EXHIBIT (10)a.
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of October 8, 1997
Among
SUPERVALU INC.,
as Borrower,
-----------
and
THE LENDERS NAMED HEREIN,
as Lenders,
----------
BANKERS TRUST COMPANY,
as Agent,
--------
and
CITIBANK, N.A.,
as Syndication Agent,
--------------------
FIRST BANK NATIONAL ASSOCIATION,
THE FUJI BANK, LIMITED,
NATIONSBANK, N.A.
and
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agents,
-- ---------
and
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
THE BANK OF NEW YORK,
THE FIRST NATIONAL BANK OF CHICAGO,
FLEET NATIONAL BANK,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Lead Managers
----------------
T A B L E O F C O N T E N T S
----------------------------------
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................ 1
1.01. Certain Defined Terms.............................................. 1
1.02. Computation of Time Periods........................................ 13
1.03. Accounting Terms................................................... 14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.............................. 14
2.01. The A Advances..................................................... 14
2.02. Making the A Advances.............................................. 14
2.03. The B Advances..................................................... 16
2.04. Swingline Loans.................................................... 19
2.05. Letters of Credit.................................................. 20
2.06. Fees............................................................... 23
2.07. Termination or Reduction of the Commitments or the Swingline
Commitment; Voluntary Reduction; Increase in Aggregate
Commitment....................................................... 24
2.08. Repayment of A Advances, B Advances and Swingline Loans............ 25
2.09. Interest on Advances and Swingline Loans........................... 25
2.10. Additional Interest on Eurodollar Rate Advances.................... 26
2.11. Interest Rate Determination........................................ 26
2.12. Voluntary Conversion of A Advances................................. 28
2.13. Prepayments of A Advances and Swingline Loans...................... 28
2.14. Increased Costs.................................................... 28
2.15. Illegality......................................................... 29
2.16. Payments and Computations.......................................... 30
2.17. Sharing of Payments, Etc........................................... 31
2.18. Taxes............................................................... 31
2.19. Use of Proceeds..................................................... 33
2.20. Termination Date Extensions......................................... 33
2.21. Replacement of Lenders.............................................. 34
ARTICLE III CONDITIONS OF LENDING......................................... 35
3.01. Conditions Precedent to the Effectiveness of Sections 2.01, 2.03,
2.04 and 2.05.................................................... 35
3.02. Conditions Precedent to Each A Borrowing, Swingline Borrowing
and Issuance of a Letter of Credit............................... 37
3.03. Conditions Precedent to Each B Borrowing........................... 37
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................. 38
4.01. Representations and Warranties of the Borrower..................... 38
i
ARTICLE V COVENANTS OF THE BORROWER....................................... 41
5.01. Affirmative Covenants.......................................... 41
5.02. Negative Covenants............................................. 44
ARTICLE VI EVENTS OF DEFAULT.............................................. 48
6.01. Events of Default.............................................. 48
ARTICLE VII THE AGENT..................................................... 51
SECTION 7.01 Appointment............................................. 51
SECTION 7.02. Nature of Duties........................................ 51
SECTION 7.03. Exculpation, Rights Etc................................. 51
SECTION 7.04 Reliance................................................ 52
SECTION 7.05 Indemnification......................................... 52
SECTION 7.06 Agent In Its Individual Capacity........................ 52
SECTION 7.07 Notice of Default....................................... 53
SECTION 7.08 Holders of Obligations.................................. 53
SECTION 7.09 Resignation by the Agent................................ 53
ARTICLE VIII MISCELLANEOUS................................................ 54
8.01. Amendments, Etc................................................ 54
8.02. Notices, Etc................................................... 54
8.03. No Waiver; Remedies............................................ 55
8.04. Costs and Expenses............................................. 55
8.05. Right of Setoff................................................ 55
8.06. Binding Effect................................................. 56
8.07. Assignments and Participations................................. 56
8.08. Indemnification................................................ 58
8.09. Governing Law; Submission to Jurisdiction...................... 58
8.10. Execution in Counterparts...................................... 58
8.11. Confidentiality................................................ 59
8.12. WAIVER OF JURY TRIAL, ETC...................................... 59
ii
Schedule I - Commitments
Schedule II - List of Applicable Lending Offices
Schedule III - Litigation
Schedule IV - Existing Subsidiary Debt
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-1 - Notice of B Borrowing
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of Opinion of ▇▇▇▇▇▇ & Whitney, Special Counsel for the
Borrower
Exhibit E - Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate General
Counsel of the Borrower
iii
CREDIT AGREEMENT
Dated as of October 8, 1997
SUPERVALU INC., a Delaware corporation (the "Borrower"), the lenders
(together with any other lender that hereafter becomes a party to this
Agreement, the "Lenders") listed on the signature pages hereof, BANKERS TRUST
COMPANY ("Bankers Trust"), as agent for the Lenders hereunder (the "Agent"),
CITIBANK, N.A., as syndication agent (the "Syndication Agent"), FIRST BANK
NATIONAL ASSOCIATION, THE FUJI BANK, LIMITED, NATIONSBANK, N.A. and PNC BANK,
NATIONAL ASSOCIATION, each as a co-agent (the "Co-Agents"), and BANK OF AMERICA
NATIONAL TRUST & SAVINGS ASSOCIATION, THE BANK OF NEW YORK, THE FIRST NATIONAL
BANK OF CHICAGO, FLEET NATIONAL BANK, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, each as a lead manager (the
"Lead Managers"), 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):
"A Advance" means an advance by a Lender to the Borrower as part of an
A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Advance" means an A Advance or a B 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 or is a director or officer of such Person. For the purposes
of this definition, "control" (including, with correlative meanings, the
terms "controlling",
"controlled by" and of "under common control with") as used with respect
to any Person or group of Persons, shall mean possession, directly or
indirectly, of the power to direct or cause the direction of management
and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Applicable Facility Fee Rate" means, for any period, a percentage per
annum equal to the percentage set forth below determined by reference to
the higher of (x) the rating of the Borrower's long-term, senior unsecured
Debt from S&P or (y) the rating of the Borrower's long-term, senior
unsecured Debt from ▇▇▇▇▇'▇, in each case as in effect from time to time
during such period:
Borrower's
Long-Term Senior
Unsecured Debt Rating Applicable
S&P or ▇▇▇▇▇'▇ Facility Fee Rate
-----------------------------------------------------------------------------
Level 1
A or A2 or better .070%
-----------------------------------------------------------------------------
Level 2
A- or A3 or better .080%
-----------------------------------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 or better .090%
-----------------------------------------------------------------------------
Level 4
BBB or Baa2 or better .110%
-----------------------------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ or better .140%
-----------------------------------------------------------------------------
Level 6
Equal to BB+ or Ba1 or below .170%
-----------------------------------------------------------------------------
;provided that if, at any time, no rating is available from S&P, ▇▇▇▇▇'▇ or
any other nationally recognized statistical rating organization designated
by the Borrower and approved in writing by the Majority Lenders, the
Applicable Facility Fee Rate shall be .170%; and provided further that upon
the occurrence of a ratings differential between S&P and ▇▇▇▇▇'▇, the
Applicable Facility Fee Rate shall be the Level of the higher rating.
"Applicable Interest Rate Margin" means, for any Interest Period, a
percentage per annum equal to the percentage set forth below determined by
reference to the higher of (x) the rating of the Borrower's long-term,
senior unsecured Debt from S&P or (y) the rating of the Borrower's long-
term, senior unsecured Debt from ▇▇▇▇▇'▇, in each case as in effect on the
first day of such Interest Period:
2
Applicable Interest Rate Margin
(basis points)
-------------------------------------------------------------
Borrower's If less than If 50% or
Long-Term Senior 50% of the greater of
Unsecured Debt Rating Lenders' the Lenders'
S&P or ▇▇▇▇▇'▇ Commitments Commitments
are drawn (including giving are drawn (including giving
effect to any B Advances, effect to any B Advances,
Swingline Loans and Letter Swingline Loans and Letter
of Credit Liabilities) of Credit Liabilities)
-------------------------------------------------------------------------------------------------
Level 1
A or A2 or better .150% .200%
-------------------------------------------------------------------------------------------------
Level 2
A- or A3 or better .160% .235%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 or better .180% .275%
-------------------------------------------------------------------------------------------------
Level 4
BBB or Baa2 or better .180% .280%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ or better .300% .400%
-------------------------------------------------------------------------------------------------
Level 6
Equal to BB+ or Ba1 or below .325% .450%
-------------------------------------------------------------------------------------------------
;provided that if, at any time, no rating is available from S&P, ▇▇▇▇▇'▇ or
any other nationally recognized statistical rating organization designated
by the Borrower and approved in writing by the Majority Lenders, the
Applicable Interest Rate Margin for such Interest Period shall be .325% if
less than 50% of the Lenders' Commitments are drawn and .450% if 50% or
greater of the Lenders' Commitments are drawn; and provided further that
upon the occurrence of a ratings differential between S&P and ▇▇▇▇▇'▇, the
Applicable Interest Rate Margin shall be the Level of the higher rating.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a B Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office with respect to such B
Advance.
3
"Assignment and Assumption Agreement" means an assignment and
assumption agreement entered into by a Lender and an Eligible Assignee, and
accepted by the Agent, in substantially the form of Exhibit C hereto.
"Available LC Amount" means at any time an amount equal to the lesser
of (i) $150,000,000 and (ii) the excess, if any, of the aggregate amount of
the Commitments over the aggregate outstanding amount of A Advances plus B
Advances plus Swingline Loans at such time.
"B Advance" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part
of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Advance" means an A Advance that bears interest as provided
in Section 2.09(a)(i).
"Borrowing" means an A Borrowing, a B Borrowing or a Swingline
Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and London 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" shall mean a lease meeting one or more of the criteria
set forth in paragraph 7 of the Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board (as in effect from time
to time or as set forth in a statement of generally accepted accounting
principles superseding such paragraph 7).
4
"Commercial Letters of Credit" means the commercial Letters of Credit
issued by the LC Bank for the account of the Borrower pursuant to Section
2.05, each of which is drawable upon presentation of documents evidencing
the sale or shipment of goods purchased by the Borrower or any of its
Subsidiaries in the ordinary course of its business.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated" refers to the consolidation of accounts of the Borrower
and its Subsidiaries in accordance with generally accepted accounting
principles, including principles of consolidation, consistently applied.
"Consolidated Tangible Assets" means at any date the sum of the
Tangible Assets of the Borrower and its Consolidated Subsidiaries after
eliminating intercompany items, all determined in accordance with generally
accepted accounting principles, including appropriate deductions for any
minority interest in Tangible Assets of such Consolidated Subsidiaries;
provided that the Consolidated assets of the Borrower and its Subsidiaries
shall be determined by reference to the most recent financial statements of
the Borrower delivered pursuant to Section 5.01(e)(i)(x) or (y).
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.15
or 2.12.
"Current Supervalu Credit Agreement" means the Credit Agreement dated
as of May 26, 1995, as amended, supplemented or otherwise modified, among
the Borrower, the banks parties thereto, Citibank, N.A., as agent, First
Bank National Association, PNC Bank, National Association, NationsBank,
N.A. (f/k/a Nationsbank, N.A. (Carolinas)) and The Fuji Bank, Limited,
Chicago Branch, as co-agents, and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Royal Bank of Canada and Fleet National Bank (f/k/a Shawmut Bank,
N.A.), as lead managers.
"Debt" of any Person means (i) indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services that
exceed, on an individual basis, $1,000,000 (for any obligation or group of
related obligations), (iv) the present value of all obligations of such
Person as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
Capital Leases and (v) all obligations of such Person under direct or
indirect guaranties in respect of, and all obligations (contingent or
otherwise) of such Person to purchase or otherwise acquire, or otherwise to
assure a creditor
5
against loss in respect of, indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iv) above.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"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 II hereto or in the Assignment and Assumption
Agreement pursuant to which it became a Lender or in the agreement required
by Section 2.07(b) 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 Agent.
"Effective Date" means the first date on which the conditions set
forth in Section 3.01 applicable to the effectiveness of Sections 2.01,
2.03, 2.04 and 2.05 have been satisfied.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; (ii) a savings and loan association or savings
bank organized under the laws of the United States, or any State thereof,
and having total assets in excess of $1,000,000,000; (iii) a commercial
bank organized under the laws of any other country which is a member of the
OECD or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, and having total assets in
excess of $1,000,000,000, provided that such bank is acting through such
bank's branch or agency, located in the United States; (iv) the central
bank of any country which is a member of the OECD; (v) a commercial finance
company organized under the laws of the United States, or any State
thereof, and having total assets in excess of $1,000,000,000; (vi) any
Lender; (vii) an Affiliate of any Lender; and (viii) such other bank,
company, financial institution or fund to which the Borrower shall consent;
provided, however, that notwithstanding anything to the contrary set forth
in this Agreement, no Person that is organized under the laws of a
jurisdiction outside the United States shall be an Eligible Assignee if, at
the time of an assignment pursuant to Section 8.07, such Person would be
subject to United States interest withholding tax at a rate greater than
zero; provided further, however, that neither the Borrower nor any
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
noncompliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating to
any Environmental Law, Environmental Permit or Hazardous Material or
arising from alleged injury or threat of injury to health,
6
safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to the
environment, health, safety or Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Section 414 of the Internal Revenue Code of 1986, as amended from time to
time.
