EXHIBIT 4(D)
EXECUTION COPY
FIVE-YEAR CREDIT AGREEMENT
Dated as of December 11, ▇▇▇▇
▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
as Borrower,
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THE BANKS NAMED HEREIN
as Banks
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and
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
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FIRST CHICAGO CAPITAL MARKETS, INC.
as Arranger
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TABLE OF CONTENTS
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Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................................ 1
SECTION 1.01. Certain Defined Terms................................................. 1
SECTION 1.02. Computation of Time Periods........................................... 15
SECTION 1.03. Accounting Terms; Modifications due to Implementation of Euro......... 15
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES....................................... 16
SECTION 2.01. The Committed Advances................................................ 16
SECTION 2.02. Making the Committed Advances......................................... 16
SECTION 2.03. The Uncommitted Advances.............................................. 20
SECTION 2.04. Facility Fee and Utilization Fee...................................... 24
SECTION 2.05. Reduction and Termination of the Commitments.......................... 25
SECTION 2.06. Payment; Conversion and Continuation.................................. 25
SECTION 2.07. Interest on Committed Advances........................................ 26
SECTION 2.08. Additional Interest on Eurocurrency Rate Advances..................... 27
SECTION 2.09. Interest Rate Determination........................................... 27
SECTION 2.10. Prepayments........................................................... 27
SECTION 2.11. Funding Indemnification............................................... 28
SECTION 2.12. Increased Costs and Reduced Return.................................... 28
SECTION 2.13. Illegality............................................................ 29
SECTION 2.14. Payments and Computations............................................. 30
SECTION 2.15. Sharing of Payments, Etc.............................................. 31
SECTION 2.16. Currency Equivalents.................................................. 32
SECTION 2.17. Borrowing Subsidiaries................................................ 32
SECTION 2.18. Reserved.............................................................. 33
SECTION 2.19. Taxes................................................................. 33
SECTION 2.20. Defaulting Banks...................................................... 35
SECTION 2.21. Mitigation............................................................ 37
SECTION 2.22. European Economic and Monetary Union.................................. 37
SECTION 2.23. Extension of Termination Date......................................... 37
SECTION 2.24. Increase of Aggregate Commitments..................................... 38
ARTICLE III CONDITIONS PRECEDENT.................................................... 40
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03....... 40
SECTION 3.02. Conditions Precedent to Initial Advance to Each Borrowing Subsidiary.. 41
SECTION 3.03. Conditions Precedent to Each Committed Borrowing...................... 42
SECTION 3.04. Conditions Precedent to Each Uncommitted Borrowing.................... 42
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................... 43
SECTION 4.01. Representations and Warranties of the Company......................... 43
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ARTICLE V COVENANTS OF THE COMPANY................................................ 46
SECTION 5.01. Compliance with Laws, Etc............................................. 46
SECTION 5.02. Interest Coverage Ratio............................................... 46
SECTION 5.03. Reporting Requirements................................................ 46
SECTION 5.04. Use of Proceeds....................................................... 47
SECTION 5.05. Limitation on Liens, Etc.............................................. 48
SECTION 5.06. Merger; Sale of Assets................................................ 49
SECTION 5.07. Books and Records; Inspection......................................... 49
SECTION 5.08. Corporate Existence................................................... 50
SECTION 5.10. Payment of Taxes...................................................... 50
ARTICLE VI EVENTS OF DEFAULT....................................................... 50
SECTION 6.01. Events of Default..................................................... 50
ARTICLE VII GUARANTEE............................................................... 52
SECTION 7.01. Unconditional Guarantee............................................... 52
SECTION 7.02. Validity.............................................................. 53
SECTION 7.03. Waivers............................................................... 53
SECTION 7.04. Subrogation........................................................... 53
SECTION 7.05. Acceleration.......................................................... 53
SECTION 7.06. Reinstatement......................................................... 53
SECTION 7.07. Continuing Guaranty; Assignments...................................... 54
ARTICLE VIII THE ADMINISTRATIVE AGENT................................................ 54
SECTION 8.01. Reserved.............................................................. 54
SECTION 8.02. Authorization and Action.............................................. 54
SECTION 8.03. Administrative Agent's Reliance, Etc.................................. 55
SECTION 8.04. The Administrative Agent and Affiliates............................... 55
SECTION 8.05. Bank Credit Decision; Notice of Default............................... 56
SECTION 8.06. Indemnification....................................................... 56
SECTION 8.07. Successor Administrative Agent........................................ 57
ARTICLE IX MISCELLANEOUS........................................................... 57
SECTION 9.01. Amendments, Etc....................................................... 57
SECTION 9.02. Notices, Etc.......................................................... 58
SECTION 9.03. No Waiver; Remedies................................................... 58
SECTION 9.04. Costs and Expenses.................................................... 59
SECTION 9.05. Right of Set-off...................................................... 59
SECTION 9.06. Binding Effect........................................................ 59
SECTION 9.07. Assignments, Designations and Participations.......................... 59
SECTION 9.08. Governing Law......................................................... 64
SECTION 9.09. Execution in Counterparts............................................. 64
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SECTION 9.10. Confidentiality....................................................... 64
SECTION 9.11. Non-Reliance by the Banks............................................. 64
SECTION 9.12. No Indirect Security.................................................. 64
SECTION 9.13. Indemnification....................................................... 65
SECTION 9.14. Partial Invalidity.................................................... 65
SECTION 9.15. WAIVER OF JURY TRIAL.................................................. 65
SECTION 9.16. Jurisdiction, Etc..................................................... 66
SECTION 9.17. Termination of Existing Credit Agreement.............................. 66
SECTION 9.18. Nonliability of Banks................................................. 66
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EXHIBITS
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Assumption Letter
EXHIBIT C - Form of Designation Agreement
EXHIBIT D-1 - Form of Committed Note
EXHIBIT D-2 - Form of Uncommitted Note
EXHIBIT E-1 - Form of Notice of Committed Borrowing
EXHIBIT E-2 - Form of Notice of Uncommitted Borrowing
EXHIBIT F - Form of Notice of Continuation/Conversion
EXHIBIT G - Form of Commitment Increase Consent
EXHIBIT H - Form of Sidley & Austin Opinion
EXHIBIT I - Form of Opinion of Counsel to Borrowing Subsidiary
__________________
/1/ Select one.
/2/ Include if applicable.
/3/ Use if converting Base Rate Advances to Eurocurrency Rate Advances.
/4/ Use if converting only a portion of Eurocurrency Rate Advances and
continuing the balance as Eurocurrency Rate Advances.
/5/ Use if converting Eurocurrency Rate Advances to Base Rate Advances.
/6/ Use if continuing Eurocurrency Rate Advances.
/7/ To be revised if the Borrowing Subsidiary is not a domestic corporation.
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EXECUTION COPY
FIVE-YEAR CREDIT AGREEMENT
Dated as of December 11, 1998
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY, a Delaware corporation (the "Company"), the
banks listed on the signature pages hereof and THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative Agent (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Deadline" has the meaning specified in Section
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2.03(a)(iii).
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"Administrative Agent" means First Chicago, in its capacity as the
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contractual representative for all of the Banks for purposes of this
Agreement, as designated and appointed in accordance with Article VIII, and
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any successor thereto as provided herein.
"Advance" means a Committed Advance or an Uncommitted Advance.
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"Affiliate" means, with respect to any Person, any other Person that,
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directly or indirectly, controls, is controlled by or is under common
control with such Person.
"Affordable Housing Debt" means Debt of the Company or of any of its
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Subsidiaries which is associated with the direct or indirect investment by
the Company or such Subsidiary in affordable housing where the expected tax
benefits of such investment exceed the total amount of the future annual
payments required as part of such investment.
"Agreement" shall mean this Five-Year Credit Agreement, as the same
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may be amended, modified, supplemented or restated from time to time.
"Alternative Currency" means Sterling, German Marks, Swiss Francs, Yen
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and any other currency (other than Dollars) (i) which is readily available,
freely transferable and convertible into Dollars in the international
currency and exchange markets, (ii) in which deposits are customarily
offered to banks
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in the London interbank market and (iii) as to which an equivalent amount
in Dollars may be readily calculated, including the Euro from and after the
Euro Implementation Date.
"Applicable Lending Office" means, with respect to each Bank, such
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Bank's Domestic Lending Office in the case of a Base Rate Advance, and such
Bank's Eurocurrency Lending Office in the case of a Eurocurrency Rate
Advance and, in the case of an Uncommitted Advance, the office of such Bank
notified by such Bank to the Administrative Agent as its Applicable Lending
Office with respect to such Uncommitted Advance.
"Applicable Margin" means on any day:
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(i) 0.155% if Category 1 Status exists on such day,
(ii) 0.17% if Category 2 Status exists on such day,
(iii) 0.20% if Category 3 Status exists on such day,
(iv) 0.25% if Category 4 Status exists on such day, and
(v) 0.40% if Category 5 Status exists on such day.
"Arranger" means First Chicago Capital Markets, Inc.
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"Assignment and Acceptance" means an Assignment and Acceptance
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executed by a Bank (other than a Designated Bidder) and an Eligible
Assignee and accepted by the Administrative Agent and the Company,
substantially in the form of Exhibit A hereto.
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"Assumption Letter" means a letter of a Subsidiary of the Company
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addressed to the Banks in substantially the form of Exhibit B hereto
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pursuant to which such Subsidiary agrees to become a "Borrowing Subsidiary"
and agrees to be bound by the terms and conditions hereof.
"Available Commitment" has the meaning specified in Section 2.01.
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"Banks" means the banks listed on Schedule I hereto and each Person
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that becomes a party hereto pursuant to Section 9.07(a), (b) and (c), and,
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except when used in reference to a Committed Advance, a Committed
Borrowing, a Committed Note, a Commitment or a related term, each
Designated Bidder.
"Base Rate" means a fluctuating interest rate per annum in effect from
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time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the corporate base rate of interest announced by First
Chicago from time to time, changing when and as said corporate base
rate changes; and
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(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Committed Advance which bears interest at
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a rate based upon the Base Rate, as provided in Section 2.07(a).
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"Borrower" means the Company or any Borrowing Subsidiary.
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"Borrowing" means a Committed Borrowing or an Uncommitted Borrowing.
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"Borrowing Subsidiary" means any Subsidiary of the Company duly
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designated by the Company pursuant to Section 2.17 hereof to make
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Borrowings hereunder, which Subsidiary shall have delivered an Assumption
Letter to the Administrative Agent in accordance with Section 2.17.
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"Business Day" means a day of the year (other than a Saturday or
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Sunday) on which banks are not required or authorized by law to close in
New York City and Chicago and, if the applicable Business Day relates to
any Eurocurrency Rate Advances, on which dealings are carried on in the
London interbank market (and, if such Eurocurrency Rate Advances are
denominated in the Euro, a day upon which such clearing system as is
determined by the Administrative Agent to be suitable for clearing or
settlement of the Euro is open for business).
"Category Status" means Category 1 Status, Category 2 Status, Category
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3 Status, Category 4 Status or Category 5 Status, as appropriate.
"Category 1 Status" exists at any date if at such date the Public Debt
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Rating announced by S&P is AA- (or the equivalent) or better or the Public
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Debt Rating announced by ▇▇▇▇▇'▇ is Aa3 (or the equivalent) or better.
"Category 2 Status" exists at any date if at such date (i) the Public
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Debt Rating announced by S&P is A (or the equivalent) or better or the
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Public Debt Rating announced by ▇▇▇▇▇'▇ is A2 (or the equivalent) or
better, and (ii) Category 1 Status does not exist.
"Category 3 Status" exists at any date if at such date (i) the Public
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Debt Rating announced by S&P is A- (or the equivalent) or better or the
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Public Debt Rating announced by ▇▇▇▇▇'▇ is A3 (or the equivalent) or
better, and (ii) neither Category 1 Status nor Category 2 Status exists.
"Category 4 Status" exists at any date if at such date (i) the Public
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Debt Rating announced by S&P is BBB (or the equivalent) or better or the
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Public Debt Rating announced by ▇▇▇▇▇'▇ is Baa2 (or the equivalent) or
better, and (ii) none of Category 1 Status, Category 2 Status or Category 3
Status exists.
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"Category 5 Status" exists at any date if at such date (i) the Public
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Debt Rating announced by S&P is lower than BBB (or the equivalent) and the
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Public Debt Rating announced by ▇▇▇▇▇'▇ is lower than Baa2 (or the
equivalent), or (ii) neither S&P nor Moody's shall have a Public Debt
--
Rating in effect at such date.
"Commission" means the Securities and Exchange Commission or any
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federal body succeeding to its functions.
"Commitment" has the meaning specified in Section 2.01.
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"Committed Advance" means an advance by a Bank to a Borrower as part
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of a Committed Borrowing and refers to a Base Rate Advance or a
Eurocurrency Rate Advance, each of which shall be a "Type" of Committed
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Advance.
"Committed Borrowing" means a borrowing consisting of simultaneous
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Committed Advances of the same Type made by each of the Banks to a Borrower
pursuant to Section 2.01.
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"Committed Note" means a promissory note, in substantially the form of
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Exhibit D-1 hereto, duly executed by the Company or a Borrowing Subsidiary
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and payable to the order of a Bank in the amount of its Commitment,
including any amendment, modification, renewal or replacement of such
promissory note.
"Consolidated EBIT" means, for any period, on a consolidated basis for
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the Company and its Consolidated Subsidiaries, the sum of the amounts for
such period of (a) Consolidated Net Income (excluding non-recurring or
extraordinary gains, losses, expenses and charges but including cash
charges and payments during such period related to extraordinary or non-
recurring gains, losses, charges and expenses), plus (b) charges against
----
income for foreign, federal, state and local taxes, plus (c) Consolidated
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Interest Expense plus (or minus) (d) pre-tax income (or loss) from
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discontinued operations.
"Consolidated Interest Expense" means, for any period, the sum of
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total interest expense of the Company and its Consolidated Subsidiaries,
whether paid or accrued, as determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, the consolidated net
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earnings (or loss) after taxes of the Company and its Consolidated
Subsidiaries for such period, determined in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary the
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accounts of which would be consolidated with those of the Company in its
consolidated financial statements at such date in accordance with GAAP;
provided, that for purposes of Sections 5.02 and 5.03, "Consolidated
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Subsidiary" shall mean any subsidiary the accounts of which would be
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consolidated with those of the Company in its consolidated financial
statements at such date in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any date, an amount
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equal to the sum of (i) the par or stated value of the outstanding shares
of all classes of capital stock of the Company, (ii) paid-in capital and
capital surplus of the Company and (iii) retained earnings of the Company,
as each of which would appear on a consolidated balance sheet of the
Company and its Consolidated Subsidiaries prepared as of the last day of
the most recently completed fiscal quarter in accordance with GAAP, less
----
the aggregate net amount of (i) all assets so appearing which in accordance
with GAAP are deemed intangible, such intangible assets to specifically
include, but not be limited to, licenses, copyrights, trademarks,
tradenames, patents and goodwill, and (ii) any write-up in the book value
of assets made after December 31, 1997, other than any such write-up to an
appraised fair market value in accordance with the purchase accounting
requirements of GAAP.
"Continuation Notice" has the meaning specified in Section 2.23.
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"Continuing Bank" has the meaning specified in Section 2.23.
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"Debt" means (but without duplication of any item) (i) indebtedness
----
for borrowed money, (ii) obligations evidenced by bonds, debentures, notes
or other similar instruments, (iii) obligations as lessee under leases
which shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, and (iv) obligations
under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise
assure a creditor against loss in respect of, indebtedness or obligations
of others of the kinds referred to in clause (i), (ii) or (iii) above.
"Defaulted Advance" means, with respect to any Bank at any time, the
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amount of any Advance required to be made by such Bank to the Borrower
pursuant to Section 2.01 or Section 2.03(a) at or prior to such time that
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has not been so made as of such time; provided, however, that any Advance
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made by the Administrative Agent for the account of such Bank pursuant to
Section 2.02(e) shall not be considered a Defaulted Advance even if, at
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such time, such Bank shall not have reimbursed the Administrative Agent
therefor as provided in Section 2.02(e). If part of a Defaulted Advance
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shall be deemed made pursuant to Section 2.20(a), the remaining part of
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such Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 or Section 2.03(a) on the same
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date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Bank at any time, any
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amount required to be paid by such Bank to the Administrative Agent or any
other Bank hereunder at or prior to such time that has not been so paid as
of such time, including, without limitation, any amount required to be paid
by
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such Bank to (a) the Administrative Agent pursuant to Section 2.02(e) to
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reimburse the Administrative Agent for the amount of any Advance made by
the Administrative Agent for the account of such Bank, (b) any other Bank
pursuant to Section 2.15 to purchase any participation in Advances owing to
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such other Bank and (c) the Administrative Agent pursuant to Section 8.06
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to reimburse the Administrative Agent for such Bank's ratable share of any
amount required to be paid by the Banks to the Administrative Agent as
provided therein. If part of a Defaulted Amount shall be deemed paid
pursuant to Section 2.20(b), the remaining part of such Defaulted Amount
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shall be considered a Defaulted Amount originally required to be made
hereunder on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Bank" means, at any time, any Bank that, at such time, (a)
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owes a Defaulted Advance or a Defaulted Amount or (b) shall take or be the
subject of any action or proceeding of a type described in Section 6.01(f).
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"Designated Bidder" means (a) an Eligible Assignee or (b) a special
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purpose corporation that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and
that issues (or the parent of which issues) commercial paper rated at least
"Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the then
equivalent grade) by S&P that, in the case of either clause (a) or clause
(b), (i) is organized under the laws of the United States or any State
thereof, (ii) shall have become a party hereto pursuant to Section 9.07(d),
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(e) and (f), and (iii) is not otherwise a Bank.
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"Designation Agreement" means a designation agreement entered into by
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a Bank (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Administrative Agent and the Company, in substantially the
form of Exhibit C hereto.
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"Dollar Amount" means, for any date of determination:
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(a) with respect to any amount denominated in Dollars, such amount;
and
(b) with respect to an amount denominated in any Alternative Currency,
the amount of Dollars into which the Administrative Agent could, in
accordance with its practice from time to time in the London interbank
foreign exchange market, convert such amount of Alternative Currency at its
spot rate of exchange applicable to the relevant transaction at or about
11:00 a.m., London time, on the date of such determination, for the
delivery of Dollars two Business Days thereafter. For purposes of this
Agreement, the Dollar Amount of any amount received by a Bank hereunder
shall be determined as of the date of such receipt.
"Dollars" and the sign "$" each means the lawful currency of the
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United States.
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"Domestic Lending Office" means, with respect to any Bank, the office
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of such Bank specified as its "Domestic Lending Office" opposite its name
on Schedule I hereto or in the Assignment and Acceptance pursuant to which
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it became a Bank, as the case may be, or such other office of such Bank as
such Bank may from time to time specify to the Company and the
Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
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"Eligible Assignee" means (i) a Bank (other than a Designated Bidder);
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(ii) an Affiliate of a Bank (other than a Designated Bidder); (iii) a
commercial bank organized under the laws of the United States or any State
thereof, and having a combined capital and surplus of at least
$500,000,000; (iv) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development, has a combined capital and surplus of at least $500,000,000
and is acting through a branch or agency located in the United States, and
(v) any other Person approved by the Company and the Administrative Agent,
such approvals not to be unreasonably withheld or delayed (it being
understood that the Company may reasonably withhold its approval of any
such other Person if at the time it would become a Bank hereunder payments
to it would not be exempt from United States withholding tax).
"Environmental Action" means any administrative, regulatory or
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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 in
any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health,
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
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statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial interpretation relating to the environment, health, safety or
Hazardous Materials.
"Environmental Permit" means any permit, approval, indemnification
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number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974 as
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amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
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"ERISA Affiliate" means any Person that for purposes of Title IV of
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ERISA is a member of the Company's controlled group, or under common
control with the Company, as determined under Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event, within
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the meaning of Section 4043 of ERISA, with respect to any Plan 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 a
Plan; (c) the provision by the administrator of any Plan 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
the Company or any of its ERISA Affiliates in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by the Company 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 the Company 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 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, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that could constitute grounds for the termination of, or the appointment of
trustee to administer, a Plan.
"Euro" and/or "EUR" means the euro referred to in Council Regulation
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(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of
the European Union that participate in the third stage of Economic and
Monetary Union.
"Euro Implementation Date" means the first date (currently expected to
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be January 1, 1999) on which the Euro becomes the currency of some or all
of the member states of the European Union.
"Eurocurrency Lending Office" means, with respect to any Bank, the
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office of such Bank specified as its "Eurocurrency Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
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to which it became a Bank (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Bank as such Bank may from
time to time specify to the Company and the Administrative Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
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"Eurocurrency Rate" means, with respect to any Eurocurrency Rate
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Advance for any specified Interest Period or for the term of any
Uncommitted Advance with respect to which interest is calculated by
reference to the Eurocurrency Rate, either:
(i) the rate of interest per annum equal to the rate for
deposits in Dollars or the applicable Alternative Currency of such
Eurocurrency Rate Advance with a maturity approximately equal to such
Interest Period which appears on Dow ▇▇▇▇▇ Markets (Telerate) Page
3740 or 3750, as applicable, or, if there is more than one such rate,
the average of such rates rounded to the nearest 1/100 of 1% (if such
average is not a multiple of 1/16 of 1%), as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, or
(ii) if no such rate of interest appears on Dow ▇▇▇▇▇ Markets
(Telerate) Page 3740 or 3750, as applicable, for any specified
Interest Period, or if Dow ▇▇▇▇▇ Markets (Telerate) Page 3740 or 3750
is unavailable for any reason, the applicable per annum London
interbank offered rate for deposits in Dollars or the applicable
Alternative Currency appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period.
"Eurocurrency Rate Advance" means a Committed Advance which bears
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interest at a rate based upon the Eurocurrency Rate, as provided in Section
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2.07(c).
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"Eurocurrency Rate Reserve Percentage" of any Bank (other than a
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Designated Bidder) for any Interest Period for a Eurocurrency Rate Advance
means the reserve percentage applicable two Business Days before the first
day of such Interest Period 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
Bank with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances of such currency is determined) having a term
equal to such Interest Period.
