1
Exhibit 99(b)(1)(a)
U.S. $400,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 24, 1996
Among
THE DIAL CORP
(to be known as VIAD CORP upon
the effectiveness of this Agreement)
as Borrower
and
THE BANKS NAMED HEREIN
as Lenders
and
CITICORP USA, INC.
as Administrative Agent
and
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . . . .2
SECTION 1.01. Certain Defined Terms . . . . . . . . . . .2
SECTION 1.02. Computation of Time Periods . . . . . . . .17
SECTION 1.03. Accounting Terms. . . . . . . . . . . . . .17
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . . .18
SECTION 2.01. The Committed Advances. . . . . . . . . . .18
SECTION 2.02. Making the Committed Advances . . . . . . .18
SECTION 2.03. Making the Bid Advances . . . . . . . . . .21
SECTION 2.04. Fees. . . . . . . . . . . . . . . . . . . .25
SECTION 2.05. Termination and Reduction of the
Commitments . . . . . . . . . . . . . . . .26
SECTION 2.06. Repayment and Prepayment of Advances. . . .27
SECTION 2.07. Interest on Committed Advances. . . . . . .28
SECTION 2.08. Interest Rate Determination . . . . . . . .29
SECTION 2.09. Voluntary Conversion or Continuation of
Committed Advances. . . . . . . . . . . . .29
SECTION 2.10. Increased Costs . . . . . . . . . . . . . .30
SECTION 2.11. Payments and Computations . . . . . . . . .31
SECTION 2.12. Taxes . . . . . . . . . . . . . . . . . . .32
SECTION 2.13. Sharing of Payments, Etc. . . . . . . . . .34
SECTION 2.14. Evidence of Debt. . . . . . . . . . . . . .34
SECTION 2.15. Use of Proceeds . . . . . . . . . . . . . .35
SECTION 2.16. Extension of the Commitment Termination
Date. . . . . . . . . . . . . . . . . . . .35
SECTION 2.17. Substitution of Lenders . . . . . . . . . .36
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING . . . . . . .37
SECTION 3.01. Documents to be Delivered on the Closing
Date. . . . . . . . . . . . . . . . . . . .37
SECTION 3.02. Conditions Precedent to Effective Time. . .38
SECTION 3.03. Conditions Precedent to Each Committed
Borrowing . . . . . . . . . . . . . . . . .40
SECTION 3.04. Conditions Precedent to Each Bid
Borrowing . . . . . . . . . . . . . . . . .40
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . .41
SECTION 4.01. Representations and Warranties of the
Borrower. . . . . . . . . . . . . . . . . .41
ARTICLE V
COVENANTS OF THE BORROWER . . . . . . . . . . . . . .44
SECTION 5.01. Affirmative Covenants . . . . . . . . . . .44
SECTION 5.02. Negative Covenants. . . . . . . . . . . . .49
ARTICLE VI
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . .51
SECTION 6.01. Events of Default . . . . . . . . . . . . .51
ARTICLE VI
THE AGENTS. . . . . . . . . . . . . . . . . . . . . .54
SECTION 7.01. Authorization and Action. . . . . . . . . .54
SECTION 7.02. Agents' Reliance, Etc.. . . . . . . . . . .55
SECTION 7.03. CUSA, B of A and Affiliates . . . . . . . .55
SECTION 7.04. Lender Credit Decision. . . . . . . . . . .56
SECTION 7.05. Indemnification . . . . . . . . . . . . . .56
SECTION 7.06. Successor Agent . . . . . . . . . . . . . .56
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . .57
SECTION 8.01. Amendments, Etc.. . . . . . . . . . . . . .57
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . .57
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . .58
SECTION 8.04. Costs, Expenses and Indemnification . . . .58
SECTION 8.05. Right of Set-off. . . . . . . . . . . . . .59
SECTION 8.06. Binding Effect; Effectiveness; Entire
Agreement . . . . . . . . . . . . . . . . .60
SECTION 8.07. Assignments and Participations. . . . . . .60
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SECTION 8.08. Confidentiality . . . . . . . . . . . . . .64
SECTION 8.09. Governing Law . . . . . . . . . . . . . . .64
SECTION 8.10. Execution in Counterparts . . . . . . . . .64
SECTION 8.11. Consent to Jurisdiction; Waiver of
Immunities. . . . . . . . . . . . . . . . .65
SECTION 8.12. Waiver of Trial by Jury . . . . . . . . . .65
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SCHEDULES
SCHEDULE I List of Applicable Lending Offices
EXHIBITS
EXHIBIT A-1 Notice of Committed Borrowing
EXHIBIT A-2 Notice of Bid Borrowing
EXHIBIT B Assignment and Acceptance
EXHIBIT C-1 Form of Opinion of Counsel for the Borrower as of
the Closing Date
EXHIBIT C-2 Form of Opinion of Counsel for the Borrower as of
the Effective Date
EXHIBIT D-1 Form of Opinion of Counsel to the Agents as of
the Closing Date
EXHIBIT D-2 Form of Opinion of Counsel to the Agents as of
the Effective Date
EXHIBIT E Form of Extension Request
EXHIBIT F Form of Compliance Certificate
EXHIBIT G-1 Form of Committed Note
EXHIBIT G-2 Form of Bid Note
EXHIBIT H Form of Designation Agreement
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U.S. $400,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 24, 1996
This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is among
THE DIAL CORP, a Delaware corporation, to be known as VIAD CORP on and after the
Effective Date (as defined below) (the "Borrower"), the banks (the "Banks")
listed on the signature pages hereof, CITICORP USA, INC. ("CUSA"), as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("B of A"), as documentation agent for the Lenders hereunder (in
such capacity, the "Documentation Agent"; the Administrative Agent and the
Documentation Agent being referred to together as the "Agents"). Certain
capitalized terms have the meanings given to them in Section 1.01 hereof.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower desires to effect the spin-off to the Borrower's
stockholders of the Consumer Products Business currently being conducted by the
Borrower directly and through certain of its subsidiaries;
WHEREAS, pursuant to the Distribution Agreement, on the Effective Date
the Borrower shall (i) contribute all of the assets and liabilities of the
Consumer Products Business, including the stock of certain subsidiaries, to The
Dial Corporation, a newly formed Delaware corporation ("Newco") and a
wholly-owned subsidiary of the Borrower, and (ii) distribute to the holders of
Borrower Common Stock approximately 94.8 million shares of Newco Common Stock;
WHEREAS, pursuant to the Distribution Agreement and in conjunction with
the Distribution, immediately prior to the Effective Date, Exhibitgroup shall be
merged with and into the Borrower, with the Borrower as the surviving
corporation;
WHEREAS, the Borrower, certain of the Banks, the Exiting Banks (as
hereinafter defined), and Citibank and B of A, as Agents, are parties to that
certain amended and restated credit agreement dated as of December 15, 1993, as
such agreement has been and may be amended from time to time (as so amended, the
"Existing Credit Agreement");
WHEREAS, the Borrower, the Banks, and the Agents desire to amend and
restate the Existing Credit Agreement in its entirety in this Agreement in order
to reflect the Distribution, but have agreed that this Agreement shall not
become effective (except to the extent set forth in Section 8.06 hereof) and the
Existing Credit Agreement shall remain in place until the
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Effective Date (which shall be the date of the Distribution) and the
satisfaction of the terms and conditions set forth herein;
WHEREAS, the Borrower, certain financial institutions, and the Agents
further desire to enter into the Newco Credit Agreement concurrently with this
Agreement, and the Newco Credit Agreement shall not become effective until the
Effective Date, at which time the Borrower shall assign and Newco shall assume
the Newco Credit Agreement, upon the satisfaction of the terms and conditions
set forth therein; and
WHEREAS, the Borrower and each bank that is party to the Existing
Credit Agreement but is not a party to this Agreement (an "Exiting Bank") have
agreed, pursuant to those certain letter agreements dated as of August 15, 1996,
that all funding obligations and other obligations of the Exiting Banks under
the Existing Credit Agreement will be terminated upon the effectiveness of this
Agreement and, except as set forth in such letter agreements, all payment
obligations and other obligations of the Borrower with respect to the Exiting
Banks under the Existing Credit Agreement, on the terms and conditions set forth
in such letter agreements, will be satisfied upon the effectiveness of this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADDITIONS TO CAPITAL" means the sum of (i) the aggregate net
proceeds, including cash and the fair market value of property other
than cash (as determined in good faith by the Board of Directors of the
Borrower as evidenced by a Board resolution), received by the Borrower
from the issue or sale (other than to a Subsidiary) of capital stock of
the Borrower and (ii) the aggregate of 25% of the after tax gain
realized from unusual, extraordinary, and major nonrecurring items
including, but not limited to, the sale, transfer, or other disposition
of (x) any of the stock of any of the Borrower's Subsidiaries or (y)
substantially all of the assets of any geographic or other division or
line of business of the Borrower or any of its Subsidiaries (but
excluding any after tax loss realized on any such unusual,
extraordinary, and major nonrecurring items to the extent they exceed
any after tax gains on such items).
"ADJUSTED EURODOLLAR RATE" means, for any Interest Period for
each Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the
8
rate per annum obtained by dividing (a) the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the respective
Reference Bank's Eurodollar Rate Advance comprising part of such
Borrowing and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage.
The Adjusted Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"ADMINISTRATIVE AGENT" means CUSA, or any Person serving as
its successor agent.
"ADVANCE" means a Committed Advance or a Bid Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person.
"AGENT" or "AGENTS" has the meaning specified in the
introductory paragraph of this Agreement; provided, that, for purposes
of Sections 7.02, 7.04, 7.05, 8.04, 8.07(b)(iv) and 8.12 of this
Agreement the term "Agent" or "Agents", as the case may be, shall
include Arrangers.
"AGREEMENT" means this Amended and Restated Credit Agreement
as it may be amended, supplemented or otherwise modified from time to
time.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance, and such Lender's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, for any period for which any
interest payment is to be made with respect to any Advance, the
interest rate per annum derived by dividing (i) the sum of the Daily
Margins for each of the days included in such period by (ii) the number
of days included in such period.
"ARRANGERS" means Citicorp Securities, Inc. and BA Securities,
Inc., collectively, and each individually is an "ARRANGER."
"ASSIGNMENT AND ACCEPTANCE" means an assignment and
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acceptance entered into by a Lender and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form of
EXHIBIT B hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy" as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate (which is a rate set by Citibank based
upon various factors including Citibank's costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate);
(b) the sum of (A) 1/2 of one percent per annum, plus
(B) the rate obtained by dividing (x) the latest three-week
moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of
major United States money market banks (such three-week moving
average being determined weekly by Citibank on the basis of
such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank, in either case
adjusted to the nearest 1/4 of one percent or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one
percent), by (y) a percentage equal to 100% minus the average
of the daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including,
but not limited to, any marginal reserve requirements for
Citibank in respect of liabilities consisting of or including
(among other liabilities) three-month nonpersonal time
deposits of at least $100,000), plus (C) the average during
such three-week period of the daily net annual assessment
rates estimated by Citibank for determining the current annual
assessment payable by Citibank to the Federal Deposit
Insurance Corporation for insuring three-month deposits in the
United States; or
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"BASE RATE ADVANCE" means a Committed Advance which bears
interest at a rate per annum determined on the basis
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of the Base Rate, as provided in Section 2.07(a).
"BID ADVANCE" means an advance by a Lender to the Borrower as
part of a Bid Borrowing resulting from the auction bidding procedure
described in Section 2.03(a).
"BID BORROWING" means a borrowing consisting of simultaneous
Bid Advances of the same Type from each of the Lenders whose offer to
make one or more Bid Advances as part of such borrowing has been
accepted by the Borrower under the auction bidding procedure described
in Section 2.03(a).
"BID REDUCTION" has the meaning specified in Section 2.01(a).
"BORROWER" means The Dial Corp, a Delaware corporation, to be
known as Viad Corp on and after the Effective Date.
"BORROWER COMMON STOCK" means the approximately 94.8 million
shares of common stock, par value of $1.50 per share, of Borrower
currently outstanding.
"BORROWING" means a Committed Borrowing or a Bid Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in New York City or Los Angeles and, if
the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CAPITAL LEASE" means, with respect to any Person, any lease
of any property by that Person as lessee which would, in conformity
with GAAP, be required to be accounted for as a capital lease on the
balance sheet of that Person.
"CASH" means money, currency or a credit balance in a deposit
account.
"CASH EQUIVALENTS" means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States government or
issued by any agency thereof and backed by the full faith and credit of
the United States, in each case maturing within one year from the date
of acquisition thereof, (b) marketable direct obligations issued by any
state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within
one year from the date of acquisition thereof and, at the time of
acquisition, having the highest rating generally obtainable from either
S&P or ▇▇▇▇▇'▇, (c) commercial paper maturing no more than one year
from the date of creation thereof and, at the time of acquisition,
having a rating of A-1 or higher from S&P or P-1 or higher from
▇▇▇▇▇'▇, and (d)
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certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any lender.
"CITIBANK" means Citibank, N.A.
"CLOSING DATE" means the date this Agreement is executed and
the documents referred to in Section 3.01 are delivered to the Agents,
which shall be July 24, 1996 or such other date as may be agreed upon
by the Borrower and the Agents.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" has the meaning specified in Section 2.01
"COMMITMENT TERMINATION DATE" means, with respect to any
Lender, the fifth anniversary of the Effective Date, or such later date
to which the Commitment Termination Date of such Lender may be extended
from time to time pursuant to Section 2.16 (or if any such date is not
a Business Day, the next preceding Business Day).
"COMMITTED ADVANCE" means an advance by a Lender to the
Borrower as part of a borrowing consisting of simultaneous Advances
from each of the Lenders pursuant to Section 2.01 and refers to a Base
Rate Advance or a Eurodollar Rate Advance, each of which shall be a
"Type" of Advance.
"COMMITTED BORROWING" means a borrowing consisting of
simultaneous Committed Advances of the same Type made on the same day
pursuant to the same Notice of Borrowing by each of the Lenders
pursuant to Section 2.01(b).
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT F hereto, delivered to the Lenders by the Borrower
pursuant to Section 5.10(b)(iii).
"CONVERT," "CONVERSION" and "CONVERTED" each refers to a
conversion of Advances of one Type into Advances of another Type
pursuant to Section 2.09.
"CONSUMER PRODUCTS BUSINESS" means the consumer products
business, including certain assets and liabilities thereof, currently
being conducted by the Borrower directly and through certain of its
subsidiaries, to be contributed to Newco pursuant to the Distribution
Agreement.
"DAILY MARGIN" means, for any date of determination, for the
designated Level, Utilization Ratio applicable to such date of
determination and Type of Advance, the following interest rates per
annum:
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DAILY MARGIN WHEN DAILY MARGIN WHEN
UTILIZATION RATIO UTILIZATION RATIO
IS EQUAL TO OR IS GREATER THAN
LESS THAN 0.50:1.00 0.50:1.00
---------------------------- ----------------------------
TYPE OF ADVANCE TYPE OF ADVANCE
---------------------------- ----------------------------
BASE RATE EURODOLLAR BASE RATE EURODOLLAR
ADVANCE RATE ADVANCE ADVANCE RATE ADVANCE
▇▇▇▇▇ ▇ 0% 0.2000% 0% 0.2500%
▇▇▇▇▇ ▇ 0% 0.2400% 0% 0.2900%
▇▇▇▇▇ ▇ 0% 0.2750% 0% 0.3250%
▇▇▇▇▇ ▇ 0% 0.4375% 0% 0.4375%
▇▇▇▇▇ ▇ 0% 0.5000% 0% 0.5000%
For purposes of this definition, (a) "UTILIZATION RATIO" means, as of
any date of determination, the ratio of (1) the aggregate outstanding
principal amount of all Advances as of such date to (2) the aggregate
amount of all Commitments in effect as of such date (whether used or
unused), (b) if any change in the rating established by S&P, ▇▇▇▇▇'▇ or
Duff & ▇▇▇▇▇▇ with respect to Long-Term Debt shall result in a change
in the Level, the change in the Daily Margin shall be effective as of
the date on which such rating change is publicly announced, and (c) if
the ratings established by any two of S&P, ▇▇▇▇▇'▇ or Duff & ▇▇▇▇▇▇
with respect to Long-Term Debt are unavailable for any reason for any
day, then the applicable level for such day shall be deemed to be ▇▇▇▇▇
▇ (or, if the Requisite Lenders consent in writing, such other Level as
may be reasonably determined by the Requisite Lenders from a rating
with respect to Long-Term Debt for such day established by another
rating agency reasonably acceptable to the Requisite Lenders).
"DEBT" means (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, (ii) obligations as
lessee under Capital Leases, (iii) obligations under guarantees in
respect of indebtedness or in respect of obligations of others of the
kinds referred to in clause (i) or (ii) above, (iv) liabilities in
respect of unfunded vested benefits under Single Employer Plans, and
(v) Withdrawal Liability incurred under ERISA by the Borrower or any of
its ERISA Affiliates to any Multi-employer Plans; provided that "Debt"
shall not include payment obligations in the ordinary course of the
business of Travelers Express Company, Inc. ("Travelers Express")
arising from (x) payments made by banks on checks or money orders
issued by Travelers Express and presented to such banks and (y)
contingent obligations of Travelers Express to banks which have issued
official checks drawn on Travelers Express and have paid to Travelers
Express the amounts of
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such official checks, to repay to such banks such amounts if such
official checks are not negotiated.
"DESIGNATED BIDDER" means (i) an Eligible Assignee or (ii) a
special purpose corporation which is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" by ▇▇▇▇▇'▇ or "A-1" by S&P or a
comparable rating from the successor or either of them, that, in either
case, (w) is organized under the laws of the United States or any State
thereof, (x) shall have become a party hereto pursuant to Section
8.07(d), (e) and (f), (y) is not otherwise a Lender and (z) shall have
been consented to by the Borrower, which consent shall not be
unreasonably withheld.
