, however, SMCS and SMMS shall be deemed subsidiaries of the Company so
long as (i) prior to the Effective Date of the Reorganization the Controlling
General Partnership Interest shall be owned by the Corporate General Partner and
(ii) the Company owns more than 50% of the Partnership Interests therein.
The term "Subsidiary" means a subsidiary of the Company.
"Surviving company" means ServiceMaster corporation, a Delaware
corporation, which as part of the Reorganization, shall be a wholly-owned
subsidiary of the Surviving Parent, and its successors. As part of the
Reorganization the Parent and the Company will be liquidated into the Surviving
Company and the Surviving Company will assume the obligations of the Company
under the Loan Documents pursuant to Section 6.14.
"Surviving Parent" means ServiceMaster Incorporated, a Delaware
corporation, which shall own 100% of the outstanding Voting Stock of the Company
following the consummation of the Reorganization, and its successors. The
Surviving Company and the Surviving Parent may merge or consolidate as part of
or following the Reorganization, in which case the resulting or surviving entity
shall be the Surviving Company for purposes of this Agreement.
"Swedish Kronor" means the lawful currency of the Kingdom of Sweden.
"Termination Date" means August 31, 2000, unless the Commitments are
earlier terminated pursuant to the terms hereof.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Loan or Advance, its nature as a
Floating Rate Advance or Loan, Fixed CD Rate Advance or Loan, Eurocurrency
Committed Advance or Loan in a particular currency, Eurocurrency Bid Rate
Advance or Loan in a particular currency or Absolute Rate Advance or Loan.
"Unmatured Default" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Voting Equity Interest" means Voting Stock and General Partnership
Interests.
-16-
"Voting Stock" means securities of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
1.2. Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with GAAP, applied on a
basis consistent (except for changes concurred in by the Parent's independent
public accountants) with the most recent audited consolidated financial
statements of the Parent and its Consolidated Subsidiaries delivered to the
Banks; provided that, if the Company notifies the Documentation Agent that the
Company wishes to amend any covenant in Article VI to eliminate the fact of any
change in GAAP on the operation of such covenant (or if the Documentation Agent
notifies the Company that the Required Lenders wish to amend Article VI for such
purpose), then the Company's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the Required Lenders.
1.3. Rules of Construction. Any reference contained in any of the
Loan Documents to "knowledge" or "awareness" of the Company or any Eligible
Subsidiary shall be deemed limited to the "knowledge" or "awareness" of one or
more Financial Officers.
1.4. Rounding. All determinations of rates per annum under this
Agreement shall be rounded to the nearest 1/100th of 1% (with 0.0050% being
rounded upward to 0.01%).
ARTICLE II
THE FACILITY
------------
2.1. The Facility.
2.1.1. Description of Facility. The Lenders grant to the Borrowers a
revolving credit facility pursuant to which, and upon the terms and subject to
the conditions herein set out:
(i) each Lender severally agrees to make Committed Loans in Dollars or
(in the case of Eurocurrency Committed Loans) in Alternative Currencies to
the Borrowers in accordance with Section 2.2;
-17-
(ii) each Lender may, in its sole discretion, make bids to make
Competitive Bid Loans in Dollars or (in the case of Eurocurrency Bid Rate
Loans) in Alternative Currencies to the Borrowers in accordance with
Section 2.3; and
(iii) in no event may the sum of the aggregate Dollar Amount of all
outstanding Advances to all Borrowers (including both the Committed
Advances and the Competitive Bid Advances) exceed the Aggregate Commitment.
2.1.2. Availability of Facility; Required Payments. Subject to the
terms and conditions set forth in this Agreement, the facility is available from
the date of this Agreement to the Termination Date, and the Borrowers may
borrow, repay and reborrow at any time prior to the Termination Date. The
Commitments to lend hereunder shall expire on the Termination Date and all
outstanding Advances and all other unpaid Obligations shall be paid in full on
the Termination Date.
2.2. Committed Advances.
2.2.1. Committed Advances. From and including the date of this
Agreement and prior to the Termination Date, each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Committed Loans to
the Borrowers from time to time in Dollar Amounts not to exceed in the aggregate
at any one time outstanding to all Borrowers the amount of such Lender's
Commitment. Each Committed Advance hereunder shall consist of borrowings made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment. The Committed Advances
shall be evidenced by the Notes and shall be repaid as provided by the terms of
Section 2.1.2.
2.2.2. Types of Committed Advances. The Committed Advances may be
Floating Rate Advances, Fixed CD Rate Advances or Eurocurrency Committed
Advances, or a combination thereof, selected by the Borrower in accordance with
Sections 2.2.3 and 2.2.4.
2.2.3. Method of Selecting Types and Interest Periods for New
Committed Advances. The Borrower shall select the Type of Advance and, in the
case of each Fixed Rate Advance, the Interest Period applicable to each
Committed Advance from time to time. The Borrower shall give the Administrative
Agent notice (a "Committed Borrowing Notice") not later than 10:00 a.m. (Chicago
time) on the Borrowing Date of each Floating Rate Advance, two Business Days
before the Borrowing Date of each Fixed CD Rate Advance, three Business Days
before the Borrowing Date for each Eurocurrency Committed Advance denominated in
Dollars and five Business Days before the Borrowing Date for each Eurocurrency
Committed Advance denominated in an Alternative Currency. A Committed Borrowing
Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of such
Committed Advance;
-18-
(ii) the aggregate principal amount of such Committed Advance;
(iii) the Type of Committed Advance selected (including, in the case
of a Eurocurrency Committed Advance, the currency in which such Advance is
to be denominated); and
(iv) in the case of each Committed Fixed Rate Advance, the Interest
Period applicable thereto.
Subject to Section 3.3, each Committed Borrowing Notice shall be irrevocable.
2.2.4. Conversion and Continuation of Outstanding Committed Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are either prepaid in accordance with Section 2.5.3
or converted into Committed Fixed Rate Advances denominated in Dollars. Unless
sooner prepaid in accordance with Section 2.5.3 or converted in accordance with
this Section, each Committed Fixed Rate Advance of any Type shall continue as a
Fixed Rate Advance of such Type until the end of the then applicable Interest
Period therefor, at which time (x) if such Fixed Rate Advance is a Committed
Fixed Rate Advance denominated in Dollars such Committed Fixed Rate Advance
shall be automatically converted into a Floating Rate Advance unless the
Borrower shall have given the Administrative Agent a timely notice of prepayment
thereof pursuant to Section 2.5.3 or a timely Conversion/ Continuation Notice
requesting that, at the end of such Interest Period, such Committed Fixed Rate
Advance either continue as a Committed Fixed Rate Advance of such Type for the
same or another Interest Period or be converted into an Advance of another Type
denominated in Dollars and (y) subject to Section 2.5.13(b), if such Fixed Rate
Advance is a Committed Fixed Rate Advance denominated in an Alternative
Currency, such Committed Fixed Rate Advance shall be automatically continued as
a Committed Fixed Rate Advance in the same Alternative Currency for an
additional Interest Period of one month, unless the Borrower shall have given
the Administrative Agent a timely notice of prepayment thereof pursuant to
Section 2.5.3 or a timely Continuation Notice requesting that at the end of such
Interest Period such Committed Fixed Rate Advance continue as a Committed Fixed
Rate Advance for another Interest Period. If the Administrative Agent does not
receive such timely notice of prepayment or Continuation Notice, it shall notify
the Lenders to such effect on the date such notice is due. Subject to the terms
of Section 2.5.2, the Borrower may elect from time to time to convert all or any
part of a Committed Advance of any Type denominated in Dollars into any other
Type or Types of Committed Advances denominated in Dollars; provided that any
conversion of any Committed Fixed Rate Advance on any day other than the last
day of the Interest Period applicable thereto shall be subject to Section 3.4.
The Borrower shall give the Administrative Agent notice (a "Conversion/
Continuation Notice") of each conversion of a committed Advance or continuation
of a Committed Fixed Rate Advance not later than 10:00 a.m. (Chicago time) on
the date of, in the case of a conversion into a Floating Rate Advance, or two
Business Days, in the case of a conversion into or continuation of a Fixed CD
Rate Advance, three Business Days, in the case of a conversion into or
continuation of a Eurocurrency Committed Advance denominated in Dollars
-19-
or five Business Days, in the case of a continuation of a Eurocurrency Committed
Advance denominated in an Alternative Currency, prior to the date of, the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Committed Advance which is
to be converted or continued; and
(iii) the amount and Type(s) of Committed Advance(s) into which such
Committed Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Committed Fixed Rate Advance, the
duration of the Interest Period applicable thereto.
Subject to Section 3.3, each Conversion/continuation Notice shall be
irrevocable. Changes in the currency in which an Advance is denominated may not
be effected by a conversion pursuant to this Section 2.2.4.
2.3. Competitive Bid Advances.
2.3.1. Competitive Bid Option; Repayment of Competitive Bid Advances.
In addition to Committed Advances pursuant to Section 2.2, but subject to the
terms and conditions set forth in this Agreement (including, without limitation,
the limitation set forth in Section 2.1.1(iii) as to the maximum aggregate
principal amount of all outstanding Advances hereunder and the limitation set
forth in Section 4.3(iii) as to the minimum credit standing for Competitive Bid
Advances), any Borrower may, as set forth in this Section 2.3, request the
Lenders, prior to the Termination Date, to make offers to make Competitive Bid
Advances to such Borrower. Each Lender may, but shall have no obligation to,
make such offers and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.3. Competitive Bid
Advances shall be evidenced by the Notes. Each Competitive Bid Advance shall be
repaid in full by the Borrower on the last day of the Interest Period applicable
thereto.
2.3.2. Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under Section 2.3, it shall
transmit to each Lender by telex or telecopy a Competitive Bid Quote Request so
as to be received no later than (i) 10:00 a.m. (Chicago time) at least five
Business Days prior to the Borrowing Date proposed therein, in the case of a
Eurocurrency Auction denominated in Dollars, (ii) 10:00 a.m. (Chicago time) at
least seven Business Days prior to the Borrowing Date, in the case of a
Eurocurrency Auction denominated in an Alternative Currency or (iii) 10:00 a.m.
(Chicago time) at least one Business Day prior to the Borrowing Date proposed
therein, in the case of an Absolute Rate Auction specifying:
-20-
(a) the proposed Borrowing Date, which shall be a Business Day, for
the proposed Competitive Bid Advance;
(b) the aggregate principal amount of such Competitive Bid Advance;
(c) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or an Absolute Rate, or both;
(d) in the case of a Eurocurrency Auction, the currency in which the
Loans are to be denominated; and
(e) the Interest Period applicable thereto (which may not end after
the Termination Date).
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurocurrency Auction and an Absolute Rate Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall be
given within 3 Business Days of any other Competitive Bid Quote Request. Each
Competitive Bid Quote Request shall be in an Approved Multiple.
2.3.3. Submission and Contents of Competitive Bid Quotes. (i) Each
Lender may, in its sole discretion, submit to the Borrower a Competitive Bid
Quote containing an offer or offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.3.3 and must be submitted to the
Borrower by telecopy at its address specified in or pursuant to Article XIII not
later than (a) 1:00 p.m. (Chicago time) at least three Business Days prior to
the proposed Borrowing Date, in the case of a Eurocurrency Auction denominated
in Dollars, (b) 1:00 p.m. (Chicago time) at least five Business Days prior to
the proposed Borrowing Date, in the case of a Eurocurrency Auction denominated
in an Alternative Currency or (c) 9:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of an Absolute Rate Auction. Subject to Articles IV
and VIII, any Competitive Bid Quote so made shall be irrevocable.