"Eurocurrency Rate Uncommitted Borrowing" means an Uncommitted
---------------------------------------
Borrowing comprised of Uncommitted Advances denominated in Dollars, bearing
interest based upon the Eurocurrency Rate.
"Events of Default" has the meaning specified in Section 6.01.
----------------- ------------
-9-
"Extension Request" has the meaning specified in Section 2.23.
----------------- ------------
"Facility Fee" has the meaning specified in Section 2.04.
------------ ------------
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
immediately 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 for such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"First Chicago" means The First National Bank of Chicago, a national
-------------
banking association, in its individual capacity, and its successors.
"Fixed Rate Uncommitted Borrowing" means an Uncommitted Borrowing
--------------------------------
consisting of Uncommitted Advances bearing interest at a fixed percentage
rate per annum (expressed in the form of a decimal to no more than four
decimal places) specified by the respective Banks making such Uncommitted
Advances pursuant to the procedure described in Section 2.03.
------------
"GAAP" has the meaning specified in Section 1.03.
---- ------------
"German Marks" means the lawful currency of the Federal Republic of
------------
Germany.
"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 interpretation.
"Insurance Policy Debt" means Debt of the Company or any of its
---------------------
Subsidiaries under policies of life insurance now or hereafter owned by the
Company or any of its Subsidiaries under which policies the sole recourse
for such borrowing is against such policies.
"Interest Coverage Ratio" means the ratio, determined on a
-----------------------
consolidated basis for the Company and its Consolidated Subsidiaries in
accordance with GAAP as of the end of any fiscal quarter, of Consolidated
EBIT to Consolidated Interest Expense, in each case determined as of the
last day of such fiscal quarter for the four-quarter period then ended.
-10-
"Interest Period" means, for each Eurocurrency Rate Advance comprising
---------------
part of the same Committed Borrowing, the period commencing on the date of
such Eurocurrency Rate Advance or the date of any conversion or
continuation thereof, and ending on the last day of the period selected by
a Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, in each case as a
Borrower may select, upon notice received by the Administrative Agent
pursuant to Section 2.02 or 2.06; provided, however, that
------------ ---- -------- -------
(i) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Committed
Borrowing shall be of the same duration;
(ii) 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;
(iii) whenever the first day of any Interest Period occurs on a
day in 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; and
(iv) no Interest Period may terminate later than the Termination
Date.
"Lien" means, with respect to any asset, any security interest,
----
mortgage, pledge, lien, claim, charge or encumbrance of any kind in respect
of such asset.
"Majority Banks" means at any time Banks holding more than 50% of the
--------------
then aggregate unpaid principal amount of the Committed Advances held by
the Banks, or, if no such principal amount is then outstanding, Banks
having more than 50% of the Commitments.
"Margin Stock" has the meaning specified in Regulation U issued by the
------------
Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse effect on (i) the
-----------------------
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole, (ii) the legality, validity
or
-11-
enforceability of this Agreement or the Notes or (iii) the ability of
the Company to perform its obligations under this Agreement and the Notes.
"Material Subsidiary" means a Subsidiary of the Company which, at the
-------------------
time of determination, (i) shall own assets comprising in excess of 10% of
all of the assets of the Company and its consolidated Subsidiaries on a
consolidated basis, or (ii) has operating income for the four fiscal
quarters most recently ended in excess of 10% of the operating income of
the Company and its consolidated Subsidiaries on a consolidated basis.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which the Company 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" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any of its ERISA Affiliates and at least one Person other than
the Company and its ERISA Affiliates or (b) was so maintained and in
respect of which the Company 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.
"National Currency Unit" means the unit of currency (other than a Euro
----------------------
unit) of each member state of the European Union that participates in the
third stage of Economic and Monetary Union.
"Non-Extending Bank" has the meaning specified in Section 2.23.
------------------ ------------
"Note" means a Committed Note or an Uncommitted Note.
----
"Notice of Committed Borrowing" has the meaning specified in Section
----------------------------- -------
2.02(a).
-------
"Notice of Conversion or Continuation" has the meaning specified in
------------------------------------
Section 2.06(b).
---------------
"Notice of Uncommitted Borrowing" has the meaning specified in Section
------------------------------- -------
2.03(a).
-------
"PBGC" means the Pension Benefit Guaranty Corporation and its
----
successors and assigns.
"Person" means an individual, partnership, corporation (including a
------
business trust), limited liability company, joint stock company, trust,
-12-
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.
----
"Pro Rata Share" means, at any time with respect to any Bank, the
--------------
ratio (expressed as a percentage) that such Bank's Commitment bears to the
aggregate Commitments of all Banks at such time or, at any time after the
Commitments have been terminated, the ratio (expressed as a percentage)
that such Bank's outstanding Committed Advances bears to the aggregate
outstanding Committed Advances of all Banks at such time.
"Public Debt Rating" means, on any date, the rating that has been most
------------------
recently announced by S&P or Moody's, as the case may be, for any class of
long-term senior non-credit-enhanced unsecured debt issued by the Company,
changing when and as the applicable rating agency publicly announces a
change in its Public Debt Rating.
"Quote Deadline" has the meaning specified in Section 2.03(a)(ii).
-------------- -------------------
"Register" has the meaning specified in Section 9.07(g).
-------- ---------------
"Replacement Bank" has the meaning specified in Section 2.23(b).
---------------- ---------------
"Request Deadline" has the meaning specified in Section 2.03(a)(i).
---------------- ------------------
"Responsible Officer" means the Executive Vice President and Chief
-------------------
Financial Officer of the Company, the Vice President and Treasurer of the
Company, or any other officer of the Company or any other Borrower
responsible for overseeing or reviewing compliance with this Agreement or
any Note.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-
---
Hill Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any of its ERISA Affiliates and no Person other than the Company
and its ERISA Affiliates or (b) was so maintained and in respect of which
the Company 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.
"Sterling" means the lawful currency of the United Kingdom.
--------
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, limited liability company, association or other business
entity of which securities or other ownership interests having (a) ordinary
voting
-13-
power to elect a majority of the board of directors or other persons
performing similar functions or (b) having the ability to direct the
management of such corporation, partnership, limited liability company,
association or other business entity, are 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; provided however, that Stream International Inc., a Delaware
--------
corporation ("Stream"), shall not be considered a "Subsidiary" of the
------
Company until the earlier of (i) the date of the first regularly scheduled
annual meeting of Stream after such time as the Company has gained ordinary
voting power to elect a majority of the board of directors of Stream and
(ii) the date on which the Company elects the majority of a new board of
directors of Stream.
"Swiss Francs" means the lawful currency of Switzerland.
------------
"Termination Date" means the earlier of (i) December 11, 2003 (or such
----------------
later date as is established pursuant to Section 2.23(d)) or (ii) the date
---------------
the Commitments are terminated in whole pursuant to Section 2.05 or 6.01.
------------ ----
"Uncommitted Advance" means an advance by a Bank to a Borrower as part
-------------------
of an Uncommitted Borrowing resulting from the auction bidding procedure
described in Section 2.03.
------------
"Uncommitted Borrowing" means a borrowing consisting of simultaneous
---------------------
Uncommitted Advances from each of the Banks whose offer to make one or more
Uncommitted Advances as part of such borrowing has been accepted by a
Borrower under the auction bidding procedure described in Section 2.03.
------------
"Uncommitted Borrowing Margin" means, with respect to any Eurocurrency
----------------------------
Rate specified by a Borrower in a Notice of Uncommitted Borrowing and any
offer made by a Bank in response to such Notice of Uncommitted Borrowing,
the margin (expressed as a percentage rate per annum) to be added to or
subtracted from such Eurocurrency Rate in order to determine the interest
rate per annum at which such Bank is willing to, and offers to, make an
Uncommitted Advance to such Borrower as part of a Eurocurrency Rate
Uncommitted Borrowing.
"Uncommitted Note" means a promissory note, in substantially the form
----------------
of Exhibit D-2 hereto, duly executed by the Company or a Borrowing
-----------
Subsidiary and evidencing an Uncommitted Advance made by such Bank,
including any amendment, modification, renewal or replacement of such
promissory note.
"Utilization Fee" has the meaning specified in Section 2.04.
--------------- ------------
"Withdrawal Liability" has the meaning specified in Part 1 of Subtitle
--------------------
E of Title IV of ERISA.
-14-
"Year 2000 Problem" means anticipated costs, problems and
-----------------
uncertainties associated with the inability of certain computer
applications to effectively handle data including dates on and after
January 1, 2000.
"Yen" means the lawful currency of Japan.
---
"1994 Credit Agreement" means that certain Credit Agreement dated as
---------------------
of December 21, 1994, among the Company, the banks listed on the signature
pages thereto, and Citibank, N.A., as Administrative Agent, as amended,
modified, restated or supplemented from time to time.
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
mean "to but excluding."
SECTION 1.03. Accounting Terms; Modifications due to Implementation of
--------------------------------------------------------
Euro. (a) All accounting terms not specifically defined herein shall be
----
construed in accordance with generally accepted accounting principles consistent
with those applied in the preparation of the financial statements then most
recently delivered by the Company to the Banks in accordance with Section 5.03
------------
("GAAP"); provided, however, that, if any changes in accounting principles from
those used in the preparation of the consolidated financial statements of the
Company and its Subsidiaries for the fiscal year of the Company ended December
31, 1997 (as delivered to the Lenders pursuant to Section 4.01(e)) occur by
---------------
reason of the promulgation of rules, regulations, pronouncements, opinions or
other requirements of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and such changes would affect (or would result in a
change in the method of calculation of) the covenant set forth in Section 5.02,
------------
or any of the defined terms related thereto contained in Section 1.01, then upon
------------
the request of any party hereto, the Company, the Administrative Agent and the
Banks shall enter into negotiations in good faith, if and to the extent
necessary, to amend such covenant or such terms as would be affected by such
changes in GAAP, in accordance with Section 9.01, in such manner as would
------------
maintain the economic terms of such covenant as in effect under this Agreement,
prior to giving effect to the occurrence of any such changes; and provided
further, however, that until the amendment of the covenant and the defined terms
referred to in the immediately preceding proviso becomes effective, such
covenant and defined terms shall be performed, observed and determined, and any
determination of compliance with such covenant shall be made, as though no such
changes in accounting principles had been made and the Company shall deliver to
the Banks, in addition to the consolidated financial statements otherwise
required to be delivered to the Banks under Sections 5.03(a) or 5.03(b) during
---------------- -------
such period, a statement of reconciliation conforming such consolidated
financial statements to GAAP prior to such changes.
(b) If the Administrative Agent determines that modifications to this
Agreement are necessary as a result of the commencement of the third stage of
European Economic and Monetary Union and the occurrence of the Euro
Implementation Date, then the Company, the Administrative Agent and the Banks
shall enter into negotiations in good faith to amend
-15-
this Agreement in such manner as to put the parties in the same position as if
the Euro Implementation Date had not occurred. No such modifications shall
become effective until this Agreement has been amended in accordance with
Section 9.01 to incorporate such modifications.
------------
ARTICLE II
----------
AMOUNTS AND TERMS OF THE ADVANCES
---------------------------------
SECTION 2.01. The Committed Advances. Each Bank severally agrees, on the
----------------------
terms and conditions hereinafter set forth, to make Committed Advances to the
Borrowers from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount with respect to
all Borrowers not to exceed at any time outstanding an amount (such Bank's
"Available Commitment") equal to (i) the amount set forth opposite such Bank's
name on Schedule I hereto or, if such Bank has entered into any Assignment and
----------
Acceptance, set forth for such Bank in the Register, as such amount may be
reduced pursuant to Section 2.05 (such Bank's "Commitment") minus (ii) such
------------ -----
Bank's Pro Rata Share of the aggregate amount of the Uncommitted Advances then
outstanding. Each Committed Borrowing shall be in an aggregate amount of not
less than $20,000,000 or an integral multiple of $1,000,000 in excess thereof
or, if the requested currency for such Committed Advance is not Dollars, an
equivalent amount (determined in accordance with Section 2.16) and multiple in
------------
the requested Alternative Currency, and, subject to Section 2.02, shall consist
------------
of Committed Advances of the same Type made on the same day to the same Borrower
by the Banks ratably according to their respective Commitments in the currency
so requested. Within the limits of each Bank's Available Commitment, a Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.10, and
------------ ------------
reborrow under this Section 2.01.
------------
SECTION 2.02. Making the Committed Advances. (a) Each Committed
------------------------------
Borrowing shall be made on notice by the Company (or, if such Borrower is a
Borrowing Subsidiary, by the Company on behalf of such Borrowing Subsidiary) to
the Administrative Agent (which shall give each Bank prompt notice thereof by
telecopy), given not later than 10:00 A.M. (Chicago time) on (i) the date of a
proposed Committed Borrowing comprised of Base Rate Advances, (ii) the third
Business Day prior to the date of a proposed Committed Borrowing comprised of
Eurocurrency Rate Advances to be denominated in Dollars, and (iii) the fourth
Business Day prior to the date of a proposed Committed Borrowing comprised of
Eurocurrency Rate Advances to be denominated in an Alternative Currency. Each
such notice of a Committed Borrowing (a "Notice of Committed Borrowing") shall
be by telecopy confirmed immediately in writing, in substantially the form of
Exhibit E-1 hereto, specifying therein the requested (i) date of such Committed
-----------
Borrowing, (ii) Type of Committed Advances comprising such Committed Borrowing,
which, in the case of a Committed Borrowing denominated in an Alternative
Currency, shall be Eurocurrency Rate Advances, (iii) currency for such Committed
Borrowing, which shall be in Dollars or an Alternative Currency, (iv) aggregate
amount of such Committed Borrowing, (v) in the case of a Committed Borrowing
consisting of Eurocurrency Advances, the initial Interest Period for each
Committed Advance comprising such Committed Borrowing, and (vi) whether such
Committed Borrowing is to be made by the Company or by a specified Borrowing
-16-
Subsidiary. The Administrative Agent shall, promptly after such time as the
Company or such Borrower may no longer revoke the Notice of Committed Borrowing
without any liability to the Banks, notify each Bank and the Company or such
Borrower of the applicable interest rate under Section 2.07(a) or (b). Each
--------------- ---
Bank shall, before 12:00 P.M. (Chicago time) on the date of such Committed
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Domestic Lending Office of the Bank then acting
as Administrative Agent, in federal or otherwise immediately available funds,
such Bank's Pro Rata Share of such Committed Borrowing. After the
Administrative Agent receives such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such
-----------
funds available to the applicable Borrower at the Administrative Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding:
(i) If with respect to a request for a Committed Borrowing of an
Alternative Currency other than Sterling, German Marks, Swiss Francs or
Yen, any Bank shall, prior to 10:00 A.M. (Chicago time) on the second
Business Day before the requested date of such Committed Borrowing, notify
the Administrative Agent that the requested Alternative Currency is not
practically available to such Bank in the amount required to make its
Committed Advance in connection therewith; or
(ii) If any Bank shall, prior to making any requested Committed
Borrowing consisting of Eurocurrency Rate Advances in an Alternative
Currency, notify the Administrative Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts
that it is unlawful, for such Bank or its Eurocurrency Lending Office or
any other Applicable Lending Office to perform its obligations hereunder to
make Eurocurrency Rate Advances in such currency or to fund or maintain
Eurocurrency Rate Advances in such currency hereunder; or
(iii) If the Majority Banks shall, prior to making any requested
Committed Borrowing of an Alternative Currency other than Sterling, German
Marks, Swiss Francs, Yen or the Euro, notify the Administrative Agent or
the Administrative Agent shall reasonably determine that currency control
or other exchange regulations are imposed in the country in which such
currency is issued which result in the introduction of different types of
such currency or that there is a change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would make it impracticable for such Advance to be
denominated in the Alternative Currency;
then, upon receipt of such notice, the Administrative Agent shall so notify the
Company and the applicable Borrower (if other than the Company) and the Company
or such Borrower may, without incurring an obligation to indemnify for losses,
costs or expenses under Section 2.02(d), by notice to the Administrative Agent
---------------
(which shall promptly notify each Bank), either
-17-
(x) withdraw the applicable Notice of Committed Borrowing, in which
case the Committed Borrowing shall not occur;
(y) request that such Committed Borrowing be made by the Banks in
Dollars as a Committed Borrowing comprised of either Eurocurrency Rate
Advances or Base Rate Advances, in which case the original Notice of
Committed Borrowing shall be deemed to be a Notice of Committed Borrowing
which requests a Committed Borrowing in an aggregate principal amount in
Dollars equivalent, on the date the Company or such Borrower so notifies
the Administrative Agent, to the amount of the originally requested
currency for such Type of Committed Advances (determined in accordance with
Section 2.16); provided that such request may not be made by the Company or
------------ --------
such Borrower if the requested Type of Committed Advances is Eurocurrency
Rate Advances and the request by the Company or such Borrower is not given
to the Administrative Agent prior to 2:00 P.M. (London time) on the second
Business Day before the requested date of such Committed Borrowing; or
(z) only in the case of a Bank giving a notice described in Section
-------
2.02(b)(ii) above, request that such Committed Borrowing be made by the
-----------
Banks (other than the notifying Bank) and that no Committed Advance be made
by the notifying Bank in connection with such Committed Borrowing.
In the case of any notice given under clause (y) above, the Company or such
Borrower shall specify in such notice the amount and type of Committed Advance
to be made by each Bank in connection therewith. Any notice under this
subsection (b) shall be given no later than 2:00 P.M. (London time) two Business
Days before the date of the requested Committed Borrowing, may be given by
telephone and, if by telephone, shall be confirmed promptly in writing. If
neither the Company nor the applicable Borrower shall provide a timely notice as
contemplated in clause (x), (y) or (z) above in response to a notice by any Bank
under clause (i) or (ii) above, the applicable Notice of Committed Borrowing
shall be deemed withdrawn.
(c) Anything in subsection (a) above to the contrary notwithstanding, if
the Majority Banks shall, no later than 5:00 P.M. (Chicago time) three Business
Days before the date of any requested Committed Borrowing, continuation or
conversion consisting of Eurocurrency Rate Advances, or any continuation thereof
or conversion thereto, notify the Administrative Agent that the Eurocurrency
Rate for any Interest Period for such Eurocurrency Rate Advances, plus
additional interest, if any, payable under Section 2.08, will not adequately
------------
reflect the cost to such Majority Banks of making, funding, converting to or
continuing their respective Eurocurrency Rate Advances for such Committed
Borrowing for such Interest Period, then the Administrative Agent shall promptly
notify the Company, the applicable Borrower (if other than the Company) and the
Banks of such circumstances and upon receipt of such notice, the Company or such
Borrower may, without incurring an obligation to indemnify for losses, costs or
expenses under Section 2.02(d), by notice to the Administrative Agent (which
---------------
shall promptly notify each Bank), either:
-18-
(i) withdraw the applicable Notice of Committed Borrowing, in which
case the Committed Borrowing shall not occur;
(ii) withdraw the applicable Notice of Conversion or Continuation,
in which case the conversion or continuation of such Committed Borrowing
shall not occur; or
(iii) request that such Committed Borrowing, continuation or
conversion be made by the Banks in Dollars as a Committed Borrowing,
continuation or conversion, in which case the original Notice of Committed
Borrowing, or Notice of Conversion or Continuation shall be deemed to be a
Notice of Committed Borrowing, or Notice of Conversion or Continuation
which requests a Committed Borrowing, continuation or conversion in an
aggregate principal amount in Dollars equivalent, on the date the Company
or such Borrower so notifies the Administrative Agent, to the amount of the
originally-requested currency for such Committed Advances; provided that
--------
such request may not be made by the Company or such Borrower if the request
by the Company or such Borrower is not given to the Administrative Agent
prior to 2:00 P.M. (London time) on the second Business Day before the
requested date of such Committed Borrowing, continuation or conversion.
In the case of any notice given under clause (iii) above, the Company or such
Borrower shall specify in such notice the amount and Type of Committed Advances
to be made, continued or converted by the Banks in connection therewith. Any
notice under this subsection (c) shall be given no later than 2:00 P.M. (London
time) two Business Days before the date of the requested Committed Borrowing,
may be given by telephone, and, if by telephone, shall be confirmed promptly in
writing. From and after the date the Administrative Agent receives the notice
described in Section 2.02(c), the Banks' obligation to make Eurocurrency
---------------
Advances for any affected Interest Period shall be suspended until the Majority
Banks notify the Administrative Agent that the circumstances giving rise to such
notice no longer exist. If neither the Company nor the applicable Borrower
shall provide a timely notice as contemplated in clauses (i), (ii) or (iii)
above with respect to a Notice of Committed Borrowing, the applicable Notice of
Committed Borrowing shall be deemed withdrawn. If neither the Company nor the
applicable Borrower shall provide timely a notice as contemplated in clauses
(i), (ii) or (iii) above with respect to a Notice of Continuation or Conversion,
the Company or such applicable Borrower shall be deemed to have made the request
described in clause (iii).
(d) Each Notice of Committed Borrowing and Notice of Conversion or
Continuation may be revoked by the Company or, if other than the Company, the
applicable Borrower, by notice to the Administrative Agent without any liability
on the part of the Company or such Borrower at any time prior to (i) 10:00 A.M.
(Chicago time) on the date of a proposed Committed Borrowing, continuation or
conversion comprised of Base Rate Advances, (ii) 11:00 A.M. (London time) on the
second Business Day prior to the date of a proposed Committed Borrowing,
continuation or conversion comprised of Eurocurrency Rate Advances to be
denominated in Dollars, and (iii) 11:00 A.M. (London time) on the third Business
Day prior to the date of a proposed Committed Borrowing, continuation or
conversion comprised of Eurocurrency Rate Advances to be denominated in an
Alternative
-19-
Currency. In the case of any Committed Borrowing, continuation or conversion
which the related Notice of Committed Borrowing, or Notice of Conversion or
Continuation, specifies is to be comprised of Eurocurrency Rate Advances, unless
the Company or the applicable Borrower revokes such Notice of Committed
Borrowing or Notice of Conversion or Continuation in accordance with the
preceding sentence and except as otherwise provided in Sections 2.02(b) and
----------------
(c), the Company or such Borrower shall indemnify each Bank against any loss,
---
cost or expense reasonably incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing or Notice of
Conversion or Continuation for such Committed Borrowing, conversion or
continuation, the applicable conditions set forth in Article III, including,
-----------
without limitation, any loss (excluding loss of anticipated profits), cost or
expense reasonably incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the Committed Advance to
be made by such Bank as part of such Committed Borrowing, conversion or
continuation, when such Committed Advance, as a result of such failure, is not
made, continued or converted on such date.