"DESIGNATION AGREEMENT" means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially the
form of EXHIBIT H hereto.
"DISTRIBUTION" means the distribution of approximately 94.8
million shares of Newco Common Stock, constituting 100% of the
outstanding Newco Common Stock, to the holders of Borrower Common Stock
pursuant to the Distribution Agreement, together with the consummation
of the other transactions to occur in connection with such
distribution, as set forth in the Distribution Agreement.
"DISTRIBUTION AGREEMENT" means that certain Distribution
Agreement by and among the Borrower, Newco, and Exhibitgroup, in the
form of EXHIBIT A attached to the Form 10, with such changes as may be
approved by the Requisite Lenders.
"DISTRIBUTION TIME" means the time of the Distribution on the
Effective Date.
"DOCUMENTATION AGENT" means B of A, or any Person serving as
its successor agent.
"DOLLARS" and the sign "$" each means lawful money of the
United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agents.
"DUFF & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Inc.
"EBITDA" means, for any period, consolidated net income
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plus provision for taxes of the Borrower and its Subsidiaries
(excluding extraordinary, unusual, or nonrecurring gains or losses),
plus interest expense of the Borrower and its Subsidiaries, plus
depreciation expense of the Borrower and its Subsidiaries, plus
amortization of intangibles of the Borrower and its Subsidiaries, as
determined on a consolidated basis in conformity with GAAP; provided
that to the extent that during such period the Borrower or any of its
Subsidiaries has acquired or disposed of a business or businesses in an
amount for any transaction or series of related transactions exceeding
$15,000,000, such calculations shall be made as if such acquisition or
disposition took place on the first day of such period (on a pro forma
basis for the portion of such period prior to the date of such
acquisition (or after the date of such disposition) and on an actual
basis for the portion of such period after the date of such acquisition
(or before the date of such disposition)).
"EFFECTIVE DATE" means the date on which the Distribution
occurs, as provided for in the Distribution Agreement, and the
conditions set forth in Section 3.02 are satisfied.
"EFFECTIVE TIME" means the time, immediately prior to the
Distribution Time, at which this Agreement shall become fully effective
upon satisfaction of the conditions precedent set forth in Section 3.02
hereof.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economical Cooperation and Development
(the "OECD"), or a political subdivision of any such country and having
a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the country
in which it is organized or another country which is also a member of
the OECD; and (iii) any Person engaged in the business of lending and
that is an Affiliate of a Lender or of a Person of which a Lender is a
Subsidiary.
"ENVIRONMENTAL LAW" means any and all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions of any federal, state or local governmental
authority within the United States or any State or territory thereof
and which relate to the environment or the release of any materials
into the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
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"ERISA AFFILIATE" means any Person who for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Code and the regulations promulgated and rulings issued thereunder.
"ERISA EVENT" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA (other than an event
arising out of the transactions contemplated by the Distribution
Agreement), unless the 30-day notice requirement with respect thereto
has been waived by the PBGC; (ii) the provision by the administrator of
any Pension Plan of a notice of intent to terminate such Pension Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(iii) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by the
Borrower or an ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (v) the failure by the Borrower or any
ERISA Affiliate to make a payment to a Pension Plan required under
Section 302(f)(1) of ERISA, which Section imposes a lien for failure to
make required payments; (vi) the adoption of an amendment to a Pension
Plan requiring the provision of security to such Pension Plan, pursuant
to Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Pension Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which, in the
reasonable judgment of the Borrower, might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, a Pension Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on SCHEDULE I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE ADVANCE" means a Committed Advance which
bears interest as provided in Section 2.07(b) and/or a Bid Advance
which bears interest based on the Adjusted Eurodollar Rate as provided
in Section 2.03(a).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for any Eurodollar Rate Advance means the reserve percentage applicable
during such Interest Period (or if
16
more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirements (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for member banks in
the Federal Reserve System with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXHIBITGROUP" means Exhibitgroup Inc., a Delaware corporation
and wholly-owned subsidiary of the Borrower which operates part of the
Borrower's convention services business, and which shall be merged into
the Borrower pursuant to the Merger.
"EXISTING CREDIT AGREEMENT" means that certain amended and
restated credit agreement, dated as of December 15, 1993, by and among
the Borrower, certain of the Lenders, certain of the Exiting Banks, and
Citibank and B of A, as Agents, as such agreement has been and may be
amended from time to time.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FIXED RATE" means, for the period for each Fixed Rate Advance
comprising part of the same Bid Borrowing, the fixed interest rate per
annum determined for such Advance, as provided in Section 2.03(a).
"FIXED RATE ADVANCE" means a Bid Advance which bears interest
at a fixed rate per annum determined as provided in Section 2.03(a).
"FORM 8-K" means that certain Current Report on Form 8-K filed
by the Borrower with the SEC on June 13, 1996.
"FORM 10" means that certain Registration Statement on Form 10
originally filed by Newco with the SEC on June 5, 1996, as amended on
July 18, 1996.
17
"FUNDED DEBT" means outstanding Debt of the Borrower and its
Subsidiaries of the kind described in clauses (i), (ii) and (iii) of
the definition of Debt.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, which
are applicable to the circumstances as of the date of determination.
"HOSTILE ACQUISITION" means the acquisition of the capital
stock or other equity interests of a Person (the "Target") through a
tender offer or similar solicitation of the owners of such capital
stock or other equity interests which has not been approved (prior to
such acquisition) by resolutions of the Board of Directors of the
Target or by similar action if the Target is not a corporation and as
to which such approval has not been withdrawn.
"INSUFFICIENCY" means, with respect to any Pension Plan, the
amount, if any, of its unfunded benefit liabilities, as defined in
Section 4001(a)(18) of ERISA.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance, or on the date of continuation of
such Advance as a Eurodollar Rate Advance upon expiration of successive
Interest Periods applicable thereto, or on the date of Conversion of a
Base Rate Advance into a Eurodollar Rate Advance, and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may select in the Notice
of Borrowing or the Notice of Conversion/Continuation for such Advance;
provided, however, that:
(i) the Borrower may not select any Interest Period
which ends after the earliest Commitment Termination Date of
any Lender then in effect;
(ii) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of the
same duration; and
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, that if such
extension would cause the last day of such Interest Period to
occur in
18
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day.
"LENDERS" means the Banks listed on the signature pages hereof
and each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07 and, except when used in reference to a Committed Advance,
a Committed Borrowing, a Commitment or a related term, each Designated
Bidder.
"LEVEL" means ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4 or ▇▇▇▇▇ ▇,
as the case may be.
"LEVEL l" means that, as of any date of determination, the
Borrower's Long-Term Debt rating is equal to or higher than at least
two of the following: BBB+ from S&P, Baal from Moody's and/or BBB+ from
Duff & ▇▇▇▇▇▇.
"LEVEL 2" means that, as of any date of determination, the
Borrower's Long-Term Debt rating is equal to at least two of the
following: BBB from S&P, Baa2 from Moody's and/or BBB from Duff &
▇▇▇▇▇▇.
"LEVEL 3" means that, as of any date of determination, the
Borrower's Long-Term Debt rating is equal to at least two of the
following: BBB- from S&P, Baa3 from Moody's and/or BBB- from Duff &
▇▇▇▇▇▇.
"LEVEL 4" means that, as of any date of determination, the
Borrower's Long-Term Debt rating is equal to at least two of the
following: BB+ from S&P, Bal from Moody's and/or BB+ from Duff &
▇▇▇▇▇▇.
"LEVEL 5" means that, as of any date of determination, the
Borrower's Long-Term Debt rating is lower than at least two of the
following: BB+ from S&P, Bal from Moody's and/or BB+ from Duff &
▇▇▇▇▇▇.
"LIEN" means any lien, mortgage, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or
other title retention agreement and any lease in the nature thereof).
"LOAN DOCUMENTS" means this Agreement and the related
documents.
"LONG-TERM DEBT" means senior, unsecured, long term debt
securities of the Borrower.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U promulgated by the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"MATERIAL SUBSIDIARY" means any Subsidiary of the
19
Borrower having total assets in excess of $10,000,000.
"MERGER" means the merger, pursuant to the Distribution
Agreement, of the Borrower and Exhibitgroup, with the Borrower as the
surviving corporation.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate of the Borrower is making, or is obligated to make,
contributions or has within any of the preceding six plan years been
obligated to make or accrue contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is maintained for
employees of the Borrower or an ERISA Affiliate and at least one Person
other than the Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4063, 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"NET INCOME" means net income in accordance with GAAP.
"NET WORTH" means minority interests, preferred stock and
common stock and other equity, as shown on the consolidated balance
sheet of the Borrower and its Subsidiaries; provided that there shall
be excluded from the calculation of Net Worth any unrealized gains or
losses (net of taxes) on securities available for sale.
"NEWCO" means The Dial Corporation, a Delaware corporation,
which immediately prior to the Distribution shall be capitalized by the
Borrower with the assets and liabilities of the Consumer Products
Business pursuant to the Distribution Agreement.
"NEWCO COMMON STOCK" means the approximately 94.8 million
shares of common stock, par value of $0.01 per share, of Newco to be
issued pursuant to the Distribution.
"NEWCO CREDIT AGREEMENT" means the Credit Agreement dated as
of the Closing Date among the Borrower, the Banks and the Agents, which
shall not become effective until the Effective Time upon the
satisfaction or waiver of the terms and conditions contained therein
and which shall be assumed by Newco at the Distribution Time.
"NOTICE OF BID BORROWING" has the meaning specified in Section
2.03(a).
20
"NOTICE OF BORROWING" means a Notice of Committed Borrowing or
a Notice of Bid Borrowing, as the case may be.
"NOTICE OF COMMITTED BORROWING" has the meaning specified in
Section 2.02(a).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning specified
in Section 2.09.
"PAYMENT OFFICE" means the principal office of CUSA, located
on the date hereof at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Zone 1, Long Island
City, N.Y. 11120 (or such other place as the Administrative Agent may
designate by notice to the Borrower and the Lenders from time to time).
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
"PENSION PLAN" means a Single Employer Plan or a Multiple
Employer Plan or both.
"PERSON" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political
subdivision or agency thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event which,
after notice or lapse of time or both, would constitute an Event of
Default if that condition or event were not cured or removed within any
applicable grace or cure period.
"REFERENCE BANKS" means, B of A, Citibank, and Bank of
Montreal.
"REGISTER" has the meaning specified in Section 8.07(c).
"REQUISITE LENDERS" means at any time Lenders holding at least
66-2/3% of the then aggregate unpaid principal amount of the Committed
Advances held by Lenders, or, if no such principal amount is then
outstanding, Lenders having at least 66-2/3 % of the Commitments
(provided that, for purposes hereof, neither the Borrower, nor any of
its Affiliates, if a Lender, shall be included in (i) the Lenders
holding such amount of the Committed Advances or having such amount of
the Commitments or (ii) determining the aggregate unpaid principal
amount of the Committed Advances or the total Commitments).
"S&P" means Standard & Poor's Ratings Group, a
21
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies.
"SEC" means the Securities and Exchange Commission and any
successor agency.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and its ERISA Affiliates or (ii) was so maintained
and in respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4062 or 4069 of ERISA in the event such plan
has been or were to be terminated.
"SUBSIDIARY" of any Person means any corporation, association,
partnership or other business entity of which at least 50% of the total
voting power of shares of stock or other securities entitled to vote in
the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person or a combination thereof.
"SWAPS" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar
obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency.
"TERMINATION DATE" means, with respect to any Lender, the
earlier of (i) the Commitment Termination Date of such Lender and (ii)
the date of termination in whole of the Commitments of all Lenders
pursuant to Section 2.05 or 6.01.
"TOTAL UTILIZATION OF COMMITMENTS" means at any date of
determination the sum of (i) the aggregate principal amount of all
Committed Advances outstanding at such date plus (ii) the aggregate
principal amount of all Bid Advances outstanding at such date.
"TYPE" means, with reference to an Advance, a Base Rate
Advance, a Eurodollar Rate Advance, or a Fixed Rate Advance.
"WITHDRAWAL LIABILITY" has the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms
22
not specifically defined herein shall be construed in accordance with GAAP. All
computations determining compliance with financial covenants or terms, including
definitions used therein, shall be prepared in accordance with generally
accepted accounting principles in effect at the time of the preparation of, and
in conformity with those used to prepare, the historical financial statements
delivered to the Lenders pursuant to Section 4.01(e). If at any time the
computations for determining compliance with financial covenants or provisions
relating thereto utilize generally accepted accounting principles different than
those then being utilized in the financial statements being delivered to the
Lenders, such financial statements shall be accompanied by a reconciliation
statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE COMMITTED ADVANCES.
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Committed Advances to the Borrower from
time to time on any Business Day during the period from the Effective
Date until the Termination Date of such Lender in an aggregate amount
not to exceed at any time outstanding the amount set opposite such
Lender's name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 8.07(c), as such amount may be reduced pursuant to Section 2.04
(such Lender's "Commitment"); provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time to
the extent of the aggregate amount of the Bid Advances and such deemed
use of the aggregate amount of the Commitments shall be applied to the
Lenders ratably according to their respective Commitments (such deemed
use of the aggregate amount of the Commitments resulting from the Bid
Advances being the "Bid Reduction"); provided further that (i) in no
event shall the aggregate principal amount of Committed Advances from
any Lender outstanding at any time exceed its Commitment then in effect
and (ii) the Total Utilization of Commitments shall not exceed the
aggregate Commitments then in effect.
(b) Each Committed Borrowing shall be in an aggregate amount
not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof and shall consist of Committed Advances of the same Type
made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment,
the Borrower may from time to time borrow, prepay pursuant to Section
2.06(c) and reborrow under this Section 2.01.
23
SECTION 2.02. MAKING THE COMMITTED ADVANCES.
(a) Each Committed Borrowing shall be made on notice, given
not later than (x) 11:00 A.M. (New York City time) on the date of a
proposed Committed Borrowing consisting of Base Rate Advances and (y)
11:00 A.M. (New York City time) on the third Business Day prior to the
date of a proposed Committed Borrowing consisting of Eurodollar Rate
Advances, by the Borrower to the Administrative Agent, which shall give
to each Lender prompt notice thereof by telecopier, telex or cable.
Each such notice of a Committed Borrowing (a "Notice of Committed
Borrowing") shall be by telecopier, telex or cable, confirmed
immediately in writing, in substantially the form of EXHIBIT A-1
hereto, specifying therein the requested (i) date of such Committed
Borrowing, (ii) Type of Committed Advances comprising such Committed
Borrowing, (iii) aggregate amount of such Committed Borrowing, and (iv)
in the case of a Committed Borrowing comprised of Eurodollar Rate
Advances, the initial Interest Period for each such Committed Advance.
The Borrower may, subject to the conditions herein provided, borrow
more than one Committed Borrowing on any Business Day. Each Lender
shall, before 2:00 P.M. (New York City time) in the case of a Committed
Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New
York City time) in the case of a Committed Borrowing consisting of
Eurodollar Rate Advances, in each case on the date of such Committed
Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at its address referred to in
Section 8.02, in same day funds, such Lender's ratable portion of such
Committed Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to
the Borrower at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) the Borrower may not select Eurodollar Rate
Advances for any Committed Borrowing or with respect to the
Conversion or continuance of any Committed Borrowing if the
aggregate amount of such Committed Borrowing or such
Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest
Periods relating to Committed Borrowings consisting of
Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one
24
Business Day before the date of any requested Committed
Borrowing, notify the Administrative Agent that the
introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or that any central
bank or other governmental authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances
hereunder, the Commitment of such Lender to make Eurodollar
Rate Advances or to Convert all or any portion of Base Rate
Advances shall forthwith be suspended until the Administrative
Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no
longer exist and such Lender's then outstanding Eurodollar
Rate Advances, if any, shall be Base Rate Advances; to the
extent that such affected Eurodollar Rate Advances become Base
Rate Advances, all payments of principal that would have been
otherwise applied to such Eurodollar Rate Advances shall be
applied instead to such Lender's Base Rate Advances; provided
that if Requisite Lenders are subject to the same illegality
or assertion of illegality, then the right of the Borrower to
select Eurodollar Rate Advances for such Committed Borrowing
or any subsequent Committed Borrowing or to Convert all or any
portion of Base Rate Advances shall forthwith be suspended
until the Administrative Agent shall notify the Borrower that
the circumstances causing such suspension no longer exist, and
each Committed Advance comprising such Committed Borrowing
shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the
Adjusted Eurodollar Rate for any Eurodollar Rate Advances
comprising any requested Committed Borrowing, the right of the
Borrower to select Eurodollar Rate Advances for such Committed
Borrowing or any subsequent Committed Borrowing shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist, and each Advance comprising such
Committed Borrowing shall be made as a Base Rate Advance; and
(v) if the Requisite Lenders shall, at least one
Business Day before the date of any requested Committed
Borrowing, notify the Administrative Agent that the Adjusted
Eurodollar Rate for Eurodollar Rate Advances comprising such
Committed Borrowing will not adequately reflect the cost to
such Requisite Lenders of making, funding
25
or maintaining their respective Eurodollar Rate Advances for
such Committed Borrowing, the right of the Borrower to select
Eurodollar Rate Advances for such Committed Borrowing or any
subsequent Committed Borrowing shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer
exist, and each Committed Advance comprising such Committed
Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of Committed Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Committed Borrowing
which the related Notice of Committed Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender
as part of such Committed Borrowing or by reason of the termination of
hedging or other similar arrangements, in each case when such Advance
is not made on such date (other than by reason of (i) a breach of a
Lender's obligations hereunder or (ii) a suspension of Eurodollar Rate
Advances under clauses (iii), (iv) or (v) of paragraph (b) of this
Section 2.02), including without limitation, as a result of any failure
to fulfill on or before the date specified in such Notice of Committed
Borrowing for such Committed Borrowing the applicable conditions set
forth in Article III.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Committed Borrowing that such
Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Committed
Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Committed Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay
to the Administrative Agent such
26
corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Committed Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Committed Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such
other Lender on the date of any Committed Borrowing.