(ii) Each Competitive Bid Quote shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid Quotes;
(b) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Commitment of the quoting
Lender, (2) must be an Approved Multiple and (3) may not exceed the
principal amount of Competitive Bid Loans for which offers were
requested;
-21-
(c) in the case of a Eurocurrency Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(d) the limit, if any, as to the aggregate principal amount of
the Competitive Bid Loans from such Lender which may be accepted by
the Borrower;
(e) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan;
(f) the applicable Interest Period; and
(g) the identity of the quoting Lender.
(iii) The Borrower shall reject any Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit "D" hereto or
does not specify all of the information required by Section 2.3.3(ii);
(b) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit "D" hereto;
(c) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bid Quotes; or
(d) arrives after the time set forth in Section 2.3.3(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.3(iii), then the Borrower shall notify the relevant Lender of such rejection
as soon as practical.
2.3.4. Acceptance and Notice by the Borrower. Not later than (a)
2:00 p.m. (Chicago time) at least three Business Days prior to the proposed
Borrowing Date, in the case of a Eurocurrency Auction denominated in Dollars,
(b) 2:00 p.m. (Chicago time) at least five Business Days prior to the proposed
Borrowing Date, in the case of a Eurocurrency Auction denominated in an
Alternative Currency or (c) 10:00 a.m. (Chicago time) on the proposed Borrowing
Date, in the case of an Absolute Rate Auction, the Borrower shall notify each
Lender of its acceptance or rejection of the offers so notified to it pursuant
to Section 2.3.3; Provided, however, that the failure by the Borrower to give
such notice to any Lender shall be deemed to be a rejection by the Borrower of
all such offers made by such Lender. In the case of acceptance, such notice (a
"Competitive Bid Borrowing Notice") shall specify the aggregate principal amount
of offers for each Interest Period that are accepted. The Borrower may accept
or reject any Competitive Bid Quote in whole or in part (subject to the terms of
Section 2.3.3(ii)(d)); provided that:
-22-
(a) the aggregate principal amount of each Competitive Bid Advance may
not exceed the applicable amount set forth in the related Competitive Bid
Quote Request;
(b) acceptance of offers may only be made on the basis of ascending
Competitive Bid Margins or Absolute Rates, as the case may be; and
(c) the Borrower may not accept any offer of the type described in
Section 2.3.3(iii) or that otherwise fails to comply with the requirements
of this Agreement for the purpose of obtaining a Competitive Bid Loan under
this Agreement.
2.3.5. Allocation by the Borrower. If offers are made by two or
more Lenders with the same Competitive Bid Margins or Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which offers are permitted to be accepted for the related Interest Period,
the principal amount of Competitive Bid Loans in respect of which such offers
are accepted shall be allocated by the Borrower among such Lenders as nearly as
possible (in such multiples, not greater than $1,000,000 (or the equivalent in
an Alternative Currency), as the Borrower may deem appropriate) in proportion to
the aggregate principal amount of such offers. Allocations by the Borrower of
the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error. The Borrower shall promptly, but in any event on the same
Business Day in the case of Eurocurrency Bid Rate Advances, and by 11:00 a.m.
(Chicago time) in the case of Absolute Rate Advances, notify each Lender that
submitted a Competitive Bid Quote of its receipt of a Competitive Bid Borrowing
Notice and the aggregate principal amount of such Competitive Bid Advance
allocated to each participating Lender.
2.3.6. Notice by the Borrower to the Administrative Agent. Promptly,
but in any event on the same Business Day that the Borrower issues any
competitive Bid Borrowing Notice, the Borrower shall give the Administrative
Agent notice of the amount, maturity, applicable interest rate and Lender for
each Competitive Bid Loan accepted by the Borrower pursuant to such Competitive
Bid Borrowing Notice.
2.4. Facility Fees. The company hereby agrees to pay to the
Administrative Agent for the account of each Lender, ratably in the proportion
that such Lender's Commitment bears to the Aggregate Commitment, a per annum
facility fee at the Facility Fee Rate (determined daily in accordance with the
Pricing Schedule) on the daily amount of the Aggregate Commitment, payable
quarterly in arrears on each Payment Date and on the Termination Date. All
accrued facility fees hereunder shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder.
2.5. General Facility Terms.
2.5.1. Method of Borrowing. Not later than (i) 12:00 noon (Chicago
time) on each Borrowing Date for each Advance denominated in Dollars and (ii)
the funding deadline
-23-
designated by the Administrative Agent in the case of any Advance denominated in
an Alternative Currency (which shall be no earlier than 10:00 a.m. local time in
the place of payment and no later than 12:00 noon (Chicago time)), each Lender
shall make available its Loan or Loans, if any, in immediately available funds,
to the Administrative Agent at its address specified pursuant to Article XIII or
at such other location as the Administrative Agent shall direct. The
Administrative Agent shall promptly deposit the funds so received from the
Lenders in the Borrower's account at the Administrative Agent's main office in
Chicago or as otherwise directed by the Borrower. Notwithstanding the foregoing
provisions of this Section 2.5.1, to the extent that a Loan made to a Borrower
by a Lender matures on the Borrowing Date of a requested Loan to such Borrower
in the same currency, such Lender shall apply the proceeds of the Loan it is
then making to the repayment of principal of the maturing Loan.
2.5.2. Minimum Amount of Each Committed Advance. Each Committed
Advance shall be in an Approved Multiple; provided, however, that any Floating
Rate Advance may be in the aggregate amount of the unused Aggregate Commitment.
2.5.3. Optional Principal Payments. The Borrower may from time to
time pay all of its outstanding Committed Advances, or, in an Approved Multiple,
any portion of the outstanding Committed Advances upon (i) in the case of any
Floating Rate Advance, notice to the Administrative Agent not later than 10:00
a.m. (Chicago time) on the date of prepayment, (ii) in the case of any Fixed CD
Rate Advance, two Business Days' prior notice to the Administrative Agent, (iii)
in the case of any Eurocurrency Committed Advance denominated in Dollars, three
Business Days' prior notice to the Administrative Agent and (iv) in the case of
any Eurocurrency Committed Advance denominated in an Alternative Currency, five
Business Days' prior notice to the Administrative Agent. Any such notice of
prepayment shall be irrevocable. All such payments shall be made in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified in Article XIII or at any other location specified by the
Administrative Agent in accordance with Section 2.5.7 not later than (i) noon
(Chicago time) on the date of payment for each Advance denominated in Dollars
and (ii) the funding deadline designated by the Administrative Agent in the case
of any Advance denominated in an Alternative Currency (which should be no
earlier than 10:00 a.m. local time in the place of payment and no later than
12:00 noon (Chicago time)). Subject to Section 2.5.13(a), a Competitive Bid
Advance may not be prepaid prior to the last day of its applicable Interest
Period without the prior consent of the Lender which originally made such Loan,
which consent may be given or withheld at the Lender's sole and absolute
discretion, provided that no Competitive Bid Advance may be prepaid if there
exists a Default. Any prepayment of a Fixed Rate Advance prior to the end of
its applicable Interest Period shall be subject to the indemnity provisions of
section 3.4.
2.5.4. Interest Periods. Subject to the provisions of Section
2.5.5, each Advance shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the earlier of (i) the
last day of such Interest Period or (ii) the date of any earlier
-24-
prepayment as permitted by Section 2.5.3, at the interest rate determined as
applicable to such Advance, payable in the currency of such Advance.
2.5.5. Rate after Maturity. Except as provided in the next
sentence, any Advance not paid at maturity, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per annum equal to
(i) in the case of an Advance denominated in Dollars, the Alternate Base Rate
plus 2% per annum, payable upon demand and (ii) in the case of an Advance
denominated in an Alternative Currency, the sum of 2% plus the Applicable Margin
for Eurocurrency Committed Advances for such day plus the quotient obtained by
dividing (x) the average of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than five Business Days, then for such
other period of time not longer than three months as the Administrative Agent
may select) deposits in such Alternative Currency in an amount approximately
equal to such overdue payment due to each of the Reference Banks (or, in the
case of a Competitive Bid Advance, the amount which would have been due to each
Reference Bank if such Advance were a Committed Advance) are offered to such
Reference Bank in the London interbank market for the applicable period
determined as provided above by (y) 1.00 minus the Reserve Requirement. In the
case of a Fixed Rate Advance the maturity of which is accelerated, such Fixed
Rate Advance shall bear interest for the remainder of the applicable Interest
Period (or until paid if paid prior to the end of such Interest Period), at the
higher of the rate otherwise applicable to such Fixed Rate Advance for such
Interest Period plus 2% per annum or the applicable rate specified in the
preceding sentence.
2.5.6. Interest Payment Dates; Interest Basis. Interest accrued on
each Fixed Rate Advance shall be payable on the last day of its applicable
Interest Period, on any date on which such Fixed Rate Advance is prepaid or
converted, and at the maturity of such Advance. Interest accrued on each
Floating Rate Advance shall be payable on each Payment Date, on any date on
which such Floating Rate Advance is prepaid, and at the maturity of such
Advance. Interest accrued on each Fixed Rate Advance having an Interest Period
longer than three months shall also be payable on the last day of each 90 day
interval (in the case of Fixed CD Rate Advances or Absolute Rate Advances) or
three-month interval (in the case of Eurocurrency Committed Advances or
Eurocurrency Bid Rate Advances) during such Interest Period. Interest on Fixed
Rate Loans and facility fees hereunder shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest on Floating Rate Loans shall
be calculated for actual days elapsed on the basis of a 365-day year, or, when
applicable, 366-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to the deadline specified pursuant to Section 2.5.7. If any
payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
2.5.7. Method of Payment. Subject to the last sentence of Section
2.5.1, all payments of principal, interest, and fees hereunder shall be made by
(i) noon (local time) for each
-25-
payment in Dollars and (ii) the funding deadline designated by the
Administrative Agent for each payment in an Alternative Currency (which shall be
no earlier than 10:00 a.m. local time in the place of payment and no later than
12:00 noon (Chicago time)), on the date when due in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other location specified in writing by the
Administrative Agent to the Borrower and shall be distributed by the
Administrative Agent ratably among all Lenders in the case of fees and payments
in respect of committed Advances and ratably among the applicable Lenders in
respect of Competitive Bid Advances. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds which the
Administrative Agent received at its address specified pursuant to Article XIII
or at any location specified in a notice received by the Administrative Agent
from such Lender. All payments of the principal of and interest on any Loan
shall be made in the currency in which such Loan is denominated.
2.5.8. Notes. Each Lender is hereby authorized to record on the
schedule attached to each of its Notes, or otherwise record in accordance with
its usual practice, the date and amount of each of its Loans evidenced by such
Note; Provided, however, that any failure to so record shall not affect the
Obligors' obligations under any Loan Document.
