EXHIBIT 10.(i)(M)
================================================================================
CREDIT AGREEMENT
dated as of October 4, 1996
among
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & CO., INCORPORATED,
VARIOUS LENDERS,
THE BANK OF NOVA SCOTIA,
------------------------
as Administrative Agent
and
THE BANK OF NEW YORK,
as Documentation Agent
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1 CERTAIN DEFINITIONS................................ 1
1.1 Definitions......................................... 1
1.2 Groups and Types of Loans........................... 11
SECTION 2 LOANS.............................................. 11
2.1 Commitment to Make Loans............................ 11
2.2 Loan Limits......................................... 12
2.3 Borrowing Procedure................................. 12
2.4 Repayment........................................... 12
2.5 Notes............................................... 12
2.6 Voluntary Termination or Reduction of the
Commitments......................................... 12
2.7 Prepayment.......................................... 13
SECTION 3 [Reserved].......................................... 13
SECTION 4 [Reserved].......................................... 13
SECTION 5 TERMINATION OF COMMITMENTS UPON A CHANGE
OF CONTROL.......................................... 13
SECTION 6 INTEREST AND FEES................................... 13
6.1 Interest Rates...................................... 13
6.2 [Reserved].......................................... 14
6.3 Interest Payment Dates.............................. 14
6.4 Setting and Notice of Loan Rates.................... 14
6.5 Commitment Fee...................................... 15
6.6 [Reserved]
6.7 Agents' Fees........................................ 15
6.8 Computation of Interest and Fees.................... 15
SECTION 7 LOAN PROCEDURES; CONVERSIONS AND CONTINUATIONS...... 15
7.1 Procedure for Loans................................. 15
7.2 Conversion and Continuation Procedures.............. 17
SECTION 8 MAKING AND SHARING OF PAYMENTS AND PREPAYMENTS;
SETOFF; TAXES; RECORDKEEPING........................ 18
8.1 Making of Payments.................................. 18
8.2 Sharing of Payments................................. 18
8.3 Setoff.............................................. 19
8.4 Taxes............................................... 19
i
Page
----
SECTION 9 CHANGE OF CIRCUMSTANCES............................. 21
9.1 Reserve and Capital Adequacy Costs.................. 21
9.2 Increased Costs..................................... 22
9.3 Basis for Determining Interest Rate Inadequate or
Unfair.............................................. 24
9.4 Changes in Law Rendering Certain Loans Unlawful..... 25
9.5 Funding Losses...................................... 25
9.6 Discretion of Lenders as to Manner of Funding....... 25
9.7 Conclusiveness of Statements; Survival of
Provisions.......................................... 26
SECTION 10 REPRESENTATIONS................................... 26
10.1 Organization, etc................................. 26
10.2 Authorization; No Conflict........................ 26
10.3 Validity and Binding Nature....................... 27
10.4 Financial Statements.............................. 27
10.5 Litigation and Contingent Liabilities............. 27
10.6 Title to Property................................. 27
10.7 Liens............................................. 28
10.8 Subsidiaries...................................... 28
10.9 Plans and Welfare Plans........................... 28
10.10 Investment Company Act............................ 28
10.11 Public Utility Holding Company Act................ 28
10.12 Regulations G, U and X............................ 28
10.13 Labor Controversies............................... 28
10.14 Tax Status........................................ 29
10.15 No Default........................................ 29
10.16 Compliance with Applicable Laws................... 29
10.17 Licenses, etc..................................... 30
10.18 Purpose........................................... 30
SECTION 11 COVENANTS......................................... 30
SECTION 12 CONDITIONS..........................................30
12.1 Effectiveness of Agreement......................... 30
12.2 Conditions to Loans................................ 32
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT................. 33
13.1 Events of Default.................................. 33
13.2 Effect of Event of Default......................... 36
SECTION 14 THE AGENTS......................................... 37
14.1 Authorization...................................... 37
14.2 Indemnification.................................... 37
14.3 Action on Instructions of the Required Lenders..... 37
ii
Page
----
14.4 Payments........................................... 38
14.5 Exculpation........................................ 39
14.6 Credit Investigation............................... 40
14.7 Agents and Affiliates.............................. 40
14.8 Resignation and Removal............................ 40
SECTION 15 GENERAL............................................ 41
15.1 Waiver; Amendments................................. 41
15.2 Notices............................................ 42
15.3 Computations....................................... 42
15.4 Participations; Assignments; Replacement of
Lenders............................................ 43
15.5 Costs, Expenses and Taxes.......................... 47
15.6 Indemnification.................................... 47
15.7 Regulation U....................................... 48
15.8 Captions........................................... 48
15.9 Governing Law; Severability........................ 48
15.10 Waiver of Jury Trial............................... 48
15.11 Counterparts; Effectiveness........................ 49
15.12 Supersession....................................... 49
15.13 Successors and Assigns............................. 49
iii
SCHEDULES and EXHIBITS
SCHEDULES
---------
SCHEDULE I Lenders and Commitments (Sections 1.1
------------
and 15.4)
----
SCHEDULE II Litigation (Section 10.5)
------------
SCHEDULE III Liens (Section 10.7)
------------
SCHEDULE IV Subsidiaries and Restricted Subsidiaries
(Section 10.8)
------------
SCHEDULE V Post-Retirement Welfare Plan Benefits
(Section 10.9)
------------
EXHIBITS FORM OF
-------- -------
EXHIBIT A Note (Section 2.5)
-----------
EXHIBIT B Loan Request (Section 7.1)
-----------
EXHIBIT C Opinion of Counsel for the Company
(Section 12.1)
------------
EXHIBIT D Certificate as to Satisfaction of
Conditions (Section 12.1)
------------
EXHIBIT E Assignment and Acceptance (Section
-------
15.4(b))
-------
iv
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT (this "Agreement"), dated as of October 4, 1996,
is among ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & CO., INCORPORATED, an Illinois corporation (herein,
together with its successors and permitted assigns, called the "Company"), the
lenders listed on the signature pages hereof (herein, together with their
respective successors and assigns, collectively called the "Lenders" and
individually called a "Lender"), THE BANK OF NOVA SCOTIA, as administrative
agent for the Lenders (herein, in such capacity, together with its successors
and assigns in such capacity, called the "Administrative Agent"), THE BANK OF
NEW YORK, as documentation agent for the Lenders (herein, in such capacity,
together with its successors and assigns in such capacity, called the
"Documentation Agent") (the Administrative Agent and the Documentation Agent are
herein collectively called the "Agents" and individually called an "Agent").
WHEREAS, the Company wishes to be able to borrow funds from the
Lenders from time to time on a revolving basis; and
WHEREAS, subject to the terms and conditions set forth herein, the
Lenders are willing to make loans to the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1 CERTAIN DEFINITIONS.
1.1 Definitions. When used herein the following terms have the
-----------
following respective meanings:
"Administrative Agent" - see Preamble.
--------------------
"Affiliate" means with respect to any Person, any other Person
---------
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. A Person shall be deemed to control another
Person if such first Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through ownership of voting securities, by contract or
otherwise.
"Agent(s)" - see Preamble.
--------
"Agent Parties" - see Section 14.2.
------------- ------------
1
"Aggregate Commitment" means $165,000,000 or such lesser amount as the
--------------------
Company may specify from time to time pursuant to Section 2.6.
-----------
"Agreement" - see Preamble.
---------
"Assignee(s)" - see Section 15.4(b).
----------- ---------------
"Assignment" - see Section 15.4(b).
---------- ---------------
"Authorized Officer" means the President, the Chief Executive Officer,
------------------
the Chief Financial Officer, the Treasurer or any Assistant Treasurer of the
Company.
"Base Rate" means at any time and from time to time the higher of (i)
---------
the rate per annum then most recently publicly announced or established by the
Lender which is acting as the Administrative Agent as its "reference rate" or
"prime rate" (or such Lender's equivalent thereof) at its Funding Office for
Base Rate Loans, or (ii) the Federal Funds Rate plus 1/2 of 1% per annum.
"Base Rate Loan" means any Loan which bears interest by reference to
--------------
the Base Rate.
"Business Day" means (i) any day of the year other than a Saturday, a
------------
Sunday or other day on which banks in Chicago, Atlanta or New York City are
authorized or required by law to close, and (ii) if the applicable Business Day
relates to the determination of a Eurodollar Rate or to the funding or payment
of a Eurodollar Loan, a day on which dealings are carried on in the London
interbank eurodollar market.
"Change" - see Section 9.1(b).
------ --------------
"Change of Control" means any event by which GE Capital ceases to own
-----------------
on a fully-diluted basis the percentage of each class of the capital stock of
the Company which is owned by it on the Effective Date on a fully-diluted basis.
"Class A Common Stock" is used as defined in the Short Term Credit
--------------------
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Commitment" means, for each Lender, such Lender's Commitment to make
----------
Loans on the terms and subject to the conditions of this Agreement, the maximum
amount of such Commitment being the amount opposite such Lender's name on
Schedule I as the same may be revised pursuant to
----------
2
Section 2.6; and "Commitments" means, collectively, the Commitments of all of
----------- -----------
the Lenders to make Loans on the terms and subject to the conditions of this
Agreement.
"Company" - see Preamble.
-------
"Consolidated Shareholder's Equity" is used as defined
---------------------------------
in the Short Term Credit Agreement.
"Continue," "Continuation" and "Continued" refer to continuations of
-------- ------------ ---------
Loans pursuant to Section 7.2.
-----------
"Conversion Notice" - see Section 7.2(a).
----------------- --------------
"Convert", "Conversion" and "Converted" refer to conversions of Loans
------- ---------- ---------
pursuant to Section 7.2.
-----------
"Debt-Like Preferred Stock" is used as defined in the Short Term
-------------------------
Credit Agreement.
"Documentation Agent" - see Preamble.
-------------------
"Dollar(s)" and the sign "$" mean lawful money of the United States of
--------- -
America.
"Effective Date" - see Section 12.1.
-------------- ------------
"Equalization Amount" - see Section 8.4(c).
------------------- --------------
"ERISA" is used as defined in the Short Term Credit Agreement.
-----
"ERISA Affiliate" is used as defined in the Short Term Credit
---------------
Agreement.
"Eurocurrency Reserve Percentage" means, with respect to any day, a
-------------------------------
percentage (expressed as a decimal) equal to the percentage in effect on such
day as prescribed by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any marginal reserve requirement) applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other then applicable
regulation of said Board of Governors which prescribes reserve requirements
applicable to "Eurocurrency liabilities" as presently defined in Regulation D.
"Eurodollar Loan" means any Loan which bears interest at a rate
---------------
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, with respect to any Interest Period, and
---------------
subject to Section 6.4(b), the rate per
--------------
3
annum equal to the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the respective rates per annum notified to the
Administrative Agent by the Reference Lenders (or any thereof) prior to 9:30
a.m., Chicago time, on the second Business Day prior to the commencement of such
Interest Period as the rate at which Dollar deposits are offered by the
principal London office of each such Reference Lender to prime banks in the
London interbank eurodollar market as at or about 11:00 a.m., London time, for
delivery for same day value on the first day of such Interest Period, for the
number of days comprised therein and in an amount approximately equal to the
amount of such Reference Lender's Eurodollar Loan for such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, with respect to any
----------------------------------
Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
---------------
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
"Event of Default" means any of the events described in Section 13.1.
---------------- ------------
"Existing Credit Agreements" means collectively (i) the Long-term
--------------------------
Credit Agreement, dated September 15, 1994, as amended through September 6, 1996
(and with the consent of the Required Lenders, as further amended or modified
from time to time), among the Company, various lenders from time to time party
thereto and certain agents listed on the signature pages thereof (the "Long Term
Credit Agreement"), (ii) the Short Term Credit Agreement, dated September 15,
1994, as amended through September 6, 1996 (and, with the consent of the
Required Lenders, as further amended and modified from time to time provided,
--------
that any increase in the aggregate commitments thereunder which is provided for
----
therein shall not be deemed an amendment or modification) among the Company,
various lenders from time to time party thereto and certain agents listed on the
signature pages thereof (the "Short Term Credit Agreement").
"Existing Signature Credit Agreement" means the Credit Agreement dated
-----------------------------------
as of September 27, 1996 among Signature Financial/Marketing, Inc., The Bank of
New York, and The Bank of Nova Scotia as amended or modified from time to time.
"Federal Funds Rate" means, for any day, the rate set forth in the
------------------
weekly statistical release designated as H.15(519), or any successor
publication, published by the
4
Board of Governors of the Federal Reserve System (including any such successor,
"H.15(519)") for that day opposite the caption "Federal Funds (Effective)". If
on any relevant day such rate is not yet published in H.15(519), the rate for
that day will be the rate set forth in the daily statistical release designated
as the Composite 3:30 P.M. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 P.M. Quotations") for that
day under the caption "Federal Funds Effective Rate". If on any relevant day
the appropriate rate for such day is not yet published in either H.15(519) or
the Composite 3:30 P.M. Quotations, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m., New York time, on that day by each of three leading brokers
of Federal funds transactions in New York City, selected by the Administrative
Agent.