SECTION 2.03. MAKING THE BID ADVANCES.
(a) Each Lender severally agrees that the Borrower may make
Bid Borrowings in Dollars under this Section 2.03 from time to time on
any Business Day during the period from the Effective Date until the
date occurring one month prior to the Termination Date, in the manner
set forth below; provided that, after giving effect to the making of
each Bid Borrowing, the Total Utilization of Commitments shall not
exceed the aggregate Commitments then in effect and the aggregate
amount of the Bid Advances of all Lenders then outstanding shall not
exceed the aggregate Commitments then in effect.
(i) The Borrower may request a Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent,
by telecopier, telex or cable, confirmed immediately in
writing, a notice of a Bid Borrowing (a "Notice of Bid
Borrowing"), in substantially the form of EXHIBIT A-2 hereto,
specifying the date and aggregate amount of the proposed Bid
Borrowing, the maturity date for repayment of each Bid Advance
to be made as part of such Bid Borrowing (which maturity date
may not be earlier than the date occurring thirty (30) days
(in the case of Fixed Rate Advances) or one (1) month (in the
case of Eurodollar Rate Advances) after the date of such Bid
Borrowing, or in any case later than the Termination Date),
whether the Lenders should offer to make Fixed Rate Advances
or Eurodollar Rate Advances, the interest payment date or
dates relating thereto, and any other terms to be applicable
to such Bid Borrowing, not later than 10:00 A.M. (New York
City time) (A) at least one (1) Business Day prior to the date
of a proposed Bid Borrowing consisting of Fixed Rate Advances
and (B) at least four (4) Business Days prior to the date of a
proposed Bid Borrowing consisting of Eurodollar Rate Advances.
The Administrative Agent shall in turn promptly notify each
Lender of each request for a Bid Borrowing received by it from
the Borrower by sending such Lender a copy of the related
Notice of Bid Borrowing.
27
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Bid
Advances to the Borrower as part of such proposed Bid
Borrowing at a Fixed Rate or Rates or a margin or margins
relative to the Adjusted Eurodollar Rate, as requested by the
Borrower. Each Lender electing to make such an offer shall do
so by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 A.M. (New
York City time) (A) the date of such proposed Bid Borrowing,
in the case of a Notice of Bid Borrowing delivered pursuant to
clause (A) of paragraph (i) above and (B) three (3) Business
Days before the date of such proposed Bid Borrowing, in the
case of a Notice of Bid Borrowing delivered pursuant to clause
(B) of paragraph (i) above, of the amount of each Bid Advance
which such Lender would be willing to make as part of such
proposed Bid Borrowing (which amount may, subject to the
proviso to the first sentence of this Section 2.03(a), exceed
such Lender's Commitment, if any), the Fixed Rate or Rates or
margin or margins relative to the Adjusted Eurodollar Rate, as
requested by the Borrower, which such Lender would be willing
to accept for such Bid Advance and such Lender's Applicable
Lending Office with respect to such Bid Advance; provided that
if the Administrative Agent in its capacity as a Lender, or
any affiliate of the Administrative Agent in its capacity as a
Lender, shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:00
A.M. (New York City time) on the date on which notice of such
election is to be given to the Agent by the other Lenders.
(iii) The Borrower, in turn, (A) before 12:00 P.M.
(New York City time) the date of such proposed Bid Borrowing,
in the case of a Notice of Bid Borrowing delivered pursuant to
clause (A) of paragraph (i) above and (B) before 12:00 Noon
(New York City time) three (3) Business Days before the date
of such proposed Bid Borrowing, in the case of a Notice of Bid
Borrowing delivered pursuant to clause (B) of paragraph (i)
above, either
(x) cancel such Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii)
above, in its sole discretion, by giving notice to
the Administrative Agent of the amount of each Bid
Advance to be made by each
28
Lender as part of such Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative
Agent notice to that effect; provided that acceptance
of offers may only be made on the basis of ascending
rates for Bid Borrowings of the same Type and
duration; and provided further that the Borrower may
not accept offers in excess of the aggregate amount
requested in the Notice of Bid Borrowing; and
provided further still if offers are made by two or
more Lenders for the same Type of Bid Borrowing for
the same duration and with the same rate of interest,
in an aggregate amount which is greater than the
amount requested, such offers shall be accepted on a
pro rata basis in proportion to the amount of the
offer made by each such Lender.
(iv) If the Borrower notifies the Administrative
Agent that such Bid Borrowing is cancelled pursuant to
paragraph (iii)(x) above, the Administrative Agent shall give
prompt notice thereof to the Lenders and such Bid Borrowing
shall not be made.
(v) If the Borrower accepts (which acceptance may not
be revoked) one or more of the offers made by any Lender or
Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each
Lender that has made an offer as described in paragraph (ii)
above, of the date and aggregate amount of such Bid Borrowing
and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the
Borrower, (B) each Lender that is to make a Bid Advance as
part of such Bid Borrowing, of the amount of each Bid Advance
to be made by such Lender as part of such Bid Borrowing, and
(C) each Lender that is to make a Bid Advance as part of such
Bid Borrowing, upon receipt, that the Administrative Agent has
received forms of documents appearing to fulfill the
applicable conditions set forth in Article III.
(b) Each Lender that is to make a Bid Advance as part of a Bid
Borrowing shall, before 1:00 P.M. (New York City time) on the date of
such Bid Borrowing specified in the Notice of Bid Borrowing relating
thereto, make available for the account of its Applicable Lending
Office to the Administrative Agent at such account maintained at the
Payment Office for Dollars as shall have been notified by the
Administrative Agent to the Lenders prior thereto and in same day
funds, such Lender's portion of such Bid
29
Borrowing. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of such
funds, the Administrative Agent will make such funds available to the
Borrower requesting a Bid Advance at the aforesaid applicable Payment
Office. Promptly after each Bid Borrowing the Administrative Agent will
notify each Lender of the amount of the Bid Borrowing, the consequent
Bid Reduction and the dates upon which such Bid Reduction commenced and
will terminate. The Borrower shall indemnify each Lender which is to
make a Bid Advance (as a result of the acceptance by the Borrower of
one or more offers by such Lender) as part of a Bid Borrowing against
any loss, cost or expense incurred by such Lender by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Bid Advance to be made by such Lender as part of
such Bid Borrowing or by reason of the termination of hedging or other
similar arrangements, in each case when such Bid Advance is not made on
such date (other than by reason of a breach of a Lender's obligations
hereunder), including without limitation, as a result of any failure to
fulfill on or before the date specified in such notice of Bid Borrowing
for such Bid Borrowing the applicable conditions set forth in Article
III.
(c) Each Bid Borrowing shall be in an aggregate principal
amount of not less than $5,000,000 with increments of $1,000,000 and,
following the making of each Bid Borrowing, the Borrower and each
Lender shall be in compliance with the limitations set forth in the
proviso to the first sentence of subsection (a) above.
(d) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (e) below, and
reborrow under this Section 2.03; provided that a Notice of Bid
Borrowing shall not be given within seven (7) Business Days of the date
of any other Notice of Bid Borrowing.
(e) The Borrower shall repay to the Administrative Agent for
the account of each Lender which has made, or holds the right to
repayment of, a Bid Advance to such Borrower on the maturity date of
each Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Bid Advance in the related Notice of Bid
Borrowing delivered pursuant to subsection (a)(i) above) the then
unpaid principal amount of such Bid Advance. The Borrower shall not
have the right to prepay any principal amount of any Bid Advance
unless, and then only on the terms, specified by the Borrower for such
Bid Advance in the related Notice of Bid Borrowing delivered pursuant
to subsection (a)(i) above.
(f) The Borrower shall pay interest on the unpaid
30
principal amount of each Bid Advance from the date of such Bid Advance
to the date the principal amount of such Bid Advance is repaid in full,
at the rate of interest for such Bid Advance specified by the Lender
making such Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment
date or dates specified by the Borrower for such Bid Advance in the
related Notice of Bid Borrowing delivered pursuant to subsection (a)(i)
above; provided that any principal amount of any Bid Rate Advance which
is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest from the date on which such amount is
due until such amount is paid in full, payable on demand, at a rate per
annum equal at all times to (A) until the scheduled maturity date of
such Bid Advances, the greater of (x) 2% per annum above the Base Rate
in effect from time to time and (y) 2% per annum above the rate per
annum required to be paid on such amount immediately prior to the date
on which such amount became due, and (B) from and after the scheduled
maturity date of such Bid Advances, 2% per annum above the Base Rate in
effect from time to time.
SECTION 2.04. FEES.
(a) FACILITY FEES. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender (other than the
Designated Bidders) a facility fee on such Lender's daily average
Commitment, whether used or unused and without giving effect to any Bid
Reduction, from the Effective Date in the case of each Lender and from
the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date of such Lender, payable quarterly in arrears on the
last day of each March, June, September and December during the term of
such Lender's Commitment, commencing September 30, 1996, and on the
Termination Date of such Lender, in an amount equal to the product of
(i) such Lender's daily average Commitment, whether used or unused and
without giving effect to any Bid Reduction, in effect during the period
for which such payment that is to be made times (ii) the weighted
average rate per annum that is derived from the following rates: (a) a
rate of 0.10% per annum with respect to each day during such period
that the ratings with respect to Long-Term Debt were at ▇▇▇▇▇ ▇, (▇) a
rate of 0.110% per annum with respect to each day during such period
that such ratings were at Level 2, (c) a rate of 0.125% per annum with
respect to each day during such period that such ratings were at
▇▇▇▇▇ ▇, (▇) a rate of 0.1875% per annum with respect to each day
during such period that such ratings were at ▇▇▇▇▇ ▇, and (e) at the
rate of 0.2500% per annum with respect to each day during such period
that such ratings were at Level 5. If any change in the rating
established by S&P, ▇▇▇▇▇'▇ or ▇▇▇▇ & ▇▇▇▇▇▇ with
31
respect to Long-Term Debt shall result in a change in the Level, the
change in the commitment fee shall be effective as of the date on which
such rating change is publicly announced. If the ratings established by
any two of S&P, ▇▇▇▇▇'▇ or Duff & ▇▇▇▇▇▇ with respect to Long-Term Debt
are unavailable for any reason for any day, then the applicable level
for purposes of calculating the commitment fee for such day shall be
deemed to be ▇▇▇▇▇ ▇ (or, if the Requisite Lenders consent in writing,
such other Level as may be reasonably determined by the Requisite
Lenders from a rating with respect to Long-Term Debt for such day
established by another rating agency reasonably acceptable to the
Requisite Lenders).
(b) BID ADVANCE ADMINISTRATION FEE. The Borrower agrees to pay
the Administrative Agent for its own account a handling fee as set
forth in that certain fee letter dated July 24, 1996 between the
Administrative Agent and the Borrower in connection with each request
for a Bid Advance pursuant to Section 2.03.
(c) AGENTS' FEES. The Borrower agrees to pay to each of the
Agents the fees payable to each such Agent pursuant to the fee letters
dated as of July 24, 1996 between the Borrower and CUSA and the fee
letter dated as of July 9, 1996 between the Borrower and B of A, in the
amounts and at the times specified in each of such letters.
(d) ADDITIONAL FEES. In the event the Effective Date has not
occurred on or before September 30, 1996, the Borrower agrees to pay to
the Administrative Agent for account of each Lender the fees payable to
such Lenders pursuant to that certain fee letter dated as of July 24,
1996 between the Borrower and the Administrative Agent.
SECTION 2.05. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) MANDATORY TERMINATION. In the event that a mandatory
prepayment in full of the Advances is required by the Requisite Lenders
pursuant to Section 2.06(b) (whether or not there are Advances
outstanding), the Commitments of the Lenders shall immediately
terminate.
(b) OPTIONAL REDUCTIONS. The Borrower shall have the right,
upon at least three (3) Business Days' notice to the Administrative
Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders; provided that
(i) each partial reduction shall be in the aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, and
(ii) the aggregate of the Commitments of the Lenders shall not be
reduced to an amount which is less than the Total Utilization of
32
Commitments.
(c) NO REINSTATEMENT. Once so reduced or terminated pursuant
to this Section 2.05, Commitments of the Lenders shall not be
reinstated.
SECTION 2.06. REPAYMENT AND PREPAYMENT OF ADVANCES.
(a) MANDATORY REPAYMENT ON CERTAIN DATE. The Borrower shall
repay the outstanding principal amount of (i) each Committed Advance
made by each Lender on the Termination Date of such Lender, and (ii)
each Bid Advance at the maturity date specified in the Notice of Bid
Borrowing.
(b) MANDATORY PREPAYMENT IN CERTAIN EVENTS. If any one of the
following events shall occur:
(i) any Person or Persons acting in concert shall
acquire beneficial ownership of more than 40% of the
Borrower's voting stock; or
(ii) during any period of up to 12 months,
individuals who at the beginning of such period were directors
of the Borrower shall cease to constitute a majority of the
Borrower's board of directors; or
(iii) any Debt which is outstanding in a principal
amount of at least $15,000,000 in the aggregate (but excluding
Debt arising under this Agreement) of the Borrower or any of
its Subsidiaries (as the case may be) shall be required to be
prepaid (other than by a regularly scheduled required
prepayment or by a required prepayment of insurance proceeds
or by a required prepayment as a result of formulas based on
asset sales or excess cash flow), redeemed, purchased or
defeased, or an offer to prepay, redeem, purchase or defease
such Debt shall be required to be made, in each case prior to
the stated maturity thereof (other than as set forth in
Section 6.01(d));
then, and in any such event, if the Administrative Agent shall have
received notice from the Requisite Lenders that they elect to have the
Advances prepaid in full and the Administrative Agent shall have
provided notice to the Borrower that the Advances are to be prepaid in
full, the Borrower shall immediately prepay in full the Advances,
together with interest accrued to the date of prepayment and will
reimburse the Lenders in respect thereof pursuant to Section 8.04(b).
(c) VOLUNTARY PREPAYMENTS OF COMMITTED BORROWINGS.
(i) The Borrower shall have no right to prepay any
principal amount of any Advances other than as provided in
this subsection (c).
33
(ii) The Borrower may, upon notice to the
Administrative Agent no later than 11:00 A.M. (New York time)
(i) on the date the Borrower proposes to prepay Committed
Advances in the case of Base Rate Advances and (ii) at least
two (2) Business Days' notice to the Administrative Agent in
the case of Eurodollar Rate Advances, stating the proposed
date and aggregate principal amount of the prepayment, and if
such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part
of the same Committed Borrowing in whole or ratably in part;
provided, however, that (x) each partial prepayment shall be
in an aggregate principal amount not less than $5,000,000 and
integral multiples of $1,000,000 in excess thereof, and (y) in
the case of any such prepayment of any Eurodollar Rate
Advance, the Borrower shall pay all accrued interest to the
date of such prepayment on the portion of such Eurodollar Rate
Advance being prepaid and shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(b).
(d) NO PREPAYMENT OF BID BORROWINGS. The Borrower shall have
no right to prepay any principal amount of any Bid Advances.
SECTION 2.07. INTEREST ON COMMITTED ADVANCES. The Borrower shall pay to
each Lender interest accrued on the principal amount of each Committed Advance
outstanding from time to time from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) BASE RATE ADVANCES. If such Committed Advance is a Base
Rate Advance, a rate per annum equal at all times to (i) the Base Rate
in effect from time to time plus (ii) the Applicable Margin, if any,
payable quarterly in arrears on the last day of each March, June,
September and December during the term of this Agreement, commencing
September 30, 1996, and on the Termination Date of the applicable
Lender; provided that any amount of principal, interest, fees and other
amounts payable under this Agreement (including, without limitation,
the principal amount of Base Rate Advances, but excluding the principal
amount of Eurodollar Rate Advances) which is not paid when due (whether
at stated maturity, by acceleration or otherwise) shall bear interest
from the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal at all times to 2%
per annum above the Base Rate in effect from time to time.
(b) EURODOLLAR RATE ADVANCES. If such Committed Advance is a
Eurodollar Rate Advance, a rate per annum
34
equal at all times during the Interest Period for such Advance to the
sum of (i) the Adjusted Eurodollar Rate for such Interest Period plus
(ii) the Applicable Margin, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on the day which occurs during such Interest Period
three months from the first day of such Interest Period; provided that
any principal amount of any Eurodollar Rate Advance which is not paid
when due (whether at stated maturity, by acceleration or otherwise)
shall bear interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per annum
equal at all times to (A) during the Interest Period applicable to such
Eurodollar Rate Advance, the greater of (x) 2% per annum above the Base
Rate in effect from time to time and (y) 2% per annum above the rate
per annum required to be paid on such amount immediately prior to the
date on which such amount became due and (B) after the expiration of
such Interest Period, 2% per annum above the Base Rate in effect from
time to time.
SECTION 2.08. INTEREST RATE DETERMINATION.
(a) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining
each Adjusted Eurodollar Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Administrative
Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks, subject
to Section 2.02(b)(iv).
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by
the Administrative Agent for purposes of Section 2.07(a) or 2.07(b),
and the applicable rate, if any, furnished by each Reference Bank for
the purpose of determining the applicable interest rate under Section
2.07(b).
SECTION 2.09. VOLUNTARY CONVERSION OR CONTINUATION OF COMMITTED
ADVANCES.