"ERISA Event" with respect to any Person means (a) the occurrence of a
material reportable event, within the meaning of Section 4043 of ERISA,
with respect to any Plan of such Person or any of its ERISA Affiliates,
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC; (b) the application for a minimum funding waiver with
respect to any Plan of such Person or any of its ERISA Affiliates; (c) the
provision by the administrator of any Plan of such Person or any of its
ERISA Affiliates of a notice of intent to terminate such 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); (d) the cessation
of operations at a facility of such Person or any of its ERISA Affiliates
in the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by such Person or any of its ERISA Affiliates 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; (f) the failure by such Person
or any of its ERISA Affiliates to make a payment to a Plan if the
conditions for the imposition of a lien under Section 302(f)(1) of ERISA
are satisfied; (g) the adoption of an amendment to a Plan of such Person or
any of its ERISA Affiliates requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA; or (h) the institution by the PBGC
of proceedings to terminate a Plan of such Person or any of its ERISA
Affiliates, pursuant to Section 4042 of ERISA (other than subsection (a)(4)
thereof), or the occurrence of any event or condition
7
described in Section 4042 of ERISA that could constitute grounds for the
termination of, or the appointment of a trustee to administer, such 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 II hereto or in the Assignment and Assumption
Agreement pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office) or in the agreement required by
Section 2.07(b) 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
Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same A Borrowing, an interest rate per
annum equal to 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 (2) Business
Days before the first day of such Interest Period in an amount
substantially equal to the greater of (i) $1,000,000 and (ii) such
Reference Bank's Eurodollar Rate Advance comprising part of such A
Borrowing, and for a period equal to such Interest Period. The Eurodollar
Rate for any, Interest Period for each Eurodollar Rate Advance comprising
part of the same A Borrowing shall be determined by the Agent on the basis
of applicable rates furnished to and received by the Agent from the
Reference Banks two (2) Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.11.
"Eurodollar Rate Advance" means an A Advance that bears interest as
provided in Section 2.09(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if 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 requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting
8
of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, 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 that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of nationally recognized standing
selected by it.
"Financial Officer" means, for any Person, the chief executive
officer, the chief financial officer, the senior vice president-finance,
the chief accounting officer, the treasurer or the controller of such
Person or any assistant treasurer or any assistant controller of such
Person previously identified in writing to the Agent.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-
containing materials, radon gas and any other chemicals, materials or
substances designated, classified or regulated as being "hazardous" or
"toxic", or words of similar import, under any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance.
"Holding Account" means an interest-bearing deposit account belonging
to the Agent for the benefit of the Lenders into which the Borrower may be
required to make cash deposits pursuant to the provisions of this
Agreement, such account to be under the sole dominion and control of the
Agent and not subject to withdrawal by the Borrower, with any amounts
therein to be held for application toward payment of any outstanding
Letters of Credit when drawn upon.
"Insufficiency" means, with respect to any Plan of the Borrower or any
of its ERISA Affiliates, the amount, if any, of "unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) for such Plan.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any A Advance into
such a Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent
9
period commencing on the last day of the immediately preceding Interest
Period 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
for a Eurodollar Rate Borrowing shall be 1, 2, 3 or 6 months and, if
available to all Lenders, 9 or 12 months, in each case as the Borrower may,
upon notice received by, the Agent not later than 11:00 A. M. (New York
City time) on the third Business Day, prior to the first day of such
Interest Period, select; provided, however, that:
(i) the duration of any Interest Period which commences before
the Termination Date and would otherwise end after such date shall end
on such date;
(ii) Interest Periods commencing on the same date for Eurodollar
Advances comprising part of the same A Borrowing shall be of the same
duration;
(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 the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"LC Bank" means such Lender as is designated as the LC Bank for any
Letter of Credit by written notice to the Agent from such Lender and the
Borrower, in such Bank's capacity as LC Bank under the letter of credit
facility described in Section 2.05, and its successors in such capacity.
"LC Exposure" means, at any time and for any Lender, an amount equal
to such Lender's Percentage of the aggregate amount of Letter of Credit
Liabilities in respect of all outstanding Letters of Credit at such time.
"Lenders" means the banks and each Eligible Assignee that shall become
a party hereto pursuant to Section 2.07(b) or Section 8.07(c).
"Letter of Credit Liabilities" means, at any time and in respect of
any Letter of Credit, the sum, without duplication, of (i) the amount
available for
10
drawing under such Letter of Credit plus (ii) the aggregate unpaid amount
of all Reimbursement Obligations in respect of previous drawings made under
such Letter of Credit.
"Letters of Credit" means the Commercial Letters of Credit and the
Standby Letters of Credit.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
concerning property, including, without limitation, the lien or retained
security title of a conditional vendor and any other encumbrance on title
to real property to secure repayment of a liability.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means at any time Lenders holding at least 51% of
the then aggregate unpaid principal amount of the A Notes plus the then
aggregate unpaid amount of Reimbursement Obligations held by Lenders, or,
if no such principal amount is then outstanding, Lenders having at least
51% of the Commitments (or if the aggregate Commitment has been terminated,
Lenders holding at least 51% of the then aggregate unpaid principal amount
of the Notes plus the then aggregate unpaid amount of Reimbursement
Obligations).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Worth" means the excess of total assets over total liabilities,
total assets and total liabilities each to be determined in accordance with
generally accepted accounting principles, consistently applied.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
11
"Notice of B Borrowing" has the meaning specified in Section 2.03(a).
"Notice of Swingline Borrowing" has the meaning specified in Section
2.04(b).
"OECD" means the Organization for Economic Cooperation and
Development.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
corporation thereto.
"Percentage" means, with respect to each Lender, the percentage equal
to a fraction the numerator of which is the amount of such Lender's
Commitment (or, in the event the Commitments have been terminated, such
Lender's Commitment as is in effect immediately prior to such termination)
and the denominator of which is the aggregate amount of the Commitments
(or, in the event the Commitments have been terminated, the aggregate
amount of the Commitments as in effect immediately prior to such
termination) of the Lenders.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan, but
does not include any such plan with a total projected benefit obligation of
less than $20,000,000.
"Prime Rate" means the rate of interest publicly announced by Bankers
Trust in New York City from time to time as its "prime rate", which is not
necessarily the lowest rate made available by Bankers Trust. The "prime
rate" announced by Bankers Trust is evidenced by the recording thereof
after its announcement in such internal publication or publications as
Bankers Trust may designate. Any change in the interest rate resulting
from a change in such "prime rate" announced by Bankers Trust shall become
effective without prior notice to the Borrower as of 12:01 A.M. (New York
City time) on the Business Day on which each change in such "prime rate"
is announced by Bankers Trust. Bankers Trust may make commercial or other
loans to others at rates of interest at, above or below its "prime rate".
"Reference Banks" means Bankers Trust, Citibank, N.A. and
NationsBank, N.A. or any successor Reference Bank appointed pursuant to
Section 2.11(d).
12
"Reimbursement Obligations" means at any date the obligations of the
Borrower then outstanding under Section 2.05 to reimburse the LC Bank for
the amount paid by the LC Bank in respect of a drawing under a Letter of
Credit.
"S&P" means Standard & Poor's Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and no Person other
than such Person and its ERISA Affiliates or (b) was so maintained and in
respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Standby Letter of Credit" means any letter of credit other than a
Commercial Letter of Credit issued by an LC Bank for the account of the
Borrower pursuant to Section 2.05.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Swingline Borrowing" means a borrowing consisting of a Swingline
Loan made pursuant to Section 2.04.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans to the Borrower in aggregate principal amount at any
one time outstanding not to exceed the lesser of (i) $10,000,000 and (ii)
the excess, if any, of the Swingline Lender's Commitment as a Lender over
the sum of (x) the aggregate outstanding principal amount of the Swingline
Lender's A Advances as a Lender plus (y) the Swingline Lender's LC Exposure
as a Lender, in each case at such time.
"Swingline Lender" means Bankers Trust, in its capacity as the
Swingline Lender under the Swingline facility described in Section 2.04,
and its successors in such capacity.
13
"Swingline Loan" means a loan made by the Swingline Lender pursuant to
Section 2.04.
"Tangible Assets" of any Person means, at any date, the gross book
value as shown by the accounting books and records of such Person
(maintained in accordance with generally accepted accounting principles) of
all its property both real and personal, less (i) the net book value of all
its licenses, patents, patent applications, copyrights, trademarks, trade
names, goodwill, non-compete agreements or organizational expenses and
other like intangibles, (ii) unamortized indebtedness discount and expense,
(iii) all reserves for depreciation, obsolescence, depletion and
amortization of its properties and (iv) all other proper valuation reserves
against assets which in accordance with generally accepted accounting
principles should be provided in connection with the business conducted by
such Person.
"Termination Date" means the earlier of the date which is the fifth
anniversary of the Effective Date (as the same may be extended pursuant to
Section 2.20 up to the eighth anniversary of the Effective Date) and the
date of termination in whole of the Commitments pursuant to Section 2.07 or
6.01.
"Total Capital" means, as of any date, the sum of (a) Consolidated
Debt and (b) Consolidated Net Worth.
"Type" of A Advance shall mean Base Rate Advance or Eurodollar Rate
Advance.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in 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 not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied.
14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to the Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in amounts such that the sum of (x) the aggregate
principal amount of A Advances by such Lender plus (y) such Lender's Percentage
of the aggregate principal amount of Swingline Loans plus (z) such Lender's LC
Exposure at any one time outstanding shall not exceed the amount set forth
opposite such Lender's name on Schedule I hereto or, if such Lender has entered
into any Assignment and Assumption Agreement, the amount set forth for such
Lender in such Assignment and Assumption Agreement or, if such Lender has
entered into an agreement required by Section 2.07(b), the amount set forth for
such Lender in such agreement (as each such amount may be reduced pursuant to
Section 2.07) (such amount, 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 B Advances then
outstanding 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 being a "B
Reduction"); and provided further that in no event shall the Swingline Lender be
obligated to make any loan hereunder if, after making such loan and giving
effect to the application of any funds made available at such time to prepay or
repay any outstanding Swingline Loan, the sum of (A) the aggregate principal
amount of A Advances, Swingline Loans and LC Exposure at such time outstanding
exceeds an amount equal to (I) the aggregate Commitment less (II) the aggregate
B Reduction . Each A Borrowing shall be in an aggregate amount not less than
$20,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, an aggregate amount equal to the difference between the aggregate amount
of a proposed B Borrowing requested by the Borrower and the aggregate amount of
B Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such B Borrowing, if such B Borrowing is made on the same date as
such A Borrowing) and shall consist of A 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 under this Section 2.01, prepay pursuant to Section 2.13(b) and
reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall be made
on notice, given not later than 11:00 A.M. (New York City time) (i) on the same
Business Day as the proposed A Borrowing in the case of an A Borrowing
consisting of Base Rate Advances or (ii) on the third Business Day prior to the
date of the proposed A Borrowing in the case of an A Borrowing consisting of
Eurodollar Rate Advances, by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice of
an A Borrowing (a "Notice of A Borrowing") shall be by
15
facsimile transmission, or by telex or cable (confirmed immediately in writing),
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such
A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of
an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest
Period for each such A Advance. Each Lender shall, before 1:00 P.M. (New York
City time) on the date of such A Borrowing, make available for the account of
its Applicable Lending Office to the Agent at its address referred to in Section
8.02, in same day funds, such Lender's ratable portion of such A Borrowing.
After the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower at the Agent's aforesaid address not later than 2:00 P.M. (New York
City time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances for any A Borrowing if the
aggregate amount of such A Borrowing is less than $20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower. In the case of any A Borrowing that the related Notice of A 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
as a result of any failure to fulfill on or before the date specified in such
Notice of A Borrowing for such A Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the A
Advance to be made by such Lender as part of such A Borrowing when such A
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender (i) by
12:00 Noon on the date of any A Borrowing in the case of any A Borrowing
consisting of Base Rate Advances or (ii) by 12:00 Noon on the Business Day prior
to the date of any A Borrowing consisting of Eurodollar Rate Advances that such
Lender will not make available to the Agent such Lender's ratable portion of
such A Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such A Borrowing in accordance with
subsection (a) of this Section 2.02 and the 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 Agent, such Lender and the Borrower severally agree to
repay to the 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 Agent, at (i) in the
case of the Borrower, the interest rate applicable at the time to A Advances
comprising such A Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall
16
constitute such Lender's A Advance as part of such A Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees that
the Borrower may make B Borrowings under this Section 2.03 from time to time on
any Business Day during the period from the date hereof until the date occurring
15 days prior to the Termination Date in the manner set forth below; provided
that, following the making of each B Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed an aggregate amount equal to (x) the
Commitments of the Lenders at such time (computed without regard to any B
Reduction) less (y) the aggregate LC Exposure at such time less (z) the
aggregate outstanding principal amount of Swingline Loans at such time.