(e) Unless the Administrative Agent shall have received notice from a Bank
prior to the date of any Committed Borrowing that such Bank will not make
available to the Administrative Agent such Bank's Pro Rata Share of such
Committed Borrowing, the Administrative Agent may assume that such Bank has made
such Pro Rata Share available to the Administrative Agent on the date of such
Committed Borrowing in accordance with subsection (a) of this Section 2.02 and
------------
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the applicable Borrower on such date. If and
to the extent that such Bank shall not have so made such Pro Rata Share
available to the Administrative Agent, such Bank and such Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to Committed Advances comprising such
Committed Borrowing and (ii) in the case of such Bank, the Federal Funds Rate.
If such Bank shall repay such corresponding amount to the Administrative Agent,
such amount so repaid shall constitute such Bank's Committed Advance as part of
such Committed Borrowing for purposes of this Agreement.
(f) A Bank's failure to make the Committed Advance to be made by it as
part of any Committed Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Committed Advance on the date of such
Committed Borrowing. No Bank shall be responsible for the failure of any other
Bank to make the Committed Advance to be made by such other Bank on the date of
any Committed Borrowing.
SECTION 2.03. The Uncommitted Advances. (a) Each Bank severally agrees
------------------------
that any Borrower may make Uncommitted Borrowings in Dollars from time to time
on any Business Day during the period from the date hereof until 30 days before
the Termination Date in the manner set forth below; provided that, following the
--------
making of each Uncommitted Borrowing, the aggregate amount with respect to all
Borrowers of the Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Banks.
-20-
(i) A Borrower may request, and the Company may request for the
benefit of any Borrowing Subsidiary, an Uncommitted Borrowing to be made by
such Borrower under this Section 2.03 by delivering to the Administrative
------------
Agent, by telecopier not later than the applicable Request Deadline a
notice of an Uncommitted Borrowing (a "Notice of Uncommitted Borrowing"),
in substantially the form of Exhibit E-2 hereto, specifying therein (A) the
-----------
requested date of the proposed Uncommitted Borrowing, (B) the aggregate
amount of the proposed Uncommitted Borrowing, (C) that each Bank submitting
an offer shall quote an Uncommitted Borrowing Margin, or that each Bank
submitting an offer shall quote a fixed interest rate per annum without
reference to the Eurocurrency Rate, (D) maturity date for repayment of each
Uncommitted Advance to be made as part of such Uncommitted Borrowing (which
maturity date may not be earlier than seven (7) days, or later than 180
days after the date of the proposed Uncommitted Borrowing or later than the
Termination Date) and whether such Uncommitted Advance may be prepaid, and
if so, whether with or without penalty, (E) interest payment date or dates
relating thereto, (F) Borrower and (G) other material terms to be
applicable to such Uncommitted Borrowing. The Administrative Agent shall
promptly notify each Bank of its receipt of each such Notice of Uncommitted
Borrowing by sending each Bank a copy thereof. "Request Deadline" means
----------------
(x) in the case of a Fixed Rate Uncommitted Borrowing, 4:00 P.M. (Chicago
time) on the Business Day prior to the date of such proposed Uncommitted
Borrowing and (y) in the case of a Eurocurrency Rate Uncommitted Borrowing,
4:00 P.M. (Chicago time) four (4) Business Days prior to the date of such
proposed Uncommitted Borrowing.
(ii) Each Bank shall, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Uncommitted Advances to such Borrower
as part of such proposed Uncommitted Borrowing at a rate or rates of
interest specified by such Bank, in its sole discretion, by notifying the
Administrative Agent not later than the applicable Quote Deadline of the
minimum amount (if any) and maximum amount of each Uncommitted Advance
which such Bank would be willing to make as part of such proposed
Uncommitted Borrowing (which amounts may, subject to the proviso to the
first sentence of this Section 2.03(a), exceed such Bank's Commitment, if
---------------
any), the Uncommitted Borrowing Margin or Margins to be applied in the
determination of the rate or rates of interest therefor (or, if the Notice
of Uncommitted Borrowing shall have requested that fixed rates per annum be
quoted, the fixed rate or rates per annum therefor) and such Bank's
Applicable Lending Office with respect to such Uncommitted Advance. If any
Bank shall elect not to make such an offer, such Bank shall so notify the
Administrative Agent before the applicable Quote Deadline, and such Bank
shall not be obligated to, and shall not, make any Uncommitted Advance as
part of such Uncommitted Borrowing; provided that the failure by any Bank
--------
to give such notice shall not cause such Bank to be obligated to make any
Uncommitted Advance as part of such proposed Uncommitted Borrowing. The
Administrative Agent shall promptly notify the Company and, if applicable,
the applicable Borrowing Subsidiary of each Bank's response
-21-
pursuant to this paragraph (ii); provided, that if First Chicago shall
--------
elect to make an offer under this paragraph (ii), such offer shall be
delivered to the Company and, if applicable, the Borrowing Subsidiary not
later than one-half hour prior to the applicable Quote Deadline. Each
Borrower shall be entitled to assume that each quote of an Uncommitted
Borrowing Margin or a fixed rate per annum by a Bank includes, and such
Bank shall not be entitled to claim as additional interest or costs under
Section 2.08 or otherwise, any costs to such Bank in the nature of a
------------
reserve requirement, assessment or other charge in connection with the
Uncommitted Advance to which such quote relates, except that such Bank
shall be entitled to claim increased costs and additional compensation
under Section 2.12(a) and (b) and Section 2.19, but solely with respect
--------------- --- ------------
to the changes described in such provisions that occur after the date such
Uncommitted Advance is made.
"Quote Deadline" means, (x) in the case of a Fixed Rate Uncommitted
---------------
Borrowing, 9:00 A.M. (Chicago time) on the date of such proposed
Uncommitted Borrowing and (y) in the case of a Eurocurrency Rate
Uncommitted Borrowing, 9:00 A.M. (Chicago time) three Business Days prior
to the date of such proposed Uncommitted Borrowing.
(iii) Such Borrower, or the Company on behalf of such Borrower,
shall, in turn, before the applicable Acceptance Deadline, either
(A) cancel, without incurring an obligation on the part of such
Borrower or the Company to indemnify for losses, costs or expenses
under Section 2.02(d), such Uncommitted Borrowing by giving the
---------------
Administrative Agent notice to that effect, in which case such
Uncommitted Borrowing shall not be made, or
(B) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (ii) above, in its sole discretion but in any
event in ascending order of the fixed rates of interest or Uncommitted
Borrowing Margins (as applicable) offered by all of the Banks
responding to such Notice of Uncommitted Borrowing, by giving notice
to the Administrative Agent of the relevant Banks and the respective
amounts of each Uncommitted Advance (each of which amounts shall be
equal to or greater than the minimum amount, and equal to or less than
the maximum amount, offered to be made by the respective Bank for such
Uncommitted Advance pursuant to Section 2.02(a)(ii) above) and reject
-------------------
any remaining offers made by Banks pursuant to such Section by giving
the Administrative Agent notice to that effect. The Company (either
for itself or on behalf of a Borrowing Subsidiary) may not accept
offers which, in the aggregate, exceed the requested Uncommitted
Borrowing specified in the applicable Notice of Uncommitted Borrowing.
If two or more Banks bid at the same Uncommitted
-22-
Borrowing Margin or fixed rate of interest, as the case may be, and
the amount of accepted offers is less than the aggregate amount of
such offers, the amount to be borrowed from such Banks as part of such
Uncommitted Borrowing shall be allocated pro rata on the basis of the
--------
maximum amount offered by each such Bank at such fixed rates or
Uncommitted Borrowing Margins in connection with such Uncommitted
Borrowing.
The Administrative Agent shall promptly notify the Banks of each notice it
receives pursuant to this paragraph (iii). "Acceptance Deadline" means, (x)
-------------------
in the case of an Uncommitted Borrowing to be denominated in Dollars, 10:00
A.M. (Chicago time) on the date of such proposed Uncommitted Borrowing and
(y) in the case of an Uncommitted Borrowing to be denominated in an
Alternative Currency, 4:00 P.M. (Chicago time) three Business Days prior to
the date of such proposed Uncommitted Borrowing.
(iv) If such Borrower accepts, or the Company accepts on such
Borrower's behalf, one or more of the offers made by any Bank or Banks
pursuant to Section 2.03(a)(iii)(B) above, the Administrative Agent shall
-----------------------
in turn promptly notify (A) each Bank that has made an offer pursuant to
Section 2.03(a)(ii) of the date and aggregate amount of such Uncommitted
-------------------
Borrowing and whether or not any offer or offers so made by such Bank have
been accepted by such Borrower, (B) each Bank that is to make an
Uncommitted Advance as a part of such Uncommitted Borrowing, of the amount
of each Uncommitted Advance to be made by such Bank as part of such
Uncommitted Borrowing, and (C) each Bank that is to make an Uncommitted
Advance as part of such Uncommitted Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to fulfill
the applicable conditions set forth in Article III. Each Bank that is to
-----------
make an Uncommitted Advance as part of such Uncommitted Borrowing shall,
before 1:00 P.M. (Chicago time) on the date of such Uncommitted Borrowing
specified in the notice received from the Administrative Agent pursuant to
clause (A) of the preceding sentence or any later time when such Bank shall
have received notice from the Administrative Agent pursuant to subclause
(C) of the preceding sentence, make available to the Administrative Agent
at the Administrative Agent's Domestic Lending Office, in federal or
otherwise immediately available funds, such Bank's portion of such
Uncommitted Borrowing. After the Administrative Agent receives such funds
and when the applicable conditions set forth in Article III have been
-----------
fulfilled, the Administrative Agent will make such funds available to the
applicable Borrower at the Administrative Agent's aforesaid address.
Promptly after (x) each Uncommitted Borrowing, the Administrative Agent
will notify each Bank of the amount and date of the Uncommitted Borrowing
and the maturity date thereof and the Available Commitment of each Bank
after giving effect to such Uncommitted Borrowing and (y) the prepayment of
any Uncommitted Borrowing by or on behalf of such Borrower, the
Administrative Agent will notify each Bank of the amount and date of each
-23-
such prepayment and the Available Commitment of each Bank after giving
effect thereto.
(b) Each Uncommitted Borrowing shall be in an aggregate amount of not less
than $25,000,000 or an integral multiple of $1,000,000 in excess thereof, or if
the requested currency for such Advance is not Dollars, the equivalent of such
amount (determined in accordance with Section 2.16) or multiple in the requested
------------
Alternative Currency.
(c) Within the limits and on the conditions set forth in this Section
-------
2.03, each Borrower may from time to time borrow under this Section 2.03, repay
---- ------------
pursuant to subsection (d) below, and reborrow under this Section 2.03; provided
------------ --------
that an Uncommitted Borrowing shall not be made within three Business Days of
any other Uncommitted Borrowing.
(d) Each Borrower shall repay to the Administrative Agent, for the account
of each Bank which has made an Uncommitted Advance to such Borrower, on the
maturity date of each such Uncommitted Advance (such maturity date being that
specified for repayment of such Uncommitted Advance in the related Notice of
Uncommitted Borrowing delivered pursuant to Section 2.03(a)(i) above) the then
------------------
unpaid principal amount of such Uncommitted Advance. A Borrower shall not have
the right to prepay any principal amount of any Uncommitted Advance without the
consent of the Bank making such Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount of
each Uncommitted Advance made to it, from the date of such Uncommitted Advance
to the date the principal amount of such Uncommitted Advance is repaid in full,
at the rate of interest for such Uncommitted Advance specified by the Bank
making such Uncommitted Advance in its notice with respect thereto delivered
pursuant to Section 2.03(a)(ii) above, payable on the interest payment date or
-------------------
dates specified for such Uncommitted Advance in the related Notice of
Uncommitted Borrowing delivered pursuant to Section 2.03(a)(i) above.
------------------
(f) The Borrower of any Uncommitted Advance shall, promptly upon request
by the Bank making such Uncommitted Advance (either in the quote delivered by
such Bank pursuant to Section 2.03(a)(ii) or by notice to the Administrative
-------------------
Agent), execute and deliver to the Administrative Agent an Uncommitted Note
payable to the order of such Bank in a principal amount equal to the principal
amount of such Uncommitted Advance and otherwise on such terms as were agreed to
for such Uncommitted Advance in accordance with Section 2.03.
------------
SECTION 2.04. Facility Fee and Utilization Fee. (a) The Company and each
--------------------------------
Borrowing Subsidiary jointly and severally agree to pay to the Administrative
Agent, for the account of each Bank other than a Designated Bidder, a facility
fee ("Facility Fee") on the average daily Commitment of such Bank from the date
hereof until the Termination Date, payable in arrears on the first Business Day
of each January, April, July and October during the term of such Bank's
Commitment, commencing January 4, 1999, and on the Termination Date, at a rate
per annum equal to the following percentage in effect from time to time:
(i) 0.07% for each day Category 1 Status exists,
-24-
(ii) 0.08% for each day Category 2 Status exists,
(iii) 0.10% for each day Category 3 Status exists,
(iv) 0.15% for each day Category 4 Status exists, and
(v) 0.25% for each day Category 5 Status exists.
(b) To the extent, and for so long as, (i) the average daily aggregate
outstanding principal amount of Advances at any time exceeds one-half of the
aggregate Commitments at such time, and (ii) Category 3 Status, Category 4
---
Status or Category 5 Status exists, the Company and each Borrowing Subsidiary,
jointly and severally, agree to pay to each Bank other than a Designated Bidder
a utilization fee (the "Utilization Fee") equal to 0.05% per annum of the
aggregate principal amount of such Bank's Advances at such time. The
Utilization Fee shall be payable on each date the Facility Fee is payable.
(c) Notwithstanding the foregoing, (i) any Facility Fee or Utilization Fee
accrued with respect to any Commitment of a Defaulting Bank during the period
prior to the time such Bank became a Defaulting Bank and unpaid at such time
shall not be payable by the Borrowers so long as such Bank shall be a Defaulting
Bank, except to the extent such Facility Fee or Utilization Fee was due and
payable prior to such time, and (ii) no Facility Fee or Utilization Fee shall
accrue on the Commitment of a Defaulting Bank so long as such Bank is a
Defaulting Bank.
SECTION 2.05. Reduction and Termination of the Commitments. (a) The
--------------------------------------------
Company shall have the right, upon at least four (4) days' notice to the
Administrative Agent to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Banks, provided that the aggregate
--------
amount of the Commitments of the Banks shall not be reduced to an amount which
is less than the aggregate principal amount of the Uncommitted Advances then
outstanding and provided, further, that each partial reduction shall be in an
-------- -------
aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess
thereof.
(b) Provided that no Event of Default shall have occurred and be
continuing, the Company may at any time replace any Bank, in whole but not in
part, by (i) giving such Bank and the Administrative Agent not less than ten
(10) Business Days' prior notice thereof, which notice shall be irrevocable and
effective only when received by such Bank and the Administrative Agent and shall
specify the effective date of such replacement, and (ii) effecting an assignment
of all of the Bank's Commitment and Advances in accordance with Section 9.07.
------------
SECTION 2.06. Payment; Conversion and Continuation. (a) On the
------------------------------------
Termination Date, the Borrowers shall repay, to the Administrative Agent for the
ratable account of the Banks, the entire unpaid principal amount of the Advances
made by each Bank.
(b) Any Borrower may elect (x) to convert Base Rate Advances or any
portion thereof to Eurocurrency Rate Advances, (y) to convert Eurocurrency Rate
Advances or any portion thereof into Base Rate Advances, or (z) to continue any
Eurocurrency Rate Advance or any portion thereof for an additional Interest
Period; provided, however, that the
-------- -------
-25-
aggregate amount of Base Rate Advances being converted into Eurocurrency Rate
Advances or of Eurocurrency Rate Advances being continued shall, in the
aggregate, equal $20,000,000 or an integral multiple of $1,000,000 in excess
thereof. The applicable Interest Period for the continuation of any Eurocurrency
Rate Advance shall commence on the day on which the immediately-preceding
Interest Period expires. Each conversion or continuation shall be allocated
among the Committed Advances of each Bank in accordance with its Pro Rata Share
of the amount so converted or continued. Each such election shall be in
substantially the form of Exhibit F (a "Notice of Conversion or Continuation")
---------
and shall be made by giving the Administrative Agent notice by 10:00 a.m.
(Chicago time) on the date of such conversion or continuation, in the case of a
conversion to a Base Rate Advance, giving the Administrative Agent at least
three Business Days' prior written notice thereof in the event of a conversion
to or continuation of a Eurocurrency Advance specifying, in each case (i)
whether a conversion or continuation is to take place, (ii) what Advances are to
be converted or continued, and if converted, the Type of Advance to which it is
to be converted, (iii) the amount of the conversion or continuation, (iv) the
Interest Period therefor and (v) in the case of a conversion, the date of
conversion (which date shall be a Business Day). The Administrative Agent shall
promptly notify each Bank of its receipt of a Notice of Conversion or
Continuation by sending such Bank a copy thereof. If, within the time period
required under the terms of this Section 2.06(b), the Administrative Agent does
---------------
not receive a Notice of Conversion or Continuation from the applicable Borrower
containing an election to continue or convert any Advances for an additional
Interest Period, then, upon the expiration of the Interest Period therefor, such
Advances will be automatically converted to Base Rate Advances.
SECTION 2.07. Interest on Committed Advances. Each Borrower shall pay
-------------------------------
interest on the unpaid principal amount of each Committed Advance made by each
Bank to it from the date of such Committed Advance until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. During such period as such Committed Advance is a
------------------
Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable quarterly in arrears on the first Business Day
of each January, April, July and October, commencing January 4, 1999, and on the
Termination Date. The Administrative Agent shall give notice to the Company and
the applicable Borrower (if other than the Company) and each Bank of any change
in the Base Rate promptly after such change occurs, but the Administrative
Agent's failure to give such notice shall not affect the obligation of the
Company or such Borrower to pay interest at such rate when it becomes due and
payable.
(b) Eurocurrency Rate Advances. During such period as such Committed
--------------------------
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times
during each Interest Period for such Committed Advance to the sum of the
Eurocurrency Rate for such Interest Period plus the Applicable 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 which occurs during such
Interest Period every three months from the first day of such Interest Period
and on the date such Eurocurrency Rate Advance shall be converted or paid in
full.
-26-
(c) Default Interest. Notwithstanding the foregoing provisions of this
----------------
Section 2.07, any amount of principal and fees and, to the extent permitted by
------------
law, interest, that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum equal at
all times to 1% per annum above (i) in the case of principal, the rate of
interest otherwise thereto from time to time in accordance with the terms
hereof, and (ii) in the case of interest and fees, the Base Rate in effect from
time to time.
SECTION 2.08. Additional Interest on Eurocurrency Rate Advances. Each
-------------------------------------------------
Borrower shall pay to each Bank other than Designated Bidders, so long as and to
the extent such Bank shall be required under regulations of the Board of
Governors of the Federal Reserve System (or any similar authority outside the
United States, in the case of Committed Advances in Alternative Currencies) to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency Rate
Advances in the applicable Alternative Currency is determined) and such Bank's
performance under this Agreement (and other like agreements) shall have given
rise to additional reserve requirements for such Bank thereunder, additional
interest on the unpaid principal amount of each Committed Advance constituting a
Eurocurrency Rate Advance of such Bank made to such Borrower, from the date of
such Committed 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 Eurocurrency Rate for the applicable Interest Period for
such Committed Advance from (ii) the rate obtained by dividing such Eurocurrency
Rate by a percentage equal to 100% minus the Eurocurrency Rate Reserve
Percentage of such Bank for such Interest Period, payable on each date on which
interest is payable on such Committed Advance. Such Bank shall, not later than
the last day of the applicable Interest Period, provide notice to the
Administrative Agent, the Company and, if other than the Company, the applicable
Borrower of any such additional interest arising in connection with such
Committed Advance. Such additional interest so notified on a timely basis by
any Bank shall be payable to the Administrative Agent for the account of such
Bank on the dates specified for payment of interest for such Committed Advance
in Section 2.07.
------------
SECTION 2.09. Interest Rate Determination. (a) Reserved.
---------------------------
(b) The Administrative Agent shall give prompt notice to the Company and
the applicable Borrower (if other than the Company) and each of the Banks (other
than the Designated Bidders) of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a) or (b).
--------------- ---
(c) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Committed Borrowing shall be reduced,
by payment, prepayment or otherwise, to less than $20,000,000, such Advances
shall automatically convert into Base Rate Advances and such conversion shall be
subject to Section 2.11.
------------
SECTION 2.10. Prepayments. A Borrower may prepay, on any Business Day
-----------
following notice by 11:00 a.m. (Chicago time) on such Business Day to the
Administrative Agent (in the case of Base Rate Advances) and on three Business
Days' prior notice to the
-27-
Administrative Agent (in the case of Eurocurrency Rate Advances), each Committed
Borrowing made to such Borrower, in whole or in part. Such notice shall include
the proposed date and aggregate principal amount of such prepayment, and if such
notice is given, such Borrower shall prepay such principal amount, together with
accrued interest to the date of such prepayment on the principal amount prepaid.
Any amounts payable, if any, pursuant to Section 2.11 hereof in connection with
------------
any prepayment shall be paid on the date of such prepayment; provided, however,
-------- -------
that each partial prepayment shall be in an aggregate principal amount of not
less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
Subject to Sections 2.12 and 2.13, each prepayment of a Committed Borrowing
------------- ----
shall be made to each Bank in accordance with such Bank's Pro Rata Share
thereof. The Company shall, on the first Business Day of each January, April,
July and October, if the aggregate outstanding principal Dollar Amount of all
Advances, calculated by the Administrative Agent on the seventh Business Day
prior to such payment date and reported to the Company by the fifth Business Day
prior to such payment date, exceeds (as the result of fluctuations in applicable
foreign exchange rates or otherwise) 105% of the then aggregate amount of the
Banks' Commitments (calculated as aforesaid), prepay a Committed Borrowing or
Borrowings (in whole or in part, and in any case as selected by the Company) in
an aggregate Dollar Amount (calculated as aforesaid, and rounded upward, if
necessary, to the nearest $1,000,000) equal to the excess of:
(i) the aggregate principal Dollar Amount (calculated as
aforesaid) of Advances outstanding, over
(ii) the then aggregate amount of the Banks' Commitments
(calculated as aforesaid).