(a) The Borrower may on any Business Day, upon notice given to
the Administrative Agent not later than 12:00 noon (New York City time)
on the third Business Day prior to the date of the proposed Conversion
or continuance (a "Notice of Conversion/Continuation") and subject to
the provisions of Section 2.02(b), (1) Convert all Committed Advances
of one Type comprising the same Committed Borrowing into Advances of
another Type and (2) upon the expiration of any Interest Period
applicable to Committed Advances which are Eurodollar Rate Advances,
continue all (or, subject to Section 2.02(b), any portion of) such
Advances as Eurodollar
35
Rate Advances and the succeeding Interest Period(s) of such continued
Advances shall commence on the last day of the Interest Period of the
Advances to be continued; provided, however, that any Conversion of any
Eurodollar Rate Advances into Base Rate Advances shall be made on, and
only on, the last day of an Interest Period for such Eurodollar Rate
Advances. Each such Notice of Conversion/Continuation shall, within the
restrictions specified above, specify (i) the date of such continuation
or Conversion, (ii) the Committed Advances (or, subject to Section
2.02(b), any portion thereof) to be continued or Converted, (iii) if
such continuation is of, or such Conversion is into, Eurodollar Rate
Advances, the duration of the Interest Period for each such Committed
Advance, and (iv) in the case of a continuation of or a Conversion into
a Eurodollar Rate Advance, that no Potential Event of Default or Event
of Default has occurred and is continuing.
(b) If upon the expiration of the then existing Interest
Period applicable to any Committed Advance which is a Eurodollar Rate
Advance, the Borrower shall not have delivered a Notice of
Conversion/Continuation in accordance with this Section 2.09, then such
Advance shall upon such expiration automatically be Converted to a Base
Rate Advance.
(c) After the occurrence of and during the continuance of a
Potential Event of Default or an Event of Default, the Borrower may not
elect to have an Advance be made or continued as, or Converted into, a
Eurodollar Rate Advance after the expiration of any Interest Period
then in effect for that Advance.
SECTION 2.10. INCREASED COSTS.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve
requirements in the case of Eurodollar Rate Advances included in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the cost to
any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account
of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A reasonably detailed certificate as to the
amount and manner of calculation of such increased cost, submitted to
the Borrower and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
36
(b) If any Lender (other than Designated Bidders) determines
that compliance with any law or regulation or any guideline or request
from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to
lend hereunder and other commitments of this type, then, upon demand by
such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall immediately pay to the Administrative Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such
Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A
reasonably detailed certificate as to such amounts and the manner of
calculation thereof submitted to the Borrower and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) If a Lender shall change its Applicable Lending Office,
such Lender shall not be entitled to receive any greater payment under
Sections 2.10 and 2.12 than the amount such Lender would have been
entitled to receive if it had not changed its Applicable Lending
Office, unless such change was made at the request of the Borrower or
at a time when the circumstances giving rise to such greater payment
did not exist.
SECTION 2.11. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder not later
than 1:00 P.M. (New York City time) on the day when due in Dollars to
the Administrative Agent at its address referred to in Section 8.02 in
same day funds. Subject to the immediately succeeding sentence, the
Administrative Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or
commitment fees ratably (other than amounts payable pursuant to Section
2.10 or 2.12 or, to the extent the Termination Date is not the same for
all Lenders, pursuant to Section 2.06(a)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to
such Lender for the account of its Applicable Lending Office, in each
case to be applied in accordance with the terms of this Agreement. Upon
receipt of principal or interest paid after an Event of Default and an
acceleration or a deemed acceleration of amounts due
37
hereunder, the Administrative Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or
interest ratably in accordance with each Lender's outstanding Advances
(other than amounts payable pursuant to Section 2.10 or 2.12) to the
Lenders for the account of their respective Applicable Lending Offices.
Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section
8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on
the Adjusted Eurodollar Rate, the Federal Funds Rate or the Fixed Rate
and of commitment fees shall be made by the Administrative Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the
period for which such interest or such fees are payable. Each
determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes. absent manifest
error.
(c) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or
commitment fee, as the case may be; provided, however, if such
extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that the Borrower
shall not have so made such payment in
38
full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal Funds
Rate.
SECTION 2.12. TAXES.
(a) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding (i) in the case of each Lender and each Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or such Agent (as the
case may be) is organized or any political subdivision thereof or in
which its principal office is located, (ii) in the case of each Lender
taxes imposed on its net income, and franchise taxes imposed on it, by
the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof and (iii) in the case of each Lender and
each Agent, taxes imposed by the United States by means of withholding
at the source if and to the extent that such taxes shall be in effect
and shall be applicable on the date hereof in the case of each Bank and
on the effective date of the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender, on payments
to be made to the Agents or such Lender's Applicable Lending Office
(all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or either Agent, (i)
the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender or such
Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
39
(c) The Borrower will indemnify each Lender and each Agent for
the full amount of Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section 2.12) paid by such Lender or such Agent (as the case
may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Lender or such Agent
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower (but only so long as such Lender
remains lawfully able to do so), shall provide the Borrower with
Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States. If the form
provided by a Lender at the time such Lender first becomes a party to
this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 2.12(a).
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section
2.12(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first
sentence of subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.12(a) with respect to Taxes imposed by
the United States; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall, at the expense of such Lender, take such
steps as the
40
Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.12 shall survive the payment in
full of principal and interest hereunder.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of the Advances made by it (other than pursuant
to Section 2.10 or 2.12 or, to the extent the Termination Date is not the same
for all Lenders, pursuant to Section 2.06(a)) in excess of its ratable share of
payments on account of the Committed Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Committed Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.14. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Advance owing to such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together)
shall be recorded (i) the date, amount and tenor, as applicable, of
each Borrowing, the Type of Advances comprising such Borrowing and the
Interest Period applicable thereto,
41
(ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
hereunder, and (iv) the amount of any sum received by the
Administrative Agent from the Borrower hereunder and each Lender's
share thereof.
(c) The entries made in the Register shall be conclusive and
binding for all purposes, absent manifest error.
(d) If, in the opinion of any Lender, a promissory note or
other evidence of debt is required, appropriate or desirable to reflect
or enforce the indebtedness of the Borrower resulting from the
Committed Advances or Bid Advances made, or to be made, by such Lender
to the Borrower, then, upon request of such Lender, the Borrower shall
promptly execute and deliver to such Lender a promissory note
substantially in the form of EXHIBIT G-1 in the case of Committed
Advances and EXHIBIT G-2 in the case of Bid Advances, payable to the
order of such Lender in an amount up to the maximum amount of Committed
Advances or Bid Advances, as the case may be, payable or to be payable
by such Borrower to the Lender from time to time hereunder.
SECTION 2.15. USE OF PROCEEDS.
(a) Advances shall be used by the Borrower for commercial
paper backup and for general corporate purposes; provided that proceeds
of Advances and proceeds of commercial paper as to which this Agreement
provides backup shall not be used for any Hostile Acquisition.
(b) No portion of the proceeds of any Advances under this
Agreement shall be used by the Borrower or any of its Subsidiaries in
any manner which might cause the Advances or the application of such
proceeds to violate, or require any Lender to make any filing or take
any other action under, Regulation G, Regulation U, Regulation T, or
Regulation X of the Board of Governors of the Federal Reserve System or
any other regulation of such Board or to violate the Securities
Exchange Act of 1934, in each case as in effect on the date or dates of
such Advances and such use of proceeds.
SECTION 2.16. EXTENSION OF THE COMMITMENT TERMINATION DATE. The
Borrower may not more than once in any calendar year and not later than 45 days
prior to an anniversary of the Effective Date, request that the Commitment
Termination Date of all Eligible Lenders (as defined below) be extended for a
period of one year by delivering to the Administrative Agent a signed copy of an
42
extension request (an "Extension Request") in substantially the form of EXHIBIT
E hereto. The Administrative Agent shall promptly notify each Eligible Lender of
its receipt of such Extension Request. On or prior to ten days prior to the
applicable anniversary of the Effective Date in each calendar year in which
there has been an Extension Request (the "Determination Date"), each Eligible
Lender shall notify the Administrative Agent and the Borrower of its willingness
or unwillingness to extend its Commitment Termination Date hereunder. Any
Eligible Lender that shall fail to so notify the Administrative Agent and the
Borrower on or prior to the Determination Date shall be deemed to have declined
to so extend. In the event that, on or prior to the Determination Date, Eligible
Lenders representing 66-2/3% or more of the aggregate amount of the Commitments
of all Eligible Lenders then in effect shall consent to such extension, upon
confirmation by the Administrative Agent of such consent, the Administrative
Agent shall so advise the Lenders and the Borrower, and, subject to execution of
documentation evidencing such extension and consents, the Commitment Termination
Date of each Eligible Lender (each a "Consenting Lender") that has consented on
or prior to the Determination Date to so extend shall be extended to the date
one year after the Commitment Termination Date of such Eligible Lender in
existence on the date of the related Extension Request. Thereafter, (i) for each
Consenting Lender, the term "Commitment Termination Date" shall at all times
refer to such date, unless it is later extended pursuant to this Section 2.16,
and (ii) for each Lender that is not an Eligible Lender and for each Eligible
Lender that either has declined on or prior to the Determination Date to so
extend or is deemed to have so declined, the term "Commitment Termination Date"
shall at all times refer to the date which was the Commitment Termination Date
of such Lender immediately prior to the delivery to the Administrative Agent of
such Extension Request. In the event that, as of the Determination Date, the
Consenting Lenders represent less than 66-2/3% of the aggregate amount of the
Commitments of all Eligible Lenders then in effect, and the Agents confirm the
same, the Administrative Agent shall so advise the Lenders and the Borrower, and
none of the Lenders' Commitment Termination Dates shall be extended to the date
indicated in the Extension Request and each Lender's Commitment Termination Date
shall continue to be the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agents of such Extension
Request. For purposes of this Section 2.16, the term "Eligible Lenders" means,
with respect to any Extension Request, (i) all Lenders if no Lender's Commitment
Termination Date had been extended pursuant to this Section 2.16 prior to the
delivery to the Agents of such Extension Request, and (ii) in all other cases,
those Lenders which had extended their Commitment Termination Date in the most
recent extension of any Commitment Termination Date effected pursuant to this
Section 2.16.
43
SECTION 2.17. SUBSTITUTION OF LENDERS. If any Lender requests
compensation from the Borrower under Section 2.10(a) or (b) or Section 2.12 or
if any Lender declines to extend its Commitment Termination Date pursuant to
Section 2.16, the Borrower shall have the right, with the assistance of the
Agents, to seek one or more Eligible Assignees (which may be one or more of the
Lenders) reasonably satisfactory to the Agents and the Borrower to purchase the
Advances and assume the Commitments of such Lender, and the Borrower the Agents,
such Lender, and such Eligible Assignees shall execute and deliver an
appropriately completed Assignment and Acceptance pursuant to Section 8.07(a)
hereof to effect the assignment of rights to and the assumption of obligations
by such Eligible Assignees; provided that (i) such requesting Lender shall be
entitled to compensation under Section 2.10 and 2.12 for any costs incurred by
it prior to its replacement, (ii) no Event of Default, or event which with the
giving of notice or lapse of time or both would be an Event of Default, has
occurred and is continuing, (iii) the Borrower has satisfied all of its
obligations under the Loan Documents relating to such Lender, including without
limitation obligations, if any, under Section 8.04(b), and (iv) the Borrower
shall have paid the Administrative Agent a $3,000 administrative fee if such
replacement Lender is not an existing Lender.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. DOCUMENTS TO BE DELIVERED ON THE CLOSING DATE. The
Closing Date shall be deemed to have occurred when this Agreement shall have
been executed and delivered by the parties hereto and (a) the Agents shall have
received the following, each dated the Closing Date or within two days prior to
the Closing Date unless otherwise indicated, and each in form and substance
satisfactory to the Agents unless otherwise indicated and in sufficient copies
for each Lender:
(i) Copies of resolutions of the Board of Directors
of the Borrower (or its Executive Committee, together with
evidence of the authority of the Executive Committee)
approving this Agreement, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to this Agreement, certified as of a
recent date prior to the Closing Date.
(ii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the other documents to be delivered by the
Borrower hereunder.
(iii) Certified copies of the Borrower's
44
Certificate of Incorporation, together with good standing
certificates from the state of Delaware and the jurisdiction
of the Borrower's principal place of business, each to be
dated a recent date prior to the Closing Date;
(iv) Copies of the Borrower's Bylaws, certified as of
the Closing Date by their respective Secretary or an Assistant
Secretary;
(v) Executed originals of this Agreement and the
other documents to be delivered by the Borrower hereunder;
(vi) A favorable opinion of the General Counsel of
the Borrower, substantially in the form of EXHIBIT C-1 hereto;
(vii) A favorable opinion of O'Melveny & ▇▇▇▇▇ LLP,
counsel for the Agents, substantially in the form of EXHIBIT
D-1 hereto;
(viii) The Form 10, in the form filed with the SEC;
(ix) The Form 8-K, in the form filed with the SEC;
(x) A certificate of an authorized officer of the
Borrower to the effect that since December 31, 1995, there has
been no material adverse change in the operations, business or
financial or other condition or properties of the Borrower and
its Subsidiaries, taken as a whole and since March 31, 1996
there has been no material adverse change in the operations,
business or financial or other condition or properties of the
Borrower and its Subsidiaries, taken as a whole, in each case
on a pro forma basis after giving effect to the Distribution;
and
(xi) Evidence that the Newco Credit Agreement has
been duly executed and delivered and the Closing Date
thereunder has occurred; and
(b) the Agents shall have received such other approvals,
opinions or documents as the Requisite Lenders through the Agents may
reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO EFFECTIVE TIME. This Agreement
shall become fully effective pursuant to Section 8.06(b) at the Effective Time
on the Effective Date upon the satisfaction of, and the obligation of each
Lender to make its initial Advance is subject to, the conditions precedent that:
(a) the Agents shall have received on or before
45
the Effective Date the following, each dated the Effective Date unless
otherwise indicated, and each in form and substance satisfactory to the
Requisite Lenders and in sufficient copies for each Lender:
(i) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying that the documents,
certificates and statements referred to in Section 3.01(a)(i)
through (iv) remain in full force and effect and are true and
correct as of the Effective Date as if executed and made on
the Effective Date;
(ii) A favorable opinion of the General Counsel of
the Borrower, substantially in the form of EXHIBIT C-2 hereto;
(iii) A favorable opinion of O'Melveny & ▇▇▇▇▇ LLP,
counsel for the Agents, substantially in the form of EXHIBIT
D-2 hereto;
(iv) A certificate of an authorized officer of the
Borrower certifying that the statements made in the
certificate referred to in Section 3.01(a)(x) remain true and
correct as of the Effective Date;
(v) Evidence reasonably satisfactory to the Requisite
Lenders that the Distribution Agreement is in full force and
effect and has not been amended, supplemented, waived or
otherwise modified without the consent of Requisite Lenders,
and executed and conformed copies thereof (including all
exhibits and schedules thereto) and any amendments thereto and
all documents executed in connection therewith shall have been
delivered to Agents;
(vi) Evidence reasonably satisfactory to the
Requisite Lenders that the Merger has become effective and
that the Distribution will become effective immediately after
the Effective Time at the Distribution Time in accordance with
the terms and conditions of the Distribution Agreement;
(vii) Evidence that the SEC has declared the Form 10
effective;
(viii) Evidence reasonably satisfactory to the
Requisite Lenders that all approvals, permits, licenses,
authorizations and consents, if any, from any governmental or
regulatory authority necessary to effectuate the Distribution
have been duly obtained and are in full force and effect as of
the Effective Date;
46
(ix) Evidence that the Newco Credit Agreement has
become effective in accordance with the terms and conditions
set forth therein; and
(x) Letter agreements between the Borrower and the
Exiting Banks, reasonably satisfactory to the Requisite
Lenders terminating (1) all funding obligations and other
obligations of the Exiting Banks under the Existing Credit
Agreement upon the effectiveness of this Agreement, and (2)
all payment obligations and other obligations of the Borrower
under the Existing Credit Agreement to the Exiting Banks upon
the terms and conditions set forth in such letter agreements;
and
(b) the Agents shall have received the fees set forth in
Section 2.04(c) if such fees are payable to the Agents and the Banks on
or prior to the Effective Date; and
(c) the Agents shall have received such other approvals,
opinions or documents as the Requisite Lenders through the Agents may
reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH COMMITTED BORROWING. The
obligation of each Lender to make a Committed Advance on the occasion of a
Committed Borrowing (including the initial Committed Borrowing) shall be subject
to the further conditions precedent that (x) the Administrative Agent shall have
received a Notice of Committed Borrowing with respect thereto in accordance with
Section 2.02 and (y) on the date of such Borrowing (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing and
the acceptance by the Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing such statements are true):
(i) The representations and warranties of the
Borrower contained in Section 4.01 are correct on and as of
the date of such Borrowing, before and after giving effect to
such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, except to
the extent that any such representation or warranty expressly
relates only to an earlier date, in which case they were
correct as of such earlier date; and
(ii) No event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom, which constitutes an Event of Default,
or a Potential Event of Default; and
47
(b) the Agents shall have received such other approvals,
opinions or documents as the Requisite Lenders through the Agents may
reasonably request.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH BID BORROWING. The
obligation of each Lender to make a Bid Advance on the occasion of a Bid
Borrowing (including the initial Bid Borrowing) shall be subject to the further
conditions precedent that (x) the Administrative Agent shall have received a
Notice of Bid Borrowing with respect thereto in accordance with Section 2.03 and
(y) on the date of such Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Bid Borrowing and the acceptance
by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(i) The representations and warranties of the Borrower
contained in Section 4.01 are correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they were
correct as of such earlier date; and
(ii) No event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default, or a Potential Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) DUE ORGANIZATION, ETC. The Borrower and each Material
Subsidiary is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
The Borrower and each of its Material Subsidiaries are qualified to do
business in and are in good standing under the laws of each
jurisdiction in which failure to be so qualified would have a material
adverse effect on the Borrower and its Subsidiaries, taken as a whole.