(i) The Borrower may request a B Borrowing under this Section
2.03 by delivering to the Agent, by facsimile transmission, telex or cable,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying
therein the date and aggregate amount of the proposed B Borrowing, the
maturity date for repayment of each B Advance to be made as part of such B
Borrowing (which maturity date may be (i) 14 to 180 days after the date of
the B Borrowing in the case of fixed rate B Borrowings and (ii) 30 to 180
days after the date of the B Borrowing in the case of floating rate B
Borrowings, but in either case may not be later than the Termination Date),
the interest payment date or dates relating thereto, and any other terms to
be applicable to such B Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one (1) Business Day prior to the date of the proposed B
Borrowing, if the Borrower shall specify in the Notice of B Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates per
annum and (B) at least four (4) Business Days prior to the date of the
proposed B Borrowing, if the Borrower shall specify in the Notice of B
Borrowing that the rates of interest to be offered by the Lenders shall be
floating rates per annum. The Agent shall in turn promptly notify by
telecopy each Lender of each request for a B Borrowing received by it from
the Borrower by sending such Lender a copy of the related Notice of B
Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more B Advances to the Borrower as
part of such proposed B Borrowing at a rate or rates of interest specified
by such Lender in its sole discretion (but conforming to the Borrower's
Notice of B Borrowing in respect thereof), by notifying the Agent (which
shall give prompt notice thereof to
17
the Borrower), before 10:00 A.M. (New York City time) (A) on the date of
such proposed B Borrowing, in the case of a Notice of B Borrowing delivered
pursuant to clause (A) of paragraph (i) above and (B) three (3) Business
Days before the date of such proposed B Borrowing, in the case of a Notice
of B Borrowing delivered pursuant to clause (B) of paragraph (i) above, of
the minimum amount and maximum amount of each B Advance which such Lender
would be willing to make as part of such proposed B Borrowing (which
amounts may exceed such Lender's Commitment), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such B
Advance; provided that, if the 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. Unless the Agent shall have received notice from a Lender before
10:00 A.M. in accordance with the immediately preceding sentence, the Agent
and the Borrower may assume that such Lender has elected not to make such
an offer pursuant to this Section 2.03(a)(ii).
(iii) The Borrower shall (A) before 11:00 A.M. (New York City
time) on the date of such proposed B Borrowing, in the case of a Notice of
B Borrowing delivered pursuant to clause (A) of paragraph (i) above and (B)
before 1:00 P.M. (New York City time) on the Business Day that is three (3)
Business Days before the date of such proposed B Borrowing, in the case of
a Notice of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, either:
(x) cancel such B Borrowing by giving the 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 Agent of the amount of each B Advance (which
amount shall be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the Borrower by the
Agent on behalf of such Lender for such B Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such B
Borrowing, and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Agent notice to that effect.
The acceptance of offers by the Borrower pursuant to this clause
(B) shall be on the basis of ascending rates of interest contained in the
offers made by Lenders pursuant to paragraph (ii) above; provided that, in
the event that two or more of such offers contain the same rate of interest
for a greater aggregate principal amount than the amount specified in such
Notice of B Borrowing (less the aggregate principal amount of all such
offers containing lower rates of interest that have been accepted by the
Borrower pursuant to this clause (B)), the Borrower shall have sole
discretion (subject to any minimum and maximum
18
amount specified in any such offer) to accept one or more of the offers at
such rate of interest and to reject any remaining offers at such rate of
interest.
(iv) If the Borrower notifies the Agent that such B Borrowing is
canceled pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the 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 B 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 B Advance as part of such B Borrowing, of the amount of
each B Advance to be made by such Lender as part of such B Borrowing and
(C) each Lender that is to make a B Advance as part of such B Borrowing,
upon receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a B Advance as part of such B Borrowing shall, before 12:00
noon (New York City time) on the date of such B Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice from
the Agent pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02 such Lender's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of such
funds, the Agent will make such funds available to the Borrower at the
Agent's aforesaid address. Promptly after each B Borrowing the Agent will
notify each Lender of the amount of the B Borrowing, the consequent B
Reduction, and the dates upon which such B Reduction commenced and will
terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and binding
on the Borrower. The Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in the related Notice of B
Borrowing for such B Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
the B Advance to be made by such Lender as part of such B Borrowing when
such B Advance, as a result of such failure, is not made on such date.
19
(b) Each B Borrowing shall be in an aggregate amount not less than
$15,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrower shall be in compliance
with the limitation set forth in the proviso to the first sentence of subsection
(a) above.
(c) 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 (d) below, and reborrow under this Section
2.03; provided that a B Borrowing shall not be made within three (3) Business
Days of the date of any other B Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a B Advance, or each other holder of a B Note, on the
maturity date of each B Advance (such maturity date being that specified by the
Borrower for repayment of such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (a)(i) above and provided in the B Note
evidencing such B Advance), the then unpaid principal amount of such B Advance.
The Borrower shall have no right to prepay any principal amount of a B Advance
unless, and then only on the terms, specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the B Note evidencing such B Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each B Advance from the date of such B Advance to the date the principal amount
of such B Advance is repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B 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 B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above, as provided in the
B Note evidencing such B Advance.
(f) The indebtedness of the Borrower resulting from each B Advance
made to the Borrower as part of a B Borrowing shall be evidenced by a separate B
Note of the Borrower payable to the order of the Lender making such B Advance.
Upon the repayment in full of the indebtedness of Borrower resulting from such B
Advance, the holder of the B Note evidencing such indebtedness shall return such
B Note to the Borrower at its address specified pursuant to Section 8.02.
SECTION 2.04. Swingline Loans. The Swingline Lender agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section 2.04 from time to time on any Business Day during the
period from the date hereof until the Termination Date in amounts such that the
aggregate principal amount of Swingline Loans at any one time outstanding shall
not exceed its Swingline Commitment. Each loan under this Section 2.04 shall
be in a principal amount of at least $1,000,000 or any larger multiple of
$1,000,000. All Swingline Loans shall be made as Base Rate Advances. Within
the foregoing limits, the Borrower may borrow under this
20
Section 2.04, repay pursuant to Section 2.08(b), or to the extent permitted by
Section 2.13(c), prepay Swingline Loans and reborrow under this Section 2.04.
(b) Notice of Swingline Borrowing. The Borrower shall give the
Swingline Lender notice (a "Notice of Swingline Borrowing") not later than 1:00
P.M. (New York City time) on the date of each Swingline Borrowing, specifying
(i) the date of such Swingline Borrowing, which shall be a Business Day, and
(ii) the amount of such Borrowing.
(c) Conversion of Swingline Loans to A Advances. The Swingline
Lender, at any time in its sole and absolute discretion, may on behalf of the
Borrower (which hereby irrevocably directs the Swingline Lender to so act on its
behalf) notify each Lender (including the Swingline Lender) to make an A Advance
to the Borrower in a principal amount equal to such Lender's Percentage of the
amount of such Swingline Loan; provided, however that such notice shall be
deemed to have automatically been given upon the occurrence of an Event of
Default under Section 6.01(e). Upon notice from the Swingline Lender, each
Lender (other than the Swingline Lender) will immediately transfer to the
Swingline Lender, in immediately available funds, an amount equal to such
Lender's Percentage of the amount of such Swingline Loan so repaid. Each
Lender's obligation to transfer the amount of such A Advance to the Swingline
Lender shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender or any other Person may
have against the Swingline Lender, (ii) the occurrence or continuance of a
Default or an Event of Default or the termination of the Commitments, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower or any
other Person, (iv) any breach of this Agreement by the Borrower or any other
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
SECTION 2.05. Letters of Credit.
(a) Commitment to Issue Letters of Credit. Each LC Bank agrees,
subject to the terms and conditions hereof, to issue Letters of Credit upon the
request of the Borrower on a sight basis from time to time on any Business Day
during the period from the date hereof until the Termination Date; provided that
immediately after each such Letter of Credit is issued, the aggregate amount of
the Letter of Credit Liabilities shall not exceed the Available LC Amount. Each
Letter of Credit shall be issued in an amount equal to or greater than $100,000.
Upon the date of issuance by an LC Bank of a Letter of Credit, the LC Bank
shall be deemed, without further action by any party hereto, to have sold to
each Lender, and each Lender shall be deemed, without further action by any
party hereto, to have purchased from the LC Bank, a participation in such Letter
of Credit and the related Letter of Credit Liabilities in proportion to its
Percentage. The Borrower shall pay to the LC Bank issuance fees and other
customary fees in the amounts and at the times as agreed between the Borrower
and the LC Bank.
21
(b) Request for Issuance. The Borrower shall give the LC Bank at least
three (3) Business Days' prior notice (effective upon receipt) of a request for
the issuance of a Letter of Credit specifying the date each Letter of Credit is
to be issued, and describing the proposed terms of such Letter of Credit and the
nature of the transactions proposed to be supported thereby. Upon issuance of or
amendments to a Standby Letter of Credit, the LC Bank shall promptly notify the
Agent, and the Agent shall promptly notify each Lender of the contents thereof
and of the amount of such Lender's participation in such Standby Letter of
Credit. The issuance by the LC Bank of each Letter of Credit shall, in addition
to the conditions precedent set forth in Article III, be subject to the
conditions precedent that such Letter of Credit shall be in such form and
contain such terms as shall be satisfactory to the LC Bank and that the Borrower
shall have executed and delivered such other instruments and agreements relating
to such Letter of Credit as the LC Bank shall have reasonably requested. No
Standby Letter of Credit shall have an expiration date extending beyond three
(3) days prior to the Termination Date. No Commercial Letter of Credit shall
have an expiration date extending beyond 180 days from the issuance date nor
have an expiration date less than 3 days prior to the Termination Date. In the
event that the LC Bank issuing any Letter of Credit is other than Bankers Trust,
such LC Bank will send by facsimile transmission to the Agent, promptly on the
first Business Day of each week, the daily aggregate amount available for
drawing under all Letters of Credit issued by such LC Bank for the previous
week. The Agent shall deliver to each Lender, upon the end of each calendar
month and upon each Letter of Credit fee payment, a report setting forth for
such period the daily aggregate amounts available for drawing under all Letters
of Credit issued by all ▇▇ ▇▇▇▇▇ and outstanding during such period.
(c) Reimbursement of Payments. Upon receipt from the beneficiary of
any Letter of Credit of any demand for payment or other drawing under such
Letter of Credit and finding such drawing in substantial compliance with the
Letter of Credit terms, the LC Bank shall notify the Borrower as to the amount
to be paid as a result of such demand or drawing and the respective payment
date. If there are at such time amounts on deposit in the Holding Account, the
Borrower shall notify the Agent thereof, and the Agent shall withdraw an amount
equal to the amount to be paid as a result of such demand or drawing or, if
less, the amount on deposit in the Holding Account, on the payment date and pay
such amount to the applicable LC Bank. Unless the applicable LC Bank is
reimbursed in full from amounts on deposit in the Holding Account, the Borrower
shall reimburse the LC Bank in an amount equal to the amount of such drawing by
1:00 P.M. (New York City time) on the day on which such drawing is paid in
immediately available funds. If the LC Bank is not reimbursed for the amount of
such drawing as provided in the preceding sentence, the LC Bank shall notify the
Agent, and the Agent shall notify each other Lender, thereof by 1:30 P.M. (New
York City time) on the date such drawing is paid. If at any time the LC Bank
shall make a payment to a beneficiary of a Letter of Credit in respect of a
drawing or in respect of an acceptance created in connection with a drawing
under such Letter of Credit and such drawing has not been paid by the Borrower,
each Lender will pay to the Agent, for the account of the LC Bank, immediately
upon the LC Bank's demand at any time during the period
22
commencing after such payment until reimbursement therefor in full by the
Borrower, an amount equal to such Lender's Percentage multiplied by the amount
of such payment, together with interest on such amount for each day from the
date of the LC Bank's demand for such payment (or, if such demand is made after
3:00 P.M. (New York City time) on such date, from the next succeeding Business
Day) to the date of payment by such Lender of such amount at a rate of interest
per annum equal to the Federal Funds Rate for such period.