Each prepayment of any Committed Borrowing (in whole or in part) made pursuant
to this Section 2.10 shall be without premium or penalty, but shall be subject
------------
to the provisions of Section 2.11. Any mandatory prepayment of a Committed
------------
Borrowing shall be made to the Administrative Agent for the account of each Bank
based on such Bank's Pro Rata Share of such Committed Borrowing and shall
include accrued and unpaid interest on the principal amount prepaid and all
amounts owing under Section 2.11.
------------
SECTION 2.11. Funding Indemnification. If any payment of principal of
-----------------------
any Advance (other than a Base Rate Advance) is made other than on the last day
of an Interest Period for such Advance, as a result of acceleration of the
maturity of the Advances pursuant to Section 6.01 or for any other reason, or if
------------
any Eurocurrency Rate Advance is converted to a Base Rate Advance pursuant to
Section 2.13(b) on any day other than the last day of an Interest Period for
---------------
such Eurocurrency Rate Advance, the applicable Borrower shall, upon demand by
any Bank (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or conversion, including without
limitation any loss (excluding loss of anticipated profits), cost or expense
reasonably incurred as a result of the liquidation or re-employment of deposits
or other funds acquired by such Bank to fund or maintain such Advance.
-28-
SECTION 2.12. Increased Costs and Reduced Return. (a) Subject to the
----------------------------------
limitation in Section 2.03(a)(ii), if, due to either (i) the introduction of or
-------------------
any change (other than any change by way of imposition or increase of reserve
requirements, in the case of Eurocurrency Rate Advances, included in the
Eurocurrency Rate Reserve Percentage), after the date hereof, in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) issued after the date hereof, there
shall be any increase in the cost to any Bank of agreeing to make, making,
funding or maintaining Eurocurrency Rate Advances, by an amount reasonably
deemed by such Bank to be material, then from time to time, within ten days
after demand by such Bank (with a copy of such demand to the Administrative
Agent), such Borrower shall pay to the Administrative Agent for the account of
such Bank additional amounts sufficient to compensate such Bank for such
increased cost; provided that no Borrower shall be obligated to pay any such
--------
amount to the extent such amount results from a change, guideline or request
which took effect more than 90 days prior to the date of such demand.
(b) Subject to the limitation in Section 2.03(a)(ii), if any Bank shall
-------------------
have determined that the adoption, after the date hereof, of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive issued after the date hereof regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance by an amount reasonably deemed by such Bank to be
material, then from time to time, within ten days after demand by such Bank
(with a copy of such demand to the Administrative Agent), the Company shall pay
to the Administrative Agent for the account of such Bank such additional amount
or amounts as will compensate such Bank, in light of such circumstances, to the
extent such Bank reasonably determines such reduction to be allocable to the
existence of such Bank's Commitment; provided that no Borrower shall be
--------
obligated to pay any such amount to the extent such amount results from an
adoption, change, request or directive which took effect or was issued more than
90 days prior to the date of such demand.
(c) Each Bank will promptly notify the Administrative Agent and the
Company of any event of which it has knowledge, occurring after the date hereof,
which would entitle such Bank to compensation pursuant to this Section 2.12. A
------------
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall create a
rebuttable presumption as to the correctness of such additional amount or
amounts. Each Bank agrees not to request any payment under this Section 2.12
------------
unless similar requests are then generally being made by such Bank of other
borrowers similarly situated, and to use a reasonable basis for calculating
amounts allocable to its Commitment hereunder.
SECTION 2.13. Illegality. (a) If any Bank shall determine (which
----------
determination shall be rebuttably presumed correct as to all parties) at any
time that the making or
-29-
continuance of its Eurocurrency Rate Advances has become unlawful because of the
introduction of or any change in or in the interpretation of any law or
regulation or because of the assertion of unlawfulness by any central bank or
other governmental authority, then, in any such event, such Bank shall give
prompt notice (by telephone confirmed in writing) to the Administrative Agent of
such determination (which notice the Administrative Agent shall promptly
transmit to each Borrower and the other Banks).
(b) Upon the giving of the notice to the Company referred to in subsection
(a) above, if the affected Advances are then outstanding, each Borrower shall,
upon at least one Business Day's written notice to the Administrative Agent and
the affected Bank, or if permitted by applicable law no later than the date
permitted thereby, in such Borrower's sole discretion, either (i) prepay the
principal amount of all outstanding Advances of such Bank to which such notice
relates, together with accrued interest thereon to the date of payment, or (ii)
convert each such Advance into a Base Rate Advance denominated in Dollars and,
in each case, be obligated to reimburse the Banks in respect thereof pursuant to
Section 2.11 hereof. If more than one Bank gives notice pursuant to Section
------------ -------
2.13(a) at any time, then all outstanding Advances of the affected Type or
-------
currency of such Banks must be treated in the same manner by the Borrowers
pursuant to this subsection 2.13(b) and the Banks' obligations to make, convert
------------------
or continue Eurocurrency Rate Advances shall be suspended until the
Administrative Agent notifies the Borrowers that the circumstances causing such
suspension no longer exist.
SECTION 2.14. Payments and Computations. (a) The Company and each
---------------------------
Borrowing Subsidiary shall make each payment hereunder and under the Notes
without set-off, counterclaim or other deduction by causing a wire transfer of
immediately-available funds to be initiated to the Administrative Agent in an
amount equal to such payment not later than 12:00 noon (Chicago time) on the day
when due from the Company or such Borrowing Subsidiary. The Administrative
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or fees ratably (other than amounts payable
pursuant to Sections 2.03, 2.05(b), 2.08, 2.11, 2.12, 2.15, 2.19 or 2.20) to the
------------- ------- ---- ---- ---- ---- ---- ----
Banks for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Bank to such
Bank for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. All such payments shall
be made in Dollars, except that payments of principal of and interest on
Borrowings in an Alternative Currency shall be made in such Alternative Currency
or, where such Alternative Currency has converted to the Euro, in the Euro;
provided that if the applicable Borrower fails to make any payment of principal
or interest with respect to any Borrowing in an Alternative Currency (including
the Euro) on the due date thereof because such Alternative Currency has ceased
to be freely transferable and convertible into Dollars in the international
currency and exchange markets, such failure shall not constitute an Event of
Default or an event which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, if such Borrower pays
the equivalent in Dollars of such payment on the due date thereof. In addition
to any such Dollar payment, such Borrower agrees to pay to each affected Bank an
indemnity payment within five Business Days after such Borrower shall have
received a certificate from such Bank setting forth in reasonable detail the
amount of any loss, cost, damage or expense suffered by such Bank as a
consequence of such inability to make any such payment
-30-
in such Alternative Currency on the due date thereof. Each Bank agrees to use
reasonable efforts to avoid or minimize all such loss, cost, damage or expense.
(b) All computations of interest based on the Base Rate, or the
Eurocurrency Rate applicable to Borrowings denominated in Sterling, shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurocurrency Rate
(as to all other currencies) or the Federal Funds Rate, all computations of
interest pursuant to Section 2.08 and all computations of the Facility Fee and
------------
the Utilization Fee shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent
(or, in the case of Section 2.08, by a Bank) of an interest rate or fee owing
------------
hereunder shall create a rebuttable presumption as to the correctness of such
determination.
(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 fee, as the case may be;
provided, however, if such extension would cause payment of interest on or
-------- -------
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the Banks
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
such Borrower shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.15. Sharing of Payments, Etc. If any Bank shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Committed Advances made by it (other
than pursuant to Sections 2.08, 2.11, 2.12, 2.13(b), 2.19 or 2.20) in excess of
------------- ---- ---- ------- ---- ----
its ratable share of payments on account of the Committed Advances obtained by
all the Banks, such Bank shall forthwith purchase from the other Banks such
participations in the Committed Advances made by them as shall be necessary to
cause such purchasing Bank 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 Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the purchase
price to the extent of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
-31-
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank with
respect to Advances made to such Borrower pursuant to this Section 2.15 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 Bank were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. Currency Equivalents. (a) For purposes of this Article
--------------------- -------
II, (i) the equivalent in Dollars of any Alternative Currency shall be
--
determined by using the arithmetical mean of the buy and sell spot rates at
which First Chicago's principal office in London exchanges Dollars for such
Alternative Currency in the interbank market in London at 11:00 A.M. (London
time) two Business Days prior to the date on which such equivalent is to be
determined, (ii) the equivalent in any Alternative Currency of any other
Alternative Currency shall be determined by using the arithmetical mean of the
buy and sell spot rates at which First Chicago's principal office in London
exchanges such Alternative Currency for the equivalent in such other Alternative
Currency in London at 11:00 A.M. (London time) two Business Days prior to the
date on which such equivalent is to be determined, and (iii) the equivalent in
any Alternative Currency of Dollars shall be determined by using the
arithmetical mean of the buy and sell spot rates at which First Chicago's
principal office in London exchanges such Alternative Currency for Dollars in
London at 11:00 A.M. (London time) two Business Days prior to the date on which
such equivalent is to be determined. The equivalent in Dollars of each
Eurocurrency Rate Advance made in an Alternative Currency shall be recalculated
hereunder on each day that it is necessary to determine the unused portion of
each Bank's Commitment, or any or all of the Advances on such date.
(b) If for the purpose of obtaining a judgment in any court with respect
to any obligation of a Borrower hereunder, it shall become necessary for the
Administrative Agent or any Bank entitled to receive payments hereunder to
convert any amount into a currency other than the currency denominated hereunder
for such obligation, then such conversion shall be made on the basis of rates
(the "Exchange Rates") determined in the manner described in subsection (a)
above (or, if the applicable currency to be converted is not at the time of
conversion available in the interbank market in London, then in such other
interbank market as the Administrative Agent shall determine to have adequate
availability of such currency) and the date with respect to which such an
equivalent is to be determined shall be the first Business Day preceding the
date on which final judgment is entered. If pursuant to any such judgment
conversion is to be made with respect to a date other than the date referred to
above, and there shall occur a change between the Exchange Rates in effect on
such date and the Exchange Rates in effect on the date of payment, (i) the
applicable Borrower agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is the amount in such other currency
which, when converted at the Exchange Rates as in effect on the date of payment
or distribution, is the amount then due hereunder in the relevant currency and
(ii) such Borrower shall not be required to pay any amount in excess of the
amount determined to be payable in connection with such obligation, calculated
on the basis of the Exchange Rates in effect on the first Business Day preceding
the date on which final judgment is entered. Any amount due from a Borrower
under this subsection (b) shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder.
-32-
SECTION 2.17. Borrowing Subsidiaries. The Company may at any time or
----------------------
from time to time add as a party to this Agreement any Subsidiary of the Company
to be a "Borrowing Subsidiary" hereunder by causing such Subsidiary to execute
and deliver a duly completed Assumption Letter to the Administrative Agent, with
the written consent of the Company at the foot thereof. Upon such execution,
delivery and consent such Subsidiary shall for all purposes be a party hereto as
a Borrowing Subsidiary as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on all Advances made to any
Borrowing Subsidiary under this Agreement shall have been paid in full and all
other obligations of such Borrowing Subsidiary shall have been fully performed,
such Borrowing Subsidiary may, by not less than five Business Days' prior notice
to the Administrative Agent (which shall promptly notify the Banks thereof),
terminate its status as a "Borrowing Subsidiary."
SECTION 2.18. Reserved.
--------
SECTION 2.19. Taxes. (a) Any and all payments by a Borrower hereunder or
-----
under the Notes shall be made in accordance with Section 2.14, 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 Bank and the Administrative Agent, taxes imposed
---------
on its income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank or the Administrative Agent is organized or any
political subdivision thereof and taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Bank'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 any Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Administrative 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
-------
2.19) such Bank or the Administrative Agent (as the case may be) receives an
----
amount equal to the sum it would have received had no deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Bank and the Administrative 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 2.19) paid by such Bank or the Administrative Agent and any liability
------------
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted; provided, that the Borrowers shall have no obligation under this
--------
subsection (c) to indemnify any Bank or the Administrative Agent if a Borrower
shall have performed its obligations under subsection (a) and (b), thereby
-33-
providing such Bank or the Administrative Agent (as the case may be) the
wherewithal to make payment, or demonstrate that payment has been made, of any
such Taxes or Other Taxes, and such Bank or the Administrative Agent (as the
case may be) shall not have effected such payment or made such demonstration of
payment on a timely basis to the relevant taxing authorities. This
indemnification shall be made to the Administrative Agent for the account of
such Bank or the Administrative Agent (as the case may be) within 30 days from
the date such Bank or the Administrative Agent makes written demand therefor
(with a copy, in the case of a demand by a Bank, of such demand to the
Administrative Agent).
(d) Notwithstanding the foregoing, unless, prior to the date of the
initial Committed Borrowing (in the case of a Bank listed on Schedule I hereto),
----------
and prior to the effective date of the Assignment and Acceptance by which it
became a Bank (in the case of bank that became a Bank pursuant to such
Assignment and Acceptance), and in each case from time to time thereafter, if
requested by any Borrower,
(i) each Bank organized under the laws of a jurisdiction outside the
United States shall have provided the Company with the forms prescribed by
the Internal Revenue Service of the United States certifying as to such
Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank
hereunder or other documents satisfactory to the Company which shall
indicate that all payments to be made to such Bank hereunder are not
subject to United States withholding tax or are subject to such taxes at a
rate reduced to zero by an applicable tax treaty, neither the Company nor
any other Borrower shall have any obligation under the last sentence of
Section 2.19(a) to make any payments to or for the benefit of such Bank in
---------------
excess of the amounts otherwise payable under this Agreement, and
(ii) each Bank organized under the laws of a jurisdiction outside the
jurisdiction where any Borrowing Subsidiary is incorporated shall have
taken all steps prescribed by the applicable governmental authority in the
jurisdiction where such Borrowing Subsidiary is located so that such Bank
is exempt from applicable withholding taxes with respect to all payments to
be made to such Bank hereunder or so that all payments to be made to such
Bank hereunder are not subject to applicable withholding taxes or are
subject to such taxes at a rate reduced to zero by an applicable tax
treaty, neither the Company nor any other Borrower shall have any
obligation under the last sentence of Section 2.19(a) to make any payments
---------------
to or for the benefit of such Bank in excess of the amounts otherwise
payable under this Agreement; provided, however, that the applicable
-------- -------
Borrower shall make the payments required by the last sentence of Section
-------
2.19(a) if the obligation to withhold arises from a change in applicable
-------
law after the date hereof (or, with respect to payments to a new Applicable
Lending Office designated pursuant to Section 2.21, after the date such
------------
Bank designates such new Applicable Lending Office).
-34-
Unless the applicable Borrower has received forms or other documents, including
Form 1001, Form 4224 or any other applicable tax forms from the United States or
any other applicable jurisdiction, such forms to be satisfactory to the Company,
indicating that payments hereunder are not subject to any withholding tax or are
subject to such tax at a rate reduced to zero by an applicable tax treaty, the
applicable Borrower shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Bank organized under the
laws of a jurisdiction outside the United States (or in the case of a Borrowing
Subsidiary incorporated outside the United States, any Bank organized under the
laws outside of the jurisdiction where such Borrowing Subsidiary is
incorporated). Should a Bank become subject to Taxes because of its failure or
inability to deliver a form required hereunder, the Company shall take such
steps not requiring the expenditure of money as the Bank shall reasonably
request to assist the Bank to recover such Taxes.
SECTION 2.20. Defaulting Banks. (a) If at any time (i) any Bank shall be
----------------
a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to
the Borrower and (iii) the Borrower shall be required to make any payment
hereunder or under any Note to or for the account of such Defaulting Bank, then
the Borrower may, so long as no Event of Default shall have occurred and be
continuing at such time and to the fullest extent permitted by applicable law,
set off and otherwise apply the amount owed by the Borrower to or for the
account of such Defaulting Bank against the obligation of such Defaulting Bank
to make such Defaulted Advance. If the Borrower shall so set off and otherwise
apply the amount owed by the Borrower to or for the account of such Defaulting
Bank against the obligation of such Defaulting Bank to make any such Defaulted
Advance on any date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the Notes an Advance by
such Defaulting Bank made on the date of such setoff. Such Advance shall be a
Base Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01 or
------------
Section 2.03(a), as the case may be, even if the other Advances comprising such
---------------
Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed
to be made pursuant to this Section 2.20(a). The Borrower shall notify the
---------------
Administrative Agent at any time the Borrower makes a setoff under this Section
-------
2.20(a) and shall specify in such notice (A) the name of the Defaulting Bank and
-------
the Defaulted Advance required to be made by such Defaulting Bank and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this Section 2.20(a). Any part of such payment otherwise required
---------------
to be made by the Borrower to or for the account of such Defaulting Bank that is
paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this Section 2.20(a), shall be applied by
---------------
the Administrative Agent as specified in Section 2.20(b) or 2.20(c).
--------------- -------
(b) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such
Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any
of the other Banks and (iii) the Borrower shall make any payment hereunder or
under any Note to the Administrative Agent for the account of such Defaulting
Bank, then the Administrative Agent may, on its behalf or on behalf of such
other Banks and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Bank to the payment of each such Defaulted Amount to the extent required to pay
such Defaulted Amount. If the Administrative Agent shall so apply
-35-
any such amount to the payment of any such Defaulted Amount on any date, the
amount so applied by the Administrative Agent shall constitute for all purposes
of this Agreement and the Notes payment to such extent of such Defaulted Amount
on such date. Any such amount so applied by the Administrative Agent shall be
retained by the Administrative Agent or distributed by the Administrative Agent
to such other Banks, ratably in accordance with their respective portions of
such Defaulted Amounts payable at such time to the Administrative Agent and such
other Banks and, if the amount of such payment made by the Borrower shall at any
time be insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Banks, in the following order of priority:
(A) first, to the Administrative Agent for any Defaulted Amounts
-----
owing to the Administrative Agent (solely in its capacity as Administrative
Agent) at such time; and
(B) second, to the other Banks for any Defaulted Amounts owing to the
------
other Banks (solely in their capacity as Banks) at such time, ratably in
accordance with such respective Defaulted Amounts owing to each other Bank
(solely in its capacity as a Bank) at such time.
Any part of such payment made by the Borrower for the account of such Defaulting
Bank remaining, after giving effect to the amount applied by the Administrative
Agent pursuant to this Section 2.20(b), shall be applied by the Administrative
---------------
Agent as specified in Section 2.20(c).
---------------
(c) If at any time, (i) any Bank shall be a Defaulting Bank, (ii) such
Defaulting Bank shall not owe a Defaulted Advance or a Defaulted Amount and
(iii) the Borrower, the Administrative Agent or any other Bank shall be required
to pay or to distribute any amount hereunder or under any Note to or for the
account of such Defaulting Bank, then the Borrower or such other Bank shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this Section 2.20(c) shall be deposited by
---------------
the Administrative Agent in an account with First Chicago, in the name and under
the control of the Administrative Agent, but subject to the provisions of this
Section 2.20(c). The terms applicable to such account, including the rate of
---------------
interest payable with respect to the credit balance of such account from time to
time, shall be First Chicago's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this Section 2.20(c). The Administrative Agent shall, to the fullest extent
---------------
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by such
Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder
to the Administrative Agent or any other Bank, as and when such Advances or such
amounts are required to be made or paid and, if the amount so held in escrow
shall any time be insufficient to make and pay all such Advances and all such
amounts required to be made or paid at such time, in the following order of
priority:
-36-
(A) first, to the Administrative Agent for any amounts due and
-----
payable by such Defaulting Bank to the Administrative Agent hereunder
(solely in its capacity as Administrative Agent) at such time;
(B) second, to the other Banks for any amounts due and payable by
------
such Defaulting Bank to the other Banks hereunder (solely in their capacity
as Banks) at such time, ratably in accordance with such respective amounts
due and payable to each other Bank (solely in its capacity as Bank) at such
time; and
(C) third, to the Borrower for any Advances required to be made by
-----
such Defaulting Bank pursuant to the Commitment of such Defaulting Bank at
such time.
If such Defaulting Bank shall, at any time, cease to be a Defaulting Bank,
any funds held by the Administrative Agent in escrow at such time with respect
to such Defaulting Bank shall be distributed by the Administrative Agent to such
Defaulting Bank and applied by such Defaulting Bank to the amounts owing to such
Defaulting Bank at such time under this Agreement in accordance with the terms
of this Agreement.
(d) The rights and remedies against a Defaulting Bank under this Section
-------
2.20 are in addition to other rights and remedies that the Borrower may have
----
against such Defaulting Bank with respect to any Defaulted Advance and that the
Administrative Agent or any other Bank may have against such Defaulting Bank
with respect to any Defaulted Amount.
SECTION 2.21. Mitigation. Any Bank claiming any additional amounts
----------
payable pursuant to Sections 2.12 or 2.19 or subject to Section 2.13 shall use
------------- ---- ------------
its reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts which may thereafter accrue under
Sections 2.12 or 2.19 or would avoid the unavailability of Eurocurrency Rate
------------- ----
Advances under Section 2.13 and would not, in any such case, in the judgment of
------------
such Bank, be otherwise disadvantageous to such Bank.
SECTION 2.22. European Economic and Monetary Union. (a) Advances After
------------------------------------ --------------
the Euro Implementation Date. If any Advance made (or to be made) on or after
----------------------------
the Euro Implementation Date is capable of being made in either the Euro or in a
National Currency Unit, then the Company shall, by notice to the Administrative
Agent, select whether such Advance shall be made in the Euro or in such National
Currency Unit.