(b) DUE AUTHORIZATION, ETC. The execution, delivery and
performance by the Borrower of this Agreement and the other Loan
Documents are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not
48
contravene (i) the Borrower's Certificate of Incorporation or (ii)
applicable law or any material contractual restriction binding on or
affecting the Borrower.
(c) GOVERNMENTAL CONSENT. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution,
delivery and performance by the Borrower of this Agreement and the
other Loan Documents.
(d) VALIDITY. This Agreement is the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms subject to the effect of applicable
bankruptcy, insolvency, arrangement, moratorium and other similar laws
affecting creditors' rights generally and to the application of general
principles of equity.
(e) CONDITION OF THE BORROWER. The consolidated balance sheet
of the Borrower and its Subsidiaries as at December 31, 1995, and the
related consolidated statements of income and retained earnings of the
Borrower and its Subsidiaries for the fiscal year then ended, copies of
which have been previously furnished to each Bank, and the pro forma
consolidated balance sheet of the Borrower and its Subsidiaries as at
March 31, 1996 and the pro forma statements of consolidated income of
the Borrower and its Subsidiaries for the three months ended March 31,
1996 and 1995 and for the year ended December 31, 1995, in each case
after giving effect to the Distribution, copies of which are contained
in the Form 8-K furnished to each Bank pursuant to Section 3.01(a)(ix),
fairly present the consolidated financial condition of the Borrower and
its Subsidiaries (on a pro forma basis after giving effect to the
Distribution with respect to such pro forma financial statements) as at
such date and the results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance
with GAAP consistently applied, and as of the Effective Date, there has
been no material adverse change in the business, condition (financial
or otherwise), operations or properties of the Borrower and its
Subsidiaries, taken as a whole, since March 31, 1996, after giving
effect to the Distribution.
(f) LITIGATION. (i) There is no pending action or proceeding
against the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, and (ii) to the knowledge of the
Borrower, there is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which in either case, in the
reasonable judgement of
49
the Borrower could reasonably be expected to materially adversely
affect the financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole, or with respect to actions of third
parties which purports to affect the legality, validity or
enforceability of this Agreement.
(g) MARGIN REGULATIONS. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any
Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock in any manner that violates, or would cause a violation of,
Regulation G, Regulation T, Regulation U or Regulation X. Less than 25
percent of the fair market value of the assets of (i) the Borrower or
(ii) the Borrower and its Subsidiaries consists of Margin Stock.
(h) PAYMENT OF TAXES. The Borrower and each of its
Subsidiaries have filed or caused to be filed all material tax returns
(federal, state, local and foreign) required to be filed and paid all
material amounts of taxes shown thereon to be due, including interest
and penalties, except for such taxes as are being contested in good
faith and by proper proceedings and with respect to which appropriate
reserves are being maintained by the Borrower or any such Subsidiary,
as the case may be.
(i) GOVERNMENTAL REGULATION. The Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act or the Investment
Company Act of 1940, each as amended, or to any Federal or state
statute or regulation limiting its ability to incur indebtedness for
money borrowed. No Subsidiary of the Borrower is subject to any
regulation that would limit the ability of the Borrower to enter into
or perform its obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in liability of
the Borrower or any of its ERISA Affiliates in excess of
$10,000,000 (or, in the case of an event described in clause
(v) of the definition of ERISA Event, $750,000) (other than
for premiums payable under Title IV of ERISA) has occurred or
is reasonably expected to occur with respect to any Pension
Plan.
(ii) Schedule B (Actuarial Information) to the most
recently completed annual report prior to
50
the Effective Date (Form 5500 Series) for each Pension Plan,
copies of which have been filed with the Internal Revenue
Service and furnished to the Agents, is complete and, to the
best knowledge of the Borrower, accurate, and since the date
of such Schedule B there has been no material adverse change
in the funding status of any such Pension Plan.
(iii) Neither the Borrower nor any ERISA Affiliate
has incurred, or, to the best knowledge of the Borrower, is
reasonably expected to incur, any Withdrawal Liability to any
Multiemployer Plan which has not been satisfied or which is or
might be in excess of $10,000,000.
(iv) Neither the Borrower nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and, to
the best knowledge of the Borrower, no Multiemployer Plan is
reasonably expected to be in reorganization or to be
terminated within the meaning of Title IV of ERISA.
(k) ENVIRONMENTAL MATTERS.
(i) The Borrower and each of its Subsidiaries is in
compliance in all material respects with all Environmental
Laws the non-compliance with which could reasonably be
expected to have a material adverse effect on the financial
condition or operations of the Borrower and its Subsidiaries,
taken as a whole, and (ii) there has been no "release or
threatened release of a hazardous substance" (as defined by
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq.) or
any other release, emission or discharge into the environment
of any hazardous or toxic substance, pollutant or other
materials from the Borrower's or its Subsidiaries' property
other than as permitted under applicable Environmental Law and
other than those which would not have a material adverse
effect on the financial condition or operations of the
Borrower and its Subsidiaries, taken as a whole. Other than
disposals (A) for which the Borrower has been indemnified in
full or (B) which would not have a material adverse effect on
the financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole, all "hazardous waste" (as
defined by the Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq. (1976) and the regulations thereunder, 40
CFR Part 261 ("RCRA")) generated at the Borrower's or any
Subsidiaries' properties have in the past been and
51
shall continue to be disposed of at sites which maintain valid
permits under RCRA and any applicable state or local
Environmental Law.
(l) DISCLOSURE. As of the Closing Date and as of the Effective
Date, to the best of the Borrower's knowledge, no representation or
warranty of the Borrower or any of its Subsidiaries contained in this
Agreement or any other Loan Document or statement made in the Form 10
(including all Exhibits thereto filed with the Securities and Exchange
Commission) or the Form 8-K or in any other document, certificate or
written statement furnished to the Banks by or on behalf of the
Borrower or any of its Subsidiaries contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements contained in such agreements, documents,
certificates and statements not misleading in light of the
circumstances in which the same were made.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will unless the Requisite Lenders shall otherwise consent in writing:
(a) COMPLIANCE WITH LAWS ETC. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, (i)
complying with all Environmental Laws and (ii) paying before the same
become delinquent all taxes, assessments and governmental charges
imposed upon it or upon its property except to the extent contested in
good faith, except where failure to so comply would not have a material
adverse effect on the business, condition (financial or otherwise),
operations or properties of the Borrower and its Subsidiaries, taken as
a whole.
(b) REPORTING REQUIREMENTS. Furnish to the Administrative
Agent (in sufficient quantity for delivery to each Lender) for prompt
distribution by the Administrative Agent to the Lenders and furnish to
the Documentation Agent:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, consolidated balance sheets as of
the end of such quarter and consolidated statements of source
and application of funds of the Borrower and its Subsidiaries
and consolidated statements
52
of income and retained earnings of the Borrower and its
Subsidiaries for such quarter and the period commencing at the
end of the previous fiscal year and ending with the end of
such quarter and certified by the chief financial officer or
chief accounting officer of the Borrower;
(ii) as soon as available and in any event within 120
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing financial statements (including a
consolidated balance sheet and consolidated statement of
income and cash flows of the Borrower and its Subsidiaries)
for such year, certified by and accompanied by an opinion of
Deloitte & Touche or other nationally recognized independent
public accountants. The opinion shall be unqualified (as to
going concern, scope of audit and disagreements over the
accounting or other treatment of offsets) and shall state that
such consolidated financial statements present fairly in all
material respects the financial position of the Borrower and
its Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the periods indicated in
conformity with GAAP and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted
auditing standards;
(iii) together with each delivery of the report of
the Borrower and its Subsidiaries pursuant to subsections (i)
and (ii) above, a Compliance Certificate for the year executed
by the chief financial officer or treasurer of the Borrower
demonstrating in reasonable detail compliance during and at
the end of such accounting periods with the restrictions
contained in Section 5.02(e) and (f) (and setting forth the
arithmetical computation required to show such compliance) and
stating that the signer has reviewed the terms of this
Agreement and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries during the
accounting period covered by such financial statements and
that such review has not disclosed the existence during or at
the end of such accounting period, and that the signer does
not have knowledge of the existence as at the date of the
compliance certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default
or, if any such
53
condition or event existed or exists, specifying the nature
and period of existence thereof and what action the Borrower
has taken, is taking and proposes to take with respect
thereto;
(iv) as soon as possible and in any event within five
days after the occurrence of each Event of Default and each
Potential Event of Default, continuing on the date of such
statement, a statement of an authorized financial officer of
the Borrower setting forth details of such Event of Default or
event and the action which the Borrower has taken and proposes
to take with respect thereto;
(v) promptly after any material change in accounting
policies or reporting practices, notice and a description in
reasonable detail of such change;
(vi) promptly and in any event within 30 days after
the Borrower or any ERISA Affiliate knows or has reason to
know that any ERISA Event referred to in clause (i) of the
definition of ERISA Event with respect to any Pension Plan has
occurred which might result in liability to the PBGC a
statement of the chief accounting officer of the Borrower
describing such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate has taken or proposes to take
with respect thereto;
(vii) promptly and in any event within 15 days after
the Borrower or any ERISA Affiliate knows or has reason to
know that any ERISA Event (other than an ERISA Event referred
to in (vi) above) with respect to any Pension Plan has
occurred which might result in liability to the PBGC in excess
of $100,000, a statement of the chief accounting officer of
the Borrower describing such ERISA Event and the action, if
any, that the Borrower or such ERISA Affiliate has taken or
proposes to take with respect thereto;
(viii) promptly and in any event within five Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate from the PBGC, copies of each notice from the PBGC
of its intention to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan;
(ix) promptly and in any event within 15 days after
receipt thereof by the Borrower or any ERISA Affiliate from
the sponsor of a
54
Multiemployer Plan, a copy of each notice received by the
Borrower or any ERISA Affiliate concerning (w) the imposition
of Withdrawal Liability by a Multiemployer Plan in excess of
$100,000, (x) the determination that a Multiemployer Plan is,
or is expected to be, in reorganization within the meaning of
Title IV of ERISA, (y) the termination of a Multiemployer Plan
within the meaning of Title IV of ERISA or (z) the amount of
liability incurred, or expected to be incurred, by the
Borrower or any ERISA Affiliate in connection with any event
described in clause (w), (x) or (y) above;
(x) promptly after the commencement thereof, notice
of all material actions, suits and proceedings before any
court or government department, commission, board, bureau,
agency or instrumentality, domestic or foreign, affecting the
Borrower or any of its Subsidiaries, of the type described in
Section 4.01(f);
(xi) promptly after the occurrence thereof, notice of
(A) any event which makes any of the representations contained
in Section 4.01(k) inaccurate in any material respect or (B)
the receipt by the Borrower of any notice, order, directive or
other communication from a governmental authority alleging
violations of or noncompliance with any Environmental Law
which could reasonably be expected to have a material adverse
effect on the financial condition of the Borrowers and its
Subsidiaries, taken as a whole;
(xii) promptly after any change in the rating
established by S&P, ▇▇▇▇▇'▇ or ▇▇▇▇ & ▇▇▇▇▇▇, as applicable,
with respect to Long-Term Debt, a notice of such change, which
notice shall specify the new rating, the date on which such
change was publicly announced, and such other information with
respect to such change as any Lender through either Agent may
reasonably request;
(xiii) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to any of its
public security holders, and copies of all reports and
registration statements which the Borrower files with the SEC
or any national security exchange;
(xiv) promptly after the Borrower or any ERISA
Affiliate creates any employee benefit plan to provide health
or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of the Borrower
or any of its ERISA Affiliates (except as provided in
55
Section 4980B of the Code and except as provided under the
terms of any employee welfare benefit plans provided pursuant
to the terms of collective bargaining agreements) under the
terms of which the Borrower and/or any of its ERISA Affiliates
are not permitted to terminate such benefits, a notice
detailing such plan; and
(xv) such other information respecting the condition
or operations, financial or otherwise, of the Borrower or any
of its Subsidiaries as any Lender through either Agent may
from time to time reasonably request.
(c) CORPORATE EXISTENCE, ETC. The Borrower will, and will
cause each of its Subsidiaries to, at all times preserve and maintain
its fundamental business and preserve and keep in full force and effect
its corporate existence (except as permitted under Section 5.02(b)
hereof) and all rights, franchises and licenses necessary or desirable
in the normal conduct of its business; provided, however, that this
paragraph (c) shall not apply in any case when, in the good faith
business judgment of the Borrower, such preservation or maintenance is
neither necessary nor appropriate for the prudent management of the
business of the Borrower.
(d) INSPECTION. The Borrower will permit and will cause each
of its Subsidiaries to permit any authorized representative designated
by either Agent or any Lender at the expense of such Agent or such
Lender, to visit and inspect any of the properties of the Borrower or
any of its Subsidiaries, including its and their financial and
accounting records, and to take copies and to take extracts therefrom,
and discuss its and their affairs, finances and accounts with its and
their officers and independent public accountants, all during normal
hours, upon reasonable notice and as often as may be reasonably
requested.
(e) INSURANCE. The Borrower will maintain and will cause each
of its Subsidiaries to maintain insurance to such extent and covering
such risks as is usual for companies engaged in the same or similar
business and on request will advise the Lenders of all insurance so
carried.
(f) TAXES. The Borrower will and will cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (x) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (y) all lawful claims
that, if unpaid, might by law become a lien upon their property;
provided, however, that neither the Borrower nor any such Subsidiary
shall be required to pay or discharge any such tax, assessment, charge
or levy (A)
56
that is being contested in good faith and by proper proceedings and for
which appropriate reserves are being maintained, or (B) the failure to
pay or discharge which would not have a material adverse effect on the
financial condition or operations of the Borrower and its Subsidiaries
taken as a whole.
(g) MAINTENANCE OF BOOKS, ETC. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of records and
accounts, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and
each of its domestic Subsidiaries in accordance with GAAP and with
respect to foreign Subsidiaries in accordance with customary accounting
standards in the applicable jurisdiction, in each case consistently
applied and consistent with prudent business practices.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, without the written
consent of the Requisite Lenders:
(a) LIENS, ETC. The Borrower will not create or suffer to
exist, or permit any of its Subsidiaries to create or suffer to exist,
any Lien, upon or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any of its
Subsidiaries to assign, any right to receive income, in each case to
secure or provide for the payment of any Debt of any Person, unless the
Borrower's obligations hereunder shall be secured equally and ratably
with, or prior to, any such Debt; provided however that the foregoing
restriction shall not apply to the following Liens which are permitted:
(i) Liens on assets of any Subsidiary of the Borrower
existing at the time such Person becomes a Subsidiary (other
than any such Lien created in contemplation of becoming a
Subsidiary);
(ii) Liens on accounts receivable resulting from the
sale of such accounts receivable by the Borrower or a
Subsidiary of the Borrower, so long as, at any time, the
aggregate outstanding amount of cash advanced to the Borrower
or such Subsidiary, as the case may be, and attributable to
the sale of such accounts receivable does not exceed
$300,000,000;
(iii) purchase money Liens upon or in any property
acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of
such property or to
57
secure Debt incurred solely for the purpose of financing the
acquisition of such property (provided that the amount of Debt
secured by such Lien does not exceed 100% of the purchase
price of such property and transaction costs relating to such
acquisition) and Liens existing on such property at the time
of its acquisition (other than any such Lien created in
contemplation of such acquisition); and the interest of the
lessor thereof in any property that is subject to a Capital
Lease;
(iv) any Lien securing Debt that was incurred prior
to or during construction or improvement of property for the
purpose of financing all or part of the cost of such
construction or improvement, provided that the amount of Debt
secured by such Lien does not exceed 100% of the fair market
value of such property after giving effect to such
construction or improvement;
(v) any Lien securing Debt of a Subsidiary owing to
the Borrower;
(vi) Liens resulting from any extension, renewal or
replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Debt secured by any
Lien referred to in clauses (i), (iii) and (iv) above so long
as (x) the aggregate principal amount of such Debt shall not
increase as a result of such extension, renewal or replacement
and (y) Liens resulting from any such extension, renewal or
replacement shall cover only such property which secured the
Debt that is being extended, renewed or replaced; and
(vii) Liens other than Liens described in clauses (i)
through (vi) hereof, whether now existing or hereafter
arising, securing Debt in an aggregate amount not exceeding
$50,000,000.
(b) RESTRICTIONS ON FUNDAMENTAL CHANGES. The Borrower will
not, and will not permit any of its Material Subsidiaries to, merge or
consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions)
all or a substantial portion of its assets (whether now owned or
hereafter acquired) to any Person, or enter into any partnership, joint
venture, syndicate, pool or other combination, unless no Event of
Default or Potential Event of Default has occurred and is continuing or
would result therefrom and, in the case of a merger or consolidation of
the Borrower, (i) the Borrower is the surviving entity or (ii) the
58
surviving entity assumes all of the Borrower's obligations under this
Agreement in a manner satisfactory to the Requisite Lenders.
(c) PLAN TERMINATIONS. The Borrower will not, and will not
permit any ERISA Affiliate to, terminate any Pension Plan so as to
result in liability of the Borrower or any ERISA Affiliate to the PBGC
in excess of $15,000,000, or permit to exist any occurrence of an event
or condition which reasonably presents a material risk of a termination
by the PBGC of any Pension Plan with respect to which the Borrower or
any ERISA Affiliate would, in the event of such termination, incur
liability to the PBGC in excess of $15,000,000.
(d) MARGIN STOCK. The Borrower will not permit 25% or more of
the fair market value of the assets of (i) the Borrower or (ii) the
Borrower and its Subsidiaries to consist of Margin Stock.