"Finance Obligation(s)" means with respect to any Person, as of the
---------------------
date of determination thereof, (i) any and all of such Person's Indebtedness for
Borrowed Money, (ii) any and all of such Person's actual or contingent
reimbursement obligations with respect to letters of credit issued for such
Person's account, (iii) any and all of such Person's actual or contingent
obligations with respect to interest swap agreements or currency swap agreements
or other hedge agreements relating to fluctuations in interest rates or
currencies, (iv) any and all of such Person's liabilities under Title IV of
ERISA, and (v) any and all indebtedness or obligations of any of the types
described in the preceding clauses (i), (ii), (iii) and (iv) for which such
----------- ---- ----- ----
Person is liable, directly or indirectly, under a Guaranty.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
--------------
"Fiscal Year" means a fiscal year of the Company which begins on the
-----------
Sunday following the Saturday closest to December 31 of any calendar year and
ends on the Saturday closest to December 31 of the next succeeding calendar
year.
"Funding Date" means the date on which any Loan is disbursed or
------------
scheduled to be disbursed.
"Funding Office" means with respect to any Eurodollar Loan or Base
--------------
Rate Loan by any Lender, the office or Affiliate of such Lender specified for
such Type of Loan beneath such Lender's signature hereto or in any relevant
Assignment. Any Lender's Funding Office for a particular Loan shall be the
office or Affiliate through which such Lender shall fund or shall have funded
such Loan. Subject
5
to Section 9.6(b), each Funding Office of each Lender may be changed to another
--------------
domestic or foreign office of such Lender or domestic or foreign office of any
Affiliate of such Lender upon written notice from such Lender to the Company,
the Administrative Agent.
"GAAP" means the generally accepted accounting principles applied in
----
the preparation of the audited consolidated financial statements of the Company
and its Subsidiaries as at December 30, 1995, with such changes thereto as (a)
shall be consistent with the then effective principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors and successors,
and (b) shall be concurred in by the independent certified public accounts of
recognized national standing certifying any financial statements of the Company
and its Subsidiaries.
"GE Capital" means General Electric Capital Corporation, together with
----------
its successors and assigns.
"GE Capital Parties" means GE Capital, Monogram and MWCC.
------------------
"Group" - see Section 1.2.
----- -----------
"Guaranty" is used as defined in the Short Term Credit Agreement.
--------
"Indebtedness for Borrowed Money" is used as defined in the Short
-------------------------------
Term Credit Agreement.
"Indemnified Liabilities" - see Section 15.6.
----------------------- ------------
"Interest Period" means (i) with respect to any Eurodollar Loan, the
---------------
period commencing on such Eurodollar Loan's Funding Date (or on the date such
Loan was Converted to or Continued as a Eurodollar Loan) and ending 1, 2 or 3
months thereafter as selected by the Company pursuant to Section 7.1(a) or 7.2,
-------------- ---
(ii) with respect to any Base Rate Loan, the period commencing on such Base Rate
Loan's Funding Date (or on the date such Loan was Converted to or Continued as a
Base Rate Loan) and ending on the last Business Day of the next following March,
June, September or December, whichever comes first; provided, however, that:
-------- -------
(A) if an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding
Business Day (unless, in the case of a Eurodollar Loan, such next
succeeding Business Day would fall in the next succeeding calendar month,
in which case such Interest Period shall end on the next preceding Business
Day);
6
(B) in the case of an Interest Period for any Eurodollar Loan, if
there exists no day numerically corresponding to the day such Loan was made
in the month in which the last day of such Interest Period would otherwise
fall, such Interest Period shall end on the last Business Day of such
month; and
(C) no Interest Period for any Loan shall extend beyond the
Termination Date.
"Lender(s)" - see Preamble.
---------
"Lender Parties" - see Section 15.6.
-------------- ------------
"Liabilities" means any and all of the Company's obligations to the
-----------
Agents and the Lenders, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due or to
become due, which arise out of or in connection with this Agreement, any Note or
any document, instrument or agreement executed in connection with any of the
foregoing.
"Lien" means any mortgage, pledge, lien, security interest or other
----
charge, including the retained security title of a conditional vendor or lessor.
"Litigation" means any litigation, proceeding (including without
----------
limitation any governmental proceeding or arbitration proceeding), claim,
lawsuit and/or investigation (including, without limitation, any environmental
litigation, proceeding, claim, lawsuit and/or investigation) pending or
threatened against or involving the Company or any Subsidiary or any of its or
their businesses or operations.
"Loan(s)" - see Section 2.1.
-------- -----------
"Loan Request" - see Section 7.1(a).
------------ --------------
"Long Term Credit Agreement" - see definition of Existing Credit
--------------------------
Agreements.
"Margin Stock" has the meaning given to such term in Regulations U
------------
and/or X.
"Material Litigation" or "Material Litigation Development" means any
------------------- -------------------------------
Litigation or development in any Litigation which could individually or in the
aggregate impair the validity or enforceability of or the ability of the Company
to perform any of its obligations under this Agreement or the Notes or the
Retail Credit Program Agreement, or materially impair the ability of the Company
to conduct business substantially as now conducted, or materially and adversely
affect the consolidated business, operations, prospects or
7
financial condition of the Company and its Subsidiaries, taken as a whole.
"Memorandum of Understanding" means the "Memorandum of Understanding"
---------------------------
as defined in that certain letter agreement dated March 19, 1996 among the
Company, the lenders and the agents under the Short Term Credit Agreement.
"Mobil" - see Section 10.14(c).
----- ----------------
"Monogram" means Monogram Retail Credit Card Bank of Georgia, a
--------
subsidiary of GE Capital.
"MWCC" means ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Credit Corporation.
----
"Non-United States Person" means a Person who is not (i) a citizen or
------------------------
resident of the United States, (ii) a corporation, partnership or other entity
created or organized under the laws of the United States, or (iii) an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source; and "United States" means the United States of America
-------------
(including the States and the District of Columbia).
"Note" - see Section 2.5.
---- -----------
"Parent" means ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Holding Corp., a Delaware corporation,
------
together with any Successor to Parent.
"Participant(s)" - see Section 15.4(a).
-------------- ---------------
"Percentage" - as to any Lender means a percentage based on the ratio
----------
that the Commitment of such Lender bears to the Aggregate Commitment.
"Person" means an individual or a corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"Plan" is used as defined in the Short Term Credit Agreement.
----
"Qualified Purchaser" is used as defined in the Short Term Credit
-------------------
Agreement.
"Ratio of Earnings to Fixed Charges" is used as defined in the Short
----------------------------------
Term Credit Agreement.
"Reference Lender" means The Bank of New York and The Bank of Nova
----------------
Scotia.
8
"Regulation D" means Regulation D of the Board of Governors of the
------------
Federal Reserve System and any successor rule or regulation of similar import as
in effect from time to time.
"Regulation G" means Regulation G of the Board of Governors of the
------------
Federal Reserve System and any successor rule or regulation of similar import as
in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System and any successor rule or regulation of similar import as
in effect from time to time.
"Regulation X" means Regulation X of the Board of Governors of the
------------
Federal Reserve System and any successor rule or regulation of similar import as
in effect from time to time.
"Required Lenders" means at any time Lenders having at least 66-2/3%
----------------
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 66-2/3% of the aggregate
unpaid principal amount of the Loans.
"Restricted Subsidiary" means any Subsidiary designated as such by the
---------------------
Company's Board of Directors or by an officer of the Company authorized by the
Board of Directors to make such designation and which designation shall not
thereafter have been cancelled by the Company's Board of Directors or by an
officer of the Company authorized by the Board of Directors to effect such
cancellation; provided, however, that a Subsidiary may be designated as a
-------- -------
Restricted Subsidiary or such designation may be cancelled if and only if
immediately after such designation or cancellation, and after giving effect
thereto, no Event of Default or Unmatured Event of Default shall have occurred
and be continuing.
"Retail Credit Program Agreement" means the "Retail Credit Program
-------------------------------
Agreement" as defined in that certain letter agreement dated March 19, 1996
among the Company, the lenders and the agents named therein, as such Retail
Credit Program Agreement may be amended, modified or supplemented from time to
time in a manner which does not result in an Event of Default under Section
-------
13.1(j).
-------
"Risk-Based Capital Guidelines" - see Section 9.1(b).
----------------------------- --------------
"SEC" means the Securities Exchange Commission and any successor
---
thereof.
"Seller Notes" is used as defined in the Short Term Credit Agreement.
------------
"Short Term Credit Agreement" - see definition of Existing Credit
---------------------------
Agreements.
9
"Special Restricted Subsidiary" means any Restricted Subsidiary (i)
-----------------------------
with assets that constitute one percent (1%) or less of the total assets of the
Company and all Restricted Subsidiaries, (ii) with net income for the most
recent Fiscal Year that constitutes one percent (1%) or less of the total net
income of the Company and all Restricted Subsidiaries for the most recent Fiscal
Year, and (iii) with equity of less than $4,000,000.
"Subsidiary" means a corporation of which the Company and/or its other
----------
Subsidiaries own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election of such
corporation's directors.
"Successor to Parent" - see Section 13.1(h).
------------------- ---------------
"Tax Benefit" - see Section 8.4(c).
----------- --------------
"Taxes" - see Section 8.4(a).
----- --------------
"Termination Date" means, with respect to each Lender, the earlier to
----------------
occur of (i) March 1, 1997, or (ii) such other date on which the Aggregate
Commitments shall terminate pursuant to Section 5 or 13.2 or be reduced to zero
--------- ----
pursuant to Section 2.6 and, if in any case such day is not a Business Day, the
-----------
next preceding Business Day.
"Type" - see Section 1.2.
---- -----------
"Unmatured Event of Default" means any event which if it continues
--------------------------
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
"Welfare Plan" has the meaning assigned to such term by ERISA.
------------
1.2 Groups and Types of Loans. Loans hereunder are distinguished by
-------------------------
"Type" and by "Group". The "Type" of a Loan refers to whether such Loan is a
Base Rate Loan or a Eurodollar Loan. A "Group" of Loans consists of Loans of
the same Type, with the same Funding Date or Conversion or Continuation date,
and having the same Interest Period.
SECTION 2 LOANS.
2.1 Commitment to Make Loans. On the terms and subject to the
------------------------
conditions of this Agreement, each of the Lenders, severally and for itself
alone, agrees to make revolving loans to the Company (herein collectively called
the "Loans" and individually called a "Loan") on a revolving basis from time to
time before the Termination Date in amounts equal to such
10
Lender's Percentage of such aggregate amounts as the Company may from time to
time request pursuant to Section 7.1, but subject to the limits specified in
-----------
Section 2.2. The Loans may be either Eurodollar Loans or Base Rate Loans, as
-----------
selected by the Company pursuant to Section 7.1.
-----------
2.2 Loan Limits. The Loans shall be subject to the following limits:
-----------
(a) Each Lender's share of a Group of Loans shall be pro rata
according to its Percentage;
(b) The aggregate principal amount of all Loans of all Lenders at any
one time outstanding shall not exceed the then Aggregate Commitment; and
(c) The Company shall not borrow under this Agreement unless all
Commitments (as defined in each of the Short Term Credit Agreement and the
Long Term Credit Agreement) are then fully used.
2.3 Borrowing Procedure. The Company shall make requests for Loans,
-------------------
and each Lender (and, to the extent that the Administrative Agent has received
immediately available funds from one or more Lenders, the Administrative Agent)
shall fund such requests, pursuant to the procedure set forth in Section 7.1.
-----------
2.4 Repayment. The Company promises to pay to each Lender on the
---------
Termination Date the principal amount of all Loans made by such Lender which
remain outstanding on such Termination Date.
2.5 Notes. Each Loan shall be evidenced by the Company's promissory
-----
note (as amended, modified or supplemented from time to time, and together with
any renewals thereof or exchanges or substitutions therefor, collectively called
the "Notes" and individually called a "Note") substantially in the form set
forth as Exhibit A, with appropriate insertions, each of which shall be dated
---------
the Effective Date and made payable to the order of each Lender, respectively.
2.6 Voluntary Termination or Reduction of the Commitments and
---------------------------------------------------------
Mandatory Prepayment.
--------------------
(a) Termination. At any time on at least five days' prior
-----------
irrevocable notice received by the Administrative Agent (which shall promptly on
the same day or on the next Business Day advise each other Agent and each Lender
thereof), the Company may terminate concurrently the Commitments of all the
Lenders in their entirety upon payment in full (in Dollars and in same day
funds) of all outstanding Loans together with all interest accrued thereon and
all fees and other obligations (including
11
breakage fees pursuant to Section 9.5) of the Company related thereto.
-----------
(b) Reduction. At any time on at least five days' prior irrevocable
---------
notice received by the Administrative Agent (which shall promptly on the same
day or on the next Business Day advise each other Agent and each Lender
thereof), the Company may permanently reduce the Aggregate Commitment (such
reduction to be pro rata among the Lenders according to their respective
--- ----
Percentages). Concurrently with each such reduction of the Aggregate
Commitment, the Company shall make a mandatory prepayment of the Loans such that
after giving effect thereto (i) the sum of all outstanding Loans shall not
exceed the then reduced amount of the Aggregate Commitment, and (ii) the
aggregate principal amount of all Loans of any Lender, shall not exceed the
amount of such Lender's Commitment as so reduced. Each prepayment pursuant to
this Section 2.6(b) shall be subject to the provisions of Section 8.1.