(b) Rounding and Other Consequential Changes. With effect from and after
----------------------------------------
the Euro Implementation Date, without prejudice to any method of conversion or
rounding prescribed by any legislative measures of the Council of the European
Union, each reference in this Agreement to a fixed amount or to fixed amounts in
a National Currency Unit to be paid to or by the Administrative Agent shall,
notwithstanding any other provision of this Agreement and to the extent the Euro
has replaced such National Currency Unit, be replaced by a reference to such
comparable and convenient fixed amount or fixed amounts of the Euro as the
Administrative Agent may from time to time reasonably specify.
-37-
SECTION 2.23. Extension of Termination Date. (a) The Company may, by
-----------------------------
written notice to the Administrative Agent (each such notice being an "Extension
Request") given no more than 59 days nor less than 30 days prior to each
anniversary date of this Agreement, extend the then applicable Termination Date
to a date one year after the then- applicable Termination Date; provided,
however, that such extension shall be effective only with respect to a Bank
which, by a written notice (a "Continuation Notice") to the Company and the
Administrative Agent given no more than 30 days and no less than 15 days before
such anniversary date, consents to such extension (each Bank giving a
Continuation Notice thereafter being referred to as a "Continuing Bank" and each
Bank other than a Continuing Bank being a "Non-Extending Bank"); provided
further, however, that such extension shall be effective only if the aggregate
Commitments of the Continuing Banks are not less than 51% of the aggregate
Commitments in effect at the date the Company gives the applicable Extension
Request. Within five Business Days after the Administrative Agent receives an
Extension Request it shall notify each Bank thereof. If any Bank fails to notify
the Administrative Agent in writing of its consent to, or refusal of, any such
Extension Request at least 15 days prior to such anniversary date, such Bank
shall be deemed to be a Non-Extending Bank with respect to such Extension
Request. The Commitment of each Non-Extending Bank shall terminate on the
Termination Date in effect for such Non-Extending Bank immediately prior to such
Extension Request, and on such Termination Date the Company shall pay the
Administrative Agent, for the account of such Non-Extending Banks, an amount
equal to such Non-Extending Banks' Advances plus accrued but unpaid interest and
fees thereon; provided that the Company has not replaced such Non-Extending
--------
Banks pursuant to Section 2.23(b) below.
---------------
(b) A Non-Extending Bank shall be obligated, at the request of the Company
and subject to the Non-Extending Bank receiving payment in full of (i) the
principal amount of all Advances owing to such Non-Extending Bank, and (ii) all
accrued interest and fees owing to such Non-Extending Bank and all other amounts
owing to such Non-Extending Bank hereunder, to assign without recourse,
representation, warranty (other than good title to its Advances) or expense to
such Non-Extending Bank, at any time prior to the Termination Date applicable to
such Non-Extending Bank, all of its rights (other than rights that would survive
the termination of this Agreement pursuant to Section 9.13) and obligations
------------
hereunder to one or more Eligible Assignees (the "Replacement Banks") nominated
by the Company and willing to take the place of such Non-Extending Bank;
provided that each such Replacement Bank satisfies all the requirements of this
--------
Agreement and the Administrative Agent shall have consented to such assignment,
which consent shall not be unreasonably withheld. Each such Replacement Bank
shall become a Continuing Bank hereunder in replacement for the Non-Extending
Bank.
(c) If the Termination Date shall have been extended in respect of
Continuing Banks in accordance with Section 2.23(a), any notice of borrowing
---------------
specifying a date for the borrowing of an Advance occurring after the
Termination Date applicable to a Non-Extending Bank or requesting an Interest
Period extending beyond such date shall (a) have no effect in respect of such
Non-Extending Bank and (b) not specify a requested aggregate principal amount
exceeding the Aggregate Commitment excluding the Commitments of all such Non-
Extending Banks.
-38-
(d) If the Termination Date shall have been extended in respect of
Continuing Banks in accordance with this Section 2.23, all references herein to
------------
the "Termination Date" shall, with respect to all parties hereto other than Non-
Extending Banks, refer to the Termination Date as so extended.
SECTION 2.24. Increase of Aggregate Commitments. (a) The Company may from
---------------------------------
time to time, on the terms set forth below, request that the aggregate amount of
the Commitments be increased to an amount which does not exceed $400,000,000;
provided, however, that an increase in the Commitments hereunder may only be
-------- -------
made at a time when (i) no Event of Default or event which, with notice or the
passage of time or both, would constitute an Event of Default shall have
occurred and be continuing or would result therefrom and (ii) the Public Debt
Rating from S&P is at least BBB- and the Public Debt Rating from ▇▇▇▇▇'▇ is at
least Baa3.
(b) If the Company requests an increase in the aggregate Commitments:
(i) each of the Banks shall be given the opportunity to participate
in the increased aggregate Commitments (x) initially, ratably in accordance
with its Pro Rata Share, and (y) next, to the extent that the requested
increase in the aggregate Commitments is not fulfilled pursuant to the
preceding clause (x) and subject to Section 2.24(d) below, in such
---------------
additional amounts as any Bank and the Company agree, and
(ii) if, after each Bank has been afforded an opportunity to increase
its Commitment to satisfy the Company's requested increase, the aggregate
increase in the Commitments offered by the Banks is less than the Company's
requested increase, then the Company shall consult with the Administrative
Agent as to the number, identity and requested Commitments of additional
financial institutions which the Company may, with the written consent of
the Administrative Agent (which consent shall not be unreasonably withheld)
invite to participate in the aggregate Commitments.
(c) No Bank shall have any obligation to increase its Commitment pursuant
to a request by the Company hereunder. No Bank shall be deemed to have approved
an increase in its Commitment unless such approval is in writing. Failure on
the part of any Bank to respond to a request by the Company within 30 days of
such Bank's receipt of notice of such request hereunder shall be deemed a
rejection of such request.
(d) In no event shall any Bank's Commitment, after giving effect to an
increase in its Commitment hereunder, exceed 25% of the aggregate Commitments
under this Agreement.
(e) If the Company and one or more of the Banks (or other financial
institutions) shall agree upon such an increase in the aggregate Commitments
hereunder (i) the Company, the Administrative Agent and each Bank or other
financial institution increasing its Commitment or extending a new Commitment
shall enter into a consent in substantially the form of Exhibit G hereto and
---------
(ii) the Company shall furnish new Notes to each financial institution that is
extending a new Commitment and to each Bank which is increasing its Commitment.
Notwithstanding anything else to the contrary contained in Section 2.06(b), if
---------------
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an increase in the aggregate Commitments pursuant to this Section 2.24 occurs
------------
during an Interest Period for an outstanding Committed Borrowing, (a) such
Committed Borrowing may not be continued or converted pursuant to Section
-------
2.06(b) and (b) such Committed Borrowing shall be due and payable at the end of
-------
the current Interest Period applicable thereto, without prejudice to the
Company's right, subject to the terms and conditions of this Agreement, to
reborrow all or any portion of the amount of such Committed Borrowing.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
----------------------------------------------------------
2.03. Sections 2.01 and 2.03 shall become effective on the first day (the
------------- ----
"Effective Date") on which all of the following conditions precedent have been
satisfied:
(a) The Administrative Agent shall have received the following, in
form and substance reasonably satisfactory to the Administrative Agent and
(except for the Committed Notes) in sufficient copies for the Banks:
(i) This Agreement, executed by the Company, the Administrative
Agent and each of the Banks;
(ii) A Committed Note executed by the Company, payable to each
Bank;
(iii) A certificate of the Secretary of the Company certifying
(A) copies attached thereto of the resolutions of the Board of
Directors of the Company authorizing and empowering certain officers
of the Company to effect such borrowings as such officers may deem
necessary or desirable for proper corporate purposes, subject to the
limitations set forth in such resolutions, (B) copies attached thereto
of the Certificate of Incorporation and by-laws of the Company, and
(C) the names and true signatures of the officers of the Company
authorized to sign this Agreement and the Notes and other documents to
be executed and delivered by the Company hereunder;
(iv) A certificate of a duly authorized officer of the Company,
dated the Effective Date, certifying that as of such date, (A) the
representations and warranties contained in Section 4.01 are correct
------------
on and as of the Effective Date and (B) no event shall have occurred
and be continuing that constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both;
-40-
(v) A favorable opinion of Sidley & Austin, counsel for the
Company, substantially in the form of Exhibit H hereto; and
---------
(vi) Evidence that all amounts owing under the 1994 Credit
Agreement are being paid in full, and that the 1994 Credit Agreement
is being terminated, no later than the Effective Date;
(b) The Company shall have paid all accrued fees and expenses of the
Arranger, the Administrative Agent and the Banks which are due and payable
on the Effective Date (including, without limitation, the reasonable fees
and expenses of counsel for the Arranger and the Administrative Agent);
(c) There shall have occurred no material adverse change in the
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole, since December 31, 1997;
(d) There shall exist no action, suit or proceeding (investigative,
judicial or otherwise) against the Company or any of its Subsidiaries
pending before any court or arbitrator or any governmental body, agency or
official, or to the knowledge of any Responsible Officer of the Company,
threatened, that could reasonably be expected (i) to have a Material
Adverse Effect or (ii) to materially and adversely affect the legality,
validity or enforceability of this Agreement or any Note;
(e) The representations and warranties contained in Section 4.01
------------
shall be correct on and as of the Effective Date, as though made on and as
of such date; and
(f) No event shall have occurred and be continuing which constitutes
an Event of Default or which would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
For purposes of determining compliance with the conditions specified above,
each Bank shall be deemed to have consented to, approved and accepted, and to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Banks unless
the officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Bank prior
to the proposed Effective Date, as notified by the Administrative Agent to the
Banks, specifying its objection thereto. The Administrative Agent shall
promptly notify the Banks of the occurrence of the Effective Date.
SECTION 3.02. Conditions Precedent to Initial Advance to Each Borrowing
---------------------------------------------------------
Subsidiary. The obligation of each Bank to make its initial Advance hereunder
----------
to any Borrowing Subsidiary is subject to the conditions precedent that the
Effective Date shall have occurred and the Administrative Agent shall have
received on or before the day of the
-41-
initial Borrowing by such Borrowing Subsidiary the following, each in form and
substance reasonably satisfactory to the Administrative Agent and in sufficient
copies for the Banks:
(a) The Assumption Letter executed and delivered by such Borrowing
Subsidiary and containing the written consent of the Company at the foot
thereof, as contemplated by Section 2.17 hereof;
------------
(b) A Committed Note executed by such Borrowing Subsidiary, payable
to each Bank;
(c) Certified copies of the resolutions of the Board of Directors of
such Borrowing Subsidiary approving the Assumption Letter and all other
documents evidencing corporate action and governmental approvals, if any,
required with respect to the Assumption Letter;
(d) A certificate of the Secretary or an Assistant Secretary of such
Borrowing Subsidiary certifying the names and true signatures of the
officers of such Borrowing Subsidiary authorized to sign the Assumption
Letter and the other documents to be executed and delivered by such
Borrowing Subsidiary hereunder; and
(d) An opinion of counsel to such Borrowing Subsidiary, substantially
in the form of Exhibit I hereto and as to such other matters as the
---------
Administrative Agent shall reasonably request.
SECTION 3.03. Conditions Precedent to Each Committed Borrowing. The
------------------------------------------------
obligation of each Bank to make a Committed Advance on the occasion of each
Committed Borrowing (including the initial Committed Borrowing) shall be subject
to the further conditions precedent that the Effective Date shall have occurred
and on the date of such Committed Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Committed Borrowing and
the acceptance by the applicable Borrower of the proceeds of such Committed
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such Committed Borrowing such statements are true):
(i) The representations and warranties contained in subsections (a),
(b), (c), (d), (f)(ii) and (h) through (q) of Section 4.01 are correct on
------------
and as of the date of such Committed Borrowing, before and after giving
effect to such Committed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) No event has occurred and is continuing, or would result from
such Committed Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or which would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both; and
(iii) The aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted
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amount) of indebtedness for borrowed money (after giving effect to such
Committed Borrowing and the application of the proceeds thereof) of the
Company and its Subsidiaries does not exceed the maximum amount then
authorized by the Company's Board of Directors.
SECTION 3.04. Conditions Precedent to Each Uncommitted Borrowing. Each
--------------------------------------------------
bidding Bank's obligation to make an Uncommitted Advance as part of an
Uncommitted Borrowing (including the initial Uncommitted Borrowing) is subject
to the conditions precedent that on the date of such Uncommitted Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Uncommitted Borrowing and the acceptance by such Borrower of the
proceeds of such Uncommitted Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Uncommitted Borrowing such
statements are true):
(a) The representations and warranties contained in subsections (a),
(b), (c), (d), f(ii) and (h) through (q) of Section 4.01 are correct on and
------------
as of the date of such Uncommitted Borrowing, before and after giving
effect to such Uncommitted 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 Uncommitted Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both, and
(c) The aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted
amount) of indebtedness for borrowed money (after giving effect to the
application of the proceeds of such Uncommitted Borrowing) of the Company
and its Subsidiaries does not exceed the maximum amount thereof then
authorized by the Company's Board of Directors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to the Banks as follows:
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction indicated at the
beginning of this Agreement.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene
-43-
(i) the Company's certificate of incorporation, as amended, or by-laws or
(ii) law or any contractual restriction binding on or affecting the
Company.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Company of this
Agreement.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the applicable
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with their respective terms,
subject to any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and to
general principles of equity.
(e) The consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of December 31, 1997, and the related
consolidated statements of income, cash flow and shareholders' equity of
the Company and its Consolidated Subsidiaries for the fiscal year then
ended, copies of which have been furnished to each Bank, fairly present the
financial condition of the Company and its Consolidated Subsidiaries as at
such date and the consolidated results of the operations of the Company and
its Consolidated Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles, and since
December 31, 1997, there has been no material adverse change in the
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole.
(f) There are no actions, suits or proceedings (investigative,
judicial or otherwise) against the Company or any of its Subsidiaries
pending before any court or arbitrator or any governmental body, agency or
official, or, to the knowledge of any Responsible Officer of the Company,
threatened, that could reasonably be expected (i) to have a Material
Adverse Effect or (ii) to materially and adversely affect the legality,
validity or enforceability of this Agreement or any Note.
(g) Reserved.
(h) Following application of the proceeds of each Advance to the
Company, not more than 25% of the value of the assets (either of the
Company only or of the Company and its Consolidated Subsidiaries) will be
Margin Stock subject to any restriction contained in any agreement or
instrument between the Company and any Bank or any affiliate of any Bank
relating to Debt within the scope of Section 6.01(e).
---------------
(i) The Company is not principally engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
-44-
(j) The Advances to each Borrower, and all related obligations of
such Borrower under this Agreement, rank pari passu with all other
---- -----
unsecured indebtedness for money borrowed or raised by such Borrower that
is not, by its terms, expressly subordinated to other such indebtedness of
such Borrower.
(k) No Borrower is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment Company
Act of 1940, as amended.
(l) (i) All necessary Environmental Permits have been obtained and
are in effect for the operations and properties of the Company and its
Subsidiaries, and the Company and its Subsidiaries are in compliance with
all such Environmental Permits, except to the extent that the failure to so
obtain or comply could not reasonably be expected to have a Material
Adverse Effect; and (ii) no circumstances exist that could reasonably be
expected to (A) form the basis of an Environmental Action against the
Company or any of its Subsidiaries or any of their properties that could
reasonably be expected to have a Material Adverse Effect or (B) cause any
such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law that could reasonably be
expected to have a Material Adverse Effect.
(m) None of the properties owned or leased by the Company or any of
its Subsidiaries is the subject of any investigation or cleanup, whether
voluntary or required pursuant to any Environmental Law or ordered by any
governmental authority, that could reasonably be expected to have a
Material Adverse Effect.
(n) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(o) Neither the Company nor any of its ERISA Affiliates (i) has
incurred or is reasonably expected to incur any Withdrawal Liability with
respect to any Multiemployer Plan or (ii) has been notified by the sponsor
of a Multiemployer Plan that such Multiemployer Plan is in reorganization
or has been terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in reorganization or
to be terminated, within the meaning of Title IV of ERISA.
(p) As of the last annual actuarial valuation date, the aggregate
current liability (as defined in Section 412 of the Internal Revenue Code)
under the Plans does not exceed the aggregate fair market value of the
assets of such Plans by more than $50,000,000.
(q) The Company's effort to address the problems which may arise in
connection with the Year 2000 Problem in its core business includes (i)
-45-
evaluating internal computing infrastructure, business applications and
shop-floor systems for issues related to the Year 2000 Problem, (ii)
replacing or renovating systems and applications as necessary to resolve
such issues, and (iii) testing the replaced or renovated systems and
applications. As of the date of this Agreement, the Company expects that
all phases of such efforts will be completed before December 31, 1999. In
addition to its internal remediation activities, the Company is continuing
to evaluate the Year 2000 Problem with respect to key suppliers and vendors
and other external companies, including customers whose systems interact
with those of the Company. As of the date of this Agreement, the Company
expects to complete this evaluation before December 31, 1999.
ARTICLE V
COVENANTS OF THE COMPANY
------------------------
So long as any Advance shall remain unpaid or any Bank shall have any
Commitment hereunder, unless the Majority Banks shall otherwise consent in
writing:
SECTION 5.01. Compliance with Laws, Etc. The Company will comply, and
--------------------------
cause each of its Subsidiaries to comply, in all material respects with all
applicable laws, rules, regulations and orders, except for laws, rules,
regulations and orders the violation of which, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.02. Interest Coverage Ratio. The Company will, as of the end of
-----------------------
each fiscal quarter after the Effective Date, maintain an Interest Coverage
Ratio of not less than 2.0 to 1.
SECTION 5.03. Reporting Requirements. The Company will furnish to the
-----------------------
Banks:
(a) within 60 days after the end of each of the first three quarters
of each fiscal year of the Company, but in no case earlier than when such
report shall be required to be filed with the Commission, a copy of the
Company's Form 10-Q filed with the Commission for such quarter, or any
similar quarterly report required to be filed by the Company with the
Commission; provided that if the Company shall no longer be required to so
--------
file with the Commission, the Company will nonetheless thereafter continue
to furnish to the Banks such financial statements and related materials as
would have comprised such filings, at such times as the Company would have
otherwise delivered the same to the Commission;
(b) within 120 days after the end of each fiscal year of the Company,
but in no case earlier than when such report shall be required to be filed
with the Commission, a copy of the Company's Form 10-K filed with the
Commission for such year, or any similar annual report required to be filed
by the Company with the Commission; provided that if the Company shall no
--------
longer be required to so file with the Commission, the Company will
-46-
nonetheless thereafter continue to furnish to the Banks such financial
statements and related materials as would have comprised such filings, at
such times as the Company would have otherwise delivered the same to the
Commission;
(c) simultaneously with the delivery of the reports referred to in
clauses (a) and (b) above, a certificate of a designated financial officer
of the Company (i) setting forth in reasonable detail the calculations
required to establish whether the Company was in compliance with the
requirements of Section 5.02 on the date of such financial statements and
------------
(ii) stating whether there exists on the date of such certificate any Event
of Default or condition or event which with notice or lapse of time or both
would become an Event of Default and, if any Event of Default or any such
condition or event then exists, setting forth the details thereof and the
action which the Company is taking with respect thereto;
(d) promptly after the sending or filing thereof, copies of all
reports which the Company sends to any of its security holders, and copies
of all reports and registration statements (other than Form S-8 or any
similar form) which the Company or any Borrowing Subsidiary files with the
Commission or any national securities exchange;
(e) promptly following any Responsible Officer's knowledge thereof,
notice in writing of (i) the occurrence of any Event of Default or
condition or event which with notice or lapse of time or both would become
an Event of Default and, if any Event of Default or any such condition or
event then exists, setting forth the details thereof and the action which
the Company is taking with respect thereto, or (ii) the institution of, or
any adverse final judgment in, any litigation, arbitration proceeding or
governmental proceeding which, in the Company's judgment, if adversely
determined, could reasonably be expected to have a Material Adverse Effect;
and
(f) such other pertinent information (including information relating
to the Company's plan to address the Year 2000 Problem) as any Bank may
reasonably request.
SECTION 5.04. Use of Proceeds. The Borrowers will use the proceeds of
---------------
the Advances made under this Agreement only for general corporate purposes
otherwise permitted under this Agreement, including, without limitation, mergers
and acquisitions, the purchase of stock of other Persons, the repurchase of
shares of capital stock of the Company, the repayment of indebtedness, the
funding of employee benefit plans of the Company or its Subsidiaries and for
other lawful purposes; provided that, no Borrower shall use the proceeds of any
--------
Advances made hereunder to acquire 20% or more of the outstanding shares of the
capital stock of any Person unless (a) at the time of such acquisition, such
Person shall have consented to such acquisition either by having entered into an
agreement with the Company or a subsidiary of the Company contemplating a merger
of such Person with or into the Company or such subsidiary or by its Board of
Directors having authorized, approved or consented to such acquisition, or (b)
such Borrower shall have obtained the
-47-
prior written consent with respect thereto of (i) in the case of any Committed
Borrowing the proceeds of which shall be used to facilitate such acquisition,
the Banks and (ii) in the case of any Uncommitted Borrowing the proceeds of
which shall be used to facilitate such acquisition, the Banks extending
Uncommitted Advances in connection therewith; provided further that if the
-------- -------
applicable Borrower shall have specified the intended use of proceeds of an
Uncommitted Borrowing in the Notice of Uncommitted Borrowing with respect
thereto, each Bank electing to offer to make one or more Uncommitted Advances in
response thereto shall be deemed to have provided the written consent required
under this Section 5.04 for such use of the proceeds of such Uncommitted
------------
Advances.