(d) Reimbursement Obligations Unconditional. The Borrower shall be
irrevocably and unconditionally obligated forthwith to reimburse the LC Bank for
any amounts paid by the LC Bank upon any drawing under any Letter of Credit on
the date of such payment by the LC Bank, without presentment, demand, protest or
other formalities of any kind; provided that the Borrower shall not hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower to the extent, but only to the extent, caused by (i)
the willful misconduct or gross negligence (as determined by a court of
competent jurisdiction) of the LC Bank in determining whether a request
presented under any Letter of Credit complied with the terms of such Letter of
Credit or (ii) the LC Bank's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of the Letter of Credit. All such amounts paid by the LC Bank and remaining
unpaid by the Borrower shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the rate applicable
to Base Rate Advances for such day. The LC Bank will promptly pay to each
Lender ratably in accordance with its Percentage all amounts received from the
Borrower for application in payment, in whole or in part, of the Reimbursement
Obligation in respect of any Letter of Credit, but only to the extent such
Lender has made payment to the LC Bank in respect of such Letter of Credit
pursuant to Section 2.05(c).
(e) Indemnification. The Borrower hereby indemnifies and holds
harmless each Lender and the Agent from and against any and all claims and
damages, losses, liabilities, costs or expenses which such Lender or the Agent
may incur (or which may be claimed against such Lender or the Agent by any
Person whatsoever) by reason of or in connection with the execution and delivery
or transfer of or payment or failure to pay under any Letter of Credit,
including, without limitation, any claims, damages, losses, liabilities, costs
or expenses which the LC Bank may incur by reason of or in connection with the
failure of any other Lender to fulfill or comply with its obligations to the LC
Bank hereunder (but nothing herein contained shall affect any rights the
Borrower may have against such defaulting Lender); provided that the Borrower
shall not be required to indemnify any Lender or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence (as determined
by a court of competent jurisdiction) of the LC Bank, such Lender or the Agent
in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (ii) the LC Bank's failure to pay
under any Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of the Letter of Credit. Nothing in
this Section
23
2.05(e) is intended to limit the obligations of the Borrower under any other
provision of this Agreement.
(f) Limited Liability of the LC Bank. The Borrower assumes all risks
of the acts or omissions of any beneficiary and any transferee of any Letter of
Credit with respect to its use of such Letter of Credit. The Lenders, the LC
Bank and their respective officers and directors shall not be liable or
responsible for, and the obligations of each Lender to make payments, and of the
Borrower to reimburse the LC Bank for payments, pursuant to this Section 2.05
shall not be excused by, any action or inaction of any Lender or the LC Bank
related to any of: (i) the use which may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (ii)
the validity, sufficiency or genuineness of documents presented under any Letter
of Credit, or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(iii) payment by the LC Bank against presentation of documents to the LC Bank
which do not strictly comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit, absent such LC Bank's gross negligence or willful misconduct;
or (iv) any other circumstances whatsoever in making or failing to make or
notifying or failing to notify the LC Bank that it is required to make any
payment under any Letter of Credit. Notwithstanding the foregoing, the Borrower
shall have a claim against the LC Bank and the LC Bank shall be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by the Borrower which were caused by (i) the LC
Bank's willful misconduct or gross negligence (as determined by a court of
competent jurisdiction) in determining whether documents presented under any
Letter of Credit comply with the terms thereof or (ii) the LC Bank's willful
failure to pay, or to notify any Lender that it is required to pay, under any
Letter of Credit after the presentation to the LC Bank by any beneficiary (or a
successor beneficiary to whom such Letter of Credit has been transferred in
accordance with its terms) of documents strictly complying with the terms and
conditions of such Letter of Credit. Subject to the preceding sentence, the LC
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary unless any beneficiary (or a successor beneficiary
to whom such Letter of Credit has been transferred in accordance with its terms)
or the Borrower shall have notified the LC Bank that such documents do not
comply with the terms and conditions of such Letter of Credit. Each Lender
shall, ratably in accordance with its Percentage, indemnify the LC Bank (to the
extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the LC Bank's gross negligence or willful
misconduct) that the LC Bank may suffer or incur in connection with this
Agreement or any action taken or omitted by the LC Bank hereunder.
(g) Letters of Credit Outside Facility. Nothing in this Agreement
shall be construed as limiting the right of the Borrower to request, or of any
Lender to issue, letters of credit for the account of the Borrower that are not
"Letters of Credit" for
24
purposes of this Agreement. No request by the Borrower to any Lender for the
issuance of a letter or credit shall be deemed a request for the issuance of a
Letter of Credit under this Agreement unless (i) the Borrower's request for such
letter of credit states in writing that such letter of credit, when issued,
shall be a Letter of Credit under this Agreement, or (ii) such Lender conditions
its agreement to issue such letter of credit, in writing, on the Borrower's
agreement that such letter of credit constitute a Letter of Credit under this
Agreement.
(h) If after giving effect to any reduction of the Commitments
pursuant to Section 2.07(a), the aggregate amount available to be drawn under
all outstanding Letters of Credit exceeds the aggregate amount of the
Commitments, the Borrower shall deposit into the Holding Account an amount in
cash sufficient to cause the amount deposited in the Holding Account to equal
such excess. At any time after such deposit is made, if an outstanding Letter
of Credit expires or is reduced without the full amount thereof having been
drawn, the Agent shall withdraw from the Holding Account and deliver to the
Borrower an amount equal to the amount by which the amount on deposit in the
Holding Account exceeds the aggregate amount by which the amount available to be
drawn under outstanding Letters of Credit (after giving effect to such
expiration or reduction) exceeds the aggregate amount of the Commitments.
SECTION 2.06. Fees. (a) Facility Fee. The Borrower agrees to pay
to the Agent for the account of each Lender a facility fee on the amount of such
Lender's Commitment (whether used or unused and without giving effect to any B
Reductions) from the Effective Date in the case of each Lender that is a
signatory hereto or, in the case of an assignee Lender, from the effective date
specified in the Assignment and Assumption Agreement pursuant to which it became
a Lender or, in the case of a new Lender from the effective date specified in
the agreement entered into by such new Lender pursuant to Section 2.07(b)
pursuant to which it became a Lender, until the Termination Date, payable in
arrears on the on the last Business Day of each March, June, September and
December during the term of such Lender's Commitment, commencing December 31,
1997, and on the Termination Date, at a rate per annum equal to the Applicable
Facility Fee Rate in effect from time to time.
(b) Letter of Credit Commission. The Borrower agrees to pay to the
Agent for the account of each Lender a Letter of Credit commission with respect
to each Letter of Credit, computed for each day from and including the date of
issuance of such Letter of Credit until the last day a drawing is available
under such Letter of Credit, at a rate per annum equal to the Applicable
Interest Rate Margin in effect from time to time on the undrawn amount of such
Letter of Credit on such day. Such commission shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December
during the term of each Letter of Credit, and on the Termination Date.
(c) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees, and at such times, as set forth in the letter, dated
September 2, 1997, between the Borrower and the Agent.
25
(d) LC Bank Fees. The Borrower hereby agrees to pay directly to an
LC Bank upon issuance of, drawing under, and/or amendment of, a Letter of Credit
issued by it such amount as shall at the time of such issuance, drawing or
amendment by the administrative charge which such LC Bank is customarily
charging for issuances of, drawings under or amendments of, letter of credit
issued by it.
SECTION 2.07. Termination or Reduction of the Commitments or the
Swingline Commitment; Voluntary Reduction; Increase in Aggregate Commitment.
(a) The Borrower shall have the right, upon at least three (3) Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the unused
portions of (x) the respective Commitments of the Lenders, or (y) the Swingline
Commitment; provided that the aggregate amount of the Commitments of the Lenders
shall not be reduced to an amount that is less than the sum of the aggregate
principal amount of the Advances and Swingline Loans then outstanding plus the
aggregate outstanding amount of the Letter of Credit Liabilities, and the
aggregate amount of the Swingline Commitment shall not be reduced to an amount
that is less than the aggregate principal amount of the Swingline Loans then
outstanding; and provided further that each partial reduction shall be in the
aggregate amount of $25,000,000 ($1,000,000 in the case of the Swingline
Commitment) or an integral multiple of $1,000,000 ($1,000,000 in the case of the
Swingline Commitment) in excess thereof.
(b) Increase in the Commitment. The Borrower may, at its option, at
any time after the 90th day after the Effective Date, on a single occasion
during each fiscal year, seek to increase the Commitment up to a maximum
Commitment amount of $600,000,000 upon at least 30 days (but not more than 45
days) written notice to the Agent, which notice shall specify the amount of any
such increase and shall be delivered at a time when (x) no Default or Event of
Default has occurred and is continuing and (y) no previous reduction to the
Commitment has been requested by the Borrower pursuant to Section 2.07(a). The
Borrower shall, after giving such notice, offer the increase in the Commitment
(A) (i) first on a pro-rata basis to the Lenders, which Lenders may in their
individual sole discretion decline such offer, and (ii) then on a non pro-rata
basis to Lenders and/or (B) to other banks or entities acceptable to the Agent
and the Company, provided that the minimum final allocated Commitment of each
such bank or other entity is equal to or in excess of $10,000,000. No increase
in the Commitment shall become effective until the existing or new Lender
extending such incremental commitment amount shall have delivered to the Agent a
writing in form reasonably satisfactory to the Agent pursuant to which such
existing Lender states the amount of its Commitment increase and any such new
Lender states its Commitment amount and agrees to assume and accept the
obligation and rights of a Lender hereunder. The Lenders (new or existing)
shall accept an assignment from the existing Lenders of an interest in each then
outstanding A Advance such that, after giving effect thereto, all A Advances are
held ratably by the Lenders in proportion to their respective Commitments. The
Company shall make any payments under Section 8.04(b) resulting from such
assignments. The minimum amount by which the Commitments may be increased on
any one occasion
26
under this Section 2.07(b) is $50,000,000, and the Commitments may not be
increased to more than $600,000,000 pursuant to this Section 2.07(b).
SECTION 2.08. Repayment of A Advances, B Advances and Swingline
Loans. (a) The Borrower shall repay the principal amount of each A Advance
made by each Lender in accordance with the A Note to the order of such Lender.
(b) The Borrower shall repay the principal amount of each B Advance
made by each Lender in accordance with the B Note to the order of such Lender
evidencing such B Advance.
(c) On the last Business Day of each calendar quarter, the Borrower
shall repay all Swingline Loans in full and may not reborrow Swingline Loans
until the next succeeding Business Day.
SECTION 2.09. Interest on Advances and Swingline Loans. (a)
Ordinary Interest on A Advances. The Borrower shall pay interest on the unpaid
principal amount of each A Advance made by each Lender from the date of such A
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. If such A Advance is a Base Rate
Advance, a rate per annum equal at all times to, from the date hereof to
the Termination Date, the Base Rate in effect from time to time, payable
quarterly on the last Business Day of each March, June, September and
December.
(ii) Eurodollar Rate Advances. If such A Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest
Period for such A Advance to the sum of (x) the Eurodollar Rate for such
Interest Period for such A Advance plus (y) the Applicable Interest Rate
Margin, payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Interest on Swingline Loans. The Borrower shall pay interest on
the unpaid principal amount of each Swingline Loan made by the Swingline Lender
from the date of such Swingline Loan until such principal amount shall be paid
in full at a rate per annum equal at all times to the Base Rate in effect from
time to time, payable quarterly on the last Business Day of each March, June,
September and December.
(c) Default Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance and Swingline Loan that is not paid when due
and on the unpaid amount of all interest, fees and other amounts payable
hereunder that is not
27
paid when due, 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.
SECTION 2.10. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender, from the date of such A
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such A Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such A Advance. Such
additional interest shall be determined by such Lender and notified in writing
to the Borrower through the Agent.
SECTION 2.11. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Agent for purposes of Section
2.09(a)(i) or (ii), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.09(a)(ii).
(c) If fewer than two Reference Banks furnish timely information to
the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
the Eurodollar Rate with respect to such Eurodollar Rate Advance shall be
determined by the Agent to be the offered rate per annum at which deposits in
dollars appear with respect to relevant Interest Period on the Dow ▇▇▇▇▇ Market
Service Page 3750 (or any successor page), or if such offered rate is not
available, then the rate per annum at which deposits in dollars appear with
respect to such Interest Period on the Reuters Screen LIBOR Page (or any
successor page) in each case as of 11:00 a.m. (London time), two Business Days
prior to the beginning of such Interest Period or in the event that the
foregoing offered rates are not available then:
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if
28
such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance) and
(iii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that two or more Reference Banks
have furnished timely information to the Agent for the purpose of
determining the Eurodollar Rate.
(d) If any Reference Bank shall fail to furnish timely information to
the Agent pursuant to this Section 2.09 the Borrower may, with the consent of
the Agent (which consent shall not be unreasonably withheld), appoint another
Lender as a replacement for such Reference Bank.
(e) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance and
(ii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(f) If the Borrower shall fail to select a new Interest Period for any
outstanding Eurodollar Rate Advances in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.01, the Agent will forthwith
so notify the Borrower and the Lenders and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(g) On the date on which the aggregate unpaid principal amount of A
Advances comprising any A Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $20,000,000, such A Advances shall, if they are
Eurodollar Rate Advances, automatically Convert into Base Rate Advances, and on
and after such date the right of the Borrower to Convert such A Advances into
Eurodollar Rate Advances shall terminate; provided, however that, if and so long
as each such A Advance shall be of the same Type and have the same Interest
Period as A Advances comprising another A Borrowing or other A Borrowings, and
the aggregate unpaid principal amount of all such A Advances shall equal or
exceed $20,000,000, the Borrower shall have the right to continue all such A
Advances as, or to Convert all such A Advances into, Advances of such Type
having such Interest Period.