2.5.9. Notification of Advances, Interest Rates and Prepayments.
The Administrative Agent will notify each Lender of the contents of each
Aggregate Commitment reduction notice, Committed Borrowing Notice,
Conversion/Continuation Notice and repayment notice received by it hereunder
promptly and in any event before the close of business on the same Business Day
of receipt thereof (or, in the case of borrowing notices with respect to
Floating Rate Advances and Absolute Rate Advances, within one hour of receipt
thereof). The Administrative Agent will notify each Lender of the interest rate
applicable to each Fixed Rate Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.5.10. Non-Receipt of Funds by the Administrative Agent. Unless
the Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
scheduled payment, the Administrative Agent may assume that such scheduled
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such scheduled payment available to the intended
recipient in reliance upon such assumption. If such Lender or the Borrower, as
the case may be, has not in fact made such scheduled payment to the
Administrative Agent, the recipient of such scheduled payment shall, on demand
by the Administrative Agent, repay to the Administrative Agent the amount so
made available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative
-26-
Agent recovers such amount at a rate per annum equal to (x) in the case of
scheduled payment by a Lender, the Federal Funds Effective Rate for such day or
(y) in the case of scheduled payment by the Borrower, the interest rate
applicable to the relevant Loan.
2.5.11. Cancellation. The Company may at any time after the date
hereof cancel the Aggregate Commitment, in whole, or in a minimum aggregate
amount of $10,000,000 (and in integral multiples of $1,000,000 if in excess
thereof) ratably among the Lenders upon written notice to the Administrative
Agent not later than 10:00 a.m. (Chicago time) on the effective date of
cancellation specified therein, which notice shall specify the amount of such
reduction; provided, however, no such notice of cancellation shall be effective
to the extent that it would reduce the Aggregate Commitment to an amount which
would be less than the aggregate Dollar Amount of Loans outstanding at the time
such cancellation is to take effect. Any notice of cancellation given pursuant
to this Section 2.5.11 shall be irrevocable and shall specify the date upon
which such cancellation is to take effect.
2.5.12. Lending Installations. Subject to Section 12.6, each Lender
may, by written (including telex or telecopy) notice to the Administrative Agent
and the Company, book its Loans at any Lending Installation selected by such
Lender and may from time to time change its Lending Installation and for whose
account Loan payments are to be made. Each Lender will notify the
Administrative Agent and the Company on or prior to the date of this Agreement
of the Lending Installation which it intends to utilize for each type of Loan
hereunder.
2.5.13. Currency Equivalents. (a) The Administrative Agent shall
determine the Dollar Amount of each Advance denominated in an Alternative
Currency as of the first day of each Interest Period applicable thereto, and in
the case of any such Interest Period of more than three months, at three month
intervals after the first day thereof, and shall promptly notify the Borrower
and the Lenders of each Dollar Amount so determined by it. Each such
determination shall be based on the spot rate at which in accordance with normal
banking procedures the Administrative Agent could purchase the Alternative
Currency with Dollars in the interbank market in London at 11:00 a.m. (London
time) two Business Days prior to the date as of which such Dollar Amount is to
be determined. If after giving effect to any such determination of a Dollar
Amount, the aggregate Dollar Amount of all outstanding Advances exceeds the
Aggregate Commitment, the Borrowers shall within five Business Days prepay
outstanding Advances (as selected by the Company) to the extent necessary to
eliminate such excess; provided that such prepayment shall be applied to
outstanding Committed Advances to the extent necessary to prepay such Advances
in full before prepayment of any Competitive Bid Advances pursuant to this
Section 2.5.13(a).
(b) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due from any Obligor hereunder or under any of the
Notes in the currency expressed to be payable herein or under the Notes (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
-27-
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's London office at 11:00 a.m. (London time)
on the Business Day preceding that on which final judgment is given. The
obligations of each Obligor in respect of any sum due to any Lender or the
Administrative Agent hereunder or under any Note shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may be)
may in accordance with normal banking procedures purchase the specified currency
with such other currency; if the amount of the specified currency so purchased
is less than the sum originally due to such Lender or the Administrative Agent,
as the case may be, in the specified currency, each Obligor agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Article XI, such Lender or the Administrative Agent, as the case may be, agrees
to remit such excess to the Company for the account of the Obligors.
2.5.14. Taxes. (a) Any and all payments by a Borrower hereunder or
under the Notes shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto excluding, (i) in the
case of each Lender and Agent, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction under the laws of which such
Lender or Agent is organized or any political subdivision thereof and taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's applicable Lending Installation or any political subdivision
thereof and (ii) in the case of each Lender, any United States withholding tax
imposed on such payments but only to the extent not attributable to a change in
law, regulation, treaty or interpretation after the time such Lender first
becomes a party to this Agreement (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities arising out of or related to
this Agreement being hereinafter referred to as "Taxes"). If any Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.5.14) such Lender or Agent (as the case may be) receives an amount equal to
the sum it would have received had no deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law and provide such Lender or Agent (as the case may be) with a
receipt or other evidence of such payment.
-28-
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery, enforcement or registration of, or otherwise with
respect to, the Loan Documents (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.5.14) paid by such Lender or Agent and any liability including penalties,
interest and expenses arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted by the relevant
taxing authority or other governmental entity. This indemnification shall be
made to the Administrative Agent for the account of such Lender or Agent (as the
case may be) within 30 days from the date such Lender or Agent makes written
demand therefor (with a copy, in the case of a demand by a Lender or the
Documentation Agent, of such demand to the Administrative Agent). If a Lender
or Agent shall become aware that it is entitled to receive a refund in respect
of Taxes or other Taxes as to which it has been indemnified by a Borrower
pursuant to this Section 2.5.14, it shall promptly notify such Borrower of the
availability of such refund and, unless such Lender or Agent determines in good
faith that it is not in its best interests to do so, shall apply for such
refund. If any Lender or Agent receives a refund in respect of any Taxes or
Other Taxes as to which it has been indemnified by a Borrower pursuant to this
Section 2.5.14, it shall promptly notify such Borrower of such refund and shall
promptly repay such refund to such Borrower (to the extent of amounts that have
been paid by such Borrower under this Section 2.5.14 with respect to such
refund), net of all out-of-pocket expenses of such Lender or Agent in obtaining
such refund; provided that the Borrower, upon the request of such Lender or
Agent agrees to return such refund (plus penalties, interest or other charges)
to such Lender or Agent in the event such Lender or Agent is required to repay
such refund.
(d) Notwithstanding the foregoing, unless, prior to the initial
Borrowing Date (in the case of a Lender listed on the signature pages hereto),
and prior to the effective date of the Assignment and Acceptance by which it
became a Lender (in the case of Lender that became a Lender pursuant to such
Assignment and Acceptance), and in each case from time to time thereafter, if
requested by the Company or the Administrative Agent, each Lender organized
under the laws of a jurisdiction outside the United States shall have provided
the Company and the Administrative Agent with the forms prescribed by the
Internal Revenue Service of the United States certifying as to such Lender's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments of interest to be made to such Lender
hereunder or other documents satisfactory to the Company which, in each case,
shall indicate that all payments to be made to such Lender hereunder are not
subject to United States withholding tax or are subject to such taxes at a rate
reduced to zero by an applicable tax treaty, neither the Company nor any other
Borrower shall have any obligation under the last sentence of Section 2.5.14(a)
to make any payments to or for the benefit of such Lender in respect of Taxes
-29-
imposed by the United States of America unless such Lender is unable to provide
such form as a result of a change in law or treaty after the time such Lender
becomes a party to this Agreement.
2.5.15. Regulation D Compensation. For so long as any Lender
maintains reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which interest rate on
Eurocurrency Committed Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of
such Lender to United States residents), and as a result the cost to such Lender
(or its Lending Installation) of making or maintaining any of its Eurocurrency
Committed Loans is increased, then such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on such Loans, additional
interest on the related Eurocurrency Committed Loan of such Lender at a rate per
annum up to but not exceeding the excess of (i)(A) the applicable Eurocurrency
Base Rate divided by (B) one minus the Reserve Requirement over (ii) the
applicable Eurocurrency Base Rate. Any Lender wishing to require payment of
such additional interest (x) shall so notify the Borrower and the Administrative
Agent, in which case such additional interest on the Eurocurrency Committed
Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period which commences at least three
Business Days after the giving of such notice and (y) shall furnish to the
Borrower at least five Business Days prior to each date on which interest is
payable on the Eurocurrency Committed Loans a certificate setting forth the
amount to which such Lender is then entitled under this Section.
ARTICLE III
CHANGE IN CIRCUMSTANCES
-----------------------
3.1. Yield Protection. If, after the date of this Agreement, the
adoption of any law or the application of any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any change therein, or any change in the interpretation or
administration thereof, or the compliance of any Lender therewith,
(i) with respect to Committed Loans bearing interest at a Fixed Rate,
imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken
into account in determining the interest rate applicable to Committed
Advances bearing interest at a Fixed Rate or for which such Lender is
compensated pursuant to Section 2.5.15), or
(ii) with respect to Committed Loans bearing interest at a Fixed Rate,
imposes any other condition,
-30-
the result of which is to increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining such Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation in
connection with such Loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of such
Loans held or interest received by it, by an amount deemed material by such
Lender, then, within 30 days of demand by such Lender, the Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender reasonably and in good faith determines is
attributable to the making, funding and maintaining of such Loans by it.
3.2. Changes in Capital Adequacy Regulations. If a Lender
reasonably and in good faith determines that the amount of capital required or
expected to be maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender attributable to this
Agreement, the Loans or its obligation to make Loans hereunder is increased as a
result of a Change (as hereafter defined), then, within 15 days of demand by
such Lender, the Company shall pay such Lender the amount which such Lender
reasonably and in good faith determines is necessary to compensate it for any
reduction in the rate of return on capital to an amount below that which such
Lender could have achieved but for such Change and is attributable to this
Agreement, the Loans or its obligation to make Loans hereunder, provided,
however, that the effect of any Change shall be determined based on the effect
on such Lender that would be applicable to such Lender if such Lender was
maintaining the highest credit quality as determined by the applicable
regulatory authorities at the time of such Change. "Change" means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines or
(ii) any adoption of or change in any other law, governmental or quasi-
governmental rule, regulation, policy, guideline, interpretation, or directive
(whether or not having the force of law) of general applicability after the date
of this Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-
based capital guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If the Required Lenders
reasonably and in good faith determine that (i) deposits of a type and maturity
appropriate to match fund Committed Advances bearing interest at a Fixed Rate
are not available or (ii) solely in the case of a Eurocurrency Committed Advance
denominated in an Alternative Currency, the interest applicable to such
Committed Advance does not accurately reflect the funding cost of such Committed
Advance, then the Administrative Agent shall forthwith give notice thereof to
the Company and the Lenders, whereupon until the Administrative Agent notifies
the Company that the circumstances giving rise to such suspension no longer
exist, the obligations of the Lenders
-31-
to make Fixed CD Rate Loans or Eurocurrency Loans (in the affected currency), or
to convert outstanding Loans into such Loans or continue outstanding Loans as
such Loans for an additional Interest Period, shall be suspended and (i) any
affected outstanding Committed Advance denominated in Dollars shall be converted
into a Floating Rate Advance on the last day of the then current Interest Period
applicable thereto, (ii) any affected Committed Advance denominated in Dollars
for which a Committed Borrowing Notice has previously been given shall instead
be made as a Floating Rate Advance, unless the Borrower elects not to borrow
such Advance by giving one Business Day's notice to the Administrative Agent to
such effect, (iii) any affected outstanding Committed Advance denominated in an
Alternative Currency shall mature and be due and payable on the last day of the
then current Interest Period applicable thereto and (iv) any affected
Eurocurrency Advance denominated in an Alternative Currency for which a
Committed Borrowing Notice or a Competitive Bid Borrowing Notice has previously
been given shall be canceled. Nothing in this Section 3.3 shall affect any
right of the Borrower to borrow or convert outstanding Loans into Loans of a
Type not affected by the circumstances described above under and in accordance
with the other applicable provisions of this Agreement. If any Lender determines
that maintenance of any of its Eurocurrency Loans would violate any applicable
law, rule, regulation or directive, whether or not having the force of law, then
such Lender may by notice to the Company, through the Administrative Agent,
require that such Eurocurrency Loans be converted to an unaffected Type of Loan
on the last day of the then current Interest Period applicable thereto, if such
Lender may lawfully maintain such Loan to such date, or on such earlier date as
such Lender may require if it is not able lawfully to maintain such Loan to such
date.