SECTION 5.05. Limitation on Liens, Etc. The Company will not create or
-------------------------
suffer to exist, or permit any of its Consolidated Subsidiaries to create or
suffer to exist, any Lien, upon or with respect to any of its properties (other
than Margin Stock), whether now owned or hereafter acquired, or assign, or
permit any of its Consolidated Subsidiaries to assign, any right to receive
income, in each case to secure any Debt of any Person or entity, other than:
(a) Liens arising in connection with the obligations of the Company
or any Subsidiary under industrial revenue bonds;
(b) Liens on assets of a Subsidiary of a Borrower to secure Debt of
such Subsidiary to any Borrower;
(c) Purchase money Liens claimed by sellers of goods on ordinary
trade terms provided that no financing statement has been filed to perfect
such Liens, and provided that no such Lien shall extend to assets of any
character other than the goods being acquired;
(d) Liens securing Debt existing as of December 31, 1997;
(e) Liens securing Debt on property of a corporation or firm (or
division thereof) that becomes a Subsidiary of the Company or of any of its
Subsidiaries after the date hereof in accordance with Section 5.06 and
------------
existing at the time such corporation is merged or consolidated with the
Company or any Subsidiary, at the time such corporation or firm (or
division thereof) becomes a Subsidiary of the Company or any of its
Subsidiaries, or at the time of a sale, lease or other disposition of the
properties of a corporation or a firm (or division thereof) as an entirety
or substantially as an entirety to the Company or a Subsidiary, provided
that such Liens were not created in contemplation of such merger,
consolidation, acquisition, sale, lease or disposition and do not extend to
assets other than those of the Person merged into or consolidated with the
Company or such Subsidiary or acquired by the Company or such Subsidiary;
(f) Liens on life insurance policies owned by the Company or any
Subsidiary, securing Insurance Policy Debt;
(g) Purchase money Liens constituting the interest of a lessor under
a lease that would be capitalized on the lessee's balance sheet in
accordance
-48-
with GAAP, or under a sale-leaseback transaction, in each case relating to
equipment, provided that after giving effect thereto, no Event of Default
under Section 5.02 shall exist;
------------
(h) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Liens referred to in
the foregoing subsections (a) through (g); provided that, in the case of
--------
Liens referred to in the foregoing subsections (c), (d), (e), (f) and (g),
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall be
limited to all or a part of the property which is subject to the Lien so
extended, renewed or replaced (plus improvements on such property); and
(i) Additional Liens securing Debt other than as may be included in
the foregoing subsections (a) through (h), provided, that the aggregate
--------
outstanding principal amount of such Debt shall not at any time exceed 10%
of Consolidated Tangible Net Worth at such time.
SECTION 5.06. Merger; Sale of Assets. The Company will not, and will not
----------------------
permit its Material Subsidiaries to, merge or consolidate with or into any other
Person, or sell, transfer, lease or otherwise dispose of all or substantially
all of its assets (whether now owned or hereafter required), except that:
(i) the Company or a Material Subsidiary may acquire another
corporation by merger, provided that, if the Company is a party to such
merger, the Company is the surviving corporation, and provided further that
after giving effect to such merger, no Event of Default (or event which,
with the giving of notice or the passing of time or both would constitute
an Event of Default) shall exist; and
(ii) any Material Subsidiary may merge or consolidate with or into, or
sell or otherwise dispose of any or all of its assets to, the Company or
another Subsidiary, and any Material Subsidiary that is not a Borrowing
Subsidiary may sell all or substantially all of its assets; provided that
(a) after giving effect to such merger, consolidation, sale or other
disposition, no Event of Default (or any event which, with the giving of
notice or the passing of time or both would constitute an Event of Default)
shall exist, and (b) in the case of an asset sale by such a Material
Subsidiary, the assets to be sold do not constitute all or substantially
all of the assets of the Company and its Subsidiaries, taken as a whole.
SECTION 5.07. Books and Records; Inspection. The Company will, and will
-----------------------------
cause each of its Subsidiaries to, (a) maintain complete and accurate books and
records, in which full and correct entries shall be made of all financial
transactions of the Company and each such Subsidiary in accordance with
generally accepted accounting principles, and (b) permit any Bank, the
Administrative Agent and their respective employees and agents, at such
reasonable times during normal business hours and as often as may be reasonably
requested, to inspect any of the properties of the Company or any of its
Subsidiaries and to inspect and make copies of the material books and records of
the Company and its Subsidiaries and to discuss the affairs and finances of the
Company and its Subsidiaries with their officers; provided that such Bank or the
--------
Administrative Agent shall have delivered a written request for such inspection
to the Company prior to the date of any such inspection.
-49-
to inspect any of the properties of the Company or any of its Subsidiaries and
to inspect and make copies of the material books and records of the Company and
its Subsidiaries and to discuss the affairs and finances of the Company and its
Subsidiaries with their officers; provided that such Bank or the Administrative
--------
Agent shall have delivered a written request for such inspection to the Company
prior to the date of any such inspection.
SECTION 5.08. Corporate Existence. Subject to the Company's rights under
-------------------
Section 5.06, the Company will, and will cause each of its Material Subsidiaries
------------
to, at all times maintain its corporate existence and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses.
SECTION 5.09. Conduct of Business. The Company shall not, and shall not
-------------------
permit any Material Subsidiary to, engage in any line of business other than (A)
the businesses engaged in by the Company and its Subsidiaries on the date hereof
and (B) any business or activities substantially similar or related thereto
(which shall include, without limitation, other businesses related to the
handling and/or distribution of data used or processed in the businesses engaged
in by the Company and its Subsidiaries on the date hereof).
SECTION 5.10. Payment of Taxes. The Company will pay and discharge, and
----------------
cause each of its Material Subsidiaries to pay and discharge, before the same
shall become delinquent, all material taxes, assessments and governmental
charges or levies imposed upon it or its property; provided, however, that
-------- -------
neither the Company nor any of its Material Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or levy that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained in accordance with GAAP, as long as no action has
been commenced to enforce any Lien securing any such tax, assessment, charge or
levy.
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) A Borrower shall fail to pay when due any installment of
principal of any Advance; or
(b) A Borrower shall fail to pay any fee under this Agreement, or any
installment of interest on any Advance, within ten (10) days after the due
date thereof; or
(c) Any written representation or warranty made by a Borrower herein
or in connection with this Agreement shall prove to have been incorrect in
any material respect when made; or
(d) The Company shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.02, 5.03(a), (b) or (e), 5.04,
---- ------- --- --- ----
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5.05, 5.06, 5.07, 5.08, 5.09 or 5.10, or (ii) any other term, covenant or
---- ---- ---- ---- ---- ----
agreement contained in this Agreement, other than in (a) or (b) above, on
its part to be performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall have been given
to the Company by the Majority Banks through the Administrative Agent; or
(e) The Company or any Material Subsidiary shall fail to pay any
principal of or premium or interest on any Debt, or any obligations in
respect of acceptances, letters of credit or other similar instruments, of
the Company or such Material Subsidiary which is outstanding in a principal
amount of at least $50,000,000 in the aggregate (but excluding Debt arising
under this Agreement), 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 other obligation; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt or other
obligation and 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 permit the acceleration of, the maturity of
such Debt or other obligation; or any Debt or other such obligation in
which the outstanding principal exceeds $50,000,000 shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required
to be prepaid, redeemed, defeased or otherwise repurchased by the Company
or any Material Subsidiary (other than by a regularly-scheduled required
prepayment), or any offer to prepay, redeem, defease or purchase such Debt
shall be required to be made, prior to the stated maturity thereof; or
(f) The Company or any Material Subsidiary 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 Company or any Material Subsidiary 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 for relief or the
appointment of a receiver, trustee, or other similar official for it or for
any substantial part of its property, and in the event of any such
proceeding instituted against the Company or any Material Subsidiary (but
not instituted by it), such proceeding shall remain undismissed or unstayed
for a period of 60 days or shall result in the entry of an order for
relief, the appointment of a trustee or receiver, or other action in such
proceeding or result adverse to the Company or such Material Subsidiary, as
applicable, or the Company or any Material Subsidiary shall take any
corporate action to authorize any of the actions set forth above in this
subsection (f); or
-51-
(g) Any Person, or a group of Persons acting in concert, shall at any
time acquire, directly or indirectly, in excess of 51% of the securities
having ordinary voting power to elect members of the board of directors of
the Company; or
(h) The Company shall incur liability in excess of $50,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Company
or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; or
(i) One or more final judgments or orders for the payment of money,
in an aggregate amount exceeding $50,000,000 at any one time outstanding
(exclusive of judgment amounts fully covered by insurance, to the extent
the insurer has admitted liability in respect thereof), shall be rendered
against the Company or any Material Subsidiary and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order, or (ii) such judgments or orders shall not be discharged (or
provision shall not have been made for such discharge), a stay of execution
thereof shall not be obtained, or such judgments or orders shall not be
paid or bonded, within 60 days from the date of entry thereof, and the
Company or such Material Subsidiary, as the case may be, shall not, within
such 60-day period, appeal therefrom and cause the execution thereof to be
stayed pending such appeal;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Majority Banks, by notice to the Company, (i)
declare the obligation of each Bank to make Advances to any Borrower to be
terminated, whereupon the same shall forthwith terminate, and (ii) 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 Company; provided, however, that in the event of an actual or
-------- -------
deemed entry of an order for relief with respect to the Company under the
Federal Bankruptcy Code, (A) the obligation of each Bank to make Advances to any
Borrower shall automatically be terminated and (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 Company.
ARTICLE VII
GUARANTEE
---------
SECTION 7.01. Unconditional Guarantee. For valuable consideration,
-----------------------
receipt whereof is hereby acknowledged, and to induce the Banks to make Advances
to each Borrowing Subsidiary, the Company unconditionally guarantees to the
Banks and the Administrative Agent that the principal of and interest on each
Advance and all other amounts payable by each Borrowing Subsidiary hereunder
shall be promptly paid in full
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when due (whether at stated maturity, by acceleration or otherwise) in
accordance with the terms hereof and thereof, and, in the case of any extension
of time of payment, in whole or in part, that all such amounts shall be promptly
paid when due (whether at stated maturity, by acceleration or otherwise) in
accordance with the terms of such extension. In addition, the Company
unconditionally agrees that upon default in the payment when due (whether at
stated maturity, by acceleration or otherwise) of any of such principal,
interest or other amounts, the Company shall forthwith pay the same. Without
limiting the generality of the foregoing, the Company's liability shall extend
to all amounts that constitute part of the obligations of any Borrowing
Subsidiary guaranteed by the Company under this Article VII and would be owed by
-----------
any such Borrowing Subsidiary to any Bank or the Administrative Agent under this
Agreement or the Notes but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such Borrowing Subsidiary.
SECTION 7.02. Validity. The obligations of the Company under this Article
-------- -------
VII are independent of the obligations of the Borrowing Subsidiaries guaranteed
---
hereunder, and a separate action or actions may be brought and prosecuted
against the Company to enforce its obligations under this Article VII,
-----------
irrespective of whether any action is brought against any Borrowing Subsidiary
or whether any Borrowing Subsidiary is joined in any such action or actions.
The obligations of the Company under this Article VII shall be unconditional
-----------
irrespective of (i) the genuineness, validity, regularity or enforceability of
the obligations of the Borrowing Subsidiaries under this Agreement, any Note or
any Assumption Letter, (ii) any law, regulation or order of any jurisdiction
affecting any term of any obligation of any Borrowing Subsidiary under this
Agreement or the rights of any Bank or the Administrative Agent with respect
thereto, (iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of any Borrowing Subsidiary
guaranteed by the Company under this Article VII, or any other amendment or
-----------
waiver of or any consent to departure from this Agreement or the Notes, (iv) any
change, restructuring or termination of the corporate structure or existence of
any Borrowing Subsidiary or any of its Subsidiaries, or (v) to the fullest
extent permitted by applicable law, any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or guarantor.
SECTION 7.03. Waivers. The Company expressly waives promptness,
-------
diligence, presentment, protest and any other notice with respect to the
obligations of the Company under this Article VII and any requirement that any
-----------
right or power be exhausted or any action be taken against any Borrowing
Subsidiary and all notices and demands whatsoever.
SECTION 7.04. Subrogation. The Company shall be subrogated to the rights
-----------
of the Banks or the Administrative Agent against any Borrowing Subsidiary
hereunder only after the Banks and the Administrative Agent shall have been paid
in full all such amounts, with interest thereon, for which such Borrowing
Subsidiary shall have become indebted hereunder.
SECTION 7.05. Acceleration. The Company agrees that, as between the
------------
Company on the one hand, and the Banks and the Administrative Agent, on the
other hand, the obligations of each Borrowing Subsidiary guaranteed under this
Article VII may be declared to be forthwith due and payable, or may be deemed
-----------
automatically to have been accelerated,
-53-
as provided in Section 6.01 hereof for purposes of this Article VII,
------------ -----------
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Borrowing Subsidiary or otherwise)
preventing such declaration as against such Borrowing Subsidiary and that, in
the event of such declaration or automatic acceleration, such obligations
(whether or not due and payable by such Borrowing Subsidiary) shall forthwith
become due and payable by the Company for purposes of this Article VII.
-----------
SECTION 7.06. Reinstatement. The Company's obligations under this Article
------------- -------
VII shall be reinstated if at any time any payment received by any Bank or the
---
Administrative Agent from any Borrowing Subsidiary hereunder is required to be
repaid or returned by such Bank or the Administrative Agent, all as though such
payment had not been made.
SECTION 7.07. Continuing Guaranty; Assignments. This guarantee of the
--------------------------------
Company shall (a) remain in full force and effect until the later of (i) the
cash payment in full of the obligation of any Borrowing Subsidiary guaranteed by
the Company under this Article VII and (ii) the Termination Date, (b) be binding
-----------
upon the Company, its successors and assigns and (c) inure to the benefit of,
and be enforceable by, the Banks and the Administrative Agent and their
successors, transferees and assigns (provided that the applicable transfers and
assignments are made in accordance with the terms of this Agreement).
ARTICLE VIII
THE ADMINISTRATIVE AGENT
------------------------
SECTION 8.01. Reserved.
SECTION 8.02. Authorization and Action. Each Bank appoints and
------------------------
authorizes First Chicago to act as the Administrative Agent hereunder, and each
Bank irrevocably authorizes the Administrative Agent (for so long as the
Administrative Agent remains in such capacity under this Agreement) to act as
the contractual representative of such Bank with only the rights and duties
expressly set forth herein. The Administrative Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
VIII. Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Bank by reason of this Agreement and that the
Administrative Agent is merely acting as the representative of the Banks with
only those duties as are expressly set forth in this Agreement. In its capacity
as the Banks= contractual representative, the Administrative Agent (i) does not
assume any fiduciary duties to any of the Banks, (ii) is a "representative" of
the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code
and (iii) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement. Each Bank agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Bank waives. The Administrative Agent shall have and may exercise such powers
under this Agreement as are specifically delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably incidental
hereto. The Administrative Agent shall have no implied
-54-
duties to the Banks, or any obligation to the Banks to take any action
hereunder, except any action specifically provided by this Agreement to be taken
by the Administrative Agent. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks and all holders of the Notes; provided, however, that the
-------- -------
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Bank prompt notice of each notice given to it by any Borrower pursuant to the
terms of this Agreement. The Administrative Agent may execute any of its duties
as Administrative Agent hereunder and under any other instrument, document or
agreement executed in connection herewith by or through employees, agents, and
attorney-in-fact and shall not be answerable to the Banks, except as to money or
securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Without limiting the foregoing, the Administrative Agent may
appoint any Affiliate as its agent for all matters relating to Advances made in
Alternative Currencies. Each such agent shall be entitled to all of the rights
and benefits granted to the Administrative Agent hereunder, and each Bank shall
treat any notice given by any such agent as if it had been given directly by the
Administrative Agent.
SECTION 8.03. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Bank that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
------------
(ii) may consult with legal counsel (including counsel for any Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties or representations (whether written or oral)
made in or in connection with this Agreement; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of any Borrower or to
inspect the property (including the books and records) of any Borrower; (v)
shall not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (vi) shall not have any duty
to ascertain, inquire into or verify the financial condition of the Company or
any of its Subsidiaries; (vii) shall have no duty to disclose to the Banks
information that is not required to be furnished by the Company to the
Administrative Agent at such time, but is voluntarily furnished by the Company
to the Administrative Agent (either in its capacity as Administrative Agent or
in its individual capacity); and (viii) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telegram) believed by it to be
genuine and signed or
-55-
sent by the proper party or parties. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Banks and all matters pertaining to the
Administrative Agent's duties hereunder.
SECTION 8.04. The Administrative Agent and Affiliates. With respect to
---------------------------------------
any financial institution which shall become the Administrative Agent hereunder,
and with respect to such financial institution's Commitment and the Advances
made by it, such financial institution shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not the Administrative Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include such financial institution in its
individual capacity, if applicable. Each such financial institution and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, any Borrower,
any of their respective Subsidiaries and any Person who may do business with or
own securities of any Borrower or any such Subsidiary, all as if such financial
institution were not the Administrative Agent and without any duty to account
therefor to the Banks.
SECTION 8.05. Bank Credit Decision; Notice of Default. Each Bank
---------------------------------------
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Bank and based on the financial statements
referred to in Section 4.01 and such other documents and information as it has
------------
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default, or an event which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both, unless the Agent has received written notice from a Bank or
the Company referring to this Agreement describing such Event of Default, or
such event which would constitute an Event of Default but for the requirement
that notice be given or time elapse or both, and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the Banks.
SECTION 8.06. Indemnification. The Banks (other than the Designated
---------------
Bidders) agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrowers), ratably according to the respective principal
amounts of the Notes held by each of them (or, if no Notes are outstanding at
the time or if any Notes are held by Persons that are not Banks, ratably
according to the respective amounts of their Commitments) from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement;
provided that no Bank shall be liable for any portion of such liabilities,
--------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the Administrative Agent's gross negligence or willful misconduct. Without
limiting the foregoing, each Bank
-56-
(other than the Designated Bidders) agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection with
the administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrowers. The
obligation of the Banks under this Section 8.06 shall survive payment of the
------------
Obligations and the termination of this Agreement.
SECTION 8.07. Successor Administrative Agent. The Administrative Agent
------------------------------
may resign at any time by giving written notice thereof to the Banks and the
Company and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint another Bank as successor Administrative Agent or, if
acceptable to the Company, any other commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. If no successor Administrative
Agent shall have been so appointed by the Majority Banks, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent gives notice of resignation or the Majority Banks remove the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000 and
otherwise acceptable to the Company. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VIII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement or the Notes, nor any consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by all the Banks (other than the Designated Bidders),
directly do any of the following: (i) waive any of the conditions specified in
Section 3.01 or 5.04, (ii) increase the Commitments of the Banks or subject the
------------ ----
Banks to any additional obligations, (iii) reduce the principal of, or the
stated rate at which interest accrues on, the Notes or reduce the stated rate at
which the Facility Fee and the Utilization Fee are calculated, (iv) postpone any
date fixed for any payment of principal of, or interest on, the Committed
Advances or any fees or other amounts payable hereunder, (v) change the
-57-
percentage of the Commitments, or of the aggregate unpaid principal amount of
the Notes, or the number of Banks which shall be required for the Banks or any
of them to take any action hereunder or (vi) amend this Section 9.01; provided,
------------ --------
further, that no amendment, waiver or consent shall, unless in writing and
-------
signed by the Administrative Agent in addition to the Banks required above to
take such action, affect the rights or duties of the Administrative Agent under
this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
-------------
provided for hereunder shall be in writing (including telegraphic or telecopy
communication) and mailed, telegraphed, telecopied or delivered,
(i) if to the Company, at its address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Treasurer, telecopy number (312) 326-
8557;
(ii) if to any Borrowing Subsidiary, at the address specified in the
Assumption Letter pursuant to which it became a Borrowing Subsidiary, with
a copy to the Company at the address specified herein; provided that any
--------
such notice may be given solely to the Company, at the option of the party
giving such notice;
(iii) if to any bank listed on the signature pages hereof, at its
Domestic Lending Office specified opposite its name on Schedule I hereto;
----------
(iv) if to any other Bank, at its Domestic Lending Office specified
in the Assignment and Acceptance or Designation Agreement pursuant to which
it became a Bank;
(v) if to the Administrative Agent, at the Domestic Lending Office
specified opposite its name on Schedule I hereto;
----------
or as to the Borrowers and the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties, and
as to each such other party, at such other address as shall be designated by
such party in a written notice to the Company and the Administrative Agent. All
such notices and communications shall, when sent by overnight courier, mailed or
telecopied, be effective when delivered to such courier, deposited in the mails,
or telecopied and confirmed by return telecopy, respectively, except that
notices and communications to the Administrative Agent pursuant to Articles II,
-----------
III and VIII shall not be effective until received by the Administrative Agent.
--- ----
(b) If any notice required under this Agreement is permitted to be made,
and is made, by telephone, actions taken or omitted to be taken in reliance
thereon by the Administrative Agent or by any Bank shall be binding upon the
Company and each other Borrower notwithstanding any inconsistency between the
notice provided by telephone and any subsequent writing in confirmation thereof
provided to the Administrative Agent or such Bank; provided that any such action
--------
taken or omitted to be taken by the Administrative Agent or such Bank shall have
been in good faith and in accordance with the terms of this Agreement.
-58-
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Bank
-------------------
or the Administrative 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 9.04. Costs and Expenses. (a) The Company agrees to pay on
------------------
demand all reasonable, documented out-of-pocket costs and expenses of the
Arranger and the Administrative Agent (including, without limitation, reasonable
fees and expenses of counsel), in connection with any amendments, modifications
or waivers of the provisions hereof, or in determining the rights and
obligations of the parties hereto under this Agreement and the Notes, or the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement and the other documents to be delivered hereunder; provided that
--------
if, in the event of any enforcement undertaken by the Banks hereunder, it shall
be determined that sufficient conflicts exist such that a single law firm
engaged by the Administrative Agent or the Majority Banks is precluded by law or
by standards of conduct from representing the Banks as a group, and such
conflicts would exist with respect to any other law firm representing the Banks
as a group, the Company agrees to pay on demand all reasonable, documented out-
of-pocket costs and expenses of each Bank, if any (including, without
limitation, reasonable fees and expenses of counsel), in connection with such
enforcement undertaking.
(b) The Company agrees to pay to the Administrative Agent such fees as
shall have been agreed to by the Administrative Agent and the Company in a
separate agreement regarding the provision by the Administrative Agent of
services as Administrative Agent under this Agreement.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
----------------
continuance of any Event of Default and (ii) the declaration that the Advances
are due and payable pursuant to the provisions of Section 6.01, each Bank is
------------
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 Bank to or for the credit or the account of any Borrower
against any and all of the obligations of such Borrower now or hereafter
existing under this Agreement and the Notes held by such Bank, irrespective of
whether or not such Bank shall have made any demand under this Agreement or such
Notes and although such obligations may be unmatured. Each Bank shall promptly
notify the Company after any such set-off and application made by such Bank,
provided that the failure to give such notice shall not affect the validity of
--------
such set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.