(e) MINIMUM NET WORTH. The Borrower will not permit at any
time Net Worth to be less than the sum of (i) 80% of Net Worth as of
the Effective Date, plus (ii) 25% of Net Income (if a positive number)
from the Effective Date to the then most recent June 30 or December 31,
plus (iii) all Additions to Capital from the Effective Date to the then
most recent June 30 or December 31.
(f) MAXIMUM FUNDED DEBT RATIO. The Borrower will not permit at
any time the ratio of (i) Funded Debt to (ii) EBITDA, for each period
consisting of the most recently ended four consecutive fiscal quarters
of the Borrower, to exceed 3.00 to 1.00.
(g) SWAPS. The Borrower will not and will not permit any of
its Subsidiaries to create or suffer to exist any Lien, upon or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign any right to receive income, in each case to secure
or provide for the payment of any Swaps.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable or the Borrower shall
fail to pay any interest on any Advance or any fees or other amounts
payable hereunder within five days of the date due; or
(b) Any representation or warranty made or deemed
59
made by the Borrower herein or by the Borrower pursuant to this
Agreement (including any notice, certificate or other document
delivered hereunder) shall prove to have been incorrect in any material
respect when made; or
(c) The Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in this Agreement (other than any
term, covenant or agreement contained in Section 5.01(b)(iv), 5.01(c)
or 5.02) on its part to be performed or observed and the failure to
perform or observe such other term, covenant or agreement shall remain
unremedied for 30 days after the Borrower obtains knowledge of such
breach or (ii) any term, covenant or agreement contained in Section
5.02 and either of the Agents or the Requisite Lenders shall have
notified the Borrower that an Event of Default has occurred, or (iii)
any term, covenant or agreement contained in Section 5.01(b)(iv) or
5.01(c); or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $15,000,000 in the
aggregate (but excluding Debt arising under this Agreement) of the
Borrower or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or the Borrower or any of its
Subsidiaries shall fail to perform or observe any other agreement, term
or condition contained in any agreement or instrument relating to any
such Debt (or if any other event or condition of default under any such
agreement or instrument shall exist) and such failure, event or
condition shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such
failure, event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable as a result of such failure, event or
condition; or
(e) The Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or
60
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for a
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
the Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $25,000,000 shall be rendered against the Borrower or any of its
Material Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon a final or nonappealable judgment
or order or (ii) there shall be any period of 10 consecutive days
during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect;
(g) (i) Any ERISA Event with respect to a Pension Plan shall
have occurred and, 30 days after notice thereof shall have
been given to the Borrower by either of the Agents, (x) such
ERISA Event shall still exist arid (y) the sum (determined as
of the date of occurrence of such ERISA Event) of the
Insufficiency of such Pension Plan and the Insufficiency of
any and all other Pension Plans with respect to which an ERISA
Event shall have occurred and then exist (or in the case of a
Pension Plan with respect to which an ERISA Event described in
clause (iii) through (vi) of the definition of ERISA Event
shall have occurred and then exist, the liability related
thereto) is equal to or greater than $25,000,000; or
(ii) The Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred an aggregate Withdrawal Liability for all years
to such Multiemployer Plan in an amount that, when aggregated
with all other amounts then required to be paid to
Multiemployer Plans by the Borrower and its ERISA Affiliates
as Withdrawal Liability (determined as of the date of such
notification), exceeds $25,000,000 and it is reasonably likely
that all amounts then required to be paid to Multiemployer
Plans by the Borrower and its ERISA Affiliates as Withdrawal
Liability will exceed $25,000,000; or
61
(iii) The Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV or ERISA, and it is
reasonably likely that as a result of such reorganization or
termination the aggregate annual contributions of the Borrower
and its ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or being terminated have been or will
be increased over the amounts contributed to such
Multiemployer Plans for the plan year of such Multiemployer
Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding
$25,000,000;
then, and in any such event, either of the Agents (i) shall at the
request, or may with the consent, of the Requisite Lenders, by notice
to the Borrower, declare the obligation of each Lender to make Advances
to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Requisite
Lenders, by notice to the Borrower, declare the Advances, all interest
thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such interest
and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower or any of its Subsidiaries under
the Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes CUSA to act as Administrative Agent under this Agreement and B of A
to act as Documentation Agent under this Agreement and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to each Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the
62
Advances and other amounts owing hereunder), no Agent shall be required to
exercise any discretion or take any action, but 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 Requisite Lenders, and such
instructions shall be binding upon all Lenders; provided, however, that no Agent
shall be required to take any action which exposes such Agent to personal
liability or which is contrary to any of the Loan Documents or applicable law.
Each Agent agrees to give to each Lender prompt notice of each notice given to
it by the Borrower pursuant to the terms of the Loan Documents.
SECTION 7.02. AGENTS' RELIANCE, ETC. Neither the Agents nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with any of the Loan Documents, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Agents: (i) may treat the payee of any Advance as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance entered
into by the Lender which is the payee of such Advance, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult
with legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) make no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with any of the Loan Documents; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any of the Loan Documents on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any of the Loan
Documents or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any of the Loan Documents
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. CUSA, B OF A AND AFFILIATES. With respect to its
respective Commitment and the respective Advances made by it, CUSA and B of A
shall each have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not an Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include B of
A and CUSA
63
respectively in its individual capacity. B of A or CUSA and their respective
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business (including without
limitation the investment banking business) with, the Borrower, any of its
subsidiaries and any Person who may do business with or own securities of the
Borrower or any such subsidiary, all as if B of A or CUSA, as the case may be
was not Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon either the Agents or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Lenders (other than the Designated
Bidders) agree to indemnify each Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the
Committed Advances then held by each of them (or if no such Advances are at the
time outstanding or if any such Advances are held by Persons which are not
Lenders, ratably according to the respective amounts of their Commitments), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of any of the Loan Documents or any
action taken or omitted by such Agent under any of the Loan Documents, provided
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from any Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender (other than the Designated
Bidders) agrees to reimburse each Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
syndication, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, the Loan Documents, to the extent that such
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. SUCCESSOR AGENT. Each Agent may resign at any time by
giving written notice thereof to the
64
Lenders and the Borrower and may be removed at any time with or without cause by
the Requisite Lenders. Upon any such resignation or removal, the Requisite
Lenders shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Requisite Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Requisite Lenders' removal of 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 any Bank and, in each case having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as an Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under the Loan Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Requisite Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Advances, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action hereunder or (f) amend Section
2.15 or this Section 8.01; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by an Agent in addition to the
Lenders required above to take such action, affect the rights or duties of such
Agent under this Agreement.
SECTION 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable
65
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at Dial Tower, Phoenix, Arizona
850772343, Attn: Treasurer; if to any Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; if to the Administrative Agent at its address at
Citicorp USA, Inc., Loan Syndications Operations, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (with a copy of notices, other than those
given pursuant to Sections 2.01 through 2.14 hereof, to Citicorp USA, Inc. ▇/▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) and if to the Documentation Agent at its address
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Agency Management
Services No. 5596; or, as to the Borrower or either Agent, at such other address
as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Agents. All such notices
and communications shall, when personally delivered, mailed, telecopied,
telegraphed, telexed or cabled, be effective when personally delivered, after
five (5) days after being deposited in the mails, when confirmed by telecopy
response, when delivered to the telegraph company, when confirmed by telex
answerback or when delivered to the cable company, respectively, except that
notices and communications to any Agent pursuant to Article II or VII shall not
be effective until received by such Agent.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any Lender
or either Agent to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 8.04. COSTS, EXPENSES AND INDEMNIFICATION.
(a) The Borrower agrees to pay promptly on demand all
reasonable costs and out-of-pocket expenses of the Agents in connection
with the preparation, execution, delivery, administration, syndication,
modification and amendment of this Agreement, and the other documents
to be delivered hereunder or thereunder, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the
Agents (including the allocated time charges of each Agent's legal
departments, as their respective internal counsel) with respect thereto
and with respect to advising the Agents as to their rights and
responsibilities under this Agreement. The Borrower further agrees to
pay promptly on demand all costs and expenses of the Agents and of each
Lender, if any (including, without limitation,
66
reasonable counsel fees and out-of-pocket expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement and the other documents to be delivered
hereunder or thereunder, including, without limitation, reasonable
counsel fees and out-of-pocket expenses in connection with the
enforcement of rights under this Section 8.04(a). Such expenses shall
be reimbursed by the Borrower upon a presentation of statement of
account, regardless of whether the Closing Date, the Effective Date or
the Distribution occurs.
(b) If any payment of principal of any Eurodollar Rate Advance
is made other than on the last day of the interest period for such
Advance, as a result of a payment pursuant to Section 2.06 or
acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason, the Borrower shall, upon demand by any Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment,
including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless each
Agent, each Lender and each director, officer, employee, agent,
attorney and affiliate of each Agent and each Lender (each an
"indemnified person") in connection with any expenses, losses, claims,
damages or liabilities to which an Agent, a Lender or such indemnified
persons may become subject, insofar as such expenses, losses, claims,
damages or liabilities (or actions or other proceedings commenced or
threatened in respect thereof) arise out of the transactions referred
to in this Agreement or arise from any use or intended use of the
proceeds of the Advances, or in any way arise out of activities of the
Borrower that violate Environmental Laws, and to reimburse each Agent,
each Lender and each indemnified person, upon their demand, for any
reasonable legal or other out-of-pocket expenses incurred in connection
with investigating, defending or participating in any such loss, claim,
damage, liability, or action or other proceeding, whether commenced or
threatened (whether or not such Agent, such Lender or any such person
is a party to any action or proceeding out of which any such expense
arises). Notwithstanding the foregoing, the Borrower shall have no
obligation hereunder to an indemnified person with respect to
indemnified liabilities which have resulted from the gross negligence,
bad faith or willful misconduct of such
67
indemnified person.
SECTION 8.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agents to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (time
or demand, provisional or final, or general, but not special) at any time held
and other indebtedness at any time owing by such Lender to or for the credit or
the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement that are then due and
payable, whether or not such Lender shall have made any demand under this
Agreement. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender; provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Lender may have.
SECTION 8.06. BINDING EFFECT; EFFECTIVENESS, ENTIRE AGREEMENT.
(a) This Agreement shall be deemed to have been executed and
delivered when it shall have been executed by the Borrower and the
Agents and when the Agents shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, each Agent and each Lender and
their respective successors and permitted assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of all Lenders.
(b) This Agreement (except for the provisions of Section
2.04(d), Articles VII and VIII hereof and related definitions) shall
not become effective and the Existing Credit Agreement shall remain in
place until the time at which the conditions set forth in Section 3.02
have been satisfied or otherwise waived at the Effective Time, at which
time this Agreement shall become fully effective and replace the
Existing Credit Agreement, which shall be deemed to be completely
amended and restated hereby at such time. At such time this Agreement
(including the Schedules and Exhibits attached hereto) shall constitute
the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements,
understandings and negotiations, both written and oral, among the
parties with respect to such subject matter, including, but not limited
to, the Existing Credit
68
Agreement. If the Effective Date has not occurred by December 31, 1996,
then this Agreement shall terminate on such date and the Existing
Credit Agreement shall remain in place in accordance with its terms.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender (other than the Designated Bidders) may assign
to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or
a portion of its Commitment and the Advances owing to it); provided,
however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all of the assigning Lender's rights and
obligations under this Agreement (other than any right to make Bid
Advances or Bid Advances held by it), (ii) after giving effect to any
such assignment, (1) the assigning Lender shall no longer have any
Commitment or (2) the amount of the Commitment of both the assigning
Lender and the Eligible Assignee party to such assignment (in each case
determined as of the date of the Assignment and Acceptance with respect
to such assignment) shall not be less than $10,000,000, (iii) each such
assignment shall be to an Eligible Assignee, (iv) the parties to each
such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, an Assignment and
Acceptance, and a processing and recordation fee of $3,000 to the
Administrative Agent, and (v) the Borrower and the Agents shall have
consented to such assignment, which consent shall not be unreasonably
withheld. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto). Any Lender may at any time pledge or assign all or any portion
of its rights hereunder to a Federal Reserve Bank; provided, that no
such pledge or assignment shall release such Lender from any of its
obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i)
69
other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any of the Loan Documents
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any of the Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower
or the performance or observance by the Borrower of any of its
obligations under any of the Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee
confirms that it has received a copy of the Loan Documents, together
with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agents, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents; (v) such assignee confirms that
it is an Eligible Assignee; (vi) such assignee appoints and authorizes
each Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to such Agent by
the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform
in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a
Lender.
(c) Within five (5) days of its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee representing
that it is an Eligible Assignee (together with a processing and
recordation fee of $3,000 with respect thereto) and upon evidence of
consent of the Borrower and the Agents thereto, which consent shall not
be unreasonably withheld, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of EXHIBIT B hereto, (1) accept such Assignment and Acceptance
and (2) record the information contained therein in the Register. All
communications with the Borrower with respect to such consent of the
Borrower shall be sent pursuant to Section 8.02.
(d) Each Lender (other than the Designated
70
Bidders) may designate one or more banks or other entities to have a
right to make Bid Advances as a Lender pursuant to Section 2.03;
provided, however, that (i) no such Lender shall be entitled to make
more than two such designations, (ii) each such Lender making one or
more of such designations shall retain the right to make Bid Advances
as a Lender pursuant to Section 2.03, (iii) each such designation shall
be to a Designated Bidder and (iv) the parties to each such designation
shall execute and deliver to the Agent, for its acceptance and
recording in the Register, a Designation Agreement. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Bid Advances as
a Lender pursuant to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder
confirm and agree with each other and the other parties hereto as
follows: (i) such Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such designee
confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into the Designation
Agreement; (iv) such designee will, independently and without reliance
upon the Agent, such designating Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a
Designated Bidder; (vi) such designee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and
(vii) such designee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender.
71
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated
Bidder, the Agent shall, if such Designation Agreement has been
completed and is substantially in the form of EXHIBIT H hereto, (i)
accept such Designation Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof
to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance
and each Designation Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and, with respect to Lenders other than Designated Bidders, the
Commitment of, the Commitment Termination Date of, and principal amount
of the Advances owing to, each such Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Agents and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of the Loan
Documents. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or
a portion of its Commitment and the Advances owing to it; provided,
however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such
Advance for all purposes of this Agreement, (iv) the Borrower, the
Agents and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under the Loan Documents, (v) no Lender shall grant any
participation under which the participant shall have rights to require
such Lender to take or omit to take any action hereunder or under the
other Loan Documents or approve any amendment to or waiver of this
Agreement or the other Loan Documents, except to the extent such
amendment or waiver would: (A) extend the Termination Date of such
Lender; or (B) reduce the interest rate or the amount of principal or
fees applicable to Advances or the
72
Commitment in which such participant is participating or change the
date on which interest, principal or fees applicable to Advances or the
Commitment in which such participant is participating are payable, (vi)
such Lender shall notify the Borrower of the sale of the participation,
and (vii) the Person purchasing such participation shall agree to
customary provisions relating to the confidentiality of nonpublic
information received by such Person in connection with its purchase of
the participation.
(i) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower; provided
that, prior to any such disclosure, the assignee or Participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the
Borrower received by it from such Lender.
SECTION 8.08. CONFIDENTIALITY. Each Lender agrees, insofar as is
legally possible, to use its best efforts to keep in confidence all financial
data and other information relative to the affairs of the Borrower heretofore
furnished or which may hereafter be furnished to it pursuant to the provisions
of this Agreement; provided, however, that this Section 8.08 shall not be
applicable to information otherwise disseminated to the public by the Borrower;
and provided further that such obligation of each Bank shall be subject to each
Bank's (a) obligation to disclose such information pursuant to a request or
order under applicable laws and regulations or pursuant to a subpoena or other
legal process, (b) right to disclose any such information to bank examiners, its
affiliates (including, without limitation, in the case of B of A, BA Securities,
Inc. and in the case of CUSA, Citicorp Securities, Inc.), bank, auditors,
accountants and its counsel and other Banks, and (c) right to disclose any such
information, (i) in connection with the transactions set forth herein including
assignments and sales of participation interests pursuant to Section 8.07 hereof
or (ii) in or in connection with any litigation or dispute involving the Banks
and the Borrower or any transfer or other disposition by such Bank of any of its
Advances or other extensions of credit by such Bank to the Borrower or any of
its Subsidiaries, provided that information disclosed pursuant to this proviso
shall be so disclosed subject to such procedures as are reasonably calculated to
maintain the confidentiality thereof.
SECTION 8.09. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and
73
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 8.11. CONSENT TO JURISDICTION, WAIVER OF IMMUNITIES. The
Borrower hereby irrevocably submits to the jurisdiction of any New York state or
Federal court sitting in New York, New York in any action or proceeding arising
out of or relating to this Agreement, and the Borrower hereby irrevocably agrees
that all claims in respect of such action or proceeding may be heard and
determined in such New York state or Federal court. The Borrower hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding. The
Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Section 8.11 shall affect
the right of any Lender or Agent to serve legal process in any other manner
permitted by law or affect the right of any Lender or Agent to bring any action
or proceeding against the Borrower or its property in the courts of any other
jurisdiction.
SECTION 8.12. WAIVER OF TRIAL BY JURY. THE BORROWER, THE BANKS, THE
AGENTS AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, OTHER LENDERS EACH HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims and all
other common law and statutory claims. The Borrower, the Banks, the Agents and,
by its acceptance of the benefits hereof, other Lenders each (i) acknowledges
that this waiver is a material inducement for the Borrower, the Lenders and the
Agents to enter into a business relationship, that the Borrower, the Lenders and
the Agents have already relied on this waiver in entering into this Agreement or
accepting the benefits thereof, as the case may be, and that each will continue
to rely on this waiver in their related future dealings and (ii) further
warrants and represents that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
[Remainder of page intentionally left blank]
74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers "hereunto duly authorized, as of the date
first above written.