-------------- -----------
2.7 Mandatory Prepayment. The Company agrees that concurrent with
--------------------
any payment of the loans under either of the Existing Credit Agreements (other
than a payment which does not reduce the aggregate principal amount of loans
outstanding under either of the Existing Credit Agreements), it will make a
mandatory prepayment in full of all Loans under this Agreement, it being
understood, however, that upon the occurrence and during the continuance of an
Event of Default (as defined in each of the Existing Credit Agreements), all
Loans under this Agreement shall be paid ratably with the repayment of loans
under the Existing Credit Agreements, in each case according to the aggregate
principal amount of Loans or loans, as the case may be, then outstanding under
this Agreement and under the Existing Credit Agreements.
SECTION 3 [Reserved]
SECTION 4 [Reserved]
SECTION 5 TERMINATION OF COMMITMENTS UPON A CHANGE OF
CONTROL
If a Change of Control occurs, then upon thirty days' written notice
to the Company given not later than 180 days after the date on which written
notice of the occurrence of such Change of Control is given to the Lenders
pursuant to Section 11.1(h) of the Short Term Credit Agreement as incorporated
---------------
herein pursuant to Section 11 following any Change of Control, (i) the Required
----------
Lenders may by notice to the Company terminate the Commitments of all of the
Lenders, whereupon all of the Commitments shall terminate immediately, and (ii)
the Required Lenders may by
12
notice to the Company declare all Liabilities to be due and payable, whereupon
all Liabilities shall become immediately due and payable, all without
presentment, demand or further notice of any kind, all of which are hereby
waived by the Company.
SECTION 6 INTEREST AND FEES.
6.1 Interest Rates. The Company hereby promises to pay interest on
--------------
the unpaid principal amount of each Loan for the period commencing on the
Funding Date of such Loan until such Loan is paid in full, as follows:
(a) if such Loan is a Base Rate Loan, at a rate per annum equal to
the Base Rate from time to time in effect;
(b) if such Loan is a Eurodollar Loan, at a rate per annum during
each Interest Period equal to the Eurodollar Rate applicable to such
Interest Period, plus 1.5% per annum;
provided, however, that after maturity of any Loan (whether by acceleration or
-------- -------
otherwise), such Loan shall bear interest on the unpaid principal amount thereof
at a rate per annum equal to the Base Rate from time to time in effect (but not
less than the applicable interest rate in effect at maturity) plus 2% per annum.
The Company hereby further promises to pay any additional interest on the unpaid
principal amount of each applicable Eurodollar Loan, whether before or after the
maturity thereof, as may be required in accordance with Section 9.
---------
6.2 [Reserved]
6.3 Interest Payment Dates. Accrued interest on each Loan shall be
----------------------
payable on the last day of the Interest Period therefor and on each Conversion
date related to such Loan. After maturity of any Loan, accrued interest on such
Loan shall be payable on demand.
6.4 Setting and Notice of Loan Rates.
--------------------------------
(a) The applicable interest rate for each Loan shall be determined by
the Administrative Agent and, in the case of Eurodollar Loans, notice thereof
shall be given by the Administrative Agent to the Company and each Lender
promptly, but in any event on the same day as received. Each determination of
the applicable interest rate by the Administrative Agent shall be conclusive and
binding upon the parties hereto, in the absence of manifest error.
(b) In the case of Eurodollar Loans, each Reference Lender agrees to
use its best efforts to notify the
13
Administrative Agent in a timely fashion of its applicable rate after the
Administrative Agent's request therefor. If as to any Interest Period any one
or more of the Reference Lenders is unable or for any reason fails to notify the
Administrative Agent of its applicable rate by 9:30 a.m., Chicago time, two
Business Days before the beginning of such Interest Period, then the applicable
Eurodollar Rate shall be determined on the basis of the rate or rates of which
the Administrative Agent is given notice by the remaining Reference Lender or
Lenders by such time. If none of the Reference Lenders notifies the
Administrative Agent of such a rate prior to 9:30 a.m., Chicago time, two
Business Days before the beginning of such Interest Period, then (i) the
Administrative Agent shall promptly notify the other parties thereof and (ii) at
the Company's option, the Loan Request or Conversion Notice delivered by the
Company with respect to such Interest Period shall be cancelled or, if not
cancelled, shall be deemed to have specified a Base Rate Loan.
(c) The Administrative Agent shall, upon written request of the
Company or any Lender, deliver to the Company or such Lender a statement showing
the computations used by the Administrative Agent in determining the interest
rate applicable to any Eurodollar Loan.
6.5 Commitment Fee. The Company agrees to pay to the Administrative
--------------
Agent for the account of each Lender (pro rata in accordance with its
--- ----
Percentage), within fifteen days of the last day of November 1996, and
thereafter within fifteen days of the last day of each calendar month until the
Termination Date, and on the Termination Date, a Commitment fee computed at the
rate of 0.375% per annum on the average daily unused amount of the Aggregate
Commitment during the month preceding the date of such payment (commencing, in
the case of the first of such periods, on and as of the Effective Date), payable
in arrears for the month then ending.
6.6 [Reserved]
6.7 Agents' Fees. The Company agrees promptly to pay to each Agent
------------
such fees as may be agreed from time to time by the Company and such Agent.
6.8 Computation of Interest and Fees. Interest on Eurodollar Loans
--------------------------------
shall be computed for the actual number of days elapsed on the basis of a 360-
day year. Interest on Base Rate Loans and all fees shall be computed for the
actual number of days elapsed on the basis of a 365- or, if applicable, 366-day
year. The interest rate applicable to each Base Rate Loan, and after maturity
of any other Type of Loan the interest rate applicable to such Loan, shall
change simultaneously with each change in the Base Rate without any notice or
other action involving the Company.
14
SECTION 7 LOAN PROCEDURES;
CONVERSIONS AND CONTINUATIONS.
7.1 Procedure for Loans.
-------------------
(a) Loan Requests. The Company shall give the Administrative Agent
-------------
irrevocable telephonic notice (promptly confirmed in writing on the same day),
not later than 9:30 a.m., Chicago time, of each borrowing of Loans (i) in the
case of a Eurodollar Loan, at least three (3) Business Days prior to the Funding
Date for such Loans and (ii) in the case of a Base Rate Loan, at least one (1)
Business Day prior to the Funding Date for such Loans. The Administrative Agent
shall advise each Lender of such notice promptly, but in any event on the same
day as received, and, in the case of Eurodollar Loans, request each Reference
Lender to notify the Administrative Agent of its applicable rate (as
contemplated in the definition of Eurodollar Rate). Each such notice from the
Company to the Administrative Agent shall be substantially in the form of
Exhibit B ("Loan Request") with appropriate insertions, and shall specify (i)
---------
the Funding Date for the Loans requested, (ii) the aggregate amount of the Loans
requested (in an amount permitted under Section 7.1(b)), (iii) whether the
--------------
requested Loans shall be Eurodollar Loans or Base Rate Loans, and (iv) in the
case of Eurodollar Loans, the Interest Period therefor (subject to the
limitations set forth in the definition of Interest Period).
(b) Amount and Increments of Loans. Each of the Company's Loan
------------------------------
Requests shall request Loans in a minimum aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 over such amount, not to exceed, in the
aggregate at any one time outstanding, the limits specified in Section 2.2.
-----------
(c) Funding of Loans.
----------------
(i) Not later than 12:00 noon, Chicago time, on each Funding Date for
Loans, each Lender shall provide (subject to netting pursuant to Section
-------
7.1(d)) the Administrative Agent at such Agent's Funding Office for Base
------
Rate Loans with immediately available Dollars covering such Lender's Loan
and, if the conditions set forth in Section 12 shall have been satisfied
----------
not later than 9:00 a.m., Chicago time, on such date, such Agent shall pay
over such funds to the Company on such day. If such conditions have not
been satisfied prior to such time, then (A) such Agent shall not pay over
such funds to the Company on such day, (B) the Loan Request related to such
Loan shall be deemed cancelled in its entirety, (C) the Company shall be
liable to each Lender in accordance with Section 9.5, and (D) such Agent
-----------
shall return the amount previously provided to such Agent by each Lender on
the next following Business Day together with interest on such amount for
15
each day that elapses from and including such Loan's originally scheduled
Funding Date to but excluding the day on which such Agent so returns such
amount at the Federal Funds Rate for each such day, based upon a year of
360 days.
(ii) The Company, notwithstanding its previous delivery of any
documents required under Section 12 with respect to a particular Loan,
----------
agrees to notify the Administrative Agent immediately of any failure to
satisfy the conditions precedent to the making of any Loan. The
Administrative Agent shall be entitled to assume, after it has received
each of the documents required under Section 12 with respect to a
----------
particular Loan, that each of the conditions precedent to the making of
such Loan have been satisfied absent actual knowledge to the contrary
received by such Agent prior to the time of the receipt of such documents.
(d) Netting. If any Lender makes a Loan hereunder on a day on which
-------
the Company is to repay all or any part of any outstanding Loan, as the case may
be, held by such Lender, such Lender shall apply the proceeds of such new Loan
to make such repayment and only an amount equal to the positive difference, if
any, between the amount being borrowed from such Lender and the amount being
repaid to such Lender shall be made available by such Lender to the
Administrative Agent as provided in Section 7.1(c).
--------------
7.2 Conversion and Continuation Procedures.
--------------------------------------
(a) The Company may (i) Convert all or any part of any Group of
outstanding Loans (on a pro rata basis among the Lenders based upon their
--- ----
respective Percentage share of such Group) into Loans of a different Type or
(ii) Continue on the same basis all or any part of any Group of outstanding
Loans as the same Type; provided, that, in any case the Company shall give an
-------- ----
irrevocable notice of such Conversion or Continuation (a "Conversion Notice") to
the Administrative Agent by 10:00 a.m., Chicago time, on a day which in the case
of a Conversion into or a Continuation of Base Rate Loans is at least one (1)
Business Day prior to the proposed date of such Conversion or Continuation and,
in the case of a Conversion into or a Continuation of Eurodollar Loans, is at
least three (3) Business Days prior to such date. Each such Conversion Notice
shall be effective upon the Administrative Agent's receipt thereof, shall be in
writing (or by telephone promptly confirmed in writing on the same day), shall
specify the date and amount of such Conversion or Continuation, the Group of
Loans to be so Converted or Continued, the Type of Loans to be Converted into,
and the Interest Period(s) to be applicable to such Loans (in the case of
Eurodollar Loans). Promptly upon receipt of each Conversion Notice the
Administrative Agent shall advise each Lender thereof and, in the case of
Conversions into
16
or Continuations of Eurodollar Loans, shall request each Reference Lender to
notify such Agent of its applicable rate (as contemplated in the definition of
Eurodollar Rate).
(b) Each Conversion or Continuation of Loans shall be in an aggregate
principal amount of at least $5,000,000 and an integral multiple of $1,000,000
over such amount. If the Company does not deliver a Conversion Notice on or
before the day that is three (3) Business Days before the last day of the then
current Interest Period with respect to any Loan that is a Eurodollar Loan, such
Loan automatically shall be Converted into a Base Rate Loan at the end of its
then current Interest Period unless theretofore paid in full. If the Company
does not deliver a Conversion Notice on or before the day before the last day of
the then current Interest Period with respect to any Loan that is a Base Rate
Loan, such Loan automatically shall be Continued as a Base Rate Loan at the end
of its then current Interest Period unless theretofore paid in full.
SECTION 8 MAKING AND SHARING OF PAYMENTS AND
PREPAYMENTS; SETOFF; TAXES; RECORDKEEPING.
8.1 Making of Payments.
------------------
(a) All payments of principal of, or interest on, the Loans, and all
payments of Commitment fees, shall be made by the Company to the Administrative
Agent in immediately available Dollars for the account of the Lenders or the
holders of the applicable Loans, as the case may be pro rata according to the
Percentage of each Lender. All such payments shall be made (or initiated, in
the case of payments being made by Fedwire) to the Administrative Agent or
applicable Lender, as the case may be, at its respective office shown below its
signature hereto (or at such other office as may be designated from time to time
by the Administrative Agent or such Lender by notice to the other parties), not
later than 12:00 noon, Chicago time, on the date due; and funds received after
that hour shall be deemed to have been received by the Administrative Agent or
applicable Lender, as the case may be, on the next following Business Day.
Notwithstanding the foregoing, all payments under Section 9 shall be made by the
---------
Company directly to the Persons entitled thereto.
(b) Voluntary Loan Prepayments. The Company may voluntarily prepay
--------------------------
Loans from time to time in whole or in part, provided that (a) the Company shall
give the Administrative Agent (which shall promptly advise each Lender) not less
than three (3) Business Days' (in the case of Eurodollar Loans) or one (1)
Business Day's (in the case of Base Rate Loans) prior notice thereof, specifying
the Loans to be prepaid and the date and amount of prepayment, (b) any
prepayment of any Loan shall include accrued interest on the principal amount
being paid to the date of prepayment, (c) [Reserved], (d) any prepayment of a
17
Eurodollar Loan shall be subject to the provisions of Section 9.5, and (e) Loans
-----------
in the same Group shall be prepaid on a pro rata basis among the Lenders based
--- ----
upon their respective Percentage of such Group.
8.2 Sharing of Payments. If any Lender, other holder of a Loan, or
-------------------
any Participant or Assignee shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on account of
principal of, interest on or fees or other amounts hereunder in excess of the
share of payments and other recoveries (exclusive of payments or recoveries
under Sections 8.4 and 9 such Lender or other Person would have received if such
--- -
payment or recovery had been in accordance with Section 8.1(a), such Lender or
--------------
other Person shall purchase from the other Lenders or Persons, in a manner to be
specified by the Administrative Agent, such participations in the Loans, as the
case may be, held by them as shall be necessary to cause such purchasing Lender
or other Person to share the excess payment or other recovery ratably with each
of them in accordance with Section 8.1(a); provided, however, that if all or any
-------------- -------- -------
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender or Person, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
8.3 Setoff. The Company agrees that each Agent, each Lender (with
------
respect to its Loans and with respect to any participations it purchases
pursuant to Section 8.2, with the same effect as if the amount of such
-----------
participating interest were owing directly to such Lender) and each holder of a
Note shall have all rights of setoff and bankers' lien provided by applicable
law and, in addition thereto, the Company agrees that at any time (i) any amount
owing by the Company under this Agreement or any Note is then due, directly or
indirectly, to any Agent, any Lender or any such holder, or (ii) any Event of
Default shall have occurred and be continuing, each Agent, each Lender and each
such holder may apply to the payment of such amount any and all balances,
credits, deposits, accounts or moneys of the Company then or thereafter with
such Agent, such Lender or such holder, it being understood that the aggregate
amounts set off shall at no time exceed the Liabilities.
8.4 Taxes.
-----
(a) All payments made by the Company to any Agent or any Lender under
or in connection with this Agreement and the Notes shall be made without any
setoff or counterclaim, and free and clear of and without deduction or
withholding for or on account of any present or future Taxes now or hereafter
imposed by any governmental or other authority, except to the extent that such
deduction or withholding is compelled by law. As used herein, the term "Taxes"
shall include all income, excise and other taxes of whatever nature (other than
taxes generally
18
assessed on the overall net income of any Agent or any Lender, as the case may
be, by the government or other authority of the country in which such Agent or
such Lender is incorporated or in which such Lender's Funding Office or the
office through which such Agent is acting is located provided that taxes so
assessed on any additional amounts payable hereunder shall constitute "Taxes")
as well as all levies, imposts, duties, charges or fees of whatever nature. If
the Company is compelled by law to make any such deductions or withholdings it
will:
(i) pay to the relevant authorities the full amount required to be so
withheld or deducted;
(ii) (except to the extent that such deduction or withholding results
from the breach, by the recipient of a payment, of its agreement, if any,
contained in Section 8.4(b) or would not be required if such recipient's
--------------
representation or warranty contained in Section 8.4(b), if any, were true)
--------------
pay such additional amounts (including, without limitation, any penalties,
interest or expenses) as may be necessary in order that the net amount
received by each Agent and each Lender after such deductions or
withholdings (including any required deduction or withholding on such
additional amounts) shall equal the amount such payee would have received
had no such deductions or withholdings been made; and
(iii) promptly forward to the Administrative Agent (for delivery to
such payee) an official receipt or other documentation satisfactory to the
Administrative Agent and such payee evidencing such payment to such
authorities.
Moreover, if any Taxes are directly asserted against any Agent or any
Lender, such payee may pay such Taxes and the Company (except to the extent that
such Taxes result from the breach, by such payee, of its agreement contained in
Section 8.4(b), if any, or would not be asserted if such payee's representation
--------------
or warranty contained in Section 8.4(b), if any, were true) promptly shall
--------------
reimburse the payee for such Taxes and shall pay such additional amount
(including, without limitation, any penalties, interest or expenses in
connection therewith) as may be necessary in order that the net amount received
by such payee after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such payee would have received had no
such Taxes been asserted. For purposes of this Section 8.4, a distribution
-----------
hereunder by any Agent to or for the account of any Lender shall be deemed to be
a payment by the Company. The Company's agreement under this Section 8.4 shall
-----------
survive repayment of the Liabilities, cancellation of the Notes and/or any
termination of this Agreement.
19
(b) In consideration of, and as a condition to, the Company's
undertakings in Section 8.4(a), each Lender which is a Non-United States Person
--------------
agrees (to the extent it is permitted to do so under the laws and any applicable
double taxation treaty of the jurisdiction of its incorporation and the
jurisdiction in which its Funding Office is located) to execute and deliver to
the Administrative Agent for delivery to the Company, before the first scheduled
payment date hereunder in each calendar year, either (i) two United States
Internal Revenue Service Forms 1001 or (ii) two United States Internal Revenue
Service Forms 4224 together with two United States Internal Revenue Service
Forms W-9, or any successor forms, as appropriate, properly completed and
claiming complete or partial, as the case may be, exemption from withholding and
deduction of United States Federal Taxes. Each Lender which is a Non-United
States Person represents and warrants to the Company that, at the Effective
Date, (x) its Eurodollar Loan and Base Rate Loan Funding Offices are entitled to
receive payments of interest hereunder without deduction or withholding for or
on account of any Taxes imposed by the United States or any political
subdivision thereof and (y) it is permitted to take the actions described in the
preceding sentence under the laws and any applicable double taxation treaties of
the jurisdictions specified in the preceding sentence.
(c) If at any time any Lender by reason of payment by the Company of
any Taxes determines in its sole discretion that it has obtained a net credit
against, or return or reduction of, any tax (other than the tax to which the
payment by the Company relates) payable by it which it would not have enjoyed
but for such payment ("Tax Benefit"), such Lender shall thereupon pay to the
Company the amount which such Lender shall certify to be the amount that, after
payment, will leave such Lender in the same economic position it would have been
in had it received no such Tax Benefit ("Equalization Amount"); provided,
--------
however, that (i) if such Lender shall subsequently determine that it has lost
-------
the benefit of all or a portion of such Tax Benefit, the Company shall promptly
remit to such Lender the amount certified by such Lender to be the amount
necessary to restore such Lender to the position it would have been in if no
payment had been made pursuant to this Section 8.4(c), (ii) if such Lender shall
--------------
be prevented by applicable law from paying the Company all or any portion of the
Equalization Amount owing the Company, such payment need not be made, (iii) such
Lender shall be under no obligation to utilize any Taxes either as credits or
deductions, (iv) the Company shall not be entitled to require such Lender to
supply it with details of its tax position and (v) nothing contained herein
shall interfere with the right of any Lender to arrange its tax affairs as it
sees fit. A certificate submitted by a Lender pursuant to this Section 8.4(c)
--------------
shall be conclusive, in the absence of manifest error.
20
SECTION 9 CHANGE OF CIRCUMSTANCES.
9.1 Reserve and Capital Adequacy Costs.
----------------------------------
(a) If Regulation D shall require reserves actually to be maintained
in connection with any Eurodollar Loan or any Eurocurrency liabilities with
respect thereto of any Lender, regardless of whether such Eurodollar Loan is
then outstanding, such Lender may require the Company to pay (and the Company
agrees to pay) additional interest on such Eurodollar Loan at a rate per annum
equal to the difference between the Eurodollar Rate (Reserve Adjusted) and the
Eurodollar Rate for such Eurodollar Loan's Interest Period. Any Lender wishing
to require such payment with respect to any such Eurodollar Loan or any
Eurocurrency liabilities with respect thereto shall give notice thereof at least
three (3) Business Days prior to the last day of such Eurodollar Loan's Interest
Period if such Eurodollar Loan is then outstanding or at least one (1) Business
Day prior to the commencement of such Interest Period if such Eurodollar Loan is
not then outstanding. On the last day of each Interest Period relating to each
such Eurodollar Loan of such Lender, the Company shall pay directly to such
Lender such additional interest. Once given, each such notice by a Lender shall
be deemed automatically to continue in effect and apply to all of such Lender's
Eurodollar Loans until such Lender revokes such notice. At such time, if any,
as such Lender shall not be required so to maintain reserves, such Lender agrees
so to notify the Company.
(b) If a Lender reasonably determines that the amount of capital
required or expected to be maintained by such Lender, any Funding Office 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 hereinafter defined), then, within 15 days of demand by
such Lender (with a copy of such demand to the Administrative Agent), the
Company shall pay such Lender the amount which such Lender determines is
necessary to compensate it for any reduction in the rate of return on capital to
an amount below that which such Lender, such Funding Office or such corporation
could have achieved but for such Change and is attributable to this Agreement,
the Loans or its obligation to make Loans hereunder. "Change" means (i) any
change after the Effective Date in the Risk-Based Capital Guidelines (as
hereinafter defined) or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
Effective Date which affects the amount of capital required or expected to be
maintained by any Lender or any Funding Office or any corporation controlling
any Lender or (iii) any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof or (iv) compliance by any Lender
(or any Funding Office or corporation of
21
any Lender) with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the Effective Date, 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 Effective Date.
9.2 Increased Costs. If (i) Regulation D, or (ii) after the
---------------
Effective Date, the adoption of, or any change in, any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
Funding Office of such Lender) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, whether or not having the force of law,
(a) shall subject any Lender (or any Funding Office of such Lender)
to any tax, duty or other charge with respect to its Eurodollar Loans, its
Notes, or its obligation to make Eurodollar Loans, or shall change the
basis of taxation of payments to any Lender (or any Funding Office of such
Lender) of the principal of or interest on its Eurodollar Loans owed to it
or any other amounts due under this Agreement in respect of its Eurodollar
Loans, its Notes, or its obligation to make Eurodollar Loans (except for
changes in the rate of tax on the overall net income of such Lender or its
Funding Office imposed by the government or other authority of the country
in which such Lender is incorporated or in which such Lender's Funding
Office is located); or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to Section 6), special deposit,
---------
capital adequacy, minimum capital, capital ratio, deposit insurance or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (or any Funding Office of such Lender);
or
22
(c) shall impose, modify or deem applicable any capital adequacy or
similar requirement on any Lender; or
(d) shall impose on any Lender (or any Funding Office of such Lender)
any other condition affecting its Eurodollar Loans or its Notes or its
obligation to make or maintain Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D, to impose an additional cost on) such Lender (or any
Funding Office of such Lender) of making or maintaining any Eurodollar Loan, or
to reduce the amount of any sum received or receivable by such Lender (or such
Lender's Funding Office) under this Agreement or under its Notes with respect
thereto, or to reduce the rate of return on such Lender's capital to a level
below that which such Lender could have achieved but for such adoption or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount which such Lender determines to be material, then
within 10 days after demand by such Lender (which demand shall be accompanied by
a statement setting forth the basis of such demand), the Company shall pay
directly to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or such reduction.
Each Lender promptly shall notify the Company and the Administrative
Agent of any event of which it has knowledge, occurring after the Effective
Date, which will entitle such Lender to compensation pursuant to this Section
-------
9.2 and will designate a different Funding Office if such designation will avoid
---
the need for, or reduce the amount of, such compensation and will not, in such
Lender's sole judgment, be otherwise disadvantageous to such Lender.
9.3 Basis for Determining Interest Rate Inadequate or Unfair. If
--------------------------------------------------------
with respect to any Interest Period:
(a) the Reference Lenders advise the Administrative Agent that
deposits in Dollars (in the applicable amounts) are not being offered by
the Reference Lenders in the relevant market for such Interest Period, or
the Administrative Agent otherwise determines (which determination shall be
binding and conclusive on all parties) that, by reason of circumstances
affecting the London interbank eurodollar market, adequate and reasonable
means do not exist for ascertaining the applicable Eurodollar Rate; or
(b) the Required Lenders advise the Administrative Agent, as the case
may be, that, as determined by the Administrative Agent or such Lender, the
Eurodollar Rate, in the case of Eurodollar Loans,
23
will not adequately and fairly reflect the cost to the Required Lenders (or
such Lender) of maintaining or funding Eurodollar Loans for such Interest
Period, or that the making or funding of Eurodollar Loans has become
impracticable as a result of an event occurring after the Effective Date
which in such Required Lenders' (or such Lender's) opinion materially
affects such Eurodollar Loans,
then so long as such circumstances shall continue: (i) the Administrative Agent
----
promptly shall notify the Company and the Lenders thereof, (ii) in the case of
Eurodollar Loans, no Lender shall be under any obligation to make Eurodollar
Loans or to Continue any Loan as, or Convert any Loan to, a Eurodollar Loan.
9.4 Changes in Law Rendering Certain Loans Unlawful. In the event
-----------------------------------------------
that any change in (including the adoption of any new) applicable laws or
regulations, or in the interpretation of applicable laws or regulations by any
governmental or other regulatory body charged with the interpretation or
administration thereof, would, in any Lender's opinion, make it unlawful for
such Lender to make, maintain or fund Eurodollar Loans, then (a) such Lender
shall promptly notify each of the other parties hereto, (b) all Lenders'
obligations (if any) to make any Eurodollar Loan made unlawful for such Lender
shall, upon the effectiveness of such event, be suspended for the duration of
such unlawfulness, and (c) on the last day of the then current Interest Period
for each such Eurodollar Loan (or, in any event, if such Lender so requests, on
such earlier date as may be required by the relevant law, regulation or
interpretation), such Eurodollar Loan shall be repaid in full, together with
accrued interest and any amounts payable under Section 9.5.
-----------
9.5 Funding Losses. The Company hereby agrees that upon demand by
--------------
any Lender (which demand shall be accompanied by a statement setting forth the
basis for the calculations of the amount being claimed) the Company will
indemnify such Lender against any net loss or expense which such Lender may
sustain or incur (including, without limitation, any net loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain Eurodollar Loans), as reasonably
determined by such Lender, as a result of (a) any payment or mandatory or
voluntary prepayment (including, without limitation, any payment resulting from
an acceleration upon the occurrence of any Event of Default or Change of
Control) of any Eurodollar Loan of such Lender on a date other than the last day
of such Loan's Interest Period, (b) any Conversion of any Eurodollar Loan on a
date other than the last day of such Loan's Interest Period, or (c) any failure
of the Company to borrow, Continue or Convert any Loans on the originally
scheduled date specified therefor pursuant to this Agreement (including, without
limitation, any failure to borrow resulting from any failure to satisfy the
conditions precedent to
24
such borrowing). For this purpose, all notices to the Administrative Agent
pursuant to this Agreement shall be deemed to be irrevocable.
9.6 Discretion of Lenders as to Manner of Funding.
---------------------------------------------
(a) Notwithstanding any other provision of this Agreement to the
contrary, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit; it being understood,
-- ----- ----------
however, that for the purposes of this Agreement all determinations hereunder
-------
shall be made as if such Lender had actually funded and maintained each
Eurodollar Loan during the Interest Period for such Loan through the purchase of
deposits having a maturity (and in the case of Eurodollar Loans, bearing
interest at the Eurodollar Rate) corresponding to such Interest Period.
(b) The Company shall not be obligated under this Agreement to make
any greater payment to any Lender which changes any Funding Office than such
Lender would have been entitled to receive if such Funding Office had not been
changed, unless such Funding Office was changed (i) with the Company's prior
written consent, (ii) at the Company's request, (iii) to mitigate or avoid the
suspension of such Lender's obligations or the requirement of payment of
increased costs in the circumstances contemplated by Section 9.1(a), 9.2, 9.3 or
-------------- --- ---
9.4, or (iv) at a time when the circumstances giving rise to such greater
---
payment did not exist.
9.7 Conclusiveness of Statements; Survival of Provisions.
----------------------------------------------------
Determinations and statements of any Lender pursuant to Sections 9.1 through 9.6
------------ ---
shall be conclusive absent manifest error, and the provisions of Sections 9.1
------------
through 9.6 shall survive termination of this Agreement and payment of the
---
Notes.
SECTION 10 REPRESENTATIONS.
To induce the Lenders to enter into this Agreement and to make Loans
hereunder, the Company hereby makes the following representations and warranties
to the Agents and the Lenders:
10.1 Organization, etc. The Company is a corporation duly organized,
-----------------
validly existing and in good standing under the laws of the State of Illinois;
each Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the state of its respective incorporation; and each
of the Company and each Subsidiary is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction where,
because of the nature of its activities or properties, such qualification is
required and the failure so to qualify would have a material adverse effect on
the business,
25
credit, operation, financial condition or prospects of the Company and its
Restricted Subsidiaries taken as a whole.
10.2 Authorization; No Conflict. The execution, delivery and
--------------------------
performance of this Agreement and the Notes, and the borrowings hereunder, (i)
are within the Company's corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) do not require any governmental approval which
has not been previously obtained (and each such governmental approval that has
been previously obtained remains effective), (iv) do not and will not contravene
or conflict with any provision of law, or of any judgment, decree or order, or
of the Company's charter or by-laws, and (v) do not and will not contravene or
conflict with, or cause any Lien to arise under, any provision of any agreement
binding upon the Company, any Subsidiary or any of their respective properties.
10.3 Validity and Binding Nature. This Agreement is, and the Notes
---------------------------
when duly executed and delivered by the Company will be, legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforcement may be
limited by the application of bankruptcy, moratorium, reorganization or other
laws affecting the rights of creditors generally or by general principles of
equity (whether or not a proceeding is brought in a court of law or equity).
10.4 Financial Statements.
--------------------
(a) The Company has furnished to the Lenders true and correct copies
of the Company's audited consolidated financial statements as at December 30,
1995, and its unaudited consolidated financial statements as at June 29, 1996.
Such financial statements have been prepared in conformity with GAAP (subject to
normal year-end audit adjustments in the case of such unaudited consolidated
financial statements, and subject to the information set forth in the footnotes
to such audited consolidated financial statements), and fairly present the
financial condition of the Company and its Subsidiaries as at such dates and the
results of their operations for the periods then ended.
(b) Since either of the dates of the financial statements referred to
in Section 10.4(a), there has been no material adverse change in the business,
---------------
credit, operations, financial condition or prospects of the Company and its
Subsidiaries taken as a whole.
10.5 Litigation and Contingent Liabilities. No Material Litigation
-------------------------------------
is pending or, to the Company's knowledge, threatened against the Company except
as set forth in Schedule II or as set forth in the 10-K Report of the Parent for
-----------
the fiscal year ended December 30, 1995, or the 10-Q Report of the Parent
26
for the period ended June 29, 1996, all as filed with the SEC. Other than any
liability incident to such Material Litigation, neither the Company nor its
Subsidiaries have any material contingent liabilities not provided for or
disclosed in the financial statements referred to in Section 10.4.
------------
10.6 Title to Property. The Company and its Subsidiaries own and
-----------------
hold, with respect to material real property, good and marketable title, and
with respect to other material property, good and valid title, to their
respective assets and property reflected in the financial statements referred to
in Section 10.4 or acquired since such dates (other than assets and property
------------
sold or disposed of in the ordinary course of business), free and clear of any
Lien except those referred to in Section 10.7 or permitted under Section 11.2
------------ ------------
under the Existing Credit Agreements as incorporated herein pursuant to Section
-------
11.
--
10.7 Liens. None of the assets of the Company or any Subsidiary is
-----
subject to any Lien, except Liens shown in the financial statements referred to
in Section 10.4 or in Schedule III or permitted under Section 11.
------------ ------------ ----------
10.8 Subsidiaries. The Company has no Subsidiaries or Restricted
------------
Subsidiaries, as the case may be, except those listed in Schedule IV.
-----------
10.9 Plans and Welfare Plans. No steps have been instituted to
-----------------------
terminate any Plan, no contribution failure has occurred with respect to any
Plan sufficient to give rise to a lien under section 302(f) of ERISA, and no
Plan has incurred an "accumulated funding deficiency" within the meaning of
section 412 of the Code or Part 3 of Title I of ERISA. To the best of the
Company's knowledge, no condition exists or event or transaction has occurred in
connection with any Plan which is reasonably likely to have a material adverse
effect on the business or financial condition of the Company and its ERISA
Affiliates taken as a whole. Neither the Company nor any ERISA Affiliate has
any material contingent liability with respect to any post-retirement benefit
under a Welfare Plan, except for liability for continuation coverage described
in Part 6 of Title I of ERISA, and except as listed on Schedule V.
----------
10.10 Investment Company Act. The Company is neither an "investment
----------------------
company" nor a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
10.11 Public Utility Holding Company Act. Neither the Company nor
----------------------------------
any Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding
27
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
10.12 Regulations G, U and X. The Company is not engaged
----------------------
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock. None of the
Company, the Parent, any Affiliate of either of them or any Person acting on
their behalf has taken or will take action to cause the execution, delivery or
performance of this Agreement, the Notes, the making of the Loans or the use of
proceeds of the Loans to violate Regulation G, U or X of the Board of Governors
of the Federal Reserve System.
10.13 Labor Controversies. There are no labor controversies pending
-------------------
or threatened against the Company or any of its Subsidiaries which, if adversely
determined, would materially and adversely affect the business, credit,
operations, financial condition or prospects of the Company and its
Subsidiaries, taken as a whole.
10.14 Tax Status.
----------
(a) All tax returns, reports and forms required to be filed with any
domestic or foreign taxing authority in connection with any activities or assets
of the Company or any Subsidiary have been filed, except where the failure to
file any such return, report or form would not have any material adverse effect
on the business or financial condition of the Company and its Subsidiaries taken
as a whole.
(b) All taxes required to be paid with respect to the activities or
assets of the Company and its Subsidiaries have been duly paid or provisions
deemed appropriate were made by the Parent and/or the Company and its
Subsidiaries, on the books and records therefor, except such amounts (i) as are
contested in good faith and as to which adequate reserves in accordance with
GAAP were provided by the Company in accordance with the best estimates of
ultimate liability by the entity responsible therefor or (ii) the non-payment of
which would not have a material adverse effect on the business or financial
condition of the Company and its Subsidiaries taken as a whole.
(c) It is recognized and acknowledged by the Lenders that, from 1976
through June 22, 1988, for federal income tax purposes the Company and its
Subsidiaries were members of the affiliated group of which Mobil Corporation
("Mobil"), the Company's ultimate parent corporation during such period, was the
common parent, and the income of the Company and its Subsidiaries were included
in the consolidated federal income tax returns of Mobil for such period. All
filings and payments with respect to such period have been made directly by
Mobil, and all refunds with respect thereto have been paid directly to Mobil;
and the Company and its Subsidiaries have made and received payments with
28
respect to such taxes under tax sharing agreements with Mobil and/or a
Subsidiary thereof. Accordingly, all representations and warranties made in
Sections 10.14(a) and 10.14(b) with respect to federal income taxes as they
----------------- --------
relate to such period are qualified to the best of the Company's general
knowledge of Mobil's practices and procedures. To the best of its knowledge,
the Company has made all payments which are now due to Mobil under such tax
sharing agreements.
10.15 No Default. No event has occurred and no condition exists
----------
which, upon the execution and delivery of this Agreement or upon the funding of
any Loan, will constitute an Event of Default or Unmatured Event of Default.
10.16 Compliance with Applicable Laws. To the best of the Company's
-------------------------------
knowledge, the Company and its Subsidiaries are in compliance with the
requirements of all applicable laws, rules, regulations and orders of all
governmental authorities (Federal, state, local or foreign, and including,
without limitation, employee benefit, environmental and health and safety laws,
rules, regulations and orders), a breach of which would materially and adversely
affect the business, credit, operations, financial condition or prospects of the
Company and its Subsidiaries taken as a whole.
10.17 Licenses, etc. To the best of the Company's knowledge, neither
-------------
the Company nor any of its Subsidiaries has failed to obtain any licenses,
permits, franchises or other governmental authorizations necessary to the
ownership of its respective properties or to the conduct of its respective
business, which violation or failure to obtain might materially and adversely
affect the business, credit, operations, financial condition or prospects of the
Company and its Subsidiaries taken as a whole.
10.18 Purpose. The purpose of the Loans shall be for working capital
-------
purposes of the Company.
SECTION 11 COVENANTS.
From the Effective Date until the expiration or termination of all of
the Lenders' Commitments, and thereafter until payment in full of all
Liabilities, the Company agrees that, unless at any time the Required Lenders
shall otherwise expressly consent in writing, it will comply with the covenants
set forth in Section 11 of each of the Existing Credit Agreements with the same
----------
effect as if such covenants were set forth herein in full it being understood,
however, that for purposes hereof (i) any amendment, modification or termination
of the Existing Credit Agreements after the Effective Date shall be disregarded,
(ii) each reference in Section 11 of either of the Existing Credit Agreements to
----------
"Change of Control", shall be deemed to
29
refer to a Change of Control as defined in this Agreement, (iii) Section
-------
11.2(xii) of each of the Existing Credit Agreements shall be deemed to read as
---------
follows: "Liens in favor of the Agents (or any of them) or the lenders under
this Agreement and the Existing Credit Agreements, provided that such Liens
shall ratably secure all obligations of the Company in respect of loans under
this Agreement and/or the Existing Credit Agreements and in respect of the
Company's guaranty of loans under the Existing Signature Credit Agreement", and
(iv) each reference in the Existing Credit Agreements to "this Agreement" or
"Notes" or "Liabilities" or the like shall be deemed to refer to this Agreement
and the Notes and Liabilities under this Agreement, as the case may be.
SECTION 12 CONDITIONS. Each Lender's obligation to make its Loans is
subject to the following conditions:
12.1 Documents.
---------------
(a) On or before October 7, 1996, or such later date as may be agreed
to by the Required Lenders (the "Effective Date"), the Administrative Agent
shall have received all of the following, each duly executed and dated the
Effective Date or such other date satisfactory to the Administrative Agent,
in form and substance reasonably satisfactory to the Administrative Agent
and special counsel to the Agents, and each (except for the Notes, of which
only the originals shall be signed) in sufficient number of counterparts to
provide one for each Lender:
(i) Credit Agreement. Counterparts of this Agreement, whether
----------------
on the same or different counterparts, executed by the Company and all
of the Lenders (or in the case of any Lender as to which an executed
counterpart shall not have been so received, telegraphic, telefax,
telex or other written confirmation of execution of a counterpart
hereof by such Lender);
(ii) Notes. One Note of the Company payable to the order of
-----
each Lender;
(iii) Resolutions. Certified copies of (i) the articles of
-----------
incorporation and by-laws of the Company, (ii) resolutions of the
Company's Board of Directors authorizing or ratifying the execution,
delivery, performance of and borrowings under, respectively, this
Agreement, the Notes, and any other documents provided for herein or
therein to be executed by the Company and (iii) all documents
evidencing any necessary corporate action, consents and governmental
30
approvals (if any) with respect to this Agreement, the Notes and any
other documents provided for herein or therein to be executed by the
Company;
(iv) Good Standing. Good standing certificate for the Company
-------------
issued by the Secretary of State of Illinois;
(v) Incumbency and Signatures. A certificate of the Secretary
-------------------------
or an Assistant Secretary of the Company certifying the names of the
officer or officers thereof authorized to sign this Agreement, the
Notes and the other documents provided for in this Agreement, together
with a sample of the true signature of each such officer (it being
understood that each Agent and each Lender may conclusively rely on
each such certificate until formally advised by a like certificate of
any changes therein);
(vi) Opinion of Counsel for the Company. The opinion of
----------------------------------
Altheimer & ▇▇▇▇, counsel for the Company, addressed to the Agents and
the Lenders, substantially in the form of Exhibit C;
---------
(vii) Certificate. A certificate signed by an Authorized
-----------
Officer on behalf of the Company substantially in the form of Exhibit
-------
D to the effect that (i) on the Effective Date no Event of Default or
-
Unmatured Event of Default has occurred and is continuing or shall
result from the making of any Loan on such date, (ii) the Company's
representations and warranties contained in Sections 10.1 through
-------------
10.18 are true and correct as of the Effective Date with the same
-----
effect as though made on the Effective Date, and (iii) all of the
conditions set forth in this Section 12.1 have been satisfied;
------------
(viii) [Reserved]
(ix) Other. Such other documents as the Administrative Agent or
-----
any Lender may reasonably request.
(b) [Reserved]
31
12.2 Conditions to Loans. On and after the Effective Date, each
-------------------
Lender's obligation to make Loans (including the initial Loan and each
subsequent Loan) or a Continuation or a Conversion is subject, unless waived in
writing by the Required Lenders, to the conditions precedent that:
(a) no Event of Default or Unmatured Event of Default shall have
occurred and be continuing or shall result from the making of such Loan;
(b) the Company's representations and warranties contained in
Sections 10.1, 10.2, 10.3, 10.4(a), 10.7, 10.10, 10.11, 10.12, 10.15, and
------------- ---- ---- ------- ---- ----- ----- ----- -----
10.18, shall be true and correct as of the date of such requested Loan,
-----
Continuation or Conversion with the same effect as though made on the date
of such Loan, Continuation or Conversion; and
(c) such Loan shall not exceed the limits specified in Section
-------
2.2(a), (b) or (c).
------ --- ---
Each request by the Company for a Loan or for a Continuation or a Conversion as
described in this Section 12.2 shall be deemed to automatically constitute a
------------
representation and warranty by the Company to the effect that all of the
conditions set forth in this Section 12.2 for the making of such Loan will be
------------
fully and completely satisfied as of the date of, and after giving effect to,
the making of such Loan, Continuation or Conversion.
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default. Each of the following shall constitute an
-----------------
Event of Default under this Agreement:
(a) Non-Payment of Notes and Certain Fees. Default, and continuance
-------------------------------------
thereof for three Business Days after notice thereof to the Company by any
Agent, any Lender or the holder of any Note, in the payment (including any
prepayment under Section 2.7) when due of (i) any principal of or interest
-----------
on any Loan or (ii) any amount payable under Section 6.5, 6.6, or 6.7.
----------- --- ---
(b) Non-Payment of Certain Other Amounts under this Agreement.
---------------------------------------------------------
Default, and continuance thereof for ten Business Days after notice thereof
to the Company by any Agent, any Lender or the holder of any Note, in the
payment when due of any material amount under this Agreement (and not
constituting an Event of Default under clause (a) above).
----------
(c) Non-Payment of Finance Obligations. Default in the payment when
----------------------------------
due (subject to any applicable
32
grace period), whether by acceleration or otherwise, of any Finance
Obligation of the Company or any Restricted Subsidiary or default in the
performance or observance of any obligation or condition with respect to
any such Finance Obligation if (i) the effect of such default is to
accelerate the maturity of any such Finance Obligation or cause any such
Finance Obligation to be prepaid, purchased or redeemed or (ii) the holder
or holders thereof, or any trustee or agent for such holders, (x) causes
such Finance Obligation to become due and payable prior to its expressed
maturity or to be prepaid, purchased or redeemed or (y) receives any
payment (other than any payment which was scheduled to be made prior to the
occurrence of such default), guarantee or security or other concession from
or on behalf of Parent, the Company or any Restricted Subsidiary or (iii)
in case such default is a default in the payment when due, such default has
not been remedied within five Business Days after notice thereof to the
Company by any Agent, any Lender, the holder of any Note or the holder or
holders of such Finance Obligation or any trustee or agents for such
holders; provided, however, that no such default under this clause (c)
-------- ------- ----------
shall constitute an Event of Default unless the amount of Finance
Obligations so affected is at least $5,000,000.
(d) Bankruptcy, Insolvency, etc. The occurrence of any of the
---------------------------
following events: (i) the Company or any Restricted Subsidiary becomes
insolvent or generally fails to pay, or admits in writing its inability or
refusal to pay, debts as they become due; or (ii) the Company or any
Restricted Subsidiary applies for, consents to, or acquiesces in the
appointment of a trustee, receiver or other custodian for the Company or
such Restricted Subsidiary or any property thereof, or makes a general
assignment for the benefit of creditors; or, (iii) in the absence of such
application, consent or acquiescence, a trustee, receiver or other
custodian is appointed for the Company or any Restricted Subsidiary or for
a substantial part of the property of any thereof and is not discharged
within 60 days; or (iv) any bankruptcy, reorganization, debt arrangement,
or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding (except the voluntary dissolution,
not under any bankruptcy or insolvency law, of a Restricted Subsidiary), is
commenced in respect of the Company or any Restricted Subsidiary, and if
such case or proceeding is not commenced by the Company or such Restricted
Subsidiary, it is consented to or acquiesced in by the Company or such
Restricted Subsidiary or remains for 60 days
33
undismissed; or (v) the Company or any Restricted Subsidiary takes any
corporate action to authorize, or in furtherance of, any of the foregoing;
provided that the provisions of this Section 13.1(d) shall not apply to any
---------------
Special Restricted Subsidiary to which the foregoing provisions of Section
-------
13.1(d) would otherwise apply, which together with all other Special
-------
Restricted Subsidiaries with respect to which an event described in the
foregoing provisions of Section 13.1(d) shall have occurred, has assets
---------------
which do not exceed one percent (1%) of the total assets of the Company and
its Restricted Subsidiaries.
(e) Specified Non-Compliance with this Agreement. Failure by the
--------------------------------------------
Company to comply with or to perform its obligations under Sections 11.3
-------------
through 11.6 and 11.20 of the Existing Credit Agreements as incorporated
---- -----
herein pursuant to Section 11.
----------
(f) Other Non-Compliance with this Agreement. Failure by the Company
----------------------------------------
to comply with or to perform its obligations under any provision of this
Agreement (and not constituting an Event of Default under any of the other
provisions of this Section 13.1) and (i) continuance of such failure for 30
------------
days after notice thereof to the Company by any Agent, any Lender or the
holder of any Note specifying such failure if such failure can be cured
with diligence within such 30-day period by the Company or can be cured by
the payment of money, or (ii) continuance of such failure for 60 days after
notice thereof to the Company by an Agent, any Lender or the holder of any
Note specifying such failure if such failure cannot with diligence be cured
within such 30-day period and cannot be cured by the payment of money.
(g) Representations and Warranties. Any representation or warranty
------------------------------
made by the Company herein is breached or contains any statement which is
false or misleading in any material respect, or any schedule, certificate
or other writing furnished by the Company to any Agent, any Lender or the
holder of any Note pursuant to this Agreement contains any material
statement which is false or misleading in any material respect on the date
as of which the facts therein set forth are (or are deemed to be) stated or
certified.
(h) Stock Ownership. Until such time as under the provisions of
---------------
Section 5 a Change of Control can no longer be deemed to have occurred,
---------
Parent or Successor to Parent (except by reason of a merger of the Company
into the Parent) shall fail to own, directly or indirectly, 100% of the
capital stock (excluding Debt-Like Preferred Stock) of
34
the Company (or any successor to the Company permitted by Section 11.6 of
------------
the Existing Credit Agreements as incorporated herein pursuant to Section
-------
11) free and clear of all Liens. "Successor to Parent" refers to the
--
Person into which the Parent shall have been merged or in the case of a
consolidation involving the Parent, the Person formed by such consolidation
or in the case of the sale of substantially all the assets of the Parent,
the Person to whom substantially all of the assets of the Parent shall have
been transferred or conveyed; provided, in each case, voting shares of the
capital stock of, or voting equity interests in, such Person are converted
from or exchanged for Class A Common Stock.
(i) Judgments. Final judgment or judgments (after the expiration of
---------
all times to appeal therefrom) for the payment of money in excess of
$5,000,000 in the aggregate shall be rendered against Company or any of its
Restricted Subsidiaries and the same shall not be (i) fully covered by
insurance or (ii) vacated, stayed, bonded, paid or discharged for a period
of sixty (60) days.
(j) Retail Credit Program Agreement. (i) An amendment which
-------------------------------
materially adversely affects the Lenders shall be made to the Retail Credit
Program Agreement without the prior written consent of the Required
Lenders, including, without limitation, any amendment to any provision
thereto which secures any Seller Notes (other than as permitted by clause
(ii) of this Section 13.1(j)) or provides for the mandatory payment of such
Seller Notes on a date earlier than the date on which such Seller Notes are
payable as at March 14, 1996 (except as otherwise contemplated in the "Loss
Note Section" of the Memorandum of Understanding), or (ii) any of the
Seller Notes shall be secured by any property or rights other than the
receivables sold or financed under the Retail Credit Program Agreement, and
collections and offset rights thereunder, or (iii) the Retail Credit
Program Agreement shall fail to remain in full force and effect, or (iv)
any default by the Company under the Retail Credit Program Agreement (after
the expiration of any applicable grace period) shall occur and be
continuing which has not been waived by the GE Capital Parties and which
provides the GE Capital Parties thereunder with the right to terminate
obligations of the GE Capital Parties to purchase customer receivables
thereunder from the Company and to extend credit to the customers of the
Company pursuant thereto, or (v) the Company or the GE Capital Parties
shall give notice of termination or take any action to terminate thereunder
(other than the notice to terminate the Retail Credit Program Agreement at
the expiration of the term thereof (or such term as extended pursuant
thereto) and other than a
35
termination by the Company pursuant to which a wind down or transition of
at least one year is provided).
(k) Other Agreements. An Event of Default (as defined in each of the
----------------
Long Term Credit Agreement, the Short Term Credit Agreement or the Existing
Signature Credit Agreement) shall occur.
13.2 Effect of Event of Default. If any Event of Default described
--------------------------
in Section 13.1(d) shall occur, automatically all of the Commitments (if they
---------------
have not theretofore terminated) shall immediately terminate and automatically
all Liabilities shall become immediately due and payable, all without
presentment, demand or notice of any kind all of which are hereby waived; and,
in the case of any other Event of Default, unless such Event of Default shall
have been cured, (i) the Administrative Agent may and, upon the written request
of the Required Lenders, shall declare all Commitments (if they have not
theretofore terminated) to be terminated whereupon all such Commitments (if they
have not theretofore terminated) shall immediately terminate, and (ii) the
Administrative Agent may and, upon the written request of the Required Lenders,
declare all Liabilities to be due and payable, whereupon all such Liabilities
shall become immediately due and payable, all without presentment, demand or
notice of any kind, all of which are hereby waived. The Administrative Agent
shall promptly advise the Company and each Lender of any such declaration, but
failure to do so shall not impair the effect of such declaration.
Notwithstanding the foregoing, no rescission of a termination of the Commitments
shall be made without the written consent of all of the Lenders, and no
rescission of any acceleration of any of the Loans shall be made without the
written consent of the Lenders holding 100% of the aggregate unpaid principal
amount of the Loans so accelerated.
SECTION 14 THE AGENTS.
14.1 Authorization. Each Lender and the holder of each Note
-------------
authorizes each Agent to act on behalf of such Lender or holder to the extent
provided in this Agreement and in any other document or instrument delivered
hereunder or in connection herewith, and to take such other action as may be
reasonably incidental thereto. Subject to the provisions of Section 14.3, each
------------
Agent, in its capacity as such, will take such action permitted by any agreement
delivered in connection with this Agreement as may be requested in writing by
the Required Lenders or all Lenders, as appropriate.
14.2 Indemnification. The Lenders severally agree to indemnify each
---------------
Agent, in its capacity as such, and each officer, director, employee and agent
of each Agent (herein collectively called the "Agent Parties" and individually
called an "Agent
36
Party"), ratably according to their respective Commitments to the extent not
reimbursed by the Company, from and against any and all actions, causes of
action, suits, losses, liabilities, damages, and expenses which may at any time
(including without limitation at any time following the payment of any of the
Liabilities) be imposed on, incurred by or asserted against such Agent Party in
any way relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted by such Agent Party under or in connection with any
of the foregoing; provided, that no Lender shall be liable for the payment to
--------
such Agent Party of any portion of such actions, causes of action, suits,
losses, liabilities, damages, and expenses resulting from such Agent Party's
gross negligence or willful misconduct. All obligations provided for in this
Section 14.2 shall survive satisfaction of the Liabilities, cancellation of the
------------
Notes and any termination of this Agreement.
14.3 Action on Instructions of the Required Lenders. As to any
----------------------------------------------
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), no Agent shall be required
to exercise any discretion or take any action, but each Agent shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon the Lenders (including, without limitation,
all subsequent holders of the Notes); provided, however, that no Agent shall be
-------- -------
required to take any action which exposes such Agent to personal liability or
which is contrary to this Agreement or applicable law. The relationship between
the Agents and the Lenders is and shall be that of agent and principal only and
nothing herein contained shall be construed to constitute any Agent a trustee
for any party hereto or any holder of a Note or of a participation therein nor
to impose on any Agent duties and obligations other than those expressly
provided for herein.
14.4 Payments.
--------
(a) The Administrative Agent shall be entitled to assume that each
Lender has made the proceeds of each of its Loans available in accordance with
this Agreement unless such Lender notifies such Agent prior to 11:30 a.m.,
Chicago time, on the Funding Date for such Loan that it does not intend to make
such Loan, it being understood that no such notice shall relieve such Lender of
any of its obligations under this Agreement. If the Administrative Agent makes
any payment to the Company on the assumption that a Lender has made the proceeds
of its Loan available to the Administrative Agent but has not in fact done so,
such Lender shall pay to the Administrative Agent on demand an amount equal to
the amount of the Loan which it was obligated to make, together with interest
thereon for each day that elapses from and including such Funding Date to the
Business Day on which
37
such sums become immediately available to the Administrative Agent, prior to
12:00 noon, Chicago time, at the Federal Funds Rate for each such day, based
upon a year of 360 days.
(b) Each Agent shall be entitled to assume that the Company has made
all payments due hereunder on the due date thereof unless it receives
notification prior to any such due date from the Company that the Company does
not intend to make any such payment, it being understood that no such notice
shall relieve the Company of any of its obligations under this Agreement. If
any Agent distributes any payment to a Lender or any Assignee hereunder in the
belief that the Company has paid to such Agent the amount thereof but the
Company has not in fact paid to such Agent such amount, such Lender or Assignee
shall pay to such Agent on demand an amount equal to the amount of the payment
made by such Agent to such Lender, together with interest thereon for each day
that elapses from and including the date on which such Agent made such payment
to but excluding the Business Day on which the amount of such payment is
returned to such Agent in immediately available funds prior to 12:00 noon,
Chicago time, at the Federal Funds Rate for each such day, based upon a year of
360 days. If the amount of such payment is not returned to such Agent in
immediately available funds within five (5) Business Days after such demand for
payment was made by such Agent, such Lender or Assignee shall pay to such Agent
on demand an amount calculated in the manner specified in the preceding sentence
after substituting the term "Base Rate" for the term "Federal Funds Rate". A
certificate of the Administrative Agent submitted to any Lender with respect to
amounts owing under this Section 14.4(b) shall be conclusive absent manifest
---------------
error.
(c) Each Agent shall promptly remit to each Lender or other holder
its share of all payments received by such Agent for the account of such Lender
or holder, such remittance to be in Dollars and in same day funds (or, if
different, the kind of funds received by such Agent). Unless expressly provided
otherwise in this Agreement, each Agent shall distribute payments to the Lenders
on the same day on which such Agent received the corresponding payment from the
Company if such payment from the Company was received before 12:00 noon, Chicago
time, and on the next Business Day if such payment from the Company was received
after 12:00 noon, Chicago time, and if any Agent does not distribute payments to
the Lenders on the day when due such Agent shall pay to each Lender entitled to
receive payment, on demand by such Lender, interest on the payment due to such
Lender for each day that elapses from and including the date on which such
payment was due to but excluding the Business Day on which such payment is made
to such Lender in immediately available funds prior to 12:00 noon, Chicago time,
at the Federal Funds Rate for each such day, based upon a year of 360 days. If
the amount of such payment is not made to any Lender in immediately available
funds within five (5) Business Days after such payment was due to such Lender,
such Agent shall pay to such Lender on demand an
38
amount calculated in the manner specified in the preceding sentence after
substituting the term "Base Rate" for the term "Federal Funds Rate". A
certificate of any Lender submitted to any Agent with respect to amounts owing
under this Section 14.4(c) shall be conclusive absent manifest error.
---------------
14.5 Exculpation. Each Agent shall be entitled to rely upon advice
-----------
of counsel concerning legal matters, and upon this Agreement and any Note,
security agreement, schedule, certificate, statement, report, notice or other
writing which it believes to be genuine or to have been presented by a proper
person. No Agent Party shall (i) be responsible for any recitals,
representations or warranties contained in, or for the execution, validity,
genuineness, effectiveness or enforceability of, this Agreement or any Note,
security agreement, schedule, certificate, statement, report, notice or other
writing delivered hereunder or in connection herewith, (ii) be responsible for
the validity, genuineness, perfection, effectiveness, enforceability, existence,
value or enforcement of any collateral security, (iii) be deemed to have
knowledge of an Event of Default or Unmatured Event of Default until after
having received actual notice thereof from the Company or any Lender, (iv) be
under any duty to inquire into or pass upon any of the foregoing matters, or to
make any inquiry concerning the performance by the Company or any other obligor
of its obligations, or (v) in any event, be liable as such for any action taken
or omitted by it or them, except for its or their own gross negligence or
willful misconduct. The agency hereby created shall in no way impair or affect
any of the rights and powers of, or impose any duties or obligations upon, any
Agent in its individual capacity.
14.6 Credit Investigation. Each Lender acknowledges and shall cause
--------------------
each actual or potential Assignee or Participant to acknowledge to such Lender
in its assignment or participation agreement with such Lender that (i) it has
made and will continue to make such inquiries and has taken and will take such
care on its own behalf as would have been the case had it made the Loans
directly to the Company without the intervention of any Agent or any other
Person, and (ii) it has made and will continue to make its own credit analysis
and decisions relating to this Agreement independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it
has deemed appropriate. Each Lender agrees and acknowledges and shall cause
each actual or potential Assignee or Participant to agree with, and acknowledge
to, such Lender in its assignment or participation agreement with such Lender
that no Agent or any other Lender makes any representations or warranties about
the creditworthiness of the Company or any other party to this Agreement or with
respect to the legality, validity, sufficiency or enforceability of this
Agreement or any Note or the value of any security therefor.
39
14.7 Agents and Affiliates. Each Agent and each of its successors as
---------------------
an Agent shall have the same rights and powers hereunder as any other Lender and
may refrain from exercising the same as though it were not an Agent, and each
Agent and each such successor and its Affiliates may accept deposits from and
generally engage in any kind of business with the Company or any Affiliate
thereof as if such Agent and each such successor were not an Agent.
14.8 Resignation and Removal.
-----------------------
(a) Any Agent may resign as such at any time upon at least 30 days'
prior notice to the Company and the Lenders, and any Agent may be removed as
such at any time by vote of the Required Lenders and notice to the retiring
Agent and the Company. In the event of any such resignation or removal, the
Required Lenders shall as promptly as practicable (but with five (5) Business
Days' prior written notice being given to the Company) appoint a successor
Agent. If no successor Agent shall have been so appointed, and shall have
accepted such appointment within 30 days after either the retiring Agent's
giving of notice of resignation or the Required Lenders' vote to remove the
retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof or under the laws of
another country which is doing business in the United States and having a
combined capital, surplus and undivided profits of at least $100,000,000.
(b) [Reserved]
(c) Upon its acceptance of its appointment, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from all further duties and obligations as Agent under this
Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Agreement shall continue to inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement.
SECTION 15 GENERAL.
15.1 Waiver; Amendments. No delay on the part of any Agent, any
------------------
Lender or the holder of any Note in the exercise of any right, power or remedy
shall operate as a waiver thereof, nor shall any single or partial exercise by
any of them of any right, power or remedy preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy. Except as
otherwise specifically provided in this Agreement, the concurrence of the
Required Lenders shall be required for any amendment, modification or waiver of,
or consent with respect to,
40
any provision of this Agreement, the Notes or other documents, instruments or
agreements affecting the rights of such Lenders. Any amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
Notwithstanding the foregoing:
(a) the consent of all Lenders shall be required for any amendment,
modification, waiver or consent with respect to the following: (i) any
change in the amount or the scheduled timing of the payment of principal or
any extension of the maturity thereof, (ii) any reduction in the rate of
interest or any change in the timing of the payment of such interest, (iii)
any change or reduction in or any waiver of the amount of any fees under
Section 6.5 or any change in the timing of the payment of any such fees,
-----------
(iv) any extension of such Commitment or any increase in the amount of such
Commitment, or (v) any change in the allocation of proceeds or payments
among the Lenders;
(b) the consent of all Lenders shall be required for any amendment,
modification, waiver or consent relating to any of the following items:
(i) any change in Section 12.1, or (ii) any change in this Section 15.1, or
------------ ------------
(iii) any change to the definition of Required Lenders or any provision
which specifies the requisite level or number of Lenders which are required
to amend, modify, waive or consent to any provisions of this Agreement.
(c) no provisions of Section 6.7 or Section 14 shall be amended,
----------- ----------
modified or waived without the consent of all Agents.
15.2 Notices.
-------
(a) Except as otherwise expressly provided in this Agreement, any
notice hereunder to the Company, any Agent, any Lender or other holder shall be
in writing. Notices given by telegram, telex, telecopier or personal delivery
shall be deemed to have been given and received when sent (and, in the case of
telex, the appropriate answerback is received) and notices given by mail shall
be deemed to have been given and received three Business Days after the date
when sent by registered or certified mail, postage prepaid, and addressed to the
Company, such Agent, or such Lender (or other holder) at its address shown below
its signature hereto, or at such other address as any such Person may, by
written notice received by such other persons, have designated as its address
for such purpose. Any Agent, any Lender or the holder of any Note giving any
waiver, consent or notice to, or making any request upon, the Company hereunder
41
shall promptly notify each Lender and each other Agent thereof. Notices of Loan
Requests made by the Company shall be directed to the persons specified for such
purpose for each party on the signature pages hereto or in subsequent writings
among the parties. Notices to any Agent in connection with borrowings,
payments, Continuations or Conversions shall not be effective until actual
receipt by such Agent.
(b) Each Agent and each Lender shall be entitled to rely upon all
telephonic notices without awaiting receipt of written versions of such notices
and the Company shall hold each Agent, and each Lender harmless from, and shall
indemnify each Agent and each Lender against, any loss, cost or expense ensuing
from any such reliance.
15.3 Computations.
------------
(a) [Reserved]
(b) [Reserved]
(c) While the Company and GE Capital Parties intend that the sale of
receivables to GE Capital Parties by the Company under the Retail Credit Program
Agreement be considered sales by the Company and not secured loans to the
Company by GE Capital Parties, such transaction may be classified as a loan
under Financial Accounting Standards Board Statement No. 77. Irrespective of
whether such receivables sale transactions are classified as a sale or a loan
under Financial Accounting Standards Board Statement No. 77, such transactions
shall be treated as sales without recourse for the purposes of this Agreement
and not a secured loan.
15.4 Participations; Assignments; Replacement of Lenders.
---------------------------------------------------
(a) Participations. Subject to the provisions of this Section 15.4,
-------------- ------------
any Lender may at any time, in the ordinary course of its commercial banking
business and in accordance with applicable law, sell to one or more banks or
other Persons (collectively, "Participants") participating interests in any Loan
owing to such Lender, or any Note held by such Lender. In the event of any such
sale to a Participant, upon request by the Company the selling Lender shall give
written notice, to the Company stating the Participant's name and address and
the amount of the participation purchased, but
(i) the Company and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement,
42
(ii) all amounts payable by the Company shall be determined as if
such Lender had not sold such participation, and
(iii) any Participant which is not an Affiliate of the selling Lender
shall have no right to require the selling Lender to take or omit to take
any action under this Agreement or any Note other than action directly
affecting the extension of the stated maturity of any Loan, directly
affecting any scheduled installment of principal or any scheduled reduction
in the stated amount of, or interest on, any Loan in which such
participation was sold, or reducing the principal or stated amount thereof
or the rate of interest thereon or fees payable hereunder.
Each Lender agrees to incorporate the requirements set forth in the preceding
sentence into each participation agreement which such Lender enters into with
any Participant. The Company agrees that if amounts outstanding under this
Agreement and the Notes are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, if its participation agreement with the selling Lender so
provides, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement or any Note to the same extent as
if the amount of its participating interest were owing directly to it as a
Lender under this Agreement or any Note; provided that such right of setoff
--------
shall be subject to such Participant's obligation to share with the Lenders, and
the Lenders agree to share with such Participant, as provided in Section 8.2.
-----------
No participation contemplated in this Section 15.4 shall relieve any Lender
------------
either from its Commitment hereunder or from any of its other obligations
hereunder and such Lender shall remain solely responsible for the performance
thereof.
(b) Assignments. Subject to the provisions of this Section 15.4, any
----------- ------------
Lender which is not an Agent may, with the Company's prior written approval
(which approval shall not be unreasonably withheld or delayed by the Company, it
being understood that upon the occurrence of a Default or an Event of Default
the Company shall not have any right to withhold its approval), and any Lender
which is an Agent may, without the Company's prior written approval, execute an
assignment and acceptance substantially in the form of Exhibit E, with
---------
appropriate insertions (herein individually called an "Assignment" and
collectively called the "Assignments"), whereby such Lender shall assign,
without recourse and without representation or warranty except as specifically
set forth in said Assignment, to one or more banks or other entities (herein
individually called an "Assignee" and collectively called the "Assignees") all
or any part of such Lender's rights and
43
benefits, and delegate all or any part of such Lender's obligations, under this
Agreement and its Notes.
Upon execution, delivery and acceptance of each Assignment, from and
after the effective date specified therein, which effective date shall be at
least five (5) Business Days after the execution thereof, the Company, the
Agents and the Lenders agree that, to the extent of any such Assignment,
(x) the Assignee thereunder shall, in addition to any rights,
benefits and obligations hereunder held by it immediately prior to such
effective date, have the rights, benefits and obligations of a Lender under
this Agreement and the assignor Lender's Notes (including, without
limitation, rights and benefits arising out of Section 9) and the same
---------
rights of setoff pursuant to Section 8.3 and obligation to share pursuant
-----------
to Section 8.2 as it would have if it were a Lender hereunder to the extent
-----------
that the same have been assigned and delegated to it pursuant to such
Assignment, and
(y) the assignor Lender shall, to the extent that rights, benefits
and obligations hereunder have been assigned and delegated by it pursuant
to such Assignment, relinquish its rights and benefits and be released from
its obligations under this Agreement (and, in the case of an Assignment
covering all or the remaining portion of an assignor Lender's rights,
benefits and obligations under this Agreement, such Lender shall cease to
be a party hereto), except that in all cases the assignor Lender shall
remain entitled to the rights and benefits arising under Sections 6, 8.4,
---------- ---
9, 15.5 and 15.6 with respect to any period of time prior to the effective
- ---- ----
date of any such Assignment, and shall remain liable with respect to any of
its obligations arising under Sections 6.9, 8.4(c), 14.2 and 15.5, with
------------ ------ ---- ----
respect to any matters arising prior to the effective date of any such
Assignment;
provided, that:
--------
(i) each Agent and each Lender shall be entitled to continue to deal
solely and directly with the assignor Lender in connection with the
interests so assigned and delegated to the Assignee until written notice of
such Assignment, together with addresses and related information with
respect to the Assignee, shall have been given to each Agent and each
Lender by the assignor Lender and the Assignee,
(ii) if the Assignee is a Non-United States Person, it shall deliver
to the Company and the Administrative Agent a written representation and
44
undertaking substantially similar to Section 8.4(b), and
--------------
(iii) the Company shall not be required to pay any costs, fees or
taxes of any kind or nature with respect to the interest(s) assigned in
excess of those payable by the Company in connection with such interest(s)
prior to such assignment except for any costs, fees or taxes described in
Section 8.4, 9 or 15.6.
----------- - ----
Upon its receipt of an Assignment executed by an assignor Lender and an
Assignee, together with the Notes subject to such Assignment, the Administrative
Agent shall, if such Assignment has been completed and is in substantially the
form of Exhibit E, accept such Assignment and forward a photostatic copy thereof
---------
to the Company. Within five (5) Business Days after its receipt of a
photostatic copy of such Assignment, the Company shall execute and deliver to
the Administrative Agent, to be exchanged for the Notes delivered to the
Administrative Agent by the assignor Lender, new Notes payable to the order of
the Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and, if the assignor Lender has retained a Commitment hereunder, new
Notes payable to the order of the assignor Lender in an amount equal to the
Commitment retained by it hereunder. Such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated the effective date of such Assignment, shall be payable to
the order of the Assignee or the assignor Lender, shall otherwise be in
substantially the form of such surrendered Notes, and shall constitute Notes
under this Agreement. Such new Notes shall be in replacement and substitution
for, and not in payment of, the Notes delivered to the Administrative Agent by
the assignor Lender. The Administrative Agent shall deliver such new Notes to
the payee or payees thereof and shall ▇▇▇▇ the Notes previously held by the
assignor Lender as "replaced" and shall deliver the same to the Company. The
Administrative Agent shall from time to time distribute a revised Schedule I
----------
giving effect to any Assignments or other modifications hereunder.
(c) Federal Reserve. Anything contained in this Agreement to the
---------------
contrary notwithstanding, and without the need to comply with any of the formal
or procedural requirements set forth in this Agreement, any Lender may at any
time and from time to time grant a participation in, assign, deposit or pledge
all or any portion of its rights under this Agreement or the Notes to a Federal
Reserve Bank; provided, however, no such participation, assignment, deposit or
-------- -------
pledge shall relieve such Lender of any of its obligations under this Agreement.
(d) Information. Notwithstanding the terms of any previous
-----------
confidentiality agreements with respect to the subject matter hereof between the
Company and any Lender, from and after
45
the Effective Date any Lender may furnish any information concerning the Parent,
the Company and the Subsidiaries which has been furnished to such Lender
pursuant hereto to any Assignee, Participant, or potential Assignee or
Participant; provided, however, that the recipient of such information shall,
-------- -------
prior to being furnished with any such information, agree to maintain the
confidentiality of such information. Notwithstanding the foregoing sentence,
any Agent, Lender, Assignee, Participant or potential Assignee or Participant
shall be permitted to disclose information regarding the Company and its
Subsidiaries (i) to any other Agent or Lender, or to any Assignee or
Participant, (ii) to any Affiliate, agent or employee that agrees to be bound by
this Section 15.4(d), (iii) upon order of any court or administrative agency,
---------------
(iv) upon the request or demand of any regulatory agency or authority having
jurisdiction over such party, (v) which has been publicly disclosed, (vi) which
has been obtained from any Person that is not a party hereto or an Affiliate,
agent or employee of any such party, (vii) in connection with the exercise of
any remedy hereunder, or (viii) to such Person's certified public accountants
and its attorneys.
15.5 Costs, Expenses and Taxes.
-------------------------
(a) The Company agrees to pay on demand all fees and out-of-pocket
costs and expenses of the Agents, including the fees and out-of-pocket expenses
of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇ as special counsel to the Agents (and of other
counsel, if any, who may be retained by said counsel), in connection with the
preparation, execution, delivery, syndication, administration and enforcement of
this Agreement, the Notes and all other instruments or documents provided for
herein or delivered or to be delivered hereunder or in connection herewith, and
any and all waivers, consents, amendments, modifications, replacements or
restatements relating to any thereof. Each Lender agrees to reimburse the
Administrative Agent for such Lender's pro rata share (based upon its respective
--- ----
Commitment) of any reasonable costs or expenses incurred by such Agent on behalf
of the Lenders in connection with such administration and enforcement (including
reasonable attorneys' fees and legal expenses) not paid by the Company except to
the extent that such costs or expenses arise from such Agent's gross negligence
or willful misconduct.
(b) The Company further agrees (i) to pay on demand all reasonable
fees and out-of-pocket expenses (including all attorneys' fees, legal expenses
and allocated costs of staff counsel) of each Lender incurred directly in
connection with the enforcement of this Agreement, the Notes and all other
instruments or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith, and any and all amendments, modifications,
replacements or restatements relating to any thereof, and (ii) to pay, and to
save each Agent and the Lenders harmless from all liability for, any stamp or
other taxes which may be payable in connection with the execution and
46
delivery of this Agreement, the borrowings hereunder, or the issuance of the
Notes or of any other instruments or documents provided for herein or delivered
or to be delivered hereunder or in connection herewith.
(c) Except as otherwise provided in the preceding paragraphs (a) and
(b), each party shall pay its own expenses in connection with this Agreement.
All obligations provided for in this Section 15.5 shall survive repayment of the
------------
Loans, cancellation of the Notes and any termination of this Agreement.
15.6 Indemnification. In consideration of the execution and delivery
---------------
of this Agreement by the Agents and the Lenders, the Company hereby agrees to
indemnify, exonerate and hold harmless each Lender, each Agent and each officer,
director, employee and agent of each Lender and each Agent (herein collectively
called the "Lender Parties" and individually called a "Lender Party") from and
against any and all actions, causes of action, suits, losses, costs (including,
without limitation, all documentary or other stamp taxes or duties),
liabilities, damages and expenses (other than expenses covered by Section
-------
15.5(a)) in connection therewith (irrespective of whether such Lender Party is a
-------
party to the action for which indemnification hereunder is sought), including,
without limitation, reasonable attorneys' fees (including allocated costs of
staff counsel) and disbursements (collectively herein called the "Indemnified
Liabilities") incurred by the Lender Parties or any of them as a result of, or
arising out of, or relating to any Loan or the use of the proceeds of any Loan
except for any such Indemnified Liabilities arising on account of such Lender
Party's gross negligence or willful misconduct and, if and to the extent that
the foregoing undertaking may be unenforceable for any reason, the Company
hereby agrees to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable
law. All obligations provided for in this Section 15.6 shall survive repayment
------------
of the Liabilities, cancellation of the Notes and any termination of this
Agreement.
15.7 Regulation U. Each Lender represents that it in good faith is
------------
not relying, either directly or indirectly, upon any Margin Stock as collateral
security for the extension or maintenance by it of any credit provided for in
this Agreement.
15.8 Captions. Section captions used in this Agreement are for
--------
convenience only, and shall not affect the construction of this Agreement.
15.9 Governing Law; Severability. This Agreement and each Note shall
---------------------------
be a contract made under and governed by the laws of the State of Illinois
without regard to conflict of laws principles. All obligations of the Company
and the rights of the Agents, the Lenders and any other holders of the Notes
expressed
47
herein or in the Notes shall be in addition to and not in limitation of those
provided by applicable law. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. Nothing herein shall
require the Company to pay interest in excess of the maximum rate permitted by
law.
15.10 Waiver of Jury Trial. Each of the Company, each Agent and each
--------------------
Lender waives any right to a trial by jury in any action or proceeding to
enforce or defend any rights under this Agreement, any Note or any amendment,
instrument, document or agreement delivered or which may in the future be
delivered in connection herewith or arising from any banking relationship
existing in connection with this Agreement, and agrees that any such action or
proceeding shall be tried before a court and not before a jury.
15.11 Counterparts; Effectiveness. This Agreement may be executed in
---------------------------
any number of counterparts and by the different parties on separate counterparts
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement. This
Agreement shall become effective as of the Effective Date and the Administrative
Agent shall so inform all of the parties hereto.
15.12 Supersession. This Agreement supersedes all prior or
------------
contemporaneous agreements with respect to the subject matter hereof.
15.13 Successors and Assigns. This Agreement shall be binding upon
----------------------
the Company, the Lenders and the Agents and their respective successors and
assigns, and shall inure to the benefit of the Company, the Lenders and the
Agents and the respective successors and assigns of the Lenders and the Agents,
it being understood that subject to Section 11.6 of the Existing Credit
------------
Agreements as incorporated herein pursuant to Section 11, the Company shall not
----------
assign its rights hereunder without the consent of all of the Lenders.
* * *
48
Delivered at Chicago, Illinois as of the day, month and year first
above written.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & CO., INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
One ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Plaza
844 North ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Person to whom copies of notices under Section 13.2
------------
should also be sent:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & Co., Incorporated
One ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, in its individual capacity and
in its capacity as Administrative Agent
By: /s/ F.C.H. ▇▇▇▇▇
-------------------------
Name: F.C.H. ▇▇▇▇▇
-----------------------
Title: Senior Manager Loan Operations
------------------------------
THE BANK OF NOVA SCOTIA
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00542319
Person to whom all Loan Requests
should be addressed:
▇▇▇▇▇▇ ▇▇▇▇
Atlanta Agency
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00542319
Base Rate Loan Funding Office:
The Bank of Nova Scotia
Atlanta Agency
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Loan Funding Office:
The Bank of Nova Scotia
Atlanta Agency
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THE BANK OF NEW YORK, in its individual capacity and in
its capacity as Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Person to whom all Loan Requests
should be addressed:
▇▇▇▇▇ ▇▇▇▇▇▇▇, 8th Floor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Base Rate Loan Funding Office:
The Bank of New York
Commercial Loan Servicing Dept.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Loan Funding Office:
The Bank of New York
Euro Dollar/Cayman Funding Area
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION, in
its individual capacity
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Senior Vice President
----------------------
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ______________
Person to whom Loan correspondence
should be addressed:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: _________________
Payment Office
Bankers Trust New York
ABA No. ▇▇▇▇▇▇▇▇▇
For the Acct. of G.E.C.C. #50001677
Ref: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ interest fee
or principal
Base Rate Loan Funding Office:
General Electric Capital Corporation
------------------------------------
Corporate Treasury Dept.
-------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------
Eurodollar Loan Funding Office:
General Electric Capital Corporation
------------------------------------
Corporate Treasury Dept.
-------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------