SECTION 9.06. Binding Effect. This Agreement (other than Sections 2.01
-------------- -------------
and 2.03, which shall only become effective upon satisfaction of the conditions
----
set forth in Section 3.01) shall become effective when it shall have been
------------
executed by the Company and the Administrative Agent and when the Administrative
Agent shall have been notified by
-59-
each bank listed on the signature pages hereof that it has executed this
Agreement and thereafter shall be binding upon and inure to the benefit of the
Company, the Administrative Agent and each Bank and their respective successors
and assigns, except that neither the Company nor any Borrowing Subsidiary shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Banks.
SECTION 9.07. Assignments, Designations and Participations. (a) Each
--------------------------------------------
Bank (other than the Designated Bidders) may, upon obtaining the prior written
consent of the Company and the Administrative Agent (which consents shall not be
unreasonably withheld or delayed), and each Bank (including, without limitation,
the Designated Bidders) shall, if demanded by the Company in accordance with
Section 2.05(b), assign to one or more Eligible Assignees all or a portion of
---------------
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment and the Committed Advances owing to it and
the Committed Notes held by it); provided, however, that:
-------- -------
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than
any right to make Uncommitted Advances, Uncommitted Advances owing to it
and Uncommitted Notes owing to it);
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Bank or an assignment of all of
a Bank's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $20,000,000 (or
an integral multiple of $1,000,000 in excess thereof);
(iii) each such assignment made as a result of a demand by the Company
pursuant to Section 2.05(b) and this Section 9.07(a) shall be arranged by
--------------- ---------------
the Company with the approval of the Administrative Agent, which approval
shall not be unreasonably withheld or delayed, and shall be either an
assignment of all of the rights and obligations of the assigning Bank under
this Agreement or an assignment of a portion of such rights and obligations
made concurrently with another such assignment or other such assignments
that, in the aggregate, cover all of the rights and obligations of the
assigning Bank under this Agreement;
(iv) no Bank shall be obligated to make any such assignment as a
result of a demand by the Company pursuant to this Section 9.07(a) unless
---------------
and until such Bank shall have received one or more payments from one or
more Eligible Assignees in an aggregate amount equal to the aggregate
outstanding principal amount of the Advances owing to such Bank, together
with accrued interest thereon to the date of payment of such principal
amount and from the Company or one or more Eligible Assignees in an
aggregate amount equal to all other amounts payable to such Bank under this
Agreement and the Notes (including, without limitation, any amounts owing
under Sections 2.12, 2.13 or 2.19); and
------------------- ----
-60-
(v) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500;
and provided, further, that the consent of the Company and the Administrative
-------- -------
Agent shall not be required with respect to an assignment to an Eligible
Assignee which is a Bank or an Affiliate thereof. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto). Notwithstanding the foregoing, each Bank may, without the
Company's or the Administrative Agent's consent, assign all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment and the Advances owing to it) to an affiliate of
such Bank or to another Bank.
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Company or any
Borrowing Subsidiary or the performance or observance by the Company or any
Borrowing Subsidiary of any of their respective obligations under this Agreement
or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
------------
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative Agent,
such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as contractual
representative on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Bank.
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(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee, and
consented to by the Company, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit A hereto, (i)
---------
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company.
Within ten Business Days after its receipt of such notice, the Company shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note a new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it (in the case of a Committed Note) or the Uncommitted
Advance or part thereof purchased by it (in the case of an Uncommitted Note)
pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Commitment or a part of such Uncommitted Advance hereunder, a new
Note to the order of the assigning Bank in an amount equal to the Commitment or
of such Uncommitted Advance retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit D-1 or Exhibit D-2 hereto (as the case may be).
----------- -----------
(d) Each Bank (other than the Designated Bidders) may, upon obtaining the
prior written consent of the Company and the Administrative Agent (which
consents shall not be unreasonably withheld or delayed), designate one or more
banks or other entities to have a right to make Uncommitted Advances as a Bank
pursuant to Section 2.03; provided, however, that (i) no such Bank shall be
------------ -------- -------
entitled to make more than one such designation, (ii) each such Bank making such
a designation shall retain the right to make Uncommitted Advances as a Bank
pursuant to Section 2.03, (iii) each such designation shall be to a Designated
------------
Bidder and (iv) the parties to each such designation shall execute and deliver a
Designation Agreement to the Administrative Agent, for its acceptance and
recording in the Register, together with the consent thereto executed by the
Company. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Uncommitted Advances as
a Bank pursuant to Section 2.03 and the obligations related thereto.
------------
(e) By executing and delivering a Designation Agreement, the Bank making
the designation thereunder and its designee thereunder confirm and agree with
each other and the other parties hereto as follows: (i) such Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company or any Borrowing Subsidiary or the performance or observance by the
Company or any Borrowing Subsidiary of any of their respective obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such designee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
------------
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Designation Agreement; (iv)
such
-62-
designee will, independently and without reliance upon the Administrative Agent,
such designating Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Administrative Agent to take such action as contractual
representative on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such designee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Bank.
(f) Upon its receipt of a Designation Agreement executed by a designating
Bank and a designee representing that it is a Designated Bidder, and consented
to by the Company, the Administrative Agent shall, if such Designation Agreement
has been completed and is substantially in the form of Exhibit C hereto, (i)
---------
accept such Designation Agreement, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the Company.
(g) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance and each Designation
------------
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Banks and, with respect to Banks other than
Designated Bidders, the Commitment of, and principal amount of the Advances
owing to, each Bank from time to time (the "Register"). The entries in the
--------
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Company, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(h) Each Bank (other than a Designated Bidder) may sell participations to
one or more banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Bank's obligations under this Agreement
-------- -------
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Company,
the Administrative Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement and (v) no participant under any such participation shall
have any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the Company or any
Borrowing Subsidiary therefrom, except to the extent that such amendment, waiver
or consent would reduce the principal of the Notes or the stated rate at which
interest, the Facility Fee or the Utilization Fee is calculated, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
-63-
(i) Any Bank may, in connection with any assignment, designation or
participation or proposed assignment, designation or participation pursuant to
this Section 9.07, disclose to the assignee, designee or participant or proposed
------------
assignee, designee or participant, any information relating to the Company or
any other Borrower furnished to such Bank by or on behalf of the Company or such
other Borrower; provided that, prior to any such disclosure of non-public
--------
information, such Bank shall have obtained the Company's consent and the
assignee or participant or proposed assignee or participant shall agree in a
manner satisfactory to the Company to preserve the confidentiality of any
confidential information relating to the Company received by it from such Bank.
(j) Notwithstanding any other provision set forth in this Agreement, any
Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08. Governing Law. This Agreement and the Notes shall be
-------------
governed by, and construed in accordance with, the laws of the State of
Illinois.
SECTION 9.09. 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 which taken together shall constitute one and the same agreement.
SECTION 9.10. Confidentiality. Each Bank agrees that it will use
---------------
reasonable efforts to keep confidential any information from time to time
supplied to it by the Company which the Company designates in writing at the
time of its delivery to the Bank is to be treated confidentially; provided,
--------
however, that nothing herein shall affect the disclosure of any such information
-------
to: (i) the extent required by statute, rule, regulation or judicial process;
(ii) counsel for any Bank or to their respective accountants; (iii) bank
examiners and auditors; (iv) any Affiliate of such Bank; (v) any other Bank, or,
subject to Section 9.07(c), any transferee or prospective transferee of any
---------------
Advance, any Note or any Commitment; or (vi) any other Person in connection with
any litigation to which any one or more of the Banks is a party; provided
--------
further, however, that each Bank agrees that it will use reasonable efforts to
------- -------
promptly notify the Company of any request for information under this clause
(vi) or with respect to any request for information not enumerated in this
Section 9.10, if not otherwise prohibited from doing so.
------------
SECTION 9.11. Non-Reliance by the Banks. Each Bank by its signature to
-------------------------
this Agreement represents and warrants that (i) it has not relied in the
extension of the credit contemplated by this Agreement, nor will it rely in the
maintenance thereof, upon any assets of the Company or its Subsidiaries
consisting of Margin Stock as collateral and (ii) after reviewing the financial
statements of the Company and its Consolidated Subsidiaries referred to in
Section 4.01(e), such Bank has concluded therefrom that the consolidated cash
---------------
flow of the Company and its Consolidated Subsidiaries is sufficient to support
the credit extended to the Company pursuant to this Agreement.
-64-
SECTION 9.12. No Indirect Security. Notwithstanding any Section or
--------------------
provision of this Agreement to the contrary, nothing in this Agreement shall (i)
restrict or limit the right or ability of the Company or any of its Subsidiaries
to pledge, mortgage, sell, assign, or otherwise encumber or dispose of any
Margin Stock, or (ii) create an Event of Default arising out of or relating to
any such pledge, mortgage, sale, assignment or other encumbrance or disposition.
SECTION 9.13. Indemnification. The Company agrees to indemnify and hold
---------------
harmless the Administrative Agent, each Bank, and their respective officers,
directors, employees and agents (any one of the foregoing being an "Indemnified
Party" and any two or more of the foregoing being "Indemnified Parties") from
and against, and pay the Indemnified Parties the amount of, any and all claims,
damages, liabilities, and reasonable, documented out-of-pocket costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against an Indemnified
Party relating in whole or in part to this Agreement, the Notes, any documents
delivered in connection herewith and the transactions contemplated hereby, and
in connection with or arising out of or by reason of, or in connection with the
preparation of a defense of, any investigation, litigation or proceeding brought
by a Person other than the Indemnified Parties or the Company and its
Subsidiaries, arising out of, related to or in connection with (i) this
Agreement, the Notes, any of the transactions contemplated herein or the use or
proposed use of the proceeds of any Advances, (ii) any acquisition or proposed
acquisition by the Company or any of its Subsidiaries of all or any portion of
the stock or all or substantially all of the assets of any Person, or (iii) the
actual or alleged presence of Hazardous Materials on any property of the Company
or any of its Subsidiaries or any Environmental Action relating to any of them,
in each case whether or not such investigation, litigation or proceeding is
brought by the Company, any other Borrower, their respective shareholders or
creditors, an Indemnified Party or any other Person, and whether or not an
Indemnified Party is otherwise a party thereto, provided, however, that this
-------- -------
indemnification shall not apply to any claim, damage, liability, cost or expense
that is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from an Indemnified Party's gross negligence or
willful misconduct. The covenants of the Company contained in this Section 9.13
------------
and in Sections 9.04, 2.11, 2.12 and 2.19 shall survive the repayment of all
------------- ---- ---- ----
amounts due and payable under this Agreement and the termination of this
Agreement.
SECTION 9.14. Partial Invalidity. Wherever possible, each provision
------------------
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
SECTION 9.15. WAIVER OF JURY TRIAL. Each of the parties hereto
--------------------
irrevocably waives any right to have a jury participate in resolving any
dispute, whether sounding in contract, tort or otherwise, arising out of,
connected with, related to or incidental to the relationship established among
them in connection with this Agreement or the transactions contemplated hereby
or the actions of the Company,
-65-
any Borrowing Subsidiary, the Administrative Agent or any Bank in the
negotiation, administration, performance or enforcement thereof. Each of the
parties hereto agrees that any such claim, demand, action or cause of action
shall be decided by bench trial without a jury and that any party hereto may
file an original counterpart or a copy of this Agreement with any court as
written evidence of the consent of the parties hereto to the waiver of their
right to trial by jury.
SECTION 9.16. Jurisdiction, Etc. (a) Each of the parties hereto
------------------
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any Illinois state court or federal court of the
United States of America sitting in Chicago, Illinois, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in any such Illinois state court or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any
Illinois state or federal court. Each of the parties hereto irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
SECTION 9.17. Termination of Existing Credit Agreement. The Company and
----------------------------------------
each of the Banks hereunder that is a party to the 1994 Credit Agreement
consents to the termination of the "Commitments" thereunder, effective on the
Effective Date, notwithstanding the notice requirements for such termination set
forth in Section 2.05 of the 1994 Credit Agreement. Because such Banks
hereunder constitute the "Majority Banks" (as defined in the 1994 Credit
Agreement) under the 1994 Credit Agreement, the 1994 Credit Agreement shall
terminate and all amounts payable thereunder shall be due and payable on the
Effective Date.
SECTION 9.18. Nonliability of Banks. The relationship between the
---------------------
Borrowers on the one hand and the Banks and the Administrative Agent on the
other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger nor any Bank shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative Agent, the
Arranger nor any Bank undertakes any responsibility to the Borrowers to review
or inform the Borrowers of any matter in connection with any phase of the
Borrowers' business or operations. Neither the Administrative Agent, the
Arranger nor any Bank shall have any liability with respect to, and the
Borrowers waive, release and agree not to ▇▇▇ for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising out
of, or in any way related to this Agreement or the transactions contemplated
thereby.
-66-
Remainder of page intentionally left blank
-67-
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.
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
By:___________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and as a Bank
By:___________________________________
Title:
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, as a Bank
By:___________________________________
Title:
-69-
FIRST UNION NATIONAL BANK, as a Bank
By:__________________________________
Title:
-70-
NATIONSBANK, N.A., as a Bank
By:__________________________________
Title:
-71-
CITIBANK, N.A., as a Bank
By:__________________________________
Title:
-72-
THE NORTHERN TRUST COMPANY, as a Bank
By:__________________________________
Title:
-73-
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH, as a Bank
By:__________________________________
Title:
-74-
WACHOVIA BANK, N.A., as a Bank
By:__________________________________
Title:
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, as a Bank
By:__________________________________
Title:
-76-
SCHEDULE I
Domestic Eurocurrency
Name of Bank Commitment Lending Office Lending Office
------------------------ ---------- --------------------------- ---------------------------
The First National Bank $39,500,000 One First National Plaza
of Chicago ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Bank of Montreal $32,000,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Phone:
FAX:
First Union National $32,000,000 Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Bank Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
NationsBank, N.A. $25,000,000 Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Citibank, N.A. $25,000,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
The Northern Trust $25,000,000 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Company ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
11th Floor
Phone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
The Industrial Bank of $10,000,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Japan, Limited, Suite 2600
Chicago Branch ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
-2-
Wachovia Bank, N.A. $10,000,000 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Eagle
Phone:
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Business and Credit Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Seaway National Bank of $ 1,500,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
-3-
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five-Year Credit Agreement dated as of December 11,
1998 (as amended or modified from time to time, the "Five-Year Credit
----------------
Agreement") among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware corporation (the
---------
"Company"), the Banks (as defined in the Five-Year Credit Agreement) parties
-------
thereto and The First National Bank of Chicago, as Administrative Agent for the
Banks (the "Administrative Agent"). Terms defined in the Five-Year Credit
--------------------
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
1. The Assignor sells and assigns to the Assignee, and the Assignee
purchases and assumes from the Assignor, an interest in and to the Assignor's
rights and obligations under the Five-Year Credit Agreement as of the date
hereof (other than in respect of Uncommitted Advances and Uncommitted Notes)
equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Five-Year Credit Agreement (other
than in respect of Uncommitted Advances and Uncommitted Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Committed Advances owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Five-Year Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Five-Year Credit Agreement or any other instrument
or document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or any Borrowing Subsidiary or the performance or observance by
the Company or any Borrowing Subsidiary of any of their respective obligations
under the Five-Year Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Committed Note held by the
Assignor and requests that the Administrative Agent exchange such Committed Note
for a new Committed Note payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto or new Committed Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the Five-Year Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Five-Year
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
------------
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will,
-1-
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Five-Year Credit Agreement; (iii) confirms that it
is an Eligible Assignee; (iv) appoints and authorizes the Administrative Agent
to take such action as contractual representative on its behalf and to exercise
such powers and discretion under the Five-Year Credit Agreement as are delegated
to the Administrative Agent by the terms thereof; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Five-Year Credit Agreement are required to be performed by it as a Bank;
and (vi) attaches any U.S. Internal Revenue Service forms required under Section
-------
2.19 of the Five-Year Credit Agreement.
----
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Company for acceptance and then to the Administrative Agent for
acceptance and recording. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
--------------
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Five-Year Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
--------
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Five-Year Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Five-Year Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Five-
Year Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
8. This Assignment and Acceptance 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 which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
-2-
SCHEDULE I
to
Assignment and Acceptance
dated _______________
Percentage interest assigned: ___%
Assignee's Commitment: $_____________
Aggregate outstanding principal
amount of Committed Advances
assigned: $_____________
Principal amount of Committed Note
payable to Assignee: $_____________
Principal amount of Committed Note
payable to Assignor: $_____________
Effective Date: _____________, ____
[NAME OF ASSIGNOR],
as Assignor
By:___________________
Title:
Dated:
[NAME OF ASSIGNEE], as
Assignee
By:___________________
Title:
Dated:
Applicable Lending Offices:
Domestic: [address]
Eurocurrency: [address]
Uncommitted
Advances: [address]
Accepted and approved,
-3-
______________, _____
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:_____________________
Title:
Accepted and approved,
______________, ____
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS
COMPANY
By:_____________________
Title:
-4-
EXHIBIT B
[Form of Assumption Letter]
__________________, ____
To the Banks parties to the
Five-Year Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement dated as of December
11, 1998 among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, the Banks named therein and The
First National Bank of Chicago, as Administrative Agent for such Banks (as
amended and in effect from time to time, the "Five-Year Credit Agreement").
Terms defined in the Five-Year Credit Agreement and capitalized herein are used
herein as defined therein.
The undersigned, ___________ (the "Subsidiary"), a _________________
corporation, proposes to become a "Borrowing Subsidiary" under the Five-Year
Credit Agreement, and accordingly agrees that from the date hereof it shall
become a "Borrowing Subsidiary" under the Five-Year Credit Agreement and agrees
that from the date hereof and until the payment in full of the principal of and
interest on all Advances made to it under the Five-Year Credit Agreement and
performance of all of its other obligations thereunder, and termination
hereunder of its status as a "Borrowing Subsidiary" as provided below, it shall
perform, comply with and be bound by each of the provisions of the Five-Year
Credit Agreement which are stated to apply to the "Company", a "Borrowing
Subsidiary" or a "Borrower". Without limiting the generality of the foregoing,
that Subsidiary represents and warrants that: (i) each of the representations
and warranties set forth in Sections 4(a), (b), (c) and (d) of the Five-Year
------------- --- --- ---
Credit Agreement is hereby made by such Subsidiary on and as of the date hereof
as if made on and as of the date hereof and as if such Subsidiary is the
"Company", this Assumption Letter is the "Agreement" referenced therein and each
Note issued by such Borrowing Subsidiary is the "Note" referenced therein, and
(ii) it has heretofore received a true and correct copy of the Five-Year Credit
Agreement (including any modifications thereof or supplements or waivers
thereto) as in effect on the date hereof.
So long as the principal of and interest on all Advances made to the
Subsidiary under the Five-Year Credit Agreement shall have been paid in full and
all other obligations of the Subsidiary shall have been fully performed, the
Subsidiary may by not less than five Business Days' prior notice to the Banks
terminate its status as a "Borrowing Subsidiary."
The Subsidiary irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Illinois state court or
federal court of the United States of America sitting in Chicago, Illinois, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Assumption Letter, the Five-Year Credit Agreement or the
Notes, or for recognition or enforcement of any judgment, and the Subsidiary
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such Illinois state
court or, to the extent permitted by law, in such federal court. The Subsidiary
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Assumption Letter shall
affect any right that any Bank or the Administrative Agent may otherwise have to
bring any action or proceeding relating to this Assumption Letter, the Five-Year
Credit Agreement or the Notes in the courts of any jurisdiction.
The Subsidiary irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Assumption Letter, the Five-Year Credit Agreement or the Notes
in any Illinois state or federal court. The Subsidiary irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
This Assumption Letter shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By _______________________________
Title:
Address for Notices under
the Five-Year Credit Agreement:
Consented to:
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS
COMPANY
By:_______________________
Title:
-2-
EXHIBIT C
FORM OF DESIGNATION AGREEMENT
Dated_______________, ____
Reference is made to the Five-Year Credit Agreement dated as of December
11, 1998 (as amended or modified from time to time, the "Five-Year Credit
----------------
Agreement") among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware corporation (the
---------
"Company"), the Banks (as defined in the Five-Year Credit Agreement) parties
--------
thereto and The First National Bank of Chicago, as Administrative Agent for the
Banks (the "Administrative Agent"). Terms defined in the Five-Year Credit
--------------------
Agreement are used herein with the same meaning.
__________________ (the "Designor") and _________________ (the "Designee")
-------- --------
agree as follows:
1. The Designor designates the Designee, and the Designee accepts such
designation, to have a right to make Competitive Bid Advances pursuant to
Section 2.03 of the Five-Year Credit Agreement.
------------
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Five-Year Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, the
Five-Year Credit Agreement or any other instrument or document furnished
pursuant thereto; and (ii) the financial condition of the Company or any
Borrowing Subsidiary or the performance or observance by the Company or any
Borrowing Subsidiary of any of their respective obligations under the Five-Year
Credit Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Five-Year
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
------------
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designor or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Five-Year Credit Agreement; (iii) confirms that it is a Designated Bidder;
(iv) appoints and authorizes the Administrative Agent to take such action as
contractual representative on its behalf and to exercise such powers and
discretion under the Five-Year Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Five-Year Credit Agreement are required to be performed by it as a Bank.
4. Following the execution of this Designation Agreement by the Designor and
its Designee, it will be delivered to the Company for acceptance and then to the
Administrative Agent for acceptance and recording. The effective date for this
Designation Agreement (the "Effective Date") shall be the date of acceptance
--------------
hereof by the Administrative Agent, unless otherwise specified on the signature
page hereto.
5. Upon such acceptance and recording by the Administrative Agent, as of the
Effective Date, the Designee shall be a party to the Five-Year Credit Agreement
with a right to make Competitive Bid Advances as a Bank pursuant to Section 2.03
------------
of the Five-Year Credit Agreement and the rights and obligations of a Bank
related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
7. This Designation 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 which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Designation Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and Designee have caused this Designation
Agreement to be executed by their officers thereunto duly authorized as of the
date specified thereon.
Effective Date: ____________________, ____
[NAME OF DESIGNOR],
as Designor
By:_______________________________
Title:
[NAME OF DESIGNEE],
as Designee
By:_______________________________
Title:
Applicable Lending Office (and
address for notices):
-2-
Accepted and approved,
_____________, ____
THE FIRST NATIONAL BANK
OF CHICAGO
as Administrative Agent
By:_____________________
Title:
Accepted and approved,
______________, ____
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS
COMPANY
By:_____________________
Title:
-3-
EXHIBIT D-1
FORM OF COMMITTED NOTE
Dated:_______________, ____
FOR VALUE RECEIVED, the undersigned, [▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY, a
Delaware corporation] [NAME OF APPLICABLE BORROWING SUBSIDIARY, a
__________________ corporation] (the "Company"), PROMISES TO PAY to the order of
-------
________________________ (the "Bank") for the account of its Applicable Lending
----
Office on the Termination Date (each as defined in the Five-Year Credit
Agreement referred to below) the aggregate principal amount of the Committed
Advances made by the Bank to the Company pursuant to the Five-Year Credit
Agreement dated as of December 11, 1998 among [the Company] [▇.▇. ▇▇▇▇▇▇▇▇▇ &
Sons Company], the Bank and certain other banks parties thereto, and The First
National Bank of Chicago, as Administrative Agent for the Bank and such other
banks (as amended or modified from time to time, the "Five-Year Credit
----------------
Agreement"); the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Company promises to pay interest on the unpaid principal amount of each
Committed Advance made to it from the date of such Committed Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Five-Year Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to The First National Bank of Chicago, as Administrative
Agent, at the address specified pursuant to Article II of the Five-Year Credit
Agreement, in same day funds. Each Committed Advance owing to the Bank by the
Company pursuant to the Five-Year Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Bank and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Committed Notes referred to in, and is
entitled to the benefits of, the Five-Year Credit Agreement. The Five-Year
Credit Agreement, among other things, (i) provides for the making of Committed
Advances by the Bank to the Company from time to time, the indebtedness of the
Company resulting from each such Committed Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
[▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY]
[NAME OF APPLICABLE BORROWING
SUBSIDIARY]
By: _______________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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EXHIBIT D-2
FORM OF UNCOMMITTED NOTE
U.S. $_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, [▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY, a
Delaware corporation] [NAME OF APPLICABLE BORROWING SUBSIDIARY, a
__________________ corporation] (the "Company"), PROMISES TO PAY to the order of
-------
________________________ (the "Bank") for the account of its Applicable Lending
----
Office (as defined in the Five-Year Credit Agreement dated as of December 11,
1998 among [the Company] [▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company], the Bank and certain
other banks parties thereto, and The First National Bank of Chicago, as
Administrative Agent for the Bank and such other banks (as amended or modified
from time to time, the "Five-Year Credit Agreement"; the terms defined therein
--------------------------
being used herein as therein defined) on _______________, 19__, the principal
amount of U.S.$______________.
The Company promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Interest Payment Date(s):
Both principal and interest are payable in lawful money of the United
States of America to The First National Bank of Chicago, for the account of the
Bank, at the address specified pursuant to Article II of the Five-Year Credit
Agreement, in same day funds.
This Promissory Note is one of the Uncommitted Notes referred to in, and is
entitled to the benefits of, the Five-Year Credit Agreement. The Five-Year
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereupon upon the happening of certain stated events.
The Company waives presentment, demand, protest and notice of any kind. No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
[▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY]
[NAME OF APPLICABLE BORROWING
SUBSIDIARY]
By:____________________________
Title:
EXHIBIT E-1
NOTICE OF COMMITTED BORROWING
[Administrative Agent's
name and address]
[DATE]
Ladies and Gentlemen:
The undersigned, ________________, refers to the Five-Year Credit Agreement
dated as of December 11, 1998 (as amended, modified or supplemented from time to
time, the "Five-Year Credit Agreement", the terms defined therein being used
herein as therein defined), among [the undersigned,] [▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons
Company (the "Company"], certain Banks parties thereto and The First National
Bank of Chicago, as Administrative Agent for such Banks, and notifies you,
pursuant to Section 2.02 of the Five-Year Credit Agreement, that the undersigned
------------
requests a Committed Borrowing under the Five-Year Credit Agreement, and in that
connection sets forth below the information relating to such Committed Borrowing
(the "Proposed Committed Borrowing") as required by Section 2.02(a) of the Five-
---------------
Year Credit Agreement:
(i) The Business Day of the Proposed Committed Borrowing is
__________, ____.
(ii) The Type of Committed Advances comprising the Proposed Committed
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The currency for the Proposed Committed Borrowing is [Dollars]
[type of Alternative Currency].
(iv) The aggregate amount of the Proposed Committed Borrowing is
$__________.
(v) The Interest Period for each Eurocurrency Rate Advance made as
part of the Proposed Committed Borrowing is ______ month[s].
The undersigned certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Committed Borrowing:
(a) the representations and warranties contained in subsections (a),
(b), (c), (d), (f)(ii) and (h) through (p) of Section 4.01 of the Five-Year
------------
Credit Agreement are correct, before and after giving effect to the Proposed
Committed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Committed Borrowing or from the application of the proceeds
therefrom, that constitutes an Event of Default or that would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both; and
(c) the aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted
amount) of indebtedness for borrowed money (after giving effect to the
Proposed Committed Borrowing and the application of the proceeds thereof)
of [the undersigned] [the Company] and its Subsidiaries does not exceed the
maximum amount thereof presently authorized by [the undersigned's] [the
Company's] Board of Directors.
Very truly yours,
[NAME OF BORROWER]
By: __________________________
Title:
-2-
EXHIBIT E-2
NOTICE OF UNCOMMITTED BORROWING
_________________________
_________________________
_________________________
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, _____________, refers to the Five-Year Credit Agreement,
dated as of December 11, 1998 ( as amended, modified or supplemented from time
to time, the "Five-Year Credit Agreement", the terms defined therein being used
herein as therein defined), among [the undersigned] [▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons
Company (the "Company")], certain Banks parties thereto and The First National
Bank of Chicago, as Administrative Agent for such Banks, and notifies you
pursuant to Section 2.03 of the Five-Year Credit Agreement that the undersigned
------------
requests an Uncommitted Borrowing under the Five-Year Credit Agreement, and in
that connection sets forth the terms on which such Uncommitted Borrowing (the
"Proposed Uncommitted Borrowing") is requested to be made:
(A) Date: ________ ___________
(B) Amount: $______________________
(C) Type of Quote Requested:/1/
Uncommitted Borrowing Margin ___ Fixed Rate ___
(D) Maturity Date: ______________________
Prepayment terms: May [not] be prepaid,
[with] [without] penalty
Prepayment penalty:/2/ ______________________
(E) Interest Payment Date(s): ___________________
(F) Borrower:
(G) Other terms:
The undersigned certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Uncommitted Borrowing:
(a) the representations and warranties contained in subsections (a),
(b), (c), (d), (f)(ii) and (h) through (p) of Section 4.01 are correct,
before and after giving effect to the Proposed Uncommitted 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 the
Proposed Uncommitted Borrowing or from the application of the proceeds
therefrom, that constitutes an Event of Default or that would constitute an
Event of Default but for the requirement that notice be given or time elapse
or both;
(c) the aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted
amount) of indebtedness for borrowed money (after giving effect to the
Proposed Uncommitted Borrowing and to the application of proceeds therefrom)
of [the undersigned] [the Company] and its Subsidiaries does not exceed the
maximum amount thereof presently authorized by the Board of Directors of
[the undersigned] [the Company];
The undersigned confirms that the Proposed Uncommitted Borrowing is to be
made available to it in accordance with Section 2.03(a)(iv) of the Five-Year
-------------------
Credit Agreement.
[NAME OF BORROWER]
By: __________________________
Title:
-2-
EXHIBIT F
FORM OF NOTICE OF CONVERSION OR CONTINUATION
TO: The First National Bank of Chicago, as Administrative Agent (the
"Administrative Agent") under that certain Five-Year Credit Agreement
dated as of December 11, 1998 (the "Five-Year Credit Agreement") by
and among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company (the "Company"), the
Administrative Agent and the Banks parties thereto.
Pursuant to the terms and conditions of the Five-Year Credit Agreement,
this Notice of Conversion or Continuation ("Notice") represents the election of
the Company to [insert one of the following]:
/3/ convert $__________ in aggregate principal amount of Base Rate Advances to
Eurocurrency Rate Advances on __________, _____. The initial Interest Period
for such Eurocurrency Rate Advances is requested to be a __________ (_____)
month period. [and] /4/
/5/ convert $__________ in aggregate principal amount of Eurocurrency Rate
Advances with a current Interest Period ending _____________ to Base Rate
Advances on __________, _____.
/6/ continue as Eurocurrency Rate Advances $__________ in aggregate principal
amount of presently outstanding Eurocurrency Rate Advances with a current
Interest Period ending __________, for a _____ month period commencing on
__________, _____.
Unless otherwise defined herein, terms defined in the Five-Year Credit
Agreement shall have the same meanings in this Notice.
Dated: __________, ____.
[NAME OF BORROWER]
By____________________________
Title:________________________
EXHIBIT G
Opinion of Counsel to the Company
December 11, 1998
To each of the Banks parties to
the "Five-Year Credit Agreement" (as defined below),
and to The First National Bank
of Chicago, as Administrative Agent
Re: ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company
-----------------------------
Ladies and Gentlemen:
We have acted as counsel to ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware
corporation (the "Company"), in connection with the Five-Year Credit Agreement
of even date herewith (the "Five-Year Credit Agreement") among the Company, the
financial institutions parties thereto (the "Banks") and The First National Bank
of Chicago, as Administrative Agent, and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Company pursuant to
Section 3.01(a)(v) of the Five-Year Credit Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the Five-Year Credit
Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Five-Year Credit
Agreement and the promissory notes delivered on the date hereof to the Banks
signatory to the Five-Year Credit Agreement (the "Notes").
In rendering the opinions set forth herein, we have also examined originals
or copies, certified to our satisfaction, of such (i) certificates of public
officials, (ii) certificates of officers and representatives of the Company, and
(iii) other documents and records, and we have made such inquiries of officers
and representatives of the Company, as we have deemed relevant or necessary as
the basis for such opinions. We have relied as to factual matters upon, and
assumed the accuracy of, such certificates, the representations and warranties
of the Company made in the Five-Year Credit Agreement, and other statements,
documents and records supplied to us by the Company, and we have assumed the
genuineness of all signatures (other than signatures of officers of the Company)
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
The First National Bank of Chicago, et al
December [11], 1998
Page 2
(i) all the parties to the Five-Year Credit Agreement, other than the
Company, are duly organized, validly existing, and in good standing under the
laws of their respective jurisdictions of organization and have the requisite
corporate power to enter into the Five-Year Credit Agreement; and
(ii) the execution and delivery of the Five-Year Credit Agreement have
been duly authorized by all necessary corporate action and proceedings on the
part of all parties thereto other than the Company; the Five-Year Credit
Agreement has been duly executed and delivered by all parties thereto and
constitutes the valid and binding obligation of all parties thereto other than
the Company, enforceable against such parties in accordance with its terms.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. The Company has been duly organized and is validly existing and in good
standing under the laws of the State of Delaware. The Company has the requisite
corporate power and authority to conduct its business as currently conducted.
2. The Company has the requisite corporate power and authority to execute,
deliver and perform its obligations under the Five-Year Credit Agreement and the
Notes. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper corporate action
of the Company,
(b) do not violate any provision of the certificate of incorporation or
by-laws of the Company or require any approval of the Company's
stockholders,
(c) do not violate the General Corporation Law of the State of Delaware,
any law or regulation of the State of Illinois (including, without
limitation, any usury laws) or of the United States of America applicable
to the Company,
(d) do not contravene that certain Indenture dated as of November 1,1990,
between the Company and Citibank, N.A., as Trustee, or, to our knowledge,
any other material agreement or instrument binding on the Company.
3. The Five-Year Credit Agreement constitutes, and from and after the
initial Committed Borrowing the Committed Notes will constitute, the valid and
binding obligations of the Company, enforceable in accordance with their
respective terms.
-2-
The First National Bank of Chicago, et al
December [11], 1998
Page 3
4. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the Company's execution or delivery of the Five-Year Credit Agreement or the
Notes, or for the Company's performance of any of the terms thereof.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and enforceability
in Paragraph 3 above are subject to limitations imposed by any applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws affecting creditors' rights generally. In addition, our opinions
relating to enforceability in paragraph 3 above are subject to (i) the effect of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law) and (ii) limitations imposed by public policy under certain
circumstances on the enforceability of provisions indemnifying a party against
liability for its own wrongful or negligent acts. In applying principles of
equity referred to in clause (i) above, a court, among other things, might not
allow a creditor to accelerate maturity of a debt upon the occurrence of a
default deemed immaterial. Such principles applied by a court might include a
requirement that a creditor act reasonably and in good faith.
(b) Certain remedial and waiver provisions of the Five-Year Credit
Agreement may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Five-Year Credit Agreement;
however, the unenforceability of such provisions may result in delays in the
enforcement of the Administrative Agent's and the Banks' rights and remedies
under the Five-Year Credit Agreement (and we express no opinion as to the
economic consequences, if any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Banks because of the Administrative Agent's or any of the Banks' legal or
regulatory status, the nature of the business of the Administrative Agent or any
of the Banks or the qualification of any such party to conduct business in any
jurisdiction.
The foregoing opinions are limited to the laws of the United States, the
State of Illinois and the General Corporation Law of the State of Delaware, and
we express no opinion with respect to the laws of any other state or
jurisdiction.
Whenever in this opinion reference is made to our knowledge, such reference
is to the conscious awareness of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ of information regarding factual matters. With respect to
such matters, such persons have not, with your express permission and consent,
undertaken any investigation or inquiry either of other
-3-
The First National Bank of Chicago, et al
December [11], 1998
Page 4
lawyers, files maintained by the firm, or officers or employees of the Company
or any of its Subsidiaries. The reference to "conscious awareness" as used in
this paragraph has the meaning given that phrase in the Third-Party Legal
-----------------
Opinion Report, Including the Legal Opinion Accord, of the Section of Business
------------------------------------------------------------------------------
Law, American Bar Association, 47 Bus. Law. 167, 192 (1991).
-----------------------------
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the Five-Year Credit Agreement and may not be relied on in any
manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity without our express prior written consent, except that you may furnish
copies thereof to each party that becomes a Bank after the date hereof pursuant
to the Five-Year Credit Agreement, and such parties may rely on this opinion as
if it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 4. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
-4-
CERTIFICATE
I, ___________________, am the _____________ ___________________ of ▇.▇.
▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware corporation (the "Company"). The Company
is entering into a Five-Year Credit Agreement dated as of December 11, 1998,
with the banks party thereto ("Banks") and The First National Bank of Chicago,
as Administrative Agent ("Administrative Agent") for such Banks (the "Five-Year
Credit Agreement").
The Five-Year Credit Agreement requires that Sidley & Austin issue a legal
opinion to the Administrative Agent and the Banks. In connection with such
legal opinion, the Company certifies to Sidley & Austin that:
1. Not more than twenty-five percent (25%) of the value of the assets
subject to any "arrangement" (as such term is used in Section 221.2(g)(1) of
Regulation U of the Board of Governors of the Federal Reserve System) under the
Five-Year Credit Agreement is represented by "margin stock" (as such term is
defined in Regulation U of the Board of Governors of the Federal Reserve
System).
2. The Company has not granted to the Administrative Agent or the Banks
any direct security for the Company's obligations to the Administrative Agent
and the Banks under the Five-Year Credit Agreement.
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
By:_______________________
Title:
Dated: December 11, 1998
EXHIBIT H
Opinion of Counsel to a Borrowing Subsidiary
[Date]
To each of the Banks parties to
the "Five-Year Credit Agreement" (as defined below),
and to The First National Bank
of Chicago, as Administrative Agent
Re: [Borrowing Subsidiary]
----------------------
Ladies and Gentlemen:
We have acted as counsel to ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware
corporation (the "Company") and __________________, a ___________ corporation
and Subsidiary of the Company (the "Borrowing Subsidiary"), in connection with
the Five-Year Credit Agreement dated as of December 11, 1998 (as the same has
been or may be amended, modified or supplemented, the "Five-Year Credit
Agreement") among the Company, the financial institutions parties thereto (the
"Banks") and The First National Bank of Chicago, as Administrative Agent, and
the transactions contemplated thereby.
This opinion is furnished to you at the request of the Company pursuant to
Section 3.02(d) of the Five-Year Credit Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the Five-Year Credit
Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Five-Year Credit
Agreement, the Assumption Letter of even date herewith executed by the Borrowing
Subsidiary and delivered to the Banks (the "Assumption Letter") and the
promissory notes executed by the Borrowing Subsidiary on the date hereof and
delivered to the Banks (the "Notes").
In rendering the opinions set forth herein, we have also examined originals
or copies, certified to our satisfaction, of such (i) certificates of public
officials, (ii) certificates of officers and representatives of the Company and
the Borrowing Subsidiary (including the certificate attached hereto (the
"Certificate")), and (iii) other documents and records, and we have made such
inquiries of officers and representatives of the Company and the Borrowing
Subsidiary, as we have deemed relevant or necessary as the basis for such
opinions. We have relied as to factual matters upon, and assumed the accuracy
of, such certificates, the representations and warranties of the Company and the
Borrowing Subsidiary made (or deemed made) in the Five-Year Credit Agreement and
the Assumption Letter, and other statements, documents and records
supplied to us by the Company and the Borrowing Subsidiary, and we have assumed
the genuineness of all signatures (other than signatures of officers of the
Borrowing Subsidiary) and the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents submitted to
us as certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Five-Year Credit Agreement and the Assumption
Letter, other than the Borrowing Subsidiary, are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of organization and have the requisite corporate power to enter into the Five-
Year Credit Agreement and the Assumption Letter; and
(ii) the execution and delivery of the Five-Year Credit Agreement have
been duly authorized by all necessary corporate action and proceedings on the
part of all parties thereto; the Five-Year Credit Agreement has been duly
executed and delivered by all parties thereto and constitutes the valid and
binding obligation of all parties thereto, other than the Borrowing Subsidiary,
enforceable against such parties in accordance with its terms.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. The Borrowing Subsidiary has been duly organized and is validly
existing and in good standing under the laws of _____________. The Borrowing
Subsidiary has the requisite corporate power and authority to conduct its
business as currently conducted.
2. The Borrowing Subsidiary has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Assumption
Letter, the Five-Year Credit Agreement and the Notes. Such execution, delivery
and performance:
(a) have been duly authorized by all necessary and proper corporate action
of the Borrowing Subsidiary,
(b) do not violate any provision of the certificate of incorporation or by-
laws of the Borrowing Subsidiary or require any approval of the Borrowing
Subsidiary's stockholders,
(c) will not violate any law or regulation of ____________, the State of
Illinois (including, without limitation, any usury laws) or of the United
States of America applicable to the Borrowing Subsidiary, and
(d) do not contravene any agreement set forth on the Certificate, or, to
our knowledge, any other material agreement or instrument binding on the
Borrowing Subsidiary.
/7/ To be revised if the Borrowing Subsidiary is not a domestic
corporation.
3. The Assumption Letter constitutes, and from and after the initial
Committed Borrowing to the Borrowing Subsidiary, the Notes will constitute, the
valid and binding obligations of the Borrowing Subsidiary, enforceable in
accordance with their respective terms.
4. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the Borrowing Subsidiary's execution or delivery of the Assumption Letter or the
Notes, or for the Borrowing Subsidiary's performance of any of the terms
thereof.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and enforceability
in Paragraph 3 above are subject to limitations imposed by any applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws affecting creditors' rights generally. In addition, our opinions
relating to enforceability in paragraph 3 above are subject to (i) the effect of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law) and (ii) limitations imposed by public policy under certain
circumstances on the enforceability of provisions indemnifying a party against
liability for its own wrongful or negligent acts. In applying principles of
equity referred to in clause (i) above, a court, among other things, might not
allow a creditor to accelerate maturity of a debt upon the occurrence of a
default deemed immaterial. Such principles applied by a court might include a
requirement that a creditor act reasonably and in good faith.
(b) Certain remedial and waiver provisions of the Five-Year Credit
Agreement applicable to the Borrowing Subsidiary pursuant to the Assumption
Letter may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Assumption Letter; however, the
unenforceability of such provisions may result in delays in the enforcement of
the Administrative Agent's and the Banks' rights and remedies under the
Assumption Letter (and we express no opinion as to the economic consequences, if
any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Banks because of the Administrative Agent's or any of the Banks' legal or
regulatory status, the nature of the business of the Administrative Agent or any
of the Banks or the qualification of any such party to conduct business in any
jurisdiction.
The foregoing opinions are limited to the laws of the United States, the
State of Illinois and the corporate law of [jurisdiction where the Borrowing
Subsidiary is incorporated] and we express no opinion with respect to the laws
of any other state or jurisdiction.
[Whenever in this opinion reference is made to our knowledge, such
reference is to the conscious awareness of [insert appropriate names] of
information regarding factual matters. With respect to such matters, such
persons have not, with your express permission and consent, undertaken any
investigation or inquiry either of other lawyers, files maintained by the firm,
or
Page 4
officers or employees of the Company or any of its Subsidiaries (including
without limitation the Borrowing Subsidiary). The reference to "conscious
awareness" as used in this paragraph has the meaning given that phrase in the
Third-Party Legal Opinion Report, Including the Legal Opinion Accord, of the
----------------------------------------------------------------------------
Section of Business Law, American Bar Association, 47 Bus. Law. 167, 192
-------------------------------------------------
(1991).]
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the Five-Year Credit Agreement and may not be relied on in any
manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity without our express prior written consent, except that you may furnish
copies thereof to each party that becomes a Bank after the date hereof pursuant
to the Five-Year Credit Agreement, and such parties may rely on this opinion as
if it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 4. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
-4-
By:______________________
Title:
Dated: ____________________