THE DIAL CORP, a Delaware
corporation (to be known as VIAD
CORP upon the on and after the
Effective Date)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President-Finance
and Treasurer
CITICORP USA, INC., as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
75
COMMITMENT LENDER
$42,500,000 CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
$42,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
$30,000,000 BANK OF MONTREAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
$30,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Vice President
$30,000,000 CIBC INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
$30,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
$30,000,000 ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Manager
$25,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
$25,000,000 NBD BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Agent
$20,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ ▇. ▇▇▇▇▇▇▇
Joint General Manager
$20,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Associate
76
$15,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By: /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deputy General Manager
$15,000,000 MELLON BANK, N.A.
By: /s/ ▇.▇. ▇▇▇▇
Vice President
$15,000,000 THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
$15,000,000 UNION BANK OF CALIFORNIA
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Vice President
$15,000,000 ▇▇▇▇▇ FARGO BANK OF ARIZONA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
77
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
DOMESTIC LENDING EURODOLLAR LENDING
NAME OF BANK OFFICE OFFICE
CITIBANK, N. A. Central Corporate Central Corporate Customer Services Customer Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
7th Floor 7th Floor
Long Island City, NY ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 11120
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Bank Loan Syndication Bank Loan Syndication
BANK OF AMERICA ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SAVINGS ASSOCIATION Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
BANK OF MONTREAL ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
CIBC, INC. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
2 Paces West ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇
THE ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ BANK, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
NATIONSBANK OF c/o NationsBank c/o NationsBank
TEXAS, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
ROYAL BANK OF ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ RCBO 4101-251
OF ARIZONA, ▇.▇. ▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
NATIONAL Phoenix, AZ 85072-3456 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ASSOCIATION Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Street Address: Street Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
THE INDUSTRIAL ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇.
BANK OF JAPAN, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ANGELES AGENCY Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
THE LONG-TERM ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇.
CREDIT BANK OF Suite 3000 Suite 3000
JAPAN, LTD., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LOS ANGELES AGENCY Attn: ▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ BANK, N.A. Three Mellon Bank Center Three Mellon Bank Center
Room 2303 Room 2303
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY c/o ▇.▇. ▇▇▇▇▇▇ Nassau, Bahamas Office
TRUST COMPANY OF Services, Inc. c/o ▇.▇. ▇▇▇▇▇▇ Services,
NEW YORK 500 ▇▇▇▇▇▇▇ - Inc.
Christiana Road Loan Operations - ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
THE NORTHERN 50 S. La Salle 50 S. La Salle
TRUST COMPANY B-12 B-12
Chicago, IL 60675 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Honda Attn: ▇▇▇▇▇ Honda
UNION BANK OF ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
CALIFORNIA ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
WESTDEUTSCHE 1211 Avenue of the 1211 Avenue of the
LANDESBANK Americas Americas
GIROZENTRALE, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
NEW YORK BRANCH Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
79
EXHIBIT A-1
[FORM OF NOTICE OF COMMITTED BORROWING]
NOTICE OF COMMITTED BORROWING
Citicorp USA, Inc., as Administrative
Agent for the Lenders party
to the Credit Agreement
referred to below
c/o Citicorp Bank Loan
Syndications Operations
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: [ ]
Gentlemen:
The undersigned, [The Dial Corp][Viad Corp] (the "Borrower"), refers to
that certain Amended and Restated Credit Agreement dated as of July 24, 1996 (as
it may be amended, supplemented, restated or otherwise modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), by and among the Borrower, certain Lenders party thereto,
Citicorp USA, Inc., as Administrative Agent for said Lenders, and Bank of
America National Trust and Savings Association, as Documentation Agent for said
Lenders. The Borrower hereby gives you notice, irrevocably, pursuant to Section
2.02 of the Credit Agreement, that the Borrower hereby requests a Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Committed Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Committed Borrowing is
[ ], 19[ ].
(ii) The Type of Committed Advances comprising the Proposed
Committed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Committed Borrowing
is $[ ].
(iv) If the Type of Advances comprising the Proposed Committed
Borrowing is Eurodollar Rate Advances, the Interest Period for each
Advance made as part of the Proposed Committed Borrowing is [ ]
month[s].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Committed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Committed Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, except
to the extent that any such representation or warranty expressly
relates only to an earlier date, in which case they were correct as of
such earlier date; and
(B) no event has occurred and is continuing, or will result
from such Proposed Committed Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or a
Potential Event of Default.
Very truly yours,
[THE DIAL CORP] [VIAD CORP]
By:
Title:
80
EXHIBIT A-2
[FORM OF NOTICE OF BID BORROWING]
NOTICE OF BID BORROWING
Citicorp USA, Inc.,
as Administrative Agent
for the Lenders party to
the Credit Agreement referred
to below
c/o Citicorp Bank Loan
Syndications Operations
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: [ ]
Gentlemen:
The undersigned, [The Dial Corp][Viad Corp] (the "Borrower"), refers to
that certain Amended and Restated Credit Agreement dated as of July 24, 1996 (as
it may be amended, supplemented, restated or otherwise modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), by and among the Borrower, certain Lenders party thereto,
Citicorp USA, Inc., as Administrative Agent for said Lenders, and Bank of
America National Trust and Savings Association, as Documentation Agent for said
Lenders. The Borrower hereby gives you notice pursuant to Section 2.03(a) of the
Credit Agreement that the undersigned hereby requests a Bid Borrowing under the
Credit Agreement, and in that connection sets forth below the terms on which
such Bid Borrowing (the "Proposed Bid Borrowing") is requested to be made:
(A) Date of Proposed Bid Borrowing:
(B) Aggregate Amount of Proposed Bid Borrowing:
(C) Maturity Date:
(D) Currency if the Proposed Bid Borrowing is comprised of
Eurodollar Advances:
(E) Interest Payment Date(s):
(F) Other Terms
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Bid Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except to
the extent that any such representation or warranty expressly relates
only to an earlier date, in which case they were correct as of such
earlier date; and
(B) no event has occurred and is continuing, or will result
from such Proposed Bid Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or a
Potential Event of Default.
The undersigned hereby confirms that the Proposed Bid Borrowing is to
be made available to it in accordance with Section 2.03 of the Credit Agreement.
Very truly yours,
[THE DIAL CORP] [VIAD CORP]
By:
Title:
81
EXHIBIT B
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Dated [ ], 19[ ]
Reference is made to that certain Amended and Restated Credit Agreement
dated as of July 24, 1996 (as it may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement") among [The Dial
Corp][Viad Corp] (the "Borrower"), the Lenders (as defined in the Credit
Agreement), Citicorp USA, Inc., as Administrative Agent for the Lenders, and
Bank of America National Trust and Savings Association, as Documentation Agent
for the Lenders. Terms defined in the Credit Agreement and not defined herein
are used herein with the same meaning.
[ ] (the "Assignor") and [ ] (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, that
interest in and to all of the Assignor's rights and obligations under the Credit
Agreement as of the Effective Date which represents the percentage interest
specified on Schedule 1 of all outstanding rights and obligations under the
Credit Agreement, including, without limitation, such interest in the Assignor's
Commitment and the Advances owing to the Assignor. After giving effect to such
sale and assignment, the Assignee's Commitment, the amount of the Advances owing
to the Assignee, and the Commitment Termination Date of the Assignee will be as
set forth in Section 2 of Schedule 1. In consideration of Assignor's assignment,
Assignee hereby agrees to pay to Assignor, on the Effective Date, the amount of
$[ ] in immediately available funds by wire transfer to Assignor's office at
[ ].
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agents, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to such Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof [and (vii) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that
all such payments are subject to such rates at a rate reduced by an applicable
tax treaty].*
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Assignment and Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
--------------
*If the Assignee is organized under the laws of a jurisdiction outside
the United States.
82
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers "hereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
83
Schedule 1
to
Assignment and Acceptance
Dated [ ], 19[ ]
Section 1.
Percentage Interest: [ ]%
Section 2.
Assignee's Commitment: $[ ]
Aggregate Outstanding Principal
Amount of Advances owing to
the Assignee: $[ ]
Advances payable to the Assignee
Principal amount: [ ]
Advances payable to the Assignor
Principal amount: [ ]
Assignee's Commitment Termination
Date: [ ], 199[ ]
Section 3.
Effective Date*: [ ], 199[ ]
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
------------------
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
84
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this [ ] day
of [ ], 199[ ]
CITICORP USA, INC., as
Administrative Agent
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent
By:
Title:
[THE DIAL CORP] [VIAD CORP]
By:
Title:
85
EXHIBIT C-l
[FORM OF OPINION OF COUNSEL TO BORROWER
AS OF THE CLOSING DATE]
[CLOSING DATE]
Citicorp USA, Inc.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
and Savings Association,
as Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks (the "Banks") Listed on
Schedule I Party to the Credit
Agreement Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996, among
The Dial Corp, the Banks named therein, Citicorp USA, Inc. as
Administrative Agent, and Bank of America National Trust and Savings
Association, as Documentation Agent
Ladies and Gentlemen:
I am Vice President and General Counsel of The Dial Corp, a Delaware
corporation (the "Borrower"), and as such have acted as counsel to the Borrower
in connection with the negotiation, execution and delivery by the Borrower of
the Amended and Restated Credit Agreement dated as of July 24, 1996 (the "Credit
Agreement") among the Borrower, the Banks, Citicorp USA, Inc. as Administrative
Agent, and Bank of America National Trust and Savings Association as
Documentation Agent. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
This opinion is delivered to you pursuant to Section 3.01(a)(vi) of the
Credit Agreement. I have examined the Credit Agreement and I have examined or am
familiar with originals or copies, the authenticity of which has been
established to my satisfaction of such other documents, corporate records,
agreements and instruments, and certificates of public officials and of officers
of the Borrower as I have deemed necessary or appropriate to enable me to
express the opinions set forth below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently established, relied
upon certification by officers of the Borrower, which I believe to be reliable.
The opinions hereinafter expressed are subject to the fact that I am a
member of the State Bar of Arizona and do not hold myself out as an expert on
the laws of other states or jurisdictions except (i) the federal law of the
United States of America, (ii) the General Corporation Law of the State of
Delaware, and (iii) the laws of New York relevant to the opinions herein
expressed.
Based upon the foregoing and having regard to legal considerations
which I have deemed relevant, it is my opinion that:
1. The Borrower is a corporation validly existing and in good standing
under the laws of the State of Delaware and is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions which require
such qualification, except to the extent that failure to so qualify would not
have a material adverse effect on the Borrower. The Borrower has all requisite
corporate power and authority to own and operate its properties, to conduct its
business as presently conducted, and to execute, deliver and perform its
obligations under the Credit Agreement.
2. The Credit Agreement has been duly authorized by all necessary
corporate action on the part of the Borrower and has been duly executed and
delivered by the Borrower. The Credit Agreement constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency and reorganization laws and other similar laws governing
the enforcement of lessors' or creditors' rights and by the effects of specific
performance, injunctive relief and other equitable remedies.
86
3. Neither the execution and delivery by the Borrower of the Credit
Agreement, nor consummation of the transactions contemplated thereby, nor
compliance on or prior to the date hereof with the terms and conditions thereof
by the Borrower conflicts with or is a violation of, its certificate of
incorporation or bylaws, each as in effect on the date hereof. Neither the
execution and delivery by the Borrower of the Credit Agreement, nor the
consummation of the transactions contemplated thereby, nor compliance on or
prior to the date hereof with the terms and conditions thereof by the Borrower
will result in a violation of any applicable federal or New York law,
governmental rule or regulation or of the Corporation Law of the State of
Delaware or conflicts with, will result in a breach of, or constitutes a default
under, any provision of any indenture, agreement or other instrument to which
the Borrower is a party or any of its properties may be bound ("Material
Agreements"), or any order, judgment or decree to which the Borrower or any of
its assets are bound ("Judicial Orders"), or will result in the creation or
imposition of any lien upon any property or assets of the Borrower pursuant to
any Material Agreement or Judicial Order.
4. Neither the making of the Advances pursuant to, nor application of
the proceeds thereof in accordance with, the Credit Agreement, will violate
Regulations G, T, U or X promulgated by the Board of Governors of the Federal
Reserve System.
5. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority of the United States of America or the State of New York or under the
Corporation Law of the State of Delaware is required by law to be obtained or
made by the Borrower for the execution, delivery and performance by the Borrower
of the Credit Agreement, except such filings as may be required in the ordinary
course to keep in full force and effect rights and franchises material to the
business of the Borrower and in connection with the payment of taxes.
6. The Borrower is not an "investment company" or a Person directly or
indirectly "controlled" by or "acting on behalf of an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
This opinion is delivered to the Agents and the Banks as of the date
hereof in connection with the Credit Agreement, and may not be relied upon by
any person other than the Agents and the Banks and their permitted assignees, or
by them in any other context, and may not be furnished to any other person or
entity without my prior written consent, provided that each Bank and its
permitted assignees may provide this opinion (i) to bank examiners and other
regulatory authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such Bank, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any legal action to which the Bank is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) in connection with the
assignment of or sale of participations in the Advances.
Very truly yours,
87
EXHIBIT C-2
[FORM OF OPINION OF COUNSEL TO BORROWER
AS OF THE EFFECTIVE DATE]
[EFFECTIVE DATE]
Citicorp USA, Inc.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National
Trust and Savings Association,
as Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks (the "Banks") Listed on
Schedule I Party to the Credit
Agreement Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996, among
The Dial Corp, the Banks named therein, Citicorp USA, Inc. as
Administrative Agent, and Bank of America National Trust and Savings
Association as Documentation Agent
Ladies and Gentlemen:
I am Vice President and General Counsel of The Dial Corp, a Delaware
corporation (the "Borrower"), and as such have acted as counsel to the Borrower
in connection with the negotiation, execution and delivery by the Borrower of
the Amended and Restated Credit Agreement dated as of July 24, 1996 (the "Credit
Agreement") among the Borrower, the Banks, Citicorp USA, Inc. as Administrative
Agent, and Bank of America National Trust and Savings Association as
Documentation Agent. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
This opinion is delivered to you pursuant to Section 3.02(a)(ii) of the
Credit Agreement. I have examined the Credit Agreement and I have examined or am
familiar with originals or copies, the authenticity of which has been
established to my satisfaction of such other documents corporate records,
agreements and instruments, and certificates of public officials and of officers
of the Borrower as I have deemed necessary or appropriate to enable me to
express the opinions set forth below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently established, relied
upon certification by officers of the Borrower, which I believe to be reliable.
The opinions hereinafter expressed are subject to the fact that I am a
member of the State Bar of Arizona and do not hold myself out as an expert on
the laws of other states or jurisdictions except (i) the federal law of the
United States of America, (ii) the General Corporation Law of the State of
Delaware, and (iii) the laws of New York relevant to the opinions herein
expressed.
Based upon the foregoing and having regard to legal considerations
which I have deemed relevant, it is my opinion that:
1. The Borrower is a corporation validly existing and in good standing
under the laws of the State of Delaware and is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions which require
such qualification, except to the extent that failure to so qualify would not
have a material adverse effect on the Borrower. The Borrower has all requisite
corporate power and authority to own and operate its properties, to conduct its
business as presently conducted, and to execute, deliver and perform its
obligations under the Credit Agreement.
2. The Credit Agreement has been duly authorized by all necessary
corporate action on the part of the Borrower and has been duly executed and
delivered by the Borrower. The Credit Agreement constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency and reorganization laws and other similar laws governing
the enforcement of lessors' or creditors' rights and by the effects of specific
performance, injunctive relief and other equitable remedies.
88
3. Neither the execution and delivery by the Borrower of the Credit
Agreement, nor consummation of the transactions contemplated thereby, nor
compliance on or prior to the date hereof with the terms and conditions thereof
by the Borrower conflicts with or is a violation of, its certificate of
incorporation or bylaws, each as in effect on the date hereof. Neither the
execution and delivery by the Borrower of the Credit Agreement, nor the
consummation of the transactions contemplated thereby, nor compliance on or
prior to the date hereof with the terms and conditions thereof by the Borrower
will result in a violation of any applicable federal or New York law,
governmental rule or regulation or of the Corporation Law of the State of
Delaware or conflicts with, will result in a breach of, or constitutes a default
under, any provision of any indenture, agreement or other instrument to which
the Borrower is a party or any of its properties may be bound ("Material
Agreements"), or any order, judgment or decree to which the Borrower or any of
its assets are bound ("Judicial Orders"), or will result in the creation or
imposition of any lien upon any property or assets of the Borrower pursuant to
any Material Agreement or Judicial Order.
4. Neither the making of the Advances pursuant to, nor application of
the proceeds thereof in accordance with, the Credit Agreement, will violate
Regulations G, T, U or X promulgated by the Board of Governors of the Federal
Reserve System.
5. No consent, approval or authorization of, and no registration,
declaration or filing with, any administrative, governmental or other public
authority of the United States of America or the State of New York or under the
Corporation Law of the State of Delaware is required by law to be obtained or
made by the Borrower for the execution, delivery and performance by the Borrower
of the Credit Agreement, except such filings as may be required in the ordinary
course to keep in full force and effect rights and franchises material to the
business of the Borrower and in connection with the payment of taxes.
6. The Borrower is not an "investment company" or a Person directly or
indirectly "controlled" by or "acting on behalf of an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
This opinion is delivered to the Agents and the Banks as of the date
hereof in connection with the Credit Agreement, and may not be relied upon by
any person other than the Agents and the Banks and their permitted assignees, or
by them in any other context, and may not be furnished to any other person or
entity without my prior written consent, provided that each Bank and its
permitted assignees may provide this opinion (i) to bank examiners and other
regulatory authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such Bank, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any legal action to which the Bank is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) in connection with the
assignment of or sale of participations in the Advances.