3.4. Funding Indemnification. If any payment of a Fixed Rate Loan
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or other-wise, or any Fixed Rate
Loan is converted to a Loan of a different Type on a date which is not the last
day of the applicable Interest Period (except pursuant to the last sentence of
Section 3.3), or the Borrower fails to prepay any Fixed Rate Loan after notice
of prepayment has been given in accordance with Section 2.5.3, or a Fixed Rate
Advance is not made, converted or continued on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance.
3.5. Lender Statements; Limit on Retroactivity; Survival of
Indemnity. To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Fixed Rate Loans to reduce
any liability of the Borrower or the Company to such Lender under Section 3.1,
3.2 or 3.6 or to avoid the unavailability of a Type of Committed Advance under
Section 3.3, so long as such designation is not disadvantageous to such Lender.
Each Lender shall deliver a written statement of such Lender as to the amount
due, if any, under Section 3.1, 3.2, 3.3, 3.4 or 3.6. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding in the absence
of manifest error. Determination of amounts payable under such Sections
-32-
in connection with a Fixed ]Rate Loan shall be calculated as though each Lender
funded its Fixed Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Fixed Rate applicable to such Loan, whether in fact that is the case or not.
The Borrower or the Company, as the case may be, shall only be obligated to
compensate any Lender under Section 3.1, :3.2, 3.4 or 3.6 for any amount arising
or accruing during (i) any time or period commencing not more than 90 days prior
to the date on which such Lender notifies the Administrative Agent and the
Company that it proposes to demand such compensation and identifies to the
Administrative Agent and the Company the statute, regulation or other basis upon
which the claimed compensation is or will be based and (ii) any time or period
during which, because of the retroactive application of such statute, regulation
or other such basis, such Lender did not know that such amount would arise or
accrue. Unless otherwise provided herein, the amount specified in the written
statement shall be payable on demand after receipt by the Borrower or the
Company, as the case may be, of the written statement. The obligations of the
Obligors under Sections 3.1, 3.2, 3.4 and 3.6 shall survive payment of any other
of the Obligations and the termination of this Agreement.
3.6. Foreign Subsidiary Costs. If any Lender determines reasonably
and in good faith that the cost to such Lender of making or maintaining any Loan
to an Eligible Subsidiary is increased, or the amount of any sum received or
receivable by any Lender (or its Lending Installation) is reduced by an amount
deemed by such Lender to be material, by reason of the fact that such Eligible
Subsidiary is incorporated in, or conducts business in, a jurisdiction outside
the United States of America, the Company shall indemnify such Lender for such
increased cost or reduction within 30 days after demand by such Lender (with a
copy to the Administrative Agent). A certificate of such Lender claiming
compensation under this Section 3.6 and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.
3.7. Replacement of Lenders. In the event a Lender (an "Affected
Lender") shall have: (i) failed to either fund its ratable share of any
Committed Advance which such Lender is obligated to fund under the terms of
Section 2.2 or its share of any Competitive Bid Advance which such Lender is
obligated to fund under the terms of Section 2.3, and in either case such
failure has not been cured within five Business Days, (ii) either repudiated its
obligations under this Agreement or failed to reaffirm such obligations in
writing within ten Business Days of a written request therefor from the Company
(with a copy to each Agent), or (iii) made demand for additional amounts
pursuant to Sections 2.5.14, 3.1, 3.2 or 3.6, as a result of any condition
described in any such Section, then, unless such Affected Lender has theretofore
taken steps to remove or cure, and has removed or cured within ten Business
Days, such failure or the conditions creating the cause for such demand for such
additional amounts, as the case may be, the Company may require the Affected
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Sections 12.1, 12.2 and 12.3) all its
interests, rights and obligations under this Agreement to a bank designated by
the Company and which is reasonably acceptable to the Agents (such bank being
herein called a "Replacement Lender"); provided, that (i) no such assignment
shall conflict with any law, rule or regulation or
-33-
order of any state, federal or local govern-mental authority and (ii) the
Replacement Lender shall pay to the Affected Lender in immediately available
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder (including, without limitation,
any amount which would be payable pursuant to Section 3.4 in connection with a
prepayment in full of the Loans of the Affected Lender on the date of such
assignment). Each Lender agrees to use its best efforts to notify the Company
as promptly as practicable upon such Lender's becoming aware that circumstances
exist which would cause any obligor to become obligated to pay additional
amounts to such Lender pursuant to Sections 2.5.14, 3.1, 3.2 or 3.6.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1. Initial Advance. No Lender shall be required to make the
initial Advance hereunder unless the Company has furnished or caused to be
furnished to the Documentation Agent:
(i) the Company, together with all amendments thereto, and the
Company's Certificate of Limited Partnership, all as filed with the
Secretary of State of Delaware, certified by a Financial officer or the
President of the Company.
(ii) Copies, certified by a Financial Officer, of the Corporate
General Partner's Certificate of Incorporation, By-Laws and Board of
Directors' resolutions authorizing the execution, delivery and performance
of the Loan Documents on behalf of the Company.
(iii) An incumbency certificate, executed by a Financial Officer,
which shall identify by name and title and bear the signature of the
Financial Officers authorized to sign the Loan Documents and to make
borrowings hereunder, upon which certificate the Lenders shall be entitled
to rely until informed of any change in writing by the Company.
(iv) Copies of a long-form certificate of the Secretary of State of
the State of Delaware, dated reasonably near the date hereof, listing the
Certificate of Limited Partnership of the Company and each amendment, if
any, thereto, on file in the office of the Secretary of State of the State
of Delaware and stating that such documents are the only charter documents
of the Company on file in the office of the Secretary of State of the State
of Delaware and that the Company is a limited partnership in good standing
in the State of Delaware.
(v) A written opinion of the Company's special counsel, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, in substantially the form of Exhibit "B-1" hereto.
-34-
(vi) A written opinion of the General Counsel to the Company, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq., in substantially the form of Exhibit "B-2" hereto.
(vii) The Notes of the Company payable to the order of each of the
Lenders.
(viii) A certificate, signed by a Financial Officer, stating that no
Default or Unmatured Default has occurred and is continuing and (ii)
setting forth a calculation of the Interest Coverage Ratio as at June 30,
1995 and the Pricing Level as at the date of delivery of such certificate.
(ix) A duly completed Loan/Credit Related Money Transfer Instruction
for the Company in substantially the form of Exhibit "F" hereto.
(x) A written opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for
the Agents, in substantially the form of Exhibit "J" hereto.
(xi) Such other documents as the Documentation Agent or its counsel
may have reasonably requested.
4.2. Initial Advance to each Eligible Subsidiary. No Lender shall
be required to make the initial Advance hereunder to any Eligible Subsidiary
unless such Eligible Subsidiary has furnished or caused to be furnished to the
Documentation Agent:
(i) The Notes of such Eligible Subsidiary payable to the order of each
Lender.
(ii) An opinion of counsel for such Eligible subsidiary reasonably
acceptable to the Documentation Agent, substantially in the form of Exhibit
"I" hereto and covering such additional matters relating to the
transactions contemplated hereby as the Documentation Agent or the Required
Lenders may reasonably request.
(iii) All documents which the Documentation Agent may reasonably
request relating to the existence of such Eligible Subsidiary, the
corporate or partnership authority for and the validity of the Election to
Participate of such Eligible Subsidiary, this Agreement and the Notes of
such Eligible Subsidiary, and any other matters relevant thereto, all in
form and substance reasonably satisfactory to the Documentation Agent.
(iv) A duly completed Loan/Credit Related Money Transfer Instruction
for such Eligible Subsidiary in substantially the form of Exhibit 'IF"
hereto.
4.3. Each Advance. No Lender shall be required to make any Advance
(including, without limitation, the initial Advance hereunder), unless on the
applicable Borrowing Date:
-35-
(i) Prior to and after giving effect to such Advance there exists no
Default or Unmatured Default.
(ii) The representations and warranties of the Company and (if other
than the Company) the Borrower contained in Articles V and XIV of this
Agreement are true and correct in all material respects as of such
Borrowing Date, other than (x) Sections 5.4, 5.5(a) and 5.6, which
representations and warranties are made only as of the date of this
Agreement and (y) in the case of any Committed Advance which does not
result in an increase in the aggregate Dollar Amount of Committed Advances
at the time outstanding, Sections 5.5(b) and 5.7.
(iii) In the case of any Competitive Bid Advance, the Company's senior
unsecured debt without third-party credit enhancement is rated at least
BBB(Baa3) by at least one of S&P, ▇▇▇▇▇'▇ or D&P.
Each borrowing of an Advance shall constitute a representation and
warranty by the Company and (if other than the Company) the Borrower that the
conditions contained in Section 4.3(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Lenders that:
5.1. Organization and Authority. The Company
(a) prior to the Effective Date of the Reorganization, is a limited
partnership duly organized and validly existing under the laws of the State
of Delaware and on and after the Effective Date of the Reorganization, will
be duly incorporated, validly existing and in good standing under the laws
of its jurisdiction of incorporation;
(b) has all requisite power and authority and all necessary licenses
and permits to own and operate its properties and to carry on its business
as now conducted;
(c) is duly licensed or qualified and is in good standing as a foreign
limited partnership (to the extent qualification as a foreign limited
partnership is permitted by statute), or, on and after the Reorganization,
corporation, in each jurisdiction wherein the failure to be so qualified
would reasonably be expected to have a Material Adverse Effect; and
-36-
(d) does not believe that the inability of the Company to qualify as a
foreign limited partnership in any state in which such qualification is not
permitted by law will have a Material Adverse Effect.
5.2. Organization and Authority of Subsidiaries. Each Material
Subsidiary:
(a) is a limited partnership, general partnership or corporation, duly
organized, validly existing and, where applicable, in good standing under
the laws of its jurisdiction of incorporation or the jurisdiction where
organized, as the case may be;
(b) has all requisite power and authority and all necessary licenses
and permits to own and operate its properties and to carry on its business
as now conducted; and
(c) is duly licensed or qualified and is in good standing as a foreign
corporation or partnership (to the extent qualification as a foreign
partnership is permitted by statute), as the case may be, in each
jurisdiction wherein the failure to be so qualified would reasonably be
expected to have a Material Adverse Effect.
The Company does not believe that the inability of any Subsidiary partnership to
qualify as a foreign partnership in any state in which such qualification is not
permitted by law will have a Material Adverse Effect.
5.3. Organization and Authority of Corporate General Partner. The
Corporate General Partner:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) has all requisite power and authority and all necessary licenses
and permits to own and operate its properties and to carry on its business
as now conducted; and
(c) is duly licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the failure to be so qualified
would reasonably be expected to have a Material Adverse Effect.
5.4. Business and Property. The Lenders have each heretofore been
furnished with a copy of the Annual Report of the Parent on Form 10-K for the
fiscal year ended December 31, 1994 (the "Form 10-K"), the Quarterly Report of
the Parent on Form 10-Q for the fiscal quarter ended June 30, 1995 (the "Form
10-Q") and the Information Memorandum dated July 1995 (the "Information
Memorandum") of the Company, which Information Memorandum generally sets forth
the business conducted by the Company and its Subsidiaries and the principal
properties of the Company and its Subsidiaries. The Form 10-K, the Form 10-Q,
and the Information Memorandum are hereinafter referred to as the "Disclosure
Documents."
-37-
5.5. Financial Statements. (a) The consolidated balance sheets of
the Parent and its subsidiaries as of December 31, 1994, and the statements of
income and cash flows for the fiscal year ended on said date accompanied by a
report thereon containing an opinion unqualified as to scope limitations imposed
by the Parent and otherwise without qualification except as therein noted, by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, have been prepared in accordance with GAAP consistently
applied except as therein noted, fairly present in all material respects the
financial position of the Company and its Subsidiaries as of such date and the
results of their operations and cash flows for such period. The unaudited
consolidated balance sheet of the Parent and its subsidiaries as of June 30,
1995, and the unaudited statement of income and cash flows for the six-month
period ended on said date prepared in accordance with GAAP consistently applied,
fairly present in all material respects the financial position of the Company
and its Subsidiaries as of such date and the results of their operations and
changes in their cash flows for such period subject to year-end audit
adjustments and the absence of footnotes.
(b) Since December 31, 1994, no event or condition has occurred which
has had or which would reasonably be expected to have a material adverse effect
on the properties, business, operations or financial condition of the Company
and its Subsidiaries taken as a whole.
5.6. Full Disclosure. The financial statements referred to in
Section 5.5 do not, nor do the Disclosure Documents or any other written
statement furnished by the Parent or any obligor to the Agents or the Lenders in
connection with the negotiation of the Loan Documents, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading as of the dates thereof.
There is no fact peculiar to the Company or its Subsidiaries which the Company
has not disclosed to the Lenders in writing which materially affects adversely
nor, so far as the Company can foresee, will materially affect adversely the
properties, business, operations or financial condition of the Company and its
Subsidiaries taken as a whole.
5.7. Pending Litigation. There are no proceedings pending or, to
the knowledge of the Company threatened, against or affecting the Company, any
of its General Partners, its Parent or any Subsidiary in any court or before any
governmental authority or arbitration board or tribunal which would reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in default with respect to any order of any court or governmental
authority or arbitration board or tribunal which would reasonably be expected to
have a Material Adverse Effect.
5.8. Loan Documents are Legal, Valid, Binding and Authorized. The
execution and delivery of the Loan Documents by the Company and compliance by
the Company with all of the provisions of the Loan Documents
(a) are within the power of the Company and have been duly authorized
by proper action on the part of the Company; and
-38-
(b) will not violate in any material respect any provisions of any law
or any order of any court or governmental authority or agency and will not
conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the limited partnership
agreement of the Company or any indenture or other agreement or instrument
governing Debt or any other material agreement or instrument to which the
Company is a party or by which it may be bound or result in the imposition
of any liens or encumbrances on any property of the Company.
The execution and delivery by the Company of the Loan Documents and the
performance of its obligations thereunder have been duly authorized by proper
corporate and partnership proceedings, and the Loan Documents constitute legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors/
rights generally.
5.9. Governmental Consent. No approval, consent or withholding of
objection on the part of any regulatory body, state, Federal or local, is
necessary in connection with the execution, delivery and performance by the
Company of the Loan Documents or compliance by the Company with any of the
provisions of the Loan Documents.
5.10. Taxes. All United States Federal income tax returns and all
other material tax returns required to be filed by the Parent, the Company or
any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes, and
all material assessments, fees and other governmental charges upon the Parent,
the Company or any Subsidiary or upon any of their respective properties, income
or franchises, which are shown to be due and payable in such returns have been
paid. The Company does not know of any proposed additional tax assessment
against the Parent, the Company or any Subsidiary for which adequate provision
has not been made on its accounts. To the best of the Company's knowledge, the
provisions for taxes on the books of the Parent, the Company and each Subsidiary
are adequate for all open years, and for its current fiscal period.
5.11. Employee Retirement Income Security Act of 1974. The
consummation of the transactions provided for in this Agreement and compliance
by the Company with the provisions of the Loan Documents will not involve any
prohibited transaction within the meaning of the ERISA or Section 4975 of the
Code. No "employee pension benefit plans", as defined in ERISA ("Plans"),
maintained by the Company or any Person which is under common control with the
Company within the meaning of Section 4001(b) of ERISA, nor any trusts created
thereunder, have incurred any "accumulated funding deficiency" as defined in
Section 302 of ERISA. Neither the Company nor, to the best of the Company's
knowledge, any Person which is under common control with the Company, within the
meaning of section 4001(b) of ERISA, maintains any "qualified defined benefit
plan" as defined in ERISA.
-39-
5.12. Investment Company Act. Neither the Company nor any Subsidiary
is an "investment company" or an "affiliated person" thereof or an "affiliated
person" of such affiliated person as such terms are defined in the Investment
Company Act of 1940, as amended.
5.13. Compliance with Environmental Laws. Neither the Company nor
any Subsidiary is in violation of any applicable Federal, state, or local laws,
statutes, rules, regulations or ordinances relating to public health, safety or
the environment, including, without limitation, relating to releases,
discharges, emissions or disposals to air, water, land or ground water, to the
withdrawal or use of ground water, to the use, handling or disposal of
polychlorinated biphenyls (PCB's), asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances (including,
without limitation, petroleum, crude oil or any fraction thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or
other controlled, prohibited or regulated substances which violation would
reasonably be expected to have a Material Adverse Effect.
5.14. Regulations U and X. Margin stock (as defined in Regulations
U and X) constitutes less than 25% of those assets of the Company and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
ARTICLE VI
COVENANTS
---------
6.1. During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1.1. Information. The Company will deliver to each of the Lenders:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, consolidated and consolidating
balance sheets of the Company and its Consolidated Subsidiaries (subject to
Section 6.1.2) as of the end of such fiscal year and the related
consolidated and consolidating statements of income and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, such consolidated statements to be reported on in
a manner which satisfies the financial reporting requirements of the
Securities and Exchange Commission by a firm of independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Company, the
internally prepared consolidated and consolidating balance sheets of the
Company and its Consolidated subsidiaries (subject to Section 6.1.2) as of
the end of such quarter and the
-40-
related consolidated and consolidating statements of income and cash flows
for such quarter and for the portion of the Company's fiscal year ended at
the end of such quarter, setting forth in the case of such statements of
income and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal
year, all certified (subject to normal year-end adjustments and the absence
of footnotes) as to fairness of presentation, GAAP and consistency by a
Financial Officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Financial Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance
with the requirements of Sections 6.10, 6.15 and 6.16 on the date of such
financial statements, (ii) stating whether any Default or Unmatured Default
exists on the date of such certificate and, if any Default or Unmatured
Default then exists, setting forth the details thereof and the action which
the Company is taking or proposes to take with respect thereto and (iii)
setting forth the Interest Coverage Ratio as at the date of such financial
statements and the Pricing Level as at the date of delivery of such
certificate;
(d) promptly upon the mailing thereof to the securityholders of the
Company or the Parent generally, copies of all financial statements,
reports and proxy statements so mailed;
(e) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Company or the Parent shall have filed with
the Securities and Exchange Commission; and
(f) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
6.1.2. Use of Parent Information. If the certificate furnished
pursuant to Section 6.1(c) shall state that (i) the financial statements of the
Parent and its subsidiaries fairly present in all material respects the
financial condition of the Company and its Consolidated Subsidiaries for the
period in respect of which such certificate shall be given and (ii) the
consolidated revenue of the Company and its Consolidated Subsidiaries
constitutes at least 98% of the consolidated revenues of the Parent and its
subsidiaries and that the combined assets of the Company and its Consolidated
Subsidiaries constitute at least 98% of the consolidated assets of the Parent
and its subsidiaries, then the Company may furnish consolidated financial
statements of the Parent otherwise complying with the requirements of subsection
(a) or (b) above, as applicable, in lieu of the consolidated financial
statements of the Company specified therein. The consolidating
-41-
financial statements required by such subsections shall be prepared in
substantially the same format as those set forth in the Information Memorandum.
6.2. Use of Proceeds. The Company will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances for general corporate
purposes. The Company will not, nor will it permit any Subsidiary to, use the
proceeds of any Advance in violation of Regulations U and X.
6.3. Notice of Default. Upon the obtaining of actual knowledge
thereof by a Financial Officer, the Company will, and will cause each of its
Subsidiaries to, give prompt notice in writing to the Administrative Agent of
(i) the occurrence of any Default or Unmatured Default and what actions the
Company proposes to take with respect thereto, if any, and (ii) any other
development, financial or otherwise, which would reasonably be expected to have
a material adverse effect on the properties, business, operations or financial
condition of the Company and its Subsidiaries taken as a whole.
6.4. Inspection. The Company will, and will cause each Subsidiary
to, permit the Lenders, by their respective representatives and agents, to
inspect any of the properties, corporate books and financial records of the
Company and each Subsidiary, to examine and make copies of the books of accounts
and other financial records of the Company and each Subsidiary, and to discuss
the affairs, finances and accounts of the Company and each Subsidiary with, and
to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Lenders may reasonably designate.
6.5. Legal Existence, Etc. The Company will preserve and keep in
force and effect, and will cause each Material Subsidiary to preserve and keep
in force and effect, its legal existence as a limited partnership, general
partnership or as a corporation, as the case may be, and all licenses and
permits necessary to the proper conduct of its business, provided that the
foregoing shall not prevent (x) any transaction permitted by Section 6.14
(including without limitation the Reorganization), (y) the merger or
consolidation of any Eligible Subsidiary with, or the liquidation of any
Eligible Subsidiary into, any other Eligible Subsidiary or, subject to Section
6.14, the Company or (z) the merger or consolidation of any other Material
Subsidiary with or the liquidation of any other Material Subsidiary into any
other Subsidiary or, subject to Section 6.14, the Company.
6.6. Insurance. The Company will maintain, and will cause each
Subsidiary to maintain, insurance coverage by financially sound and reputable
insurers in such forms and amounts and against such risks as are customary for
companies engaged in the same or similar business activities and owning and
operating similar properties.
6.7. Taxes, Claims for Labor and Materials, Compliance with Laws.
The Company will promptly pay and discharge, and will cause each Subsidiary
promptly to pay and discharge all material lawful taxes, assessments and
governmental charges or levies imposed
-42-
upon the Company or such Subsidiary, respectively, or upon or in respect of all
or any material part of the property or business of the Company or such
Subsidiary, all trade accounts payable in accordance with usual and customary
business terms, and all claims for work, labor or materials, which if unpaid
might become a lien or charge upon any material property of the Company or such
Subsidiary, provided the Company or such Subsidiary shall not be required to pay
any such tax, assessment, charge, levy, account payable or claim if (i) the
validity, applicability or amount thereof is being contested in good faith by
appropriate actions or proceedings which will prevent the forfeiture or sale of
any material property of the Company or such Subsidiary or any material
interference with the use thereof by the Company or such Subsidiary, and (ii)
the Company or such Subsidiary shall set aside on its books, reserves deemed by
it to be adequate with respect thereto. The Company will promptly comply, and
will cause each Subsidiary to comply, in all material respects with all laws,
ordinances or governmental rules and regulations to which it is subject,
including without limitation, ERISA, the Occupational Safety and Health Act of
1970, Federal Insecticide, Fungicide and Rodenticide Act and Federal
Environmental Pesticide Control Act of 1972 and all laws, ordinances,
governmental rules and regulations relating to environmental protection in all
applicable jurisdictions, the violation of which would reasonably be expected to
have a Material Adverse Effect.
6.8. Maintenance, Etc. The Company will maintain, preserve and
keep, and will cause each Subsidiary to maintain, preserve and keep, its
properties which are used in the conduct of its business (whether owned in fee
or a leasehold interest) in good repair and working order and from time to time
will make all necessary repairs, replacements, renewals and additions so that at
all times (in the Company's reasonable judgment) the efficiency thereof shall be
maintained, except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect.
6.9. Nature of Business. Neither the Company nor any Subsidiary
will engage in any business if, as a result, the general nature of the business,
taken on a consolidated basis, which would then be engaged in by the Company and
its Subsidiaries would be substantially changed from the general nature of the
business engaged in by the Company and its Subsidiaries and described in the
Annual Report of the Parent on Form 10-K for the fiscal year ended December 31,
1994.
6.10. Restricted Payments. The Company will not make any
Restricted Payment if at the time of such Restricted Payment and after the
giving effect thereto a Default shall have occurred and be continuing. In
addition, the Company will not make any Restricted Payment if after giving
effect thereto the aggregate amount of Restricted Payments made during the
period from and after April 1, 1995 to and including the date of the making of
the Restricted Payment in question would exceed the sum of (i) Consolidated Net
Income for such period, computed on a cumulative basis for such entire period,
(ii) the net proceeds (whether cash or other property, and in the case of other
property, at a value determined by the Company reasonably and in good faith) to
the Company from the issue or sale of Equity Interests in the Company or the
Parent on or after April 1, 1995 and (iii) $100,000,000.
-43-
For the purposes of this Section 6.10 the amount of any Restricted
Payment declared, paid or distributed in property of the Company shall be deemed
to be the greater of the book value or fair market value (as determined in good
faith by the Board of Directors) of such property at the time of the making of
the Restricted Payment in question.
6.11. Payment of Dividends by Subsidiaries. The Company will not
and will not permit any Subsidiary to enter into any agreement which restricts
the ability of any Subsidiary to declare any dividend or to make any
distribution on any Equity Interest of such Subsidiary, other than the
restrictions set forth in Schedule 6.11.
6.12. Transactions with Affiliates. The Company will not, and will
not permit any Subsidiary to, enter into or be a party to, any material
transaction or arrangement with any Affiliate (including without limitation, the
purchase from, sale to or exchange of property with, or the rendering of any
service by or for, any Affiliate), except in the ordinary course of and pursuant
to the reasonable requirements of the Company's or such Subsidiary's business
and upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than would reasonably be expected to be obtained in a comparable
arm's-length transaction with a Person other than an Affiliate; provided that
the foregoing shall not prevent the transactions described in the Proxy
Statement relating to the Reorganization. For the purposes of this Section
6.12, the incurrence of Debt which is payable to the Parent or the Surviving
Parent shall not be prohibited so long as such Debt is permitted pursuant to
Section 6.15 and shall have terms which are comparable to the terms which would
reasonably be expected to be obtained in an arm's-length transaction with a
Person other than an Affiliate. It is understood that the relationship between
the Company and the Corporate General Partner established by the Company's
agreement of limited partnership, and the performance of such agreement by the
parties thereto, do not contravene this Section 6.12.
6.13. Negative Pledge. Neither the Company nor any Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement;
(b) any Lien existing on any asset of any corporation or other entity
at the time such corporation or other entity becomes a Subsidiary and not
created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation or other entity existing
at the time such corporation or other entity is merged or consolidated with
or into the Company
-44-
or a Subsidiary and not created in contemplation of such event, provided
that such Lien does not extend to any additional assets;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is
not secured by any additional assets;
(g) Liens imposed by any governmental authority for taxes, assessments
or charges not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP;
(h) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in
good faith and by appropriate proceedings and Liens securing judgments but
only to the extent for an amount and for a period not resulting in a
Default under Section 7.6 hereof;
(i) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(j) deposits to secure the performance of bids, trade contracts (other
than for Debt or Derivatives Obligations), leases, statutory obligations,
surety bonds, appeal bonds with respect to judgments not exceeding
$25,000,000, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(k) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of property or minor imperfections in title thereto that, in the
aggregate, are not material in amount ' and that do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Company and its
Subsidiaries;
(l) other Liens arising in the ordinary course of its business which
(i) do not secure Debt or Derivatives Obligations, (ii) do not secure any
obligation in an amount exceeding $25,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
-45-
(m) Liens arising from receivables financings accounted for as sales
under generally accepted accounting principles; provided that the aggregate
unrecovered investment of the purchasers shall at no time exceed
$100,000,000 (plus accrued interest);
(n) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $10,000,000; and
(o) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at any date
not to exceed $25,000,000.
6.14. Consolidations, Mergers and Sales of Assets. (a) The Company
will not (i) consolidate or merge with or into any other Person or (ii) sell,
lease or otherwise transfer all or substantially all of its assets to any other
Person, provided that the foregoing provisions of this Section 6.14 shall not
preclude (x) consummation of the Reorganization, (y) any merger or consolidation
to which the Company is a party or (z) with the prior written consent of the
Required Lenders, the sale or other transfer of all or substantially all of the
assets of the Company so long as, in the case of each of (x), (y) and (z), (i)
at the time the Surviving Company, in the case of the Reorganization, the
surviving entity, in the case of a merger or consolidation, or the transferee,
in the case of a sale of all or substantially all of the assets of the Company,
is organized under the laws of the United States of America or a state thereof
and (except in the case of a merger in which the Company is the surviving
entity) expressly assumes all obligations of the Company under the Loan
Documents pursuant to an instrument in form and substance reasonably
satisfactory to the Required Lenders and (ii) after giving effect thereto, no
Default or Unmatured Default shall have occurred and be continuing.
(b) The Company will not sell, lease or otherwise transfer, directly
or indirectly, in any period of four consecutive fiscal quarters assets having
an aggregate net book value greater than 20% of the consolidated total assets of
the Company and its Subsidiaries at the commencement of such period; provided
that this subsection (b) shall not apply to sale or other disposition in the
ordinary course of business of inventory or obsolete equipment.
6.15. Leverage Test. Consolidated Debt shall at no time exceed the
Debt Limit.
6.16. Subsidiary Debt Limitation. The aggregate Debt of
Subsidiaries, exclusive of (i) Debt under this Agreement and (ii) Debt owing to
the Company or a Subsidiary, shall at no time exceed 20% of the Debt Limit.
-46-
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made under Article
IV by any Obligor to the Lenders or the Administrative Agent under or in
connection with this Agreement or any certificate or other document delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made or deemed made.
7.2. Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or of any facility fee or other obligations under any of
the Loan Documents within five days after the same becomes due.
7.3. The breach by the Company of any of the terms or provisions of
Sections 6.10 through 6.16.
7.4. The breach by the Company (other than a breach which constitutes
a Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within thirty days after the earlier of (a)
any Financial Officer of the Company having knowledge of such breach or (b)
written notice from the Administrative Agent or any Lender.
7.5. Default by the Company or any Subsidiary in the payment of the
principal of or interest on any Debt and/or Derivatives Obligations in an
aggregate amount of $25,000,000 or more, as and when the same shall become due
and payable by the lapse of time, by declaration, by call for redemption or
otherwise, and such default shall continue beyond the period of grace, if any,
allowed with respect thereto.
7.6. Default or the happening of any event shall occur under any
indenture, agreement, or other instrument under which any Material Commitment is
made or any Debt of the Company or any subsidiary in an aggregate amount of
$25,000,000 or more is outstanding and such default or event shall continue for
a period of time sufficient to permit the acceleration of the maturity of any
Debt of the Company or any subsidiary outstanding thereunder or to permit
termination of any Material Commitment, provided any such default which exists
solely on account of the Reorganization shall not constitute a Default or
Unmatured Default under this Section 7.6 once such default shall have been
waived by the holders of such Debt or the makers of such Material Commitment.
-47-
7.7. The Corporate General Partner shall withdraw from the Company
(except in connection with the Reorganization) and no successor Corporate
General Partner shall have been elected prior thereto or substantially
simultaneously therewith in accordance with Section 12.1 of the limited
partnership agreement of the Company.
7.8. A custodian, trustee or receiver is appointed for the Company,
the Corporate General Partner or any Material Subsidiary or for the major part
of the property of any of the foregoing and is not discharged within 30 days
after such appointment.
7.9. Final judgment or judgments for the payment of money aggregating
in excess of $25,000,000 is or are outstanding against the Company or any
Subsidiary and such judgments have remained unpaid, unvacated, unbonded or
unstayed by appeal or otherwise for a period of 30 days.
7.10. The Company, the Corporate General Partner or any Material
Subsidiary becomes insolvent or bankrupt, is generally not paying its debts as
they become due or makes an assignment for the benefit of creditors, or the
Company, the Corporate General Partner or any Material Subsidiary causes or
suffers an order for relief to be entered with respect to it under applicable
Federal bankruptcy law or applies for or consents to the appointment of a
custodian, trustee or receiver for the Company, the Corporate General Partner or
such Material Subsidiary or for the major part of the property of any of the
foregoing.
7.11. Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy or similar law
or laws for the relief of debtors, are instituted by or against the Company, the
Corporate General Partner or any Material Subsidiary, and, if instituted against
the Company, the Corporate General Partner or any Material Subsidiary, are
consented to or are not dismissed within 60 days after such institution.
7.12. Any Change of Control shall occur.
7.13. The Guaranty of the Company under Article XV shall cease to be
in full force and effect or the Company shall contest in any manner the
validity, binding nature or enforceability of Article XV, in either case at a
time when any Loans are outstanding hereunder to an Eligible Subsidiary.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. Acceleration. If any Default described in Section 7.8, 7.10 or
7.11 occurs with respect to the Company, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the obligations shall
immediately become due and payable without
-48-
presentment, demand, protest or notice of any kind (all of which the Company
hereby expressly waives) or any other election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, the Required
Lenders may terminate or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable, or both, in either
case upon written notice to the Company, whereupon the obligations shall become
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which each obligor hereby expressly waives.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Loan Documents may be amended to add or modify any provisions thereof or change
in any manner the rights of the Lenders or the obligors thereunder or waive any
Default thereunder, but only in a writing signed by the Required Lenders (or the
Documentation Agent with the consent in writing of the Required Lenders) and the
Company; provided, however, that no such supplemental agreement shall, without
the consent of each Lender affected thereby:
(i) Extend the maturity of any Loan or Note or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of
interest thereon or fees under Section 2.4.
(ii) Change the percentage of the Commitments or the aggregate unpaid
principal amount, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this Section 8.2 or any
other provision (including any definition) of this Agreement.
(iii) Extend the Termination Date or increase the amount of the
Commitment of any Lender hereunder, or permit any Borrower to assign its
rights or obligations under this Agreement except in connection with the
Reorganization and in compliance with the terms of Section 6.5 and 6.14.
(iv) Amend Section 2.5.13(a), Section 8.1 or this Section 8.2.
(v) Release the Company from its obligations under Article XV.
No amendment of any provision of this Agreement relating to either Agent shall
be effective without the written consent of such Agent. The Administrative
Agent may waive payment of the fee required under Section 12.3.2 without
obtaining the consent of-any of the Lenders. No amendment shall, unless signed
by an Eligible Subsidiary, (w) subject such Eligible Subsidiary to any
additional obligation, (x) increase the principal of or rate of interest on any
outstanding Loan of such Eligible Subsidiary, (y) accelerate the stated maturity
of any outstanding Loan of such Eligible Subsidiary or (z) change this proviso.
8.3. Preservation of Rights. No delay or omission of any Lender or
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a
-49-
waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agents and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. Survival of Representations. All representations and warranties
of the Obligors contained in this Agreement shall survive delivery of the Notes
and the making of the Loans herein contemplated.
9.2. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.3. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Obligors, the Agents and the Lenders and
supersede all prior agreements and understandings among the Obligors, the Agents
and the Lenders relating to the subject matter thereof except as contemplated in
Section 10.12.
9.4. Several Obligations. The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which either Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder. No
Lender shall have any liability for the failure of any other Lender to perform
its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.5. Expenses; Indemnification. (a) The Company shall reimburse (i)
the Agents for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel
for the Agents) paid or incurred by either Agent in connection with the
preparation, review, execution, delivery, amendment, modification and
administration of the Loan Document and (ii) the Agents and the Lenders for any
reasonable costs, internal charges and out-of-pocket expenses (including
-50-
reasonable attorneys' fees and allocated costs of inside counsel for the Agents
and the Lenders) paid or incurred by either Agent or any Lender in connection
with the collection and enforcement of the Loan Documents, any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or any insolvency or bankruptcy proceedings in respect of
any Obligor.
(b) The Company further agrees to indemnify each Agent and each
Lender, their respective affiliates, and the respective directors, officers,
employees and agents of the foregoing, against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the Agent or
any Lender is a party thereto) (collectively, the "Indemnified Amounts") which
any of them may pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan
hereunder; provided that it is understood that the Company shall not, in respect
of the legal expenses of the Lenders in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Lenders designated by the Agents (except if and to the extent that, owing to
existing or potential conflicts of interest among them, such counsel shall
advise that representation of all Lenders by a single firm would not be
appropriate); and provided, further, that the Company shall not be liable to any
Lender for any Indemnified Amounts (x) resulting from the gross negligence or
willful misconduct of such Lender, its affiliates or any of their respective
officers, directors, employees and agents or (y) constituting the costs and
expenses of prosecuting a suit or proceeding commenced by such Lender which is
finally determined adversely to such Lender (any counterclaim asserted against
such Lender being treated as a separate proceeding for this purpose). The
obligations of the Company under this Section 9.5 shall survive the termination
of this Agreement.
9.6. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agents may furnish one to each of the
Lenders.
9.7. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid ir any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.8. Nonliability of Lenders. The relationship between the Obligors
and the Lenders and the Agents shall be solely that of debtor and creditor.
Neither Agent nor any Lender shall have any fiduciary responsibilities to any
Obligor. Neither Agent nor any Lender undertakes any responsibility to any
Obligor to review or inform any Obligor of any matter in connection with any
phase of its business or operations.
-51-
9.9. CHOICE OF LAW. THE LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF NEW YORK.
9.10. CONSENT TO JURISDICTION. EACH OBLIGOR HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK CITY IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH OBLIGOR HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES TO THE EXTENT ALLOWED BY LAW
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF EITHER AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST ANY OBLIGOR IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY OBLIGOR AGAINST EITHER AGENT OR
ANY LENDER OR ANY AFFILIATE OF EITHER AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK CITY, UNLESS SUCH
OBLIGOR IS UNABLE TO OBTAIN SUCH JURISDICTION.
9.11. WAIVER OF JURY TRIAL. EACH OBLIGOR, AGENT AND LENDER HEREBY
WAIVES TO THE EXTENT ALLOWED BY LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.12. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Parent, the Company or any of its
Subsidiaries pursuant to this Agreement in confidence, except for disclosure (i)
to other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to that Lender, (iii) to regulatory
officials upon their request or otherwise pursuant to law or regulation, (iv) as
requested pursuant to or as required by law, regulation, or legal process, (v)
in connection with any legal proceeding to which that Lender is a party, and
(vi) permitted by Section 12.4. The restrictions in this Section 9.12 shall not
apply to any information which is or becomes generally available to the public
other than as a result of disclosure by a Lender or a Lender's representatives.
-52-
ARTICLE X
THE AGENTS
----------
10.1. Appointment. First Chicago and ▇▇▇▇▇▇ are hereby appointed
Administrative Agent and Documentation Agent, respectively, hereunder and under
each other Loan Document, and each of the Lenders irrevocably authorizes each
such Agent to act as the contractual representative of such Lender. Each such
Agent agrees to act as such upon the express conditions contained in this
Article X. Neither Agent shall have a fiduciary relationship in respect of any
Lender by reason of this Agreement.
10.2. Powers. Each Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to such Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
Neither Agent shall have any implied duties to the Lenders, or any obligation to
the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by such Agent.
10.3. General Immunity. Neither Agent nor any of its affiliates nor
any of their respective directors, officers, agents or employees shall be liable
to any obligor or any Lender for any action taken or omitted to be taken by it
or them in their respective agency capacities under or in connection with this
Agreement except for its own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any Obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered to such Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith, except for the authority of such
Agent's signatory to this Agreement.
10.5. Action on Instructions of Lenders. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders (or, where so specified herein, all the Lenders), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of Notes. Each Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action, provided
that, such indemnity need not include liability, costs and expenses arising
solely from the gross negligence or willful misconduct of the Agent.
-53-
10.6. Employment of Agents and Counsel. Each Agent may execute any
of its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. Each Agent shall be entitled
to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected in good faith by such
Agent, which counsel may be employees of such Agent or may be counsel for an
Obligor.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify each Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Company for which such
Agent is entitled to reimbursement by the Company under the Loan Documents, (ii)
for any other expenses not reimbursed by the Company incurred by such Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever and not
reimbursed by the Company which may be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of such Agent.
10.9. Rights as a Lender. With respect to its Commitment, Loans made
by it and the Notes issued to it, each Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not an Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include each Agent in
its individual capacity. Each Agent may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Subsidiaries.
10.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon either Agent or any other Lender and
based on the financial statements submitted by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and
-54-
without reliance upon either 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 decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.11. Successor Agent. Each Agent may resign at any time by giving
at least 30 days' prior written notice thereof to the Lenders and the Company
and such resignation shall be effective upon the appointment of a successor
agent. Upon any such resignation, the Company, with the approval of the
Required Lenders, shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed and approved and shall have
accepted such appointment within thirty days after the retiring Agent's giving
notice of resignation, then the retiring Agent may appoint a successor Agent.
Such successor Agent shall be a commercial bank with an office located in the
United States of America having capital and retained earnings of at least
$1,000,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent.
The retiring Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents upon the effectiveness of its resignation
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article X shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as Agent
hereunder and under the other Loan Documents.
10.12. Agents' Fees. The Company hereby agrees to pay to each Agent
for its sole account such fees as heretofore agreed upon by the Company and such
Agent in writing.
ARTICLE XI
SETOFF RATABLE PAYMENTS
-----------------------
11.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if any Obligor becomes insolvent, however
evidenced, or any Default occurs, any indebtedness from any Lender to any
Obligor (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the obligations owing by such Obligor to such Lender, whether or not
such Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its share of any Advance (other than
payments received pursuant to Article III) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans comprising that Advance held by the other
Lenders so that after such purchase each Lender will hold its ratable proportion
of the unpaid Loans comprising that Advance. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for
-55-
its Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to their
Loans. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Obligors, the
Agents and the Lenders and their respective successors and assigns, except that
(i) no Obligor shall have the right to assign its rights or obligations under
the Loan Documents (except in a transaction expressly permitted by Section 6.5
or 6.14(a)) and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of any Obligor or either Agent, assign all or
any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. Each Agent may treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
such payee complies with Section 12.3 in the case of an assignment thereof or,
in the case of any other transfer, a written notice of the transfer is filed
with each Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender, the
Commitment of such Lender, or any other interest of such Lender under the Loan
Documents; provided, however, that, except in the case of a sale of a
participation in a Competitive Bid Loan, such participations shall require the
consent of the Company and shall each be in a minimum amount of $10,000,000. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all amounts
payable by the Obligors under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Obligors
-56-
and the Agents shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment, postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment, releases any
guarantor of any such Loan, if any, or releases any substantial portion of
collateral, if any, securing any such Loan.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or a portion (in a
minimum amount of $10,000,000) of its rights and obligations under the Loan
Documents. Such assignment shall be substantially in the form of Exhibit "El'
hereto. The consent of the Company and the Agents shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not both a
financial institution and an affiliate of the transferor. Such consents shall
be given in substantially the form attached as Exhibit 'III'' to Exhibit "El'
hereto.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Company and
the Agents of a notice of assignment, substantially in the form attached as
Exhibit "I" to Exhibit "El' hereto (a "Notice of Assignment"), together with any
consent required by Section 12.3.1, and (ii) payment of a $3,500 fee to the
Administrative Agent by the assignee or assignor Lender for processing such
assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by the Lenders and shall have all
the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action
by the Obligors, the Lenders or the Agents shall be required to release the
transferor Lender with respect to the percentage of the Aggregate Commitment and
Loans assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the Agents and
the Obligors shall make appropriate arrangements so that replacement Notes are
issued to such transferor Lender and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4. Dissemination of Information. The Obligors authorize each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all
-57-
information in such Lender's possession concerning the creditworthiness of the
Company and its Subsidiaries; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.12 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Purchaser which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Purchaser, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.5.14.
12.6. Increased Costs. Subject to the applicable limitations set
forth therein and to the further provisions of this Section 12.6, each
Transferee shall be entitled to the benefits of Section 2.5.14 and 2.5.15 and
Article III with respect to the rights transferred to it to the same extent as a
Lender. No Transferee (including, for purposes of this Section 12.6, any
successor Lending Installation) of any Lender's rights shall be entitled to
receive any greater payment under Section 2.5.14 or Article III than such Lender
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Company's prior written consent or by
reason of the provisions of Section 3.4 requiring such Lender to designate a
different Lending Installation under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
ARTICLE XIII
NOTICES
-------
13.1. Giving Notice. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing (including telex or facsimile) and addressed or delivered to such party:
(a) in the case of the Company or either Agent, at its address, facsimile number
or telex number set forth on the signature pages hereof, (b) in the case of any
Lender, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire, (c) in the case of any Eligible Subsidiary, to it
care of the Company and (d) in the case of any party, such other address,
facsimile number or telex number as such party may hereafter specify for the
purpose by notice to the Agents and the Company. All such notices shall be
effective when received at the address specified above.
ARTICLE XIV
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
------------------------------
Each Eligible Subsidiary shall be deemed by the execution and delivery
of its Election to Participate to have represented and warranted that:
-58-
14.1. Existence and Power. It is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and is a
Subsidiary of the Company.
14.2. Corporate or Partnership and Governmental Authorization;
Contravention. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its legal powers, have been duly authorized by all necessary corporate,
partnership or other legal action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, in any material respect any provision of applicable
law or regulation or of its organizational documents or of any indenture or
other agreement or instrument governing Debt or any other material agreement or
instrument binding upon the Company or such Eligible Subsidiary or result in the
creation or imposition of any liens or encumbrances on any asset of the Company
or any of its Subsidiaries.
14.3. Binding Effect. This Agreement constitutes a legal, valid and
binding agreement of such Eligible Subsidiary and each of its Notes, when
executed and delivered in accordance with this Agreement, will constitute a
legal, valid and binding obligation of such Eligible Subsidiary, in each case
enforceable in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
14.4. Taxes. Except as disclosed in such Election to Participate,
there is no income, stamp or other tax of any country, or any taxing authority
thereof or therein, imposed by or in the nature of withholding or otherwise,
which is imposed on any payment to be made by such Eligible Subsidiary pursuant
hereto or on its Notes, or is imposed on or by virtue of the execution, delivery
or enforcement of its Election to Participate or of its Notes.
ARTICLE XV
GUARANTY
--------
15.1. The Guaranty. The Company hereby unconditionally guarantees
the full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note issued by any Eligible
Subsidiary pursuant to this Agreement, and the full and punctual payment of all
other amounts payable by any Eligible Subsidiary under this Agreement. Upon
failure by any Eligible Subsidiary to pay punctually any such amount, the
Company shall forthwith on demand pay the amount not so paid at the place and in
the manner specified in this Agreement.
15.2. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
-59-
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Eligible Subsidiary under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership of
any Eligible Subsidiary, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Eligible Subsidiary or its assets or
any resulting release or discharge of any obligation of any Eligible
Subsidiary contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, either Agent,
any Lender or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Eligible Subsidiary of the principal of or interest on any
Note or any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, either Agent, any Lender or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
Company's obligations hereunder.
15.3. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Company's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
interest on the Notes and all other amounts payable by the Company and each
Eligible Subsidiary under this Agreement shall have been paid in full. If at
any time any payment of principal of or interest on any Note or any other amount
payable by any Eligible Subsidiary under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of any Eligible Subsidiary or otherwise, the Company's obligations hereunder
with respect to such payment shall be reinstated at such time as though such
payment had been due but not made at such time.
-60-
15.4. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any Eligible Subsidiary or any other Person.
15.5. Subrogation. Upon making any payment with respect to any
Eligible Subsidiary hereunder, the Company shall be subrogated to the rights of
the payee against such Eligible Subsidiary with respect to such payment;
provided that the Company shall not enforce any payment by way of subrogation
until all amounts of principal of and interest on the Notes and all other
amounts payable by such Eligible Subsidiary under this Agreement have been paid
in full.
15.6. Stay of Acceleration. In the event that acceleration of the
time for payment of any amount payable by any Eligible Subsidiary under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of such Eligible Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the Company
hereunder forthwith on demand by the Required Lenders.
ARTICLE XVI
COUNTERPARTS; EFFECTIVENESS
---------------------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when the Documentation Agent shall have received
evidence reasonably satisfactory to it that (i) this Agreement has been executed
by the Company, the Agents and the Lenders and (ii) the commitments of the
lenders parties to the Credit Agreement dated as of June 3, 1992 among the
Company, such lenders and First Chicago, as agent (the "Prior Agreement") shall
have terminated and all loans outstanding thereunder and all accrued interest
and fees thereunder shall have been paid in full; provided that any "Competitive
Bid Loan" made by a Lender pursuant to the Prior Agreement which is outstanding
at the time the other conditions to the effectiveness hereof are satisfied shall
remain outstanding on the terms applicable thereto under the Prior Agreement,
and shall be deemed a Competitive Bid Loan made hereunder on such terms.
-61-
IN WITNESS WHEREOF, the Company, the Lenders and the Agents have
executed this Agreement as of the date first above written.
THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP
By: ServiceMaster Management Corporation, its
General Partner
By:____________________________________________
Title:_________________________________________
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-62-
Commitment
----------
$35,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent
By:______________________________________
Title:___________________________________
Address: One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-63-
$35,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, individually and as Documentation Agent
By:______________________________________
Title:___________________________________
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-64-
$20,000,000 ABN AMRO Bank N.V.
By:______________________________________
Title:___________________________________
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-65-
$30,000,000 BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-66-
$20,000,000 BANK OF MONTREAL
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-67-
$20,000,000 THE BANK OF NEW YORK
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/09
-68-
$10,000,000 FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-69-
$20,000,000 MELLON BANK, N.A.
By:______________________________________
Title:___________________________________
Address: Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-70-
$30,000,000 NA TIONSBANK N.A. (CAROLINAS)
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-71-
$20,000,000 THE SANWA BANK LIMITED
By:______________________________________
Title:___________________________________
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-72-
$20,000,000 THE SUMITOMO BANK, LIMITED
By:______________________________________
Title:___________________________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-73-
$20,000,000 UNION BANK OF SWITZERLAND, CHICAGO
BRANCH
By:______________________________________
Title:___________________________________
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------
$300,000,000
============
-74-
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 15, 1996
among THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP, the LENDERS parties hereto,
THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent and ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK, as Documentation Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Credit
Agreement dated as of August 31, 1995 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as set forth
herein and to restate the Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended and restated hereby.
SECTION 2. Amendment of the Agreement. (a) The date "August 31,
2000" in the definition of Termination Date in Section 1.1 of the Agreement is
changed to "October 31, 2001."
(b) The Pricing Schedule is amended to read in its entirety as the
Pricing Schedule attached to this Amendment.
(c) The following new Section 2.6 is added to the Agreement:
2.6 Optional Increase in Commitments. At any time, if no Default or
Unmatured Default shall have occurred and be continuing, the Company may,
if it so elects, increase the aggregate amount of the Commitments, either
by designating one or more banks or other financial institutions not
theretofore a Lender to become a Lender (such designation to be effective
only with the prior written consent of the Administrative Agent, which
consent will not be unreasonably withheld) or by agreeing with one or more
existing Lenders that such Lender's Commitment shall be increased. Upon
execution and delivery by the Company and each such Lender or bank or other
financial institution of
an instrument in form reasonably satisfactory to the Administrative Agent,
such existing Lender shall have a Commitment as therein set forth or such
bank or other financial institution shall become a Lender with a Commitment
as therein set forth and all the rights and obligations of a Lender with
such a Commitment hereunder; provided:
(a) that the Company shall provide prompt notice of such increase to
the Administrative Agent, who shall promptly notify the Lenders;
(b) that the amount of such increase is not less than $10,000,000; and
(c) that the amount of such increase, together with all other
increases in the aggregate amount of the Commitments pursuant to this
Section 2.6 since the date of this Agreement, does not exceed $75,000,000.
Upon any increase in the aggregate amount of the Commitments pursuant to this
Section 2.6, within five Business Days, in the case of each Floating Rate
Advance then outstanding, and at the end of the then current Interest Period
with respect thereto, in the case of each Committed Fixed Rate Advance then
outstanding, the Borrower shall prepay or repay such Advance in its entirety
and, to the extent the Borrower elects to do so and subject to the conditions
specified in Article IV, the Borrower shall reborrow Committed Loans from the
Lenders in proportion to their respective Commitments after giving effect to
such increase, until such time as all outstanding Committed Loans are held by
the Lenders in such proportion.
(d) Section 5.4 is amended to read in its entirety as follows:
5.4 Business and Property: The Lenders have each heretofore
been furnished with a copy of the Annual Report of the Parent on Form 10-K
for the fiscal year ended December 31, 1995 (the "Form 10-K"), the
Quarterly Report of the Parent on Form 10-Q for the fiscal quarter ended
June 30, 1996 (the "Form 10-Q") and the Information Memorandum dated July
1995 (the "Information Memorandum") of the Company, which Information
Memorandum generally sets forth the business conducted by the Company and
its Subsidiaries and the principal properties of the Company and its
Subsidiaries. The Form 10-K, the Form 10-Q and the Information Memorandum
are hereinafter referred to as the "Disclosure Documents."
(e) Section 5.5 is amended to read in its entirety as follows:
5.5 Financial Statements. (a) The consolidated balance sheets
of the Parent and its subsidiaries as of December 31, 1995, and the
statements of income and cash flows for the fiscal year ended on said date
accompanied by a report thereon containing an opinion unqualified as to
scope limitations imposed by the Parent and otherwise without qualification
except as therein noted, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP have been prepared in
accordance with GAAP consistently applied except as therein noted
-2-
fairly present in all material respects the financial position of the
Company and its Subsidiaries as of such date and the results of their
operations and cash flows for such period. The unaudited consolidated
balance sheet of the Parent and its subsidiaries as of June 30, 1996 and
the unaudited statement of income and cash flows for the six-month period
ended on said date prepared in accordance with GAAP consistently applied
fairly present in all material respects the financial position of the
Company and its Subsidiaries as of such date and the results of their
operations and changes in their cash flows for such period subject to year-
end audit adjustments and the absence of footnotes.
(b) Since December 31, 1995, no event or condition has occurred which
has had or which would reasonably be expected to have a material adverse
effect on the properties, business, operations or financial condition of
the Company and its Subsidiaries taken as a whole.
SECTION 3. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of
the State of New York.
SECTION 4. Counterparts; Effectiveness. This Amendment and
Restatement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Amendment and Restatement shall become effective
as of the date hereof when
(i) the Documentation Agent shall have received duly executed
counterparts hereof signed by each of the parties hereto (or, in the case
of any party as to which an executed counterpart shall not have been
received, the Documentation Agent shall have received facsimile or other
written confirmation from such party of execution of a counterpart hereof
by such party);
(ii) the Documentation Agent shall have received an opinion of the
General Counsel of the Company, substantially to the effect of Exhibits B-1
and B-2 to the Agreement with reference to this Amendment and Restatement
and the Agreement as amended and restated hereby;
(iii) the Documentation Agent shall have received a certificate of a
Financial Officer to the effect that (a) no Default or Unmatured Default
has occurred and is continuing and (b) the representations and warranties
contained in Articles V and XIV of the Agreement, as amended and restated
hereby, are true in all material respects in each case on and as of the
date on which this Amendment and Restatement becomes effective; and
(iv) the Documentation Agent shall have received all documents it may
reasonably request relating to the existence of the Company, the corporate
authority for and the validity of this Amendment and Restatement and the
Agreement as amended and
-3-
restated hereby, and any other matters relevant hereto, all in form and
substance reasonably satisfactory to the Documentation Agent.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed by their respective authorized officers as of
the day and year first above written.
THE SERVICEMASTER COMPANY LIMITED
PARTNERSHIP
By: ServiceMaster Management Corporation, its
General Partner
By:___________________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Administrative Agent
By:___________________________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, individualy and as Documentation
Agent
By:___________________________________________
Title:
ABN AMRO BANK, N.V.
By:___________________________________________
Title:
By:___________________________________________
Title:
-▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST &
SAVINGS ASSOCIATION
By:___________________________________________
Title:
BANK OF MONTREAL
By:___________________________________________
Title:
THE BANK OF NEW YORK
By:___________________________________________
Title:
CREDIT AGRICOLE
By:___________________________________________
Title:
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:___________________________________________
Title:
MELLON BANK, N.A.
By:___________________________________________
Title:
-6-
NATIONSBANK N.A. (CAROLINAS)
By:___________________________________________
Title:
THE SANWA BANK LIMITED
By:___________________________________________
Title:
THE SUMITOMO BANK, LIMITED
By:___________________________________________
Title:
UNION BANK OF SWITZERLAND, CHICAGO
BRANCH
By:___________________________________________
Title:
-7-