29
SECTION 2.12. Voluntary Conversion of A Advances. The Borrower may
on any Business Day, upon notice given to the Agent not later than 11:00 A. M.
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.11 and 2.15, Convert all
A Advances of one Type comprising the same A Borrowing into A Advances of the
other Type; 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 and any Conversion of Base
Rate Advances into Eurodollar Rate Advances shall be in an amount not less than
$20,000,000; and provided further, however, that the Borrower shall not convert
any Base Rate Advances into Eurodollar Rate Advances if a Default has occurred
and is continuing. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
A Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for each such A Advance.
Each notice of Conversion shall be irrevocable and binding, on the Borrower.
SECTION 2.13. Prepayments of A Advances and Swingline Loans. (a)
The Borrower shall have no right to prepay any principal amount of any A
Advances other than as provided in subsection (b) below, or any principal amount
of any Swingline Loans other than as provided in subsection (c) below.
(b) The Borrower may, upon at least one (1) Business Day's notice in
the case of Base Rate Advances, and three (3) Business Days' notice in the case
of Eurodollar Rate Advances to the Agent 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 A Advances comprising
part of the same A Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $1,000,000 or an integral multiple thereof and
(y) in the case of any such prepayment of a Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(b).
(c) The Borrower may, upon notice to the Swingline Lender, prepay any
Swingline Loan in whole by paying the principal amount thereof.
SECTION 2.14. 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 included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law, regulation, rule or
guideline promulgated or made after the date this Agreement is executed and
delivered by the Borrower 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) promulgated or made after the date this Agreement is executed and
delivered by the Borrower, there shall be any increase in the cost to any
30
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Advances, then the Borrower shall from time to time, upon written demand by such
Lender (with a copy of such written demand to the Agent), pay to the Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided that the Borrower shall not be
obligated to pay any such additional amounts that are attributable to the period
(the "Excluded Period") ending 90 days prior to the Borrower's receipt of such
written notice; provided further, however, that to the extent such additional
amounts accrue during the Excluded Period because of the retroactive effect of
the applicable law, rule, regulation, guideline or request promulgated during
the 90 day period prior to the Borrower's receipt of such written notice, the
limitation set forth in the foregoing proviso shall not apply. A certificate,
made in good faith and in reasonable detail, as to the amount of such increased
cost, submitted to the Borrower and the Agent by such Lender, shall, except for
demonstrable or calculation error, be conclusive and binding for all purposes.
(b) If any Lender 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) promulgated or
made after the date this Agreement is executed and delivered by the Borrower
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,
within 30 days after written notice and demand from such Lender (with a copy of
such demand to the Agent), the Borrower shall immediately pay to the 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; provided that the Borrower shall not be
obligated to pay any such additional amounts that are attributable to the period
(the "Excluded Period") ending 90 days prior to the Borrower's receipt of such
written notice; provided further, however, that to the extent such additional
amounts accrue during the Excluded Period because of the retroactive effect of
the applicable law, rule, regulation, guideline or request promulgated during
the 90 day period prior to the Borrower's receipt of such written notice, the
limitation set forth in the foregoing proviso shall not apply. A certificate,
made in good faith and in reasonable detail, as to such amounts submitted to the
Borrower and the Agent by such Lender shall, except for demonstrable or
calculation error, be conclusive and binding for all purposes.
(c) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
31
SECTION 2.15. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any 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, (i) the obligation of such Lender to make,
or to Convert A Advances into, Eurodollar Rate Advances shall be suspended until
such Lender shall notify the Borrower and the Agent that the circumstances
causing such suspension no longer exist and (ii) the Borrower shall, on the last
day of the Interest Period then applicable thereto or, if it is unlawful for
such Lender to maintain such Eurodollar Advances for the balance of any such
Interest Period, on the last day on which the Borrower has been notified by such
Lender that such Eurodollar Advances may be lawfully maintained, Convert all
Eurodollar Rate Advances of such Lender then outstanding into Base Rate Advances
in accordance with Section 2.12.
SECTION 2.16. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 12:00 Noon (New York
City time) on the day when due in U.S. dollars to the Agent at its address
referred to in Section 8.02 in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.10, 2.14. 2.18 or 8.04(b)) 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 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 Agent shall make all payments
hereunder and under the Notes 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 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 Eurodollar Rate or the Federal Funds
Rate (for all purposes other than the calculation of the Base Rate) and of
facility fees shall be made by the Agent, and all computations of interest
pursuant to Section 2.10 shall be made by a Lender, 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
facility fees are payable. Each determination by the Agent (or, in the case of
Section 2.10, by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent calculation or demonstrable error.
32
(c) Whenever any payment hereunder or under the Notes 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 facility fee, as the case
may be; provided, however that 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 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 Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the 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 full to the
Agent, each Lender shall repay to the 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 Agent, at the Federal Funds Rate.
SECTION 2.17. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the A Advances owing to it (other than
pursuant to Section 2.10, 2.14, 2.18 or 8.04(b)) in excess of its ratable share
of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the A Advances owing to 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 2.17
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 2.18. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.16,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions. charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, net income
taxes that are imposed by the United States and franchise taxes and net income
taxes that are imposed on such Lender or the
33
Agent by the state or foreign jurisdiction under the laws of which such Lender
or the Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, franchise taxes and net income taxes
that are imposed on such Lender by the state or foreign jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or the 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 2.18) such Lender or the 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 that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the 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
2.18) paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Each Lender shall, at the time of any written demand for
indemnification as set forth in subsection (c) above, provide to the Borrower a
receipt for, or other evidence of the payment of, Taxes or Other Taxes to be
indemnified under this Section 2.18.
(e) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 8.02,
appropriate evidence of payment thereof.
(f) For purposes of this Section 2.18, the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code of 1986, as amended from time to time.
(g) Each Lender organized under the laws of a jurisdiction outside the
United States shall, 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
34
which it became a Lender in the case of each other Lender, and from time to
time thereafter if requested in writing by the Borrower or the Agent (but only
so long thereafter as such Lender remains lawfully able to do so), provide the
Agent and the Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments of interest pursuant to this
Agreement or the Notes. 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 unless and until such Lender provides
the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to the extent such tax results in
liability for such payments, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States interest withholding tax, if any,
applicable with respect to the Lender assignee on such date.
(h) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in subsection (g)
(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 subsection (g)), such Lender shall not be
entitled to indemnification under subsection (a) or (c) 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 take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(i) Any Lender claiming any additional amounts payable pursuant to
this Section 2.18 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(j) In the event the Borrower is required pursuant to this Section
2.18 to pay any amount to any Lender or the Agent or on the behalf of any of
them to any taxing authority, such Lender shall, if no Default has occurred and
is continuing, upon the request of the Borrower delivered to such Lender and the
Agent, assign, pursuant to and in accordance with the provisions of Section
8.07, all of its rights and obligations under this Agreement and under the Notes
to an Eligible Assignee selected by the Borrower in consideration for (i) the
payment by such assignee to the assigning Lender of the principal of, and
interest accrued and unpaid to the date of such assignment on, the Note
35
or Notes of such Lender, (ii) the payment by the Borrower to the assigning
Lender of any and all other amounts owing to such Lender under any provision
of this Agreement accrued and unpaid to the date of such assignment and (iii)
the Borrower's release of the assigning Lender from any further obligation or
liability under this Agreement. The processing and recordation fee required
under Section 8.07(a) for such assignment shall be paid by the Borrower.
Notwithstanding anything to the contrary in this Section 2.18(j), in no event
shall the replacement of any Lender result in a decrease or reallocation of
the aggregate Commitments without the written consent of the Majority Lenders.
SECTION 2.19. Use of Proceeds. The proceeds of the Advances,
Swingline Loans and Letters of Credit shall be available, and the Borrower
agrees that it will use such proceeds, solely for the general corporate purposes
of the Borrower and its Subsidiaries, including, without limitation,
acquisitions that have been approved by the board of directors of the acquired
entity and stock repurchases.
SECTION 2.20. Termination Date Extensions. At any time after the
second anniversary of the Effective Date, the Borrower may make a written
request to the Agent, who shall forward a copy of each such request to each of
the Lenders, that the Termination Date then in effect be extended to the date
which is one year after such existing Termination Date; provided, however, that
the Borrower shall not be permitted to obtain more than three extensions
pursuant to this Section 2.20. Such request shall be accompanied by a
certificate of a Financial Officer of the Borrower stating that no Default or
Event of Default has occurred and is continuing. If, by the date (a "Response
Date") which is 30 days after the date of such request, Lenders holding at least
70% of the Commitments then outstanding agree thereto in writing, the
Termination Date of each Lender then consenting, or that thereafter consents, to
such extension (each, a "Continuing Lender") shall be automatically extended to
the first anniversary of the then existing Termination Date. In the event that
the Borrower has not obtained agreement to the requested extension from the
requisite percentage of Lenders to permit an extension by the Response Date, the
Borrower may extend the deadline for obtaining such percentage to the thirtieth
day following such Response Date in order to take such actions, including those
contemplated by Section 2.21, with respect to any Lender that has not agreed to
such extension (each, a "Non-Continuing Lender"), as the Borrower deems
appropriate in order to obtain agreement to such extension from the requisite
percentage of Lenders. If the Borrower obtains agreement from the requisite
percentage of the Lenders during such thirty day period, the Termination Date
shall be extended as to the Continuing Lenders as provided in the second
preceding sentence. The Agent shall notify the Borrower and each Lender of the
effectiveness of any such extension. No Lender shall be obligated to agree to
any extension pursuant to this Section 2.20, and the extension of the
Termination Date as to any Lender shall be in its sole discretion. The
Termination Date shall not be extended pursuant to this Section 2.20 for any
Lender that is a Non-Continuing Lender.
36
SECTION 2.21. Replacement of Lenders. Any Lender claiming any
additional amounts payable pursuant to Section 2.14, invoking the provisions of
Section 2.15 or becoming a Non-Continuing Lender shall, if no Default has
occurred and is continuing, upon the request of the Borrower delivered to such
Lender and the Agent, assign, pursuant to and in accordance with the provisions
of Section 8.07, all of its rights and obligations under this Agreement and
under the Notes to an Eligible Assignee selected by the Borrower in
consideration for (i) the payment by such assignee to the assigning Lender of
the principal of, and interest accrued and unpaid to the date of such assignment
on, the Note or Notes of such Lender, (ii) the payment by the Borrower to the
assigning Lender of any and all other amounts owing to such Lender under any
provision of this Agreement accrued and unpaid to the date of such assignment
and (iii) the Borrower's release of the assigning Lender from any further
obligation or liability under this Agreement. The processing and recordation
fee required under Section 8.07(a) for such assignment shall be paid by the
Borrower. Notwithstanding anything to the contrary in this Section 2.21, in no
event shall the replacement of any Lender result in a decrease or reallocation
of the aggregate Commitments without the written consent of the Majority
Lenders.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Effectiveness of Sections
2.01, 2.03, 2.04 and 2.05. The effectiveness of Sections 2.01, 2.03, 2.04 and
2.05 is subject to the following conditions precedent:
(a) This Agreement (including all schedules, exhibits, certificates
and opinions delivered pursuant hereto) shall be in full force and effect
and shall not have been terminated.
(b) There shall have occurred no material adverse change in the
condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries, taken as a whole, since February 28, 1997.
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could reasonably be expected to result in a material adverse change in the
condition (financial or otherwise) or results of operations or prospects of
the Borrower and its Subsidiaries, taken as a whole, other than the matters
described on Schedule III hereto (the "Disclosed Litigation") or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby, and there shall have been no adverse change in
37
the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
III hereto.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of the
Agent that have been billed (including the accrued fees and expenses of
counsel to the Agent).
(g) The Agent shall have received on or before the Effective Date the
following, each dated such date, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(i) the A Notes payable to the order of the Lenders,
respectively,
(ii) certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
government approvals, if any, with respect to this Agreement and the
Notes,
(iii) 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
Notes and the other documents to be delivered hereunder,
(iv) a copy of a certificate of the Secretary of State of the
State of Delaware (as of a date reasonably near the Effective Date)
that (a) attached thereto is a true and correct copy of the Borrower's
charter and each amendment thereto, (b) such amendments are the only
amendments to the Borrower's charter on file in his office, (c) the
Borrower has paid all franchise taxes to the date of such certificate
and (d) the Borrower is duly incorporated and in good standing under
the laws of Delaware,
(v) a certificate of the Borrower, signed by its President or a
Vice President and its Secretary or any Assistant Secretary, dated the
Effective Date, certifying (a) as to the absence of any amendments to
the charter of the Borrower since the date of the Secretary of State's
certificate
38
from the State of Delaware, (b) that attached is a true and correct
copy of the by-laws of the Borrower as in effect on the Effective
Date, (c) as to the due incorporation and good standing of the
Borrower as a corporation organized under the laws of the state of
Delaware, and the absence of any proceeding for the dissolution or
liquidation of the Borrower, (d) as to the truth and correctness of
the representations and warranties contained in Section 4.01 of this
Agreement as though made on and as of the Effective Date and (e) as
to the absence of any event occurring and continuing, or resulting
from the effectiveness of Sections 2.01, 2.03, 2.04 and 2.05, if
any, that constitutes a Default,
(vi) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special
counsel for the Borrower, substantially in the form of Exhibit D
hereto and as to such other matters as any Lender through the Agent
may reasonably request,
(vii) a favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate
General Counsel of the Borrower, substantially in the form of Exhibit
E hereto and as to such other matters as any Lender through the Agent
may reasonably request,
(viii) evidence of the termination of the commitments under the
Current Supervalu Credit Agreement, and payment of all amounts owing
thereunder, and
(ix) such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.02. Conditions Precedent to Each A Borrowing, Swingline
Borrowing and Issuance of a Letter of Credit. The obligation of each Lender to
make an A Advance on the occasion of each A Borrowing (including the initial A
Borrowing but other than an A Advance pursuant to Section 2.04(c)) resulting in
an increase in the aggregate amount of outstanding A Advances, the obligation of
each LC Bank to issue a Letter of Credit on the occasion of a request therefor
by the Borrower (other than an extension of a maturing Letter of Credit that
provides for a drawing thereunder in the absence of such extension), and the
obligation of the Swingline Lender to make a Swingline Loan on the occasion of
each Swingline Borrowing shall be subject to the further conditions precedent
that on the date of such A Borrowing, the issuance of such Letter of Credit or
such Swingline Borrowing, as the case may be, the following statements shall be
true (and each of the giving of the applicable Notice of A Borrowing, request
for issuance of Letter of Credit or Notice of Swingline Borrowing, as the case
may be, and the acceptance by the Borrower of the proceeds of such A Borrowing
or Swingline Borrowing or benefits of the issuance of such Letter of Credit, as
the case may be, shall constitute a representation and warranty by the Borrower
that on the date of such A Borrowing, the issuance of such Letter of Credit or
such Swingline Borrowing, as the case may be, such statements are true):
39
(i) the representations and warranties contained in Section 4.01
(excluding that contained in the last sentence of subsection (e) thereof)
are correct on and as of the date of such A Borrowing, the issuance of such
Letter of Credit or such Swingline Borrowing, as the case may be before and
after giving effect to such A Borrowing, the issuance of such Letter of
Credit or such Swingline Borrowing, as the case may be, and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such A Borrowing, the issuance of such Letter of Credit or such Swingline
Borrowing, as the case may be, or from the application of the proceeds
therefrom, which constitutes a Default.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender that is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the conditions precedent that (i) the Agent shall
have received the written confirmatory Notice of B Borrowing with respect
thereto, (ii) (x) in the case of any B Borrowing (except as otherwise set forth
in subclause (y) below), on or before the date of such B Borrowing, but prior to
such B Borrowing, and (y) in the case of same day, fixed rate B Borrowings,
promptly after any such B Borrowing, the Agent shall have received a B Note
payable to the order of such Lender for each of the one or more B Advances to be
made by such Lender as part of such B Borrowing, in a principal amount equal to
the principal amount of the B Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such B Advance in accordance with Section 2.03
and (iii) on the date of such B Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of B Borrowing and the
acceptance by the Borrower of the proceeds of such B Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such B
Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
(excluding that contained in the last sentence of subsection (e) thereof)
are correct on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such
B Borrowing or from the application of the proceeds therefrom, which
constitutes a Default and
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the Borrower that has been provided to the
Agent and each Lender by the Borrower in connection herewith would include
an untrue statement of a material fact or omit to state any material fact
or any fact
40
necessary, to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions
contemplated hereunder, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not (a)
contravene the Borrower's charter or by-laws, (b) violate any law, rule,
regulation, order, writ, judgment, determination or award binding on or
affecting the Borrower or (c) conflict with or result in the breach of, or
constitute a default under, any agreement or instrument binding on or
affecting the Borrower.
(c) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and the Notes when delivered hereunder will be, legal,
valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body, or any third
party that is a party to any agreement or instrument binding on the
Borrower is required for the due execution, delivery or performance by the
Borrower of this Agreement or the Notes, or for the consummation of the
transactions contemplated by this Agreement.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at February 28, 1997, and the related statements of income
and retained earnings of the Borrower and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of DeLoitte & Touche, LLP,
independent public accountants, and the Consolidated balance sheet of the
Borrower and its Subsidiaries as at June 14, 1997, and the related
statements of income and retained earnings of the Borrower and its
Subsidiaries for the fiscal quarter then ended, duly certified by a
Financial Officer of the Borrower, copies of which have been furnished to
each Lender, fairly present, subject, in the case of said balance sheet as
at June 14, 1997, and said statements of income and retained earnings for
41
the fiscal quarter then ended, to year-end audit adjustments, the
Consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated results of the operations of the Borrower
and its Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles consistently applied. Since
February 28, 1997, there has been no material adverse change in such
condition or operations.
(f) Except as set forth on Schedule III, there is no pending or
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator, that (a) is likely to result in a material adverse change in
the condition (financial or otherwise) or results of operations or
prospects of the Borrower and its Subsidiaries, taken as a whole, or (b)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(g) (i) No information, exhibit or report furnished by or on behalf of
the Borrower to the Agent or any Lender in connection with the negotiation
of the Loan Documents or pursuant to the terms of the Loan Documents
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein not misleading
in light of the circumstances under which such statements were made; and
(ii) all financial projections that have been provided by or on behalf of
the Borrower to the Agent or any Lender were prepared in good faith based
on reasonable assumptions (it being understood that such projections are
subject to significant uncertainties and contingencies beyond the
Borrower's control, and that no assurance can be given that the projections
will be realized).
(h) Following application of the proceeds of each Advance, Swingline
Loan and Letter of Credit, not more than 25 percent of the value of the
assets (either of the Borrower only or of the Borrower and its Subsidiaries
on a Consolidated basis) subject to the provisions of Section 5.02(a) or
Section 5.02(c) or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any
Lender relating to Debt and within the scope of Section 6.01(d) will be
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System).
(i) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of the Borrower or any of its ERISA Affiliates
that has resulted in or is reasonably likely to result in a liability of
the Borrower or any of its ERISA Affiliates in excess of $25,000,000 in
any one case or $50,000,000 in the aggregate.
42
(j) Schedule B (Actuarial Information) to the 1996 annual report (Form
5500 Series) for each Plan of the Borrower or any of its ERISA Affiliates,
copies of which have been filed with the Internal Revenue Service and
furnished to the Lenders, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B there
has been no material adverse change in such funding status.
(k) Neither the Borrower nor any of its ERISA Affiliates has incurred
or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan in excess of $25,000,000 in any one case or $50,000,000
in the aggregate.
(l) Neither the Borrower nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA, if as a result thereof
the Borrower or any of its ERISA Affiliates would incur or would reasonably
be expected to incur, any liability in excess of $25,000,000 in any one
case or $50,000,000 in the aggregate.
(m) The aggregate annualized amount paid (including, without
limitation, the cost of insurance premiums) with respect to post-retirement
benefits under Welfare Plans for which the Borrower and its Subsidiaries
are liable does not exceed $8,000,000.
(n) Each of the Borrower and its Subsidiaries has filed or caused to
be filed all tax returns which are required to be filed, and all taxes
related to such returns and any assessments made against it or any of its
respective properties and all other taxes, fees or other charges imposed on
it or any of its respective properties by any governmental authority (other
than those the amount or validity of which is contested in good faith by
appropriate proceedings and with respect to which reserves in conformity
with generally, accepted accounting principles have been provided on the
books of the Borrower or its Subsidiaries as the case may be) have been
paid, except to the extent the failure to make such filings or payments
would not have a material adverse effect on the condition (financial or
otherwise) or results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole.
(o) Neither the Borrower nor any of its Subsidiaries is an "investment
company", or an "affiliated person" of, or "promotor" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
43
(p) The operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental Laws,
all necessary Environmental Permits have been obtained and are in effect
for the operations and properties of the Borrower and its Subsidiaries and
the Borrower and its Subsidiaries are in compliance in all material
respects with all such Environmental Permits, except to the extent that any
such non-compliance or failure to obtain any necessary permits could not
reasonably be expected to result in a material adverse change in the
condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries, taken as a whole. No circumstances exist
that could be reasonably likely to (i) form the basis of an Environmental
Action against the Borrower or any of its Subsidiaries or any of their
respective properties that could have a material adverse effect on the
condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries, taken as a whole, or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use
or transferability under any Environmental Law that could have a material
adverse effect on the condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries, taken as a whole.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Note shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Payment of Taxes, Etc. Comply, and cause
each of its Subsidiaries to comply, in all material respects, with all
material applicable laws (including, without limitation, ERISA), rules,
regulations and orders, such compliance to include, without limitation,
paying and discharging 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 and for which appropriate
reserves have been made in accordance with generally accepted accounting
principles.
(b) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower may consummate any merger or
consolidation permitted under Section 5.02(b), and provided further that
the Borrower shall not be required to preserve any right or franchise if
the Borrower shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower and that the loss
thereof is not disadvantageous in any material respect to the Borrower.
44
(c) Keeping of Books. Keep, and cause each Subsidiary to keep, proper
books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the
Borrower and each Subsidiary in order to permit the Borrower to prepare
Consolidated financial statements of the Borrower in accordance with
generally accepted accounting principles in effect from time to time.
(d) Leverage Ratio. Maintain at all times a ratio of Consolidated
Debt to Total Capital of not more than the amount set forth below during
each period set forth below:
Period Ratio
-----
From the date of
this Agreement - 2/28/98 .65:1
3/1/98 - 2/28/99 .64:1
3/1/99 - and thereafter .63:1
(e) Reporting Requirements. Furnish to each Lender:
(i) (x) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of
the Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated
statements of income and retained earnings of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
by a Financial Officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles;
(y) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the
Consolidated annual report for such year for the Borrower and its
Subsidiaries, containing Consolidated financial statements for such
year, certified in a manner acceptable to the Majority Lenders by
DeLoitte & Touche or other nationally recognized independent public
accountants; and
(z) together with each delivery of financial statements required
by clauses (x) and (y) above, a certificate of a Financial Officer (A)
stating that the signer has reviewed or caused to be reviewed under
his or her supervision the terms of this Agreement and the Notes and
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 as at the date of
such certificate of any condition or
45
event that constitutes a Default, and (B) setting forth (except to
the extent specifically set forth in such financial statements)
information in reasonable detail necessary to demonstrate the
Borrower's compliance as at the end of such accounting period with
Section 5.01(d)(including, but not limited to, a description of and
amounts comprising the elements of Consolidated Debt, each
determined in accordance with generally accepted accounting
principles);
(ii) as soon as possible and in any event within five (5) days
after any Financial Officer of the Borrower has knowledge of the
occurrence of each Default continuing on the date of such statement, a
statement of a Financial Officer of the Borrower setting forth the
details of such Default and the action which the Borrower has taken
and proposes to take with respect thereto;
(iii) promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to its shareholders, and copies
of all reports and registration statements which the Borrower or any
Subsidiary files with the Securities and Exchange Commission or any
national securities exchange;
(iv) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan of the Borrower or any of its ERISA Affiliates,
provided that this clause (iv) shall apply only to the extent that the
total "current liability" indicated on any such Schedule B exceeds
$8,000,000;
(v) promptly and in any event within 15 Business Days after the
Borrower or any of its ERISA Affiliates knows or has reason to know
that any ERISA Event has occurred, a statement of a Financial Officer
of the Borrower describing such ERISA Event and the action, if any,
which the Borrower or such ERISA Affiliate proposes to take with
respect thereto;
(vi) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any of its ERISA Affiliates, copies
of each notice from the PBGC stating its intention to terminate any
Plan of the Borrower or any of its ERISA Affiliates or to have a
trustee appointed to administer any Plan of the Borrower or any of its
ERISA Affiliates;
(vii) promptly after commencement thereof, notice of all actions
and proceedings before any court, governmental agency or arbitrator
affecting the Borrower or any of its Subsidiaries of the type
described in Section 4.01(f); and
46
(viii) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(f) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted; provided however that
neither the Borrower nor any of its Subsidiaries shall be required to
maintain or preserve any properties if the Borrower determines, in its
reasonable business judgment, that the maintenance and preservation thereof
is no longer desirable in the conduct of the business of the Borrower or
such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower or such Subsidiary.
SECTION 5.02. Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Majority Lenders:
(a) Liens, Etc. 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, other than:
(i) purchase money Liens upon or in any property acquired or held
by the Borrower or any Subsidiary of the Borrower in the ordinary
course of business to secure the purchase price of such property,
provided, that any such Liens attach only to the assets so purchased
and the Debt (including any extensions, renewals or refinancings
thereof) secured by any such Lien does not exceed 100% of the purchase
price of the property being purchased, or
(ii) in the case of the Borrower, purchase money Liens to secure
Debt incurred solely for the purpose of financing the acquisition of
any real property, fixtures or equipment acquired by the Borrower with
the proceeds of such Debt, provided, that any such Liens attach only
to the
47
assets so purchased and the Debt (including any extensions, renewals
or refinancings thereof) secured by any such Lien does not exceed
100% of the purchase price of the property being purchased, or
(iii) in the case of any Subsidiary of the Borrower, purchase
money Liens to secure Debt incurred by such Subsidiary solely to
finance the purchase price of real property, fixtures or equipment to
the extent permitted pursuant to clause (ii) of Section 5.02(d),
provided that any such Liens attach only to the assets so purchased
and the Debt (including any extensions, renewals or refinancings
thereof) secured by any such Lien does not exceed 100% of the
purchase price of the property being purchased, or
(iv) in the case of any Subsidiary of the Borrower, purchase
money Liens to secure Debt assumed by such Subsidiary solely in
connection with the acquisition of real property, fixtures or
equipment to the extent permitted pursuant to clause (iii) of Section
5.02(d), provided that any such Liens attach only to the assets so
purchased and the Debt (including any extensions, renewals or
refinancings thereof) secured by any such Lien does not exceed 100% of
the purchase price of the property being purchased, or
(v) in the case of any Subsidiary of the Borrower, Liens to
secure Debt assumed solely in connection with an acquisition to the
extent permitted pursuant to clause (iv) of Section 5.02(d), provided
that any such Liens attached only to the assets so acquired and the
assumption of such Debt (including any extensions, renewals or
refinancing's thereof) secured by any such Lien does not exceed 100%
of the purchase price of the asset being acquired, or
(vi) in the case of the Borrower, Liens existing on property at
the time of the acquisition thereof by the Borrower (other than any
such Lien created in contemplation of such acquisition that was not
incurred to finance the acquisition of such property), or
(vii) Any extensions, renewals or replacements of any of the
Liens permitted by subclauses (i) through (vi) above or subclause (x)
below for the same or a lesser amount, provided, however, that no such
Liens shall extend to or cover any properties not theretofore subject
to the Lien being extended, renewed or replaced, or
(viii) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings and for which appropriate
reserves have been made in accordance with generally accepted
accounting principles, or
48
(ix) Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business, or
(x) Liens existing on the date hereof, or
(xi) Liens not otherwise permitted by the foregoing clauses of
this Section 5.02(a) securing Debt, provided that the aggregate
principal amount of Debt secured by such Liens at the time any such
Lien is created does not exceed 5% of Consolidated Tangible Assets
(determined by reference to the most recent balance sheet submitted
pursuant to Section 5.01(e)(i)).
(b) Mergers, Etc. 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 substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or permit any of its
Subsidiaries to do so, except that:
(i) any Subsidiary of the Borrower may merge or consolidate with
or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with any one or more other
Subsidiaries of the Borrower,
(ii) the Borrower or any Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any of its assets to the
Borrower or any Subsidiary of the Borrower, as the case may be,
(iii) the Borrower or any Subsidiary of the Borrower may merge
with any other corporation, provided that the Borrower or such
Subsidiary shall be the continuing or surviving corporation, and
(iv) the Borrower may engage in transactions permitted by Section
5.02(c),
provided that, in the case of each transaction permitted under this Section
5.02(b), at the time of such proposed transaction and immediately after
giving effect to such proposed transaction, no Default shall have occurred
and be continuing.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, its
49
assets, or grant any option or other right to purchase, lease or
otherwise acquire its assets, other than:
(i) sales of inventory in the ordinary course of its business,
(ii) any sale of assets in a transaction authorized by
subsections (b) (i), (ii) or (iii) of this Section 5.02,
(iii) the sale of the Borrower's interest in any Subsidiary
engaged principally in manufacturing businesses,
(iv) sales of rights to payment and the security therefor to
the extent such sales are accounted for as true sales in accordance
with generally accepted accounting principles and
(v) other sales, leases, transfers or other dispositions of
assets of the Borrower or any of its Subsidiaries not to exceed in the
aggregate 15% of the Consolidated Tangible Assets (determined by
reference to the most recent balance sheet submitted pursuant to
Section 5.01(e)(i)) for all such sales, leases, transfers or other
dispositions.
(d) Debt of Subsidiaries. Permit any of its Subsidiaries to create,
incur, assume or suffer to exist any Debt, other than:
(i) Debt owed to the Borrower or to a wholly owned Subsidiary
of the Borrower,
(ii) Debt incurred to finance the purchase price of real
property, fixtures or equipment acquired by such Subsidiary from a
Person other than the Borrower or any other Subsidiary of the
Borrower, provided that such real property, fixtures or equipment
shall be purchased on an arm's-length basis and at a fair market value
as reasonably determined at the time of such acquisition by the
authorized officers or the Board of Directors of the Borrower, as the
case may be, in a manner consistent with the Borrower's standard
procedures,
(iii) secured Debt assumed by such Subsidiary in connection with
the acquisition of real property, fixtures or equipment which Debt (x)
is secured only by such property and (y) is outstanding at the time of
the acquisition of such property and not incurred to finance the
acquisition thereof,
(iv) secured Debt of a Person that is acquired by the
Borrower or a Subsidiary of the Borrower, which Person will be, upon
such acquisition, a Subsidiary of the Borrower and which Debt (x) is
secured
50
only by the assets of such Person and (y) is outstanding at the time
of the acquisition of such Person and not incurred to finance the
acquisition thereof,
(v) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business,
(vi) Debt existing on the date hereof (all Debt of the
Subsidiaries of the Borrower for borrowed money in a principal amount
of $5,000,000 or greater existing on the date hereof is described on
Schedule IV),
(vii) any extension, refinancing, or renewal of any of the Debt
specified in subclauses (i) through (iv) and subclause (vi) of this
subsection (d) not resulting in an increase in the principal amount of
such Debt so extended, refinanced, or renewed and
(viii) Debt not otherwise permitted by the foregoing clauses of
this Section 5.02(d), provided that the aggregate principal amount of
such Debt at the time any such Debt is incurred does not exceed 2 1/2%
of Consolidated Tangible Assets (determined by reference to the most
recent balance sheet submitted pursuant to Section 5.01(e)(i)); and
that the aggregate amount permitted under this clause (viii), together
with the aggregate amount of Debt secured by Liens permitted solely
pursuant to clause (xi) of Section 5.02(a), does not exceed 5% of such
Consolidated Tangible Assets.
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 (i) any principal of any Note or
Reimbursement Obligation when the same becomes due and payable; (ii) any
interest on any Note or any other amount due hereunder (other than as set
forth in clause (iii) of this subsection (a)), in each case within three
(3) days of the date on which the same becomes due and payable; or (iii)
fees required to be paid pursuant to Section 2.06, and amounts due under
Section 8.08, in each case within three (3) days of notice thereof; or
51
(b) Any written representation or warranty made by the Borrower (or
any of its officers) herein or in connection with this Agreement 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 Section 5.01(d), 5.01(e) or 5.02, or
(ii) any other term, covenant or agreement contained in this Agreement on
its part to be performed or observed if the failure to perform or observe
such other term, covenant or agreement shall remain unremedied for thirty
(30) days after the earliest of: (i) the date written notice thereof
shall have been given to the Borrower by the Agent or any Lender; (ii)
the date written notice thereof shall have been given by the Borrower to
the Agent or any Lender; and (iii) the date by which the Borrower was
required to have delivered to the Lenders the statement required under
Section 5.01(f)(ii); or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $25,000,000 individually or $50,000,000 in
the aggregate (but excluding Debt evidenced by the Notes) 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 be in
compliance with any covenant measuring the Borrower's or such Subsidiary's
financial performance under any agreement or instrument relating to any
Debt outstanding in a principal amount of at least $25,000,000 individually
or $50,000,000 in the aggregate (but excluding Debt evidenced by the Notes)
and such failure shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate or to permit the acceleration of, the maturity
of such Debt; or any Debt outstanding in a principal amount of at least
$25,000,000 individually or $50,000,000 in the aggregate (but excluding
Debt evidenced by the Notes) shall be declared to be due and payable, or
required to be prepaid (other than by a required prepayment), 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; or
(e) The Borrower or any of its 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 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 seeking the entry of an order
52
for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any 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 sixty (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 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 or more in the case of any one judgment or order and
$50,000,000 or more in the aggregate for all such judgments and orders (to
the extent not covered by insurance), or otherwise materially adverse to
the business, condition (financial or otherwise), results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole shall be
rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of ten (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; or
(g) any ERISA Event shall have occurred with respect to a Plan of the
Borrower or any of its ERISA Affiliates and the sum (determined as of the
date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans of the Borrower and its
ERISA Affiliates with respect to which an ERISA Event shall have occurred
and then exist (or the liability of the Borrower and its ERISA Affiliates
related to such ERISA Event) exceeds $25,000,000 in any one case or
$50,000,000 in the aggregate; or
(h) the Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts 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 in any one case or $50,000,000 in the
aggregate; or
(i) the Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate 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 otherwise
53
required to be contributed to such Multiemployer Plans by an amount
exceeding $25,000,000 in any one case or $50,000,000 in the aggregate;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority 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 Majority Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, 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, and demand that the Borrower pay into the Holding
Account an amount of cash equal to the aggregate amount available for drawing
under all outstanding Letters of Credit; provided, however, that, in the event
of an actual or deemed entry of an order for relief with respect to the Borrower
under the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated, (B) the Notes, 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 and (C) the Borrower will pay to the Agent, for
deposit in the Holding Account, an amount of cash equal to the aggregate amount
available for drawing under all outstanding Letters of Credit.
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment The Lenders hereby appoint Bankers Trust
as the Agent to act as specified herein and in the Notes. Each Lender hereby
irrevocably authorizes and each holder of any Note by the acceptance of such
Note shall be deemed to irrevocably authorize the Agent to take such action on
its behalf under the provisions hereof, the Notes (including, without
limitation, to give notices and take such actions on behalf of the Majority
Lenders as are consented to in writing by the Majority Lenders) and any other
instruments, documents and agreements referred to herein or therein and to
exercise such powers hereunder and thereunder as are specifically delegated to
the Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Agent may perform any of its duties
hereunder and under the Notes, by or through its officers, directors, agents,
employees or affiliates.
SECTION 7.02. Nature of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. The duties
of the Agent shall be mechanical and administrative in nature. EACH LENDER
HEREBY ACKNOWLEDGES AND AGREES THAT THE AGENT SHALL NOT HAVE, BY REASON OF THIS
AGREEMENT OR ANY NOTES, A FIDUCIARY RELATIONSHIP TO OR IN RESPECT OF ANY LENDER.
Nothing in this
54
Agreement or in any Note, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of the
Agreement or any Note except as expressly set forth herein or therein. Each
Lender shall make its own independent investigation of the financial condition
and affairs of the Borrower in connection with the making and the continuance
of the Loans hereunder and shall make its own appraisal of the credit
worthiness of the Borrower, and the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before making of the Loans or at any time or times
thereafter (except as set forth in this Agreement). The Agent will promptly
notify each Lender at any time that the Majority Lenders have instructed it to
act or refrain from acting pursuant to Article VI. None of the Syndication
Agent, Co-Agents or Lead Managers shall have any specified duties under this
Agreement.
SECTION 7.03. Exculpation, Rights Etc. Neither the Agent nor any of
its officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by them hereunder or under any Note, or in connection
herewith or therewith, unless caused by its or their gross negligence or willful
misconduct. The Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility, or
sufficiency of this Agreement or any Note or any other document or the financial
condition of the Borrower. The Agent shall not be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any Note or any other document or the
financial condition of the Borrower, or the existence or possible existence of
any Default or Event of Default unless requested to do so by the Majority
Lenders. The Agent may at any time request instructions from the Lenders with
respect to any actions or approvals (including the failure to act or approve)
which by the terms of this Agreement or the Notes, the Agent is permitted or
required to take or to grant, and if such instructions are requested, the Agent
shall be absolutely entitled to refrain from taking any action or to withhold
any approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any this Agreement
or the Notes until it shall have received such instructions from the Majority
Lenders. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Agent as a result of the Agent acting, approving
or refraining from acting or approving under any of the Loan Documents in
accordance with the instructions of the Majority Lenders or, to the extent
required by Section 8.01, all of the Lenders.
SECTION 7.04 Reliance. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any notice, writing, resolution
notice, statement, certificate, order or other document or any telephone, telex,
teletype or facsimile transmission message believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person, and, with
respect to all matters pertaining herein or to any Note and its duties
hereunder or thereunder, upon advice of counsel selected by the Agent.
55
SECTION 7.05 Indemnification. To the extent the Agent is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Agent for and against any and all liabilities, obligations,
losses, damages, claims, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising out
of this Agreement or any Note or any action taken or omitted by the Agent under
this Agreement or any Note, in proportion to each Lender's Syndicated Commitment
Percentage; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, claims, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. The obligations of the Lenders under
this Section 7.05 shall survive the payment in full of the Notes and the
termination of this Agreement.
SECTION 7.06 Agent In Its Individual Capacity. With respect to its
Advances, Swingline Loans, Commitment (and its Percentage thereof), Swingline
Commitment and Letters of Credit, the Agent shall have and may exercise the same
rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender or holder
of obligations hereunder. The terms "Lenders", "holder of obligations" or
"Majority Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include the Agent in its individual capacity as a Lender,
one of the Majority Lenders or a holder of obligations hereunder. The Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if it were not acting as the Agent hereunder or
under the Notes, including, without limitation, the acceptance of fees or other
consideration for services without having to account for the same to any of the
Lenders.
SECTION 7.07 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Lenders.
SECTION 7.08 Holders of Obligations. The Agent may deem and treat
the payee of any obligation hereunder as reflected on the books and records of
the Agent as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed with
the Agent pursuant to Section 8.07(c). Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any obligation hereunder shall be conclusive and
binding on any subsequent holder, transferee or assignee of such obligation or
of any obligation or obligations granted in exchange therefor.
56
SECTION 7.09 Resignation by the Agent.
(a) The Agent may resign from the performance of all its functions
and duties hereunder at any time by giving thirty (30) Business Days' prior
written notice to the Borrower and the Lenders. Such resignation shall
take effect upon the acceptance by a successor Agent of appointment
pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Majority Lenders shall
appoint a successor Agent who shall be satisfactory to the Borrower and
shall be an incorporated bank or trust company.
(c) If a successor Agent shall not have been so appointed within
said thirty (30) Business Day period, the Agent, with the consent of the
Borrower, shall then appoint a successor Agent who shall serve as the Agent
until such time, if any, as the Majority Lenders, with the consent of the
Borrower, appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b)
and if the Borrower has not provided the necessary consent pursuant to
clause (c) by the thirty-fifth (35th) Business Day after the date such
notice of resignation was given by Agent, Agent's resignation shall become
effective and the Majority Lenders shall thereafter perform all the duties
of Agent hereunder until such time, if any, as the Majority Lenders, with
the consent of Borrower, appoint a successor Agent as provided above.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, 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 Majority Lenders (and, if the rights or duties of the
Agent, any LC Bank or the Swingline Lender are affected thereby, by the Agent,
such LC Bank or the Swingline Lender, as the case may be), and then such waiver,
consent or other agreement 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
effected thereby, do any of the following: (a) waive any of the conditions
specified in Section 3.01, 3.02 or 3.03, (b) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations other than pursuant
to
57
Section 2.07(b), (c) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (e) reduce the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders, that
shall be required for the Lenders or any of them to take any action hereunder,
(f) extend the Termination Date except as provided pursuant to Section 2.20, (g)
extend the expiration date of any Letter of Credit to a date beyond the latest
possible Termination Date then in effect under this Agreement, or (h) amend this
Section 8.01; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including facsimile transmission,
telegraphic, telex or cable communication) and mailed, transmitted, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Treasurer with a copy to the
Corporate Secretary of the Borrower, at the aforesaid address, if to any Lender,
at its Domestic Lending Office specified opposite its name on Schedule II
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Assumption Agreement or in the agreement entered into by such
Lender pursuant to Section 2.07(b), pursuant to which it became a Lender; and if
to the Agent, at its address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇; or as to the Borrower or the 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 Agent. All
such notices and communications shall, when mailed, transmitted, telegraphed,
telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, except that notices and communications to
the Agent pursuant to Article II or VII shall not be effective until received by
the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note 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 and Expenses. (a) The Borrower agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, modification and amendment of this Agreement,
the Notes and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement. The Borrower further agrees
to pay on demand all reasonable costs and
58
expenses, if any (including, without limitation, reasonable counsel fees and
expenses) of the Agent and the Lenders, in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance, or any B Advance which bears interest based on a rate per annum at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market, is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.11(g), 2.13 or 2.15 or
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon written demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), 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) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Section 2.18 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 8.05. Right of Setoff. 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 Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and the Agent are 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 (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender or the Agent 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 and
any Note held by such Lender or the Agent, whether or not such Lender or the
Agent shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender and the Agent agree promptly to
notify the Borrower after any such setoff and application made by such Lender or
the Agent, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender and the
Agent under this Section 8.05 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender and
the Agent may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of
59
the conditions set forth in Section 3.01) when it shall have been executed by
the Borrower and the Agent and when the Agent 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, the Agent and each Lender and their
respective successors and 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 the Lenders.
SECTION 8.07. Assignments and Participations. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower may
not assign or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more lenders or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its A Advances. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Lender shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which
any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Lender will not
agree to any modification, amendment or waiver of this Agreement described in
clause (c) or (d) of Section 8.01 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Lender may at any time assign to one or more Eligible
Assignees (each an "Assignee") all, or a proportionate part (such portion to be
in an amount equal to all of such Lender's Commitment or equal to or greater
than $10,000,000 or an integral multiple of $1,000,000 in excess thereof) of
all, of its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an assignment and
assumption agreement in substantially the form of Exhibit C hereto (an
"Assignment and Assumption Agreement") executed by such Assignee and such
transferor Lender, with (and subject to) the subscribed consent of the Borrower
and the Agent, such consents not to be unreasonably withheld; provided that if
an Assignee is an Affiliate of such transferor Lender or another Lender, neither
the Borrower's nor the Agent's consent shall be required; and provided further
that such assignment may, but need not, include rights of the transferor Lender
in respect of
60
outstanding B Advances. Notwithstanding the foregoing, no assigning Lender
shall, after giving effect to any such assignment, and as determined on the
effective date of the Assignment and Assumption Agreement with respect thereto,
retain a Commitment hereunder of less than $10,000,000. Upon execution of an
Assignment and Assumption Agreement and the payment of a nonrefundable
assignment fee of $3,500 in immediately available funds to the Agent at its
Payment Office in connection with each such assignment ($3,500 with respect to
assignments to any Lender or an Affiliate of such Lender), written notice
thereof by such transferor Lender to the Agent and the recording by the Agent of
such assignment in the register maintained by the Agent and the resulting effect
upon the Advances of the assigning Lender and the Assignee, the Assignee shall
have, to the extent of such assignment, the same rights and benefits as it would
have if it were a Lender hereunder and the holder of a Note (provided that the
Borrower and the Agent shall be entitled to continue to deal solely and directly
with the assignor Lender in connection with the interests so assigned to the
Assignee until written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Borrower and the Agent by the assignor Lender and
the Assignee) and, if the Assignee has expressly assumed, for the benefit of the
Borrower, some or all of the transferor Lender's obligations hereunder, such
transferor Lender shall be relieved of its obligations hereunder to the extent
of such assignment and assumption. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall, prior to
the date it becomes a Lender under this Agreement, deliver to the Borrower and
the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 2.18. Each
Assignee shall take such Advances and Commitment subject to the provisions of
this Agreement and to any request made, waiver or consent given or other action
taken hereunder, prior to the receipt by the Agent and the Borrower of written
notice of such transfer, by each previous holder of such Advances and
Commitment. Such Assignment and Assumption Agreement shall be deemed to amend
this Agreement and Schedule I hereto, to the extent, and only to the extent,
necessary to reflect the addition of such Assignee as a Lender and the
resulting adjustment of all or a portion of the rights and obligations of such
transferor Lender under this Agreement, the determination of its Percentage
(in each case, rounded to twelve decimal places), the Advances and any new Notes
to be issued, at the Borrower's expense, to such Assignee, and no further
consent or action by the Borrower or the Lenders shall be required to effect
such amendments.
(d) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time pledge or assign all or any portion of its rights
under this Agreement and the other documents executed and delivered in
connection herewith (including, without limitation, the Note held by it) to any
Federal Reserve Bank in accordance with Regulation A of the Federal Reserve
Board without notice to, or the consent of, the Borrower or the Agent and with
the consent of the Borrower and the Agent. No such pledge or assignment shall
release the transferor Lender from its obligations hereunder.
61
(e) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 2.14 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 2.14 or 2.15 requiring such
Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 8.08. Indemnification. The Borrower agrees to indemnify and
hold harmless the Agent, each Lender and each of their Affiliates and their
respective directors, officers, employees, agents, advisors and representatives
(each, an "Indemnified Party"), from and against, and to promptly reimburse them
and each of them, for any and all liabilities, losses, damages, actions,
judgments, suits, claims, costs, out-of-pocket expenses (including, without
limitation, interest, penalties and all reasonable attorneys' fees and expenses)
and settlement costs that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
litigation or proceeding or governmental action or investigation (administrative
or judicial), arising out of, related to or in connection with the actual or
proposed use of the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto or is otherwise required to respond thereto,
provided that the Borrower shall not be liable hereunder to the extent such
claim, damage, loss, liability, or expense (i) arises out of any settlement made
without the Borrower's consent, which consent shall not unreasonably be
withheld, (ii) arises out of any proceeding brought against any Indemnified
Party by a security holder of such Indemnified Party based upon rights afforded
such security holder solely in its capacity as such, (iii) arises solely from
disputes among two or more Indemnified Parties, (iv) is found in a final, non-
appealable judgment of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of such Indemnified Party or (v) is
found in a final, non-appealable judgment of a court of competent jurisdiction
to have resulted solely from such Indemnified Party's breach of its obligations
under the Loan Documents.
SECTION 8.09. Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of
62
which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 8.11. Confidentiality. Except to the extent permitted by
this Section 8.11 or by Section 8.07(g), the Lenders shall keep confidential all
non-public information obtained by them from the Borrower pursuant to this
Agreement that has been identified as such by the Borrower; provided, however,
that Lenders may make such disclosure thereof as is required or requested by any
governmental agency or self-regulatory organization or representative thereof
with supervisory jurisdiction over it or pursuant to legal process, or as may
otherwise be required by law or court order; provided further, however, that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify the Borrower of any request received by it from any governmental
agency or self-regulatory organization or representative thereof (other than any
such request in connection with an examination of such Lender by a governmental
agency or self-regulatory organization with supervisory jurisdiction over it)
for disclosure of any such non-public information prior to disclosure of such
information so that the Borrower may seek an appropriate protective order. The
Borrower authorizes each Lender to disclose to any of its Affiliates, attorneys,
auditors and accountants and any prospective Lender or participant any and all
information in such Lender's possession concerning the Borrower and any
Subsidiary of the Borrower that has been delivered to such Lender by or on
behalf of the Borrower pursuant to Section 5.01(f), provided that each such
Person shall agree to keep such information confidential in accordance with this
Section 8.11. In no event shall any Lender be obligated or required to return
any materials furnished by or on behalf of the Borrower or any of its
Subsidiaries. Notwithstanding the foregoing, this Section 8.11 shall not apply
to any information that is or becomes generally available to the public other
than as a result of the disclosure by any Lender, participant, prospective
Lender or participant or their respective representatives.
SECTION 8.12. WAIVER OF JURY TRIAL, ETC. EACH OF THE BORROWER, THE
AGENT, THE CO-AGENTS, THE LEAD MANAGERS AND THE LENDERS HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY
OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE AGENT, ANY CO-AGENT,
ANY LEAD MANAGER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT THEREOF.
[Signature Page Follow]
63
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SUPERVALU INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance
BANKERS TRUST COMPANY, as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
S-1 to S-2
CITIBANK, N.A., as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-In-Fact
FIRST BANK NATIONAL ASSOCIATION, as a Co-Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE FUJI-BANK, LIMITED, as a Co-Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
NATIONSBANK, N.A., as a Co-Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President
S-3 to S-6
PNC BANK, NATIONAL ASSOCIATION, as a Co-Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as a Lead Manager
By: /s/ ▇. ▇▇▇▇▇▇ Queen
-----------------------------------------
Name: ▇. ▇▇▇▇▇▇ Queen
Title: Managing Director
THE BANK OF NEW YORK, as a Lead Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO, as a Lead
Manager
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
S-7 to S-10
FLEET NATIONAL BANK, as a Lead Manager
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as a
Lead Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NORWEST BANK MINNESOTA NATIONAL ASSOCIATION, as a
Lead Manager
By: /s/ ▇▇▇▇▇ Van Metre
-----------------------------------------
Name: ▇▇▇▇▇ Van Metre
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-11 to S-14
THE DAI-ICHI KANGO BANK, LTD., CHICAGO BRANCH
By: /s/ Seiichiro Ino
-----------------------------------------
Name: Seiichiro Ino
Title: Vice President
THE FIFTH THIRD BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Corporate Account Officer
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-15 to S-18
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-19