Very truly yours,
89
EXHIBIT D-1
[FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
AS OF THE CLOSING DATE]
[CLOSING DATE]
Citicorp USA, Inc., as
Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
and Savings Association, as
Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996 among
The Dial Corp, the Banks named therein, Citicorp USA, Inc., as
Administrative Agent, and Bank of America National Trust and Savings
Association, as Documentation Agent
Gentlemen:
We have participated in the preparation of the Amended and Restated
Credit Agreement dated as of July 24, 1996 (the "Credit Agreement"; capitalized
terms defined therein and not otherwise defined herein are used herein as
therein defined) among The Dial Corp (the "Borrower"), the Banks named therein
(the "Banks"), Citicorp USA, Inc., as Administrative Agent, and Bank of America
National Trust and Savings Association, as Documentation Agent (Documentation
Agent and Administrative Agent, collectively, are hereinafter referred to as
"Agents"), and have acted as special counsel for the Agents for the purpose of
rendering this opinion pursuant to Section 3.01(a)(vii) of the Credit Agreement.
We have participated in various conferences and telephone conferences
with representatives of the Borrower and the Agents and conferences and
telephone calls with counsel to the Borrower, and with your representatives,
during which the Credit Agreement and related matters have been discussed, and
we have also participated in the meeting held on the date hereof (the "Closing")
incident to the effectiveness of the Credit Agreement. We have reviewed the
forms of the Credit Agreement and the exhibits thereto, and the opinion of [L.
▇▇▇▇ ▇▇▇▇▇], General Counsel of the Borrower (the "Opinion"), and officers'
certificates and other documents delivered at the Closing. We have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals or copies, the due authority of all persons executing the same, and
we have relied as to factual matters on the documents which we have reviewed.
On the basis of such examination, our reliance upon the assumptions
contained herein and our consideration of those questions of law we considered
relevant and subject to the limitations and qualifications in this opinion, we
are of the opinion that:
1. The Credit Agreement constitutes the legally valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law. In giving the foregoing opinion, we have
assumed, without independent investigation, that the Credit Agreement has been
duly authorized by all necessary corporate action on the part of the Borrower
and has been duly executed and delivered by the Borrower.
2. The Opinion is satisfactory in form to us and, in our opinion, you
are justified in relying thereon.
Our opinions in paragraph 1 above as to the enforceability of the
Credit Agreement are subject to:
(a) public policy considerations, statutes or court decisions
that may limit the rights of a party to obtain indemnification against
its own gross negligence, willful misconduct or unlawful conduct; and
(b) the unenforceability under certain circumstances of
waivers of rights granted by law where the waivers are against public
policy or prohibited by law.
We express no opinion as to the effect of non-compliance by you with
any state or federal laws or regulations applicable to the transactions
contemplated by the Credit Agreement because of the nature of your business.
The law covered by this opinion is limited to the present federal law
of the United States and the present law of the State of New York. We express no
opinion as to the laws of any other jurisdiction. This opinion is furnished by
us as special counsel for the Agents and may be relied upon by you only in
connection with the Credit Agreement. It may not be used or relied upon by you
for any other purpose or by any other person, nor may copies be delivered to any
other person, without in each instance our prior written consent. You may,
however, deliver a copy of this opinion to permitted assignees of all or a
portion of a Lender's rights and obligations under the Credit Agreement in
connection with such assignment, and such assignees may rely on this opinion as
if it were addressed and had been delivered to them on the date of this opinion.
This opinion may also be disclosed to regulatory and other governmental
authorities having jurisdiction over you requesting (or requiring) such
disclosure.
Respectfully submitted,
90
EXHIBIT D-2
[FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
AS OF THE EFFECTIVE DATE]
[EFFECTIVE DATE]
Citicorp USA, Inc., as
Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
and Savings Association, as
Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Amended and Restated Credit Agreement dated as of July 24, 1996 among
The Dial Corp, the Banks named therein, Citicorp USA, Inc., as
Administrative Agent, and Bank of America National Trust and Savings
Association as Documentation Agent
Gentlemen:
We have participated in the preparation of the Amended and Restated
Credit Agreement dated as of July 24, 1996 (the "Credit Agreement"; capitalized
terms defined therein and not otherwise defined herein are used herein as
therein defined) among The Dial Corp (the "Borrower"), the Banks named therein
(the "Banks"), Citicorp USA, Inc., as Administrative Agent, and Bank of America
National Trust and Savings Association, as Documentation Agent (Documentation
Agent and Administrative Agent, collectively, are hereinafter referred to as
"Agents"), and have acted as special counsel for the Agents for the purpose of
rendering this opinion pursuant to Section 3.01(a)(vii) of the Credit Agreement.
We have participated in various conferences and telephone conferences
with representatives of the Borrower and the Agents and conferences and
telephone calls with counsel to the Borrower, and with your representatives,
during which the Credit Agreement and related matters have been discussed, and
we have also participated in the meeting held on the date hereof (the "Closing")
incident to the effectiveness of the Credit Agreement. We have reviewed the
forms of the Credit Agreement and the exhibits thereto, and the opinion of [L.
▇▇▇▇ ▇▇▇▇▇], General Counsel of the Borrower (the "Opinion"), and officers'
certificates and other documents delivered at the Closing. We have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals or copies, the due authority of all persons executing the same, and
we have relied as to factual matters on the documents which we have reviewed.
91
On the basis of such examination, our reliance upon the assumptions
contained herein and our consideration of those questions of law we considered
relevant and subject to the limitations and qualifications in this opinion, we
are of the opinion that:
1. The Credit Agreement constitutes the legally valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law. In giving the foregoing opinion, we have
assumed, without independent investigation, that the Credit Agreement has been
duly authorized by all necessary corporate action on the part of the Borrower
and has been duly executed and delivered by the Borrower.
2. The Opinion is satisfactory in form to us and, in our opinion, you
are justified in relying thereon.
Our opinions in paragraph 1 above as to the enforceability of the
Credit Agreement are subject to:
(a) public policy considerations, statutes or court decisions
that may limit the rights of a party to obtain indemnification against
its own gross negligence, willful misconduct or unlawful conduct; and
(b) the unenforceability under certain circumstances of
waivers of rights granted by law where the waivers are against public
policy or prohibited by law.
We express no opinion as to the effect of non-compliance by you with
any state or federal laws or regulations applicable to the transactions
contemplated by the Credit Agreement because of the nature of your business.
The law covered by this opinion is limited to the present federal law
of the United States and the present law of the State of New York. We express no
opinion as to the laws of any other jurisdiction.
This opinion is furnished by us as special counsel for the Agents and
may be relied upon by you only in connection with the Credit Agreement. It may
not be used or relied upon by you for any other purpose or by any other person,
nor may copies be delivered to any other person, without in each instance our
prior written consent. You may, however, deliver a copy of this opinion to
permitted assignees of all or a portion of a Lender's rights and obligations
under the Credit Agreement in connection with such assignment, and such
assignees may rely on this opinion as if it were addressed and had been
delivered to them on the date of this opinion. This opinion may also be
disclosed to regulatory and other governmental authorities having jurisdiction
over you requesting (or requiring) such disclosure.
Respectfully submitted,
92
EXHIBIT E
[FORM OF EXTENSION REQUEST]
[THE DIAL CORP] [VIAD CORP]
REQUEST FOR EXTENSION OF COMMITMENT
TERMINATION DATE
[Date]
[Name and Address of Eligible Lender]
Pursuant to that certain Amended and Restated Credit Agreement dated as
of July 24, 1996 (as amended from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined) among [The Dial
Corp][Viad Corp] (the "Borrower"), certain Lenders party thereto, Citicorp USA,
Inc., as Administrative Agent for said Lenders, and Bank of America National
Trust and Savings Association, as Documentation Agent for said Lenders, this
represents the Borrower's request to extend the Commitment Termination Date of
each Eligible Lender to [1] pursuant to Section 2.16 of the Credit Agreement.
The Borrower hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the effectiveness of the
extension requested hereby ("Proposed Extension"):
(a) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Extension, as though made on and as of such
date, except to the extent that any such representation or warranty
expressly relates only to an earlier date, in which case they were
correct as of such earlier date;
(b) no event has occurred and is continuing, or would result
from the Proposed Extension, which constitutes an Event of Default or a
Potential Event of Default; and
-------------
[1] Insert date which is one year or two years after the latest
Commitment Termination Date in effect.
93
(c) the balance sheet of the Borrower and its Subsidiaries as
at [ ], 199[ ][2], and the related statements of income and retained
earnings of the Borrower and its Subsidiaries for the fiscal year then
ended, copies of each of which have been furnished to each Lender,
fairly present the financial condition of the Borrower and its
Subsidiaries as at such applicable date and the results of the
operations of the Borrower and its Subsidiaries for the fiscal year
ended on such applicable date, all in accordance with GAAP consistently
applied, and since [ ], 199[ ][2], there has been no material adverse
change in the business, condition (financial or otherwise), operations
or properties of the Borrower and its Subsidiaries, taken as a whole.
Please indicate your consent to such extension of the Commitment
Termination Date by signing the attached copy of this request in the space
provided below and returning the same to the undersigned.
Very truly yours,
[THE DIAL CORP] [VIAD CORP]
By:
Title:
The undersigned Eligible Lender
hereby consents to the extension
of its Commitment Termination Date
as requested above. This consent
is subject to the terms of
Section 2.16 of the Credit Agreement.
DATED:
[ELIGIBLE LENDER]
By:
Title:
------------------
[2] Insert date of the most recent audited balance sheet of the
Borrower and its Subsidiaries.
94
EXHIBIT F
[FORM OF COMPLIANCE CERTIFICATE]
The undersigned certifies that: (i) this Certificate is as of [ ] and
pertains to the period from [ ] to [ ], (ii) the undersigned has reviewed the
terms of that certain Amended and Restated Credit Agreement, dated as of July
24, 1996, among The Dial Corp (to be known as The Viad Corp upon the
effectiveness of such Credit Agreement), the Banks named therein, Citicorp USA,
Inc., as Administrative Agent, and Bank of America National Trust and Savings
Association, as Documentation Agent (as it may be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement") and
has made, or caused to be made under the undersigned's supervision, a review in
reasonable detail of the transactions and condition of the Borrower and its
Subsidiaries during the period set forth above and (iii) such review has not
disclosed the existence during or at the end of such period, and the undersigned
does not have knowledge of the existences as of the date of this Certificate, of
any condition or event that constitutes an Event of Default or Potential Event
of Default.[3] Capitalized terms used herein shall have the meanings set forth
in the Credit Agreement.
A. Net Worth
For the Borrower and its Subsidiaries:
1. Net Worth as of the Effective Date $[ ]
2. 80% multiplied (1) $[ ]
3. Net Income (if a positive number)
from the Effective Date to most
recent June 30 or December 31 $[ ]
4. 25% multiplied (3) $[ ]
-------------
[3] If any event or condition that constitutes an Event of Default or
Potential Event of Default exists, the Certificate should include the nature and
period of existence of such event or condition and what action the Borrower has
taken, is taking and proposes to take with respect thereto.
95
5. aggregate net proceeds, including
cash and the fair market value of
property other than cash, received
by the Borrower from the issue or sale
of capital stock of the Borrower
from the Effective Date to the most
recent June 30 or December 31 $[ ]
6. aggregate of 25% of the after tax
gains realized from unusual,
extraordinary, and major nonrecurring
items from the Effective Date to the
most recent June 30 or December 31 $[ ]
7. Additions to Capital [(5) plus (6)] $[ ]
8. Net Worth $[ ]
9. Minimum Net Worth permitted under
Credit Agreement
[(2) plus (4) plus (7)] $[ ]
B. Maximum Funded Debt Ratio.
For the Borrower and its Subsidiaries
(for each period consisting of the most
recently ended four consecutive fiscal
quarters of the Borrower):
1. indebtedness for borrowed money
or for the deferred purchase price
of property or services $[ ]
2. obligations as lessee under leases
which shall have been or should be,
in accordance with GAAP, recorded as
capital leases $[ ]
3. obligations under guarantees in
respect of indebtedness or
obligations of others of the
kinds referred to in clauses (1) and
(2) of this Section B $[ ]
4. Funded Debt [(1) plus (2) plus (3)] $[ ]
5. consolidated net income plus provision
for taxes (excluding extraordinary,
unusual, or nonrecurring gains or
losses) $[ ]
6. interest expense $[ ]
7. depreciation expense and
amortization of intangibles $[ ]
8. EBITDA [(5) plus (6) plus (7)] $[ ]
9. Ratio of Funded Debt to EBITDA
[(4):(8)] [ : ]
10. Maximum Funded Debt Ratio required
under Credit Agreement 3.00:1.00
By:
Title:
96
EXHIBIT G-1
[FORM OF PROMISSORY NOTE (COMMITTED ADVANCES)]
PROMISSORY NOTE
[ ] Dated: [ ], 19[ ]
FOR VALUE RECEIVED, the undersigned, [THE DIAL CORP][VIAD CORP], a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[ ] (the "Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Advance made by the Lender to the Borrower pursuant to
the Credit Agreement referred to below on or before the Termination Date of the
Lender. The Borrower promises to pay interest on the unpaid principal amount of
each such Advance on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
United States dollars in same day funds at the Administrative Agent's office, as
specified in the Credit Agreement.
All Advances made by the Lender, the respective maturities thereof and
all repayments of principal thereof shall be recorded by the Lender and, prior
to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Advance then outstanding shall be endorsed
by the Lender on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof, or in the records of such Lender in
accordance with its usual practice; provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This promissory note is one of the promissory notes referred to in
Section 2.14(d) of that certain Amended and Restated Credit Agreement dated as
of July 24, 1996, among the Borrower, the Lenders named therein, Citicorp USA,
Inc., as Administrative Agent, and Bank of America National Trust and Savings
Association as Documentation Agent (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is hereby made to the Credit Agreement for provisions relating to this
promissory note, including, without limitation, the mandatory and optional
prepayment hereof and the acceleration of the maturity hereof.
[THE DIAL CORP] [VIAD CORP]
By:
Title:
97
TRANSACTIONS ON PROMISSORY NOTE
Amount of
Advance Amount
Made This Maturity Interest of Notation
Date Date Period Rate Payment Made By
---- --------- -------- -------- ------- --------
98
EXHIBIT G-2
[FORM OF PROMISSORY NOTE (BID ADVANCES)]
PROMISSORY NOTE
[ ] Dated: [__________], 19[ ]
FOR VALUE RECEIVED, the undersigned, [THE DIAL CORP][VIAD CORP], a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[ ] (the "Lender") for the account of its Applicable Lending Office (as defined
in the Credit Agreement referred to below) the principal amount of each Bid
Advance (as defined below) made by the Lender to the Borrower pursuant to the
Credit Agreement on the maturity date of such Bid Advance determined pursuant
to the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Bid Advance from the date of such Bid Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, in accordance with the terms of the Credit Agreement .
Both principal and interest are payable in lawful money of the United
States of America to Citicorp USA, Inc., as Agent, at the office of Citibank,
N.A. located at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ in
same day funds. Each Bid Advance made by the Lender to the Borrower pursuant to
the Credit Agreement, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the promissory notes referred to in
Section 2.14(d) of, and is entitled to the benefits of, that certain Amended and
Restated Credit Agreement dated as of July 24, 1996 (as it may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement") by and among Borrower, the financial institutions named therein,
Citicorp USA, Inc., as Administrative Agent and Bank of America National Trust
and Savings Association, as Documentation Agent. The Credit Agreement, among
other things, contains provisions for the making of certain advances (the "Bid
Advances") at the discretion of the Lender, and for the acceleration of the
maturity of the Bid Advances upon the happening of certain stated events.
The date and amount of each Bid Advance, the maturity thereof and the
interest rate applicable thereto and all payments made by the Borrower on
account of principal hereof shall be recorded by the Lender and, prior to any
transfer of this Promissory Note, entered by the Lender on the grid attached
hereto, which is part of this Promissory Note, provided that the Lender shall
not be liable to the Borrower or to any other person for failure to record any
of the foregoing matters on the grid or otherwise in the Lender's records. Such
grid or such other record maintained by the Lender shall, in the absence of
manifest error, be conclusive evidence of the matters so recorded.
The Borrower hereby waives presentment, demand, protest, and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York, United States.
[THE DIAL CORP] [VIAD CORP]
By:
Title:
99
TRANSACTIONS ON PROMISSORY NOTE
Amount of
Advance Amount
Made This Maturity Interest of Notation
Date Date Period Rate Payment Made By
---- --------- -------- -------- ------- --------
100
EXHIBIT H
[FORM OF DESIGNATION AGREEMENT]
DESIGNATION AGREEMENT
Dated [ ], 19[ ]
Reference is made to that certain Amended and Restated Credit Agreement
dated as of July 24, 1996 (as it may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined) by and among [The Dial Corp][Viad
Corp], a Delaware corporation (the "Company"), the financial institutions named
therein, Citicorp USA, Inc., as Administrative Agent, and Bank of America
National Trust and Savings Association, as Documentation Agent.
[ ] (the "Designator") and [ ] (the "Designee") agree as follows:
1. The Designator hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Bid Advances pursuant
to Section 2.03 of the Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto and
(ii) the financial condition of any Borrower or the performance or observance by
any Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Designator or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a Designated Bidder; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) specifies as its Applicable Lending Office
with respect to Bid Advances (and address for notices) the offices set forth
beneath its name on the signature page[s] hereof.
[Remainder of page intentionally left blank]
101
A. This Designation Agreement shall be effective upon the execution of
this Agreement by the Designator, Designee and the Agent and the approval of the
Company as provided in the Credit Agreement.
1. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF DESIGNATOR]
By:
Title:
[NAME OF DESIGNEE]
By:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this [ ] day
of [ ], 19[ ]
Citicorp USA, Inc.
as Administrative Agent
By:
Title:
Bank of America National
Trust and Savings Association
as Documentation Agent
By:
Title: