EXHIBIT 10(i) - AMENDED AND RESTATED COMPOSIT CREDIT AGREEMENT
COMPOSITE
COPY
FOR
CONVENIENCE ONLY
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
BEMIS COMPANY, INC.
THE BANKS LISTED HEREIN
AND
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, AS AGENT
U.S. $334,000,000
Originally dated as of August 1, 1986
First Amendment and Restatement dated as of August 1, 1991
Second Amendment and Restatement as of March 31, 1997
Third Amendment and Restatement as of February 1, 1998 (as amended as of June 30, 1998)
Fourth Amendment and Restatement as of August 2, 1999
TABLE OF CONTENTS
Section
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Page
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| SECTION 1. |
|
INTERPRETATIONS AND DEFINITIONS |
|
1 |
| 1.1 |
|
Definitions |
|
1 |
| 1.2 |
|
Accounting Terms and Determinations |
|
6 |
SECTION 2. |
|
THE LOANS |
|
7 |
| 2.1 |
|
The Loans |
|
7 |
| 2.2 |
|
[Intentionally Omitted.] |
|
7 |
| 2.3 |
|
Method of Borrowing |
|
7 |
| 2.4 |
|
The Notes |
|
8 |
| 2.5 |
|
Maturity of Loans |
|
8 |
| 2.6 |
|
Interest Rates |
|
9 |
| 2.7 |
|
Facility Fee |
|
11 |
| 2.8 |
|
Optional Termination or Reduction of Commitments |
|
11 |
| 2.9 |
|
Mandatory Termination or Reduction of Commitments |
|
11 |
| 2.10 |
|
Optional Prepayments |
|
12 |
| 2.11 |
|
General Provisions as to Payments |
|
12 |
| 2.12 |
|
Computation of Interest and Fees |
|
12 |
| 2.13 |
|
Funding Losses |
|
12 |
| 2.14 |
|
Extension of Commitment |
|
13 |
SECTION 3. |
|
CONDITIONS OF LENDING |
|
13 |
| 3.1 |
|
All Loans |
|
13 |
| 3.2 |
|
Initial Loans |
|
13 |
SECTION 4. |
|
CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS |
|
14 |
| 4.1 |
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Basis for Determining Interest Rate Inadequate |
|
14 |
| 4.2 |
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Illegality |
|
15 |
| 4.3 |
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Increased Costs |
|
15 |
SECTION 5. |
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REPRESENTATIONS AND WARRANTIES |
|
16 |
| 5.1 |
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Corporate Existence and Power |
|
16 |
| 5.2 |
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Corporate Authorization |
|
17 |
| 5.3 |
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Binding Effect |
|
17 |
| 5.4 |
|
Financial Statements |
|
17 |
| 5.5 |
|
Litigation |
|
17 |
| 5.6 |
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Taxes |
|
18 |
| 5.7 |
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Governmental and other Approvals |
|
18 |
| 5.8 |
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Compliance with ERISA |
|
18 |
| 5.9 |
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Environmental Matters |
|
18 |
SECTION 6. |
|
COVENANTS |
|
18 |
| 6.1 |
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Financial Statements |
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18 |
| 6.2 |
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Maintenance of Existence |
|
20 |
| 6.3 |
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Maintenance of Properties |
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20 |
| 6.4 |
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Compliance with Laws |
|
20 |
| 6.5 |
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Notice of Proceedings |
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20 |
| 6.6 |
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Use of Proceeds |
|
21 |
| 6.7 |
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Payment of Taxes |
|
21 |
| 6.8 |
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Insurance |
|
21 |
| 6.9 |
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Ratio of Total Debt to Consolidated Tangible Net Worth |
|
21
|
| 6.10 |
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Minimum Consolidated Tangible Net Worth |
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21 |
| 6.11 |
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Negative Pledge |
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21 |
| 6.12 |
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Consolidations, Mergers and Sales of Assets |
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22 |
SECTION 7. |
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EVENTS OF DEFAULT |
|
22 |
SECTION 8. |
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THE AGENT |
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24 |
| 8.1 |
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Appointment and Authorization |
|
24 |
| 8.2 |
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Agent and Affiliates |
|
24 |
| 8.3 |
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Action by Agent |
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25 |
| 8.4 |
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Consultation with Experts |
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25 |
| 8.5 |
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Liability of Agent |
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25 |
| 8.6 |
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Indemnification |
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25 |
| 8.7 |
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Failure to Act |
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25 |
| 8.8 |
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Resignation or Removal of Agent |
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25 |
| 8.9 |
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Credit Decision |
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26 |
SECTION 9. |
|
MISCELLANEOUS |
|
26 |
| 9.1 |
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Notices |
|
26 |
| 9.2 |
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Amendments and Waivers; Cumulative Remedies |
|
26 |
| 9.3 |
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Successors and Assigns |
|
27 |
| 9.4 |
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Expenses; Documentary Taxes |
|
28 |
| 9.5 |
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Sharing of Set-Offs |
|
28 |
| 9.6 |
|
Collateral |
|
29 |
| 9.7 |
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Counterparts |
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29 |
| 9.8 |
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Headings; Table of Contents |
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29 |
| 9.9 |
|
Governing Law |
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29 |
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 2, 1999 among BEMIS COMPANY, INC., a Missouri corporation (the "Borrower"), the BANKS
listed on the signature pages hereof (the "Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York State banking corporation, as agent for the Banks (the "Agent").
WHEREAS,
the Borrower, the Banks and the Agent entered into a Credit Agreement dated as of August 1, 1986, amended and restated as of August 1, 1991, as of
March 31, 1997, and as of February 1, 1998 (and further amended as of June 30, 1998) (the "Credit Agreement"); and
WHEREAS,
for administrative ease the parties wish to restate the Credit Agreement, incorporating all prior amendments, and to further amend certain provisions of the Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION 1. INTERPRETATIONS AND DEFINITIONS
1.1 Definitions. The following terms, as used herein, shall have the following respective meanings:
"Adjusted
CD Rate" has the meaning set forth in Section 2.6(B) hereof.
"Adjusted
Euro-Dollar Rate" has the meaning set forth in Section 2.6(C) hereof.
"Assessment
Rate" has the meaning set forth in Section 2.6(B) hereof.
"Base
Rate" means, for any day, a rate per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate
for such day.
"Base
Rate Loan" means a Loan which the Borrower specifies pursuant to Section 2.3 hereof shall be a Base Rate Loan.
"CD
Base Rate" has the meaning set forth in Section 2.6(B) hereof.
"CD
Loan" means a Loan which the Borrower specifies pursuant to Section 2.3 hereof shall be a CD Loan.
"CD
Margin" has the meaning set forth in section 2.6(B) hereof.
"CD
Reserve Percentage" has the meaning set forth in Section 2.6(B) hereof.
"Change
of Control" means the occurrence of any of the following events: (x) any "person" or "group" (within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 20% or more of the fully diluted Voting Securities of the Borrower
or (y) individuals who at the beginning of any period of two consecutive calendar years constituted the board of directors of the Borrower (together with any new directors whose election by the
board of directors of the Borrower or whose nomination for election by the Borrower's shareholders was approved by the members of the
board of directors of the Borrower then still in office who either were members of the board of directors of the Borrower at the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority of the members of the board of directors of the Borrower.
"Code"
means the Internal Revenue Code of 1986, as amended.
"Commitment"
means, with respect to each Bank, the amount set forth opposite the name of such Bank on the signature pages hereof, as such amount may be reduced from time to
time pursuant to Section 2.8 hereof.
"Consolidated
Subsidiary" means at any date any Subsidiary or other entity the accounts of which would be consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated
Tangible Net Worth" means at any date the consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries minus the following (to the extent reflected in determining such consolidated stockholder's equity):
(i) all write-ups (other than write-ups resulting from foreign currency translations and write-ups of assets of a going concern business made within twelve months after the acquisition
of such business) subsequent to March 31, 1986 in the book value of any asset owned by the Borrower or a Consolidated Subsidiary, (ii) all investments in unconsolidated Subsidiaries and
all equity investments in Persons which are not Subsidiaries and (iii) all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, organization or developmental expenses and other intangible items.
"Controlled
Group" means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the Code.
"Debt"
of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such Person as lessee under capital leases, (v) all obligations of such Person under take or pay or similar contracts, (vi) all
obligations of such Person to reimburse or indemnify the issuer of a letter of credit or Guarantee for drawings or payments thereunder, (vii) all Debt of others secured by a Lien on any asset
of such Person, whether or not such Debt is assumed by such Person, and (viii) all Debt of others Guaranteed by such Person.
"Default"
means any event or condition which constitutes an Event of Default or which with the giving of notice or lapse of time, or both, would become an Event of Default.
"Dollars"
and the sign "$" mean lawful money of the United States of America.
"Domestic
Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.
"Domestic
Lending Office" means, as to each Bank, its office located at its address set forth on the signature pages hereof (or identified on the signature pages hereof
as its Domestic Lending Office) or such other office as such Bank may hereafter designate as its Domestic Lending Office by notice to the
Borrower and the Agent; provided that any Bank may from time to time by notice to the Borrower and the Agent designate separate Domestic Lending Offices
for its Base Rate Loans, on the one hand, and its CD Loans, on the other hand, in which case all references herein to the Domestic Lending Office of such Bank shall be deemed to refer to either or
both of such offices, as the context may require.
"Domestic
Loans" means CD Loans or Base Rate Loans or both.
"Environmental
Laws" means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to the environment, to the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or wastes into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, Hazardous Substances or wastes or the clean-up or other remediation thereof.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as amended.
"Euro-Dollar
Business Day" means any Domestic Business Day on which commercial banks in London are open for domestic and international business (including dealings in Dollar
deposits).
"Euro-Dollar
Lending Office" means, as to each Bank, its office or branch located at its address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Euro-Dollar Lending Office) or such other branch (or affiliate) of such Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower and
the Agent.
"Euro-Dollar
Loan" means a Loan which the Borrower specifies pursuant to Section 2.3 hereof shall be a Euro-Dollar Loan.
"Euro-Dollar
Margin" has the meaning set forth in Section 2.6(C) hereof.
"Euro-Dollar
Reserve Percentage" has the meaning set forth in Section 2.6(C) hereof.
"Event
of Default" has the meaning set forth in Section 7 hereof.
"Federal
Funds Rate" means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate is so published on such next succeeding
Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Morgan Guaranty Trust Company of New York on such day on such transactions as determined by the Agent.
"Fixed
CD Rate" has the meaning set forth in Section 2.6(B) hereof.
"Fixed
Rate Loans" means CD Loans or Euro-Dollar Loans or both.
"Guarantee"
by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person or in any
manner providing for the payment of any Debt of any other Person or otherwise protecting the holder of such Debt against loss (whether by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions or otherwise); provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous
Substances" means any toxic, radioactive, caustic or otherwise hazardous substance, including petroleum, its derivatives, by-products and other hydrocarbons, or any
substance having any constituent elements displaying any of the foregoing characteristics.
"Interest
Period" means:
(1) with
respect to each CD Loan the period commencing on the date of such Loan and ending 30, 60, 90 or 180 days thereafter, as the Borrower may
elect; provided that any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to
the next succeeding Euro-Dollar Business Day;
(2) with
respect to each Euro-Dollar Loan the period commencing on the date of such Loan and ending one, two, three or six months thereafter, as the Borrower may
elect; provided that (a) any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business
Day; and (b) any Interest Period which begins on the last Euro-Dollar Business Day of the calendar month (or on a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Euro-Dollar Business Day of a calendar month; and
(3) with
respect to each Base Rate Loan, the period commencing on the date of such Loan and ending 30 days
thereafter; provided that any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day.
Any
Interest Period which begins before the Termination Date and would otherwise end after the Termination Date shall end on the Termination Date.
"Lien"
means, with respect to any asset, (i) any lien, charge, mortgage, security interest, pledge or other encumbrance of any kind in respect of such asset or (ii) the
interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
"Loan"
and "Loans" means a Domestic Loan or a Euro-Dollar Loan, or both, as the context may require.
"London
Interbank Offered Rate" has the meaning set forth in Section 2.6(C) hereof.
"Material
Subsidiary" means at any time a Subsidiary which as of such time meets the definition of a "significant subsidiary" contained as of the date hereof in Regulation S-X of the
Securities and Exchange Commission.
"Note"
means a promissory note of the Borrower, substantially in the form of Exhibit A hereto, evidencing the obligation of the Borrower to repay Loans.
"PBGC"
means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
"Person"
means an individual, a corporation, a partnership, an association, a business trust or any other entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan"
means at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is
either (i) maintained by a member of the Controlled Group for employees of a member of the Controlled Group or (ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which a member of the Controlled Group is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"Pricing
Schedule" means the Pricing Schedule substantially in the form of Schedule A hereto.
"Prime
Rate" means the rate of interest publicly announced by Morgan Guaranty Trust Company of New York in New York City from time to time as its Prime Rate.
"Reference
Bank" means Morgan Guaranty Trust Company of New York.
"Refunding
Loan" means a Loan which, after application of the proceeds thereof, results in no net increase in the outstanding principal amount of Loans made by any Bank.
"Regulation
U" means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Required
Banks" means at any time Banks holding at least 662/3% of the aggregate unpaid principal amount of the Notes or, if no Loans are at the time outstanding
hereunder, Banks having at least 662/3% of the aggregate amount of the Commitments.
"Subsidiary"
means any corporation or other entity of which capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions is at the time directly or indirectly owned by the Borrower.
"Termination
Date" means August 1, 2004, or such date to which the Commitments are extended pursuant to Section 2.14.
"Unfunded
Vested Liabilities" means, with respect to any Plan, the amount, if any, by which the present value of all vested benefits under such Plan exceeds the fair market value of
all Plan assets allowable to such benefits, as determined on the most recent valuation date of such Plan, but only to the extent that excess represents a potential liability of the Borrower or any
member of the Controlled Group to the PBGC or to such Plan under Title IV of ERISA.
"Voting
Securities" means any securities having ordinary power to vote for the election of directors.
"Wholly-Owned
Consolidated Subsidiary" means any Consolidated Subsidiary all of the shares of capital stock or other ownership interests of which (except directors' qualifying shares)
are at the time directly or indirectly owned by the Borrower.
1.2 Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to time, applied on a basis consistent with the most recent audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Bank.
SECTION 2. THE LOANS.
2.1 The Loans. From the date hereof, to and excluding the Termination Date, each Bank severally agrees,
on the terms and conditions contained in this Agreement, to lend to the Borrower from time to time amounts not exceeding in the aggregate at any one time outstanding the amount of its Commitment. Each
borrowing of Loans under this Section 2.1 shall be in the principal amount of $1,000,000 or an integral multiple thereof (except that any such borrowing may be in the aggregate amount of the
unused Commitments) and shall be made by the several Banks ratably in proportion to their respective Commitments. During such period and within the foregoing limits, the Borrower may borrow under this
Section 2.1, repay or prepay Loans and reborrow under this Section 2.1.
2.2 [Intentionally Omitted.]
2.3 Method of Borrowing.
(A) With
respect to each borrowing of Loans made pursuant to Section 2.1 hereof, the Borrower shall give the Agent notice (a "Notice of Borrowing") not later
than 10:30 a.m. (New York City time) on the same date of each borrowing of Base Rate Loans, at least one Domestic Business Day before each borrowing of CD Loans, or at least three Euro-Dollar
Business Days before each borrowing of Euro-Dollar Loans, specifying:
(i) the
date of such Loans, which shall be a Domestic Business Day in the case of Domestic Loans and a Euro-Dollar Business Day in the case of Euro-Dollar Loans;
(ii) the
principal amount of such borrowings of Loans;
(iii) whether
such Loans are to be Base Rate Loans, CD Loans or Euro-Dollar Loans; and
(iv) in
the case of Fixed Rate Loans, the duration of the Interest Period applicable thereto, subject to the definition of Interest Period.
(B) Upon
receipt of a Notice of Borrowing, the Agent shall promptly notify each Bank of the contents thereof and of such Bank's ratable share of the Loan specified
therein and such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(C) Not
later than noon (New York City time) on the date of each borrowing of Loans, each Bank shall (except as provided in Section 2.3(D)) make available its
ratable share of such borrowing, in Federal or other funds immediately available in New York City, to the Agent at its address set forth on the signature pages hereof or at such other address
as it may hereafter designate by notice to the Borrower and the Banks and, unless the Agent determines that any applicable condition specified in Section 4 has not been satisfied, the Agent
will promptly make the funds so received from the Banks available to the Borrower at the Agent's aforesaid address.
(D) If
any Bank makes a new Loan hereunder on a day on which the Borrower is to repay all or any part of an outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed and the amount being repaid shall be made available by such Bank
to the Agent as provided in Section 2.3(C), or remitted by the Borrower to the Agent as provided in Section 2.11, as the case may be.
2.4 The Notes. (A) The Loans of each Bank shall be evidenced by a single Note payable to the
order of such Bank for the account of its applicable lending office. Such Note shall be in substantially the form of Exhibit A hereto, shall be dated on or before the date of the first such
Loan, shall set forth the amount of such Bank's Commitment as the maximum principal amount thereof and shall have the blanks therein appropriately completed.
(B) Each
Bank may, by notice to the Borrower and the Agent, request that its Loans of a particular type be evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in substantially the form of Exhibit A hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to the "Note" of such Bank shall be deemed to refer to and include any or all of such Notes, as the context may require.
(C) Upon
receipt of each Bank's Note pursuant to Section 3.2(a), the Agent shall mail such Note to such Bank. Each Bank shall record and, prior to any transfer
of its Note, shall endorse on the schedules forming a part thereof appropriate notations evidencing the date, the amount and the maturity of each Loan to be evidenced by such Note and the date and
amount of each payment of principal made by the Borrower with respect thereto; provided that failure to make any such endorsement or notation shall not affect the obligations of the Borrower hereunder
or under any Note. Each Bank is hereby irrevocably authorized by the Borrower so to endorse the Notes and to attach to and make a part of any Note a continuation of any such schedule as and when
required.
2.5 Maturity of Loans. Each Loan shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Loan.
2.6 Interest Rates.
(A) Each
Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made until it becomes due, at a rate
per annum equal to the Base Rate. Such interest shall be payable for each Interest Period on the last day thereof. Overdue principal of and, to the extent permitted by law, overdue interest on the
Base Rate Loans shall bear interest for each day until paid at a rate per annum equal to the sum of 1% plus the otherwise applicable rate for such day.
(B) Each
CD Loan shall bear interest on the outstanding principal amount thereof, for each Interest Period applicable thereto, at a rate per annum equal to the
applicable Fixed CD Rate. Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than 90 days, at intervals of 90 days
after the first day thereof. Any overdue principal of and, to the extent permitted by law, overdue interest on the CD Loans shall bear interest for each day until paid at a rate per annum equal to the
sum of 1% plus the rate applicable to Base Rate Loans for such day.
The
"Fixed CD Rate" applicable to any CD Loan for any Interest Period means a rate per annum equal to the sum of the CD Margin plus the applicable Adjusted CD Rate.
The
"CD Margin" means a rate per annum determined in accordance with the Pricing Schedule.
The
"Adjusted CD Rate" applicable to any Interest Period means a rate per annum determined pursuant to the following formula:
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| ACDR = |
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[CDBR]*
[—————]
[1 - CDRP] |
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+ AR |
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- *
- The
amount in brackets being rounded upwards, if necessary, to the next higher 1/100 of 1%.
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| ACDR |
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= |
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Adjusted CD Rate for such Interest Period |
| CDBR |
|
= |
|
CD Base Rate for such Interest Period |
| AR |
|
= |
|
Assessment Rate |
| CDRP |
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= |
|
CD Reserve Percentage |
The
"CD Base Rate" means for any Interest Period the prevailing per annum rate of interest (rounded upward, if necessary, to the next higher (1/100 of 1%) determined by the Agent to
be the average of bid rates quoted to the Reference Bank at 10:00 a.m. (New York City time) (or as soon thereafter as is practicable) on the first day of such Interest Period by two or more New
York certificate of deposit dealers of recognized standing selected by the Reference Bank for the purchase at face value from the Reference Bank of its certificates of deposit in an amount comparable
to the principal amount of the CD Loan made by the Reference Bank to which such Interest Period applies and with a maturity comparable to such Interest Period.
The
"CD Reserve Percentage" means for any day, that percentage, expressed as a decimal, which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) for a member bank of the Federal Reserve System
in New York City with deposits exceeding five billion Dollars in respect of new non-personal time deposits in Dollars in New York City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Fixed CD Rate shall be adjusted automatically on and as of the effective date of any change in the CD Reserve Percentage.
The
"Assessment Rate" for any Interest Period means a rate per annum (rounded upwards, if necessary, to the next higher 1/100 of 1%) determined by the Agent to be the rate per annum
equal to (i) the gross annual assessment rate payable to the Federal Deposit Insurance Corporation (or any successor) by the Reference Bank for insuring the Reference Bank's domestic Dollar
deposits less (ii) the most recently determined credit against such assessments, expressed as an annual rate, available under applicable law to the Reference Bank, in each case as determined by
the Reference Bank as of the first day of such Interest Period.
(C) Each
Euro-Dollar Loan shall bear interest on the unpaid principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the sum
of the Euro-Dollar Margin plus the applicable Adjusted Euro-Dollar Rate. Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof.
The
"Adjusted Euro-Dollar Rate" applicable to any Interest Period means a rate per annum equal to the quotient obtained (rounded upwards, if necessary, to the next higher 1/100 of 1%)
by dividing (i) the applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The
"London Interbank Offered Rate" applicable to any Interest Period means the rate determined by the Agent to be the average of the rates per annum at which deposits in Dollars are
offered to the Reference Bank in the London interbank market at approximately 11:00 a.m. (London Time) two Euro-Dollar Business Days prior to the first day of such Interest Period in an amount
approximately equal to the aggregate unpaid principal amount of the Euro-Dollar Loan made by the Reference Bank to which such Interest Period is to apply and for a period of time comparable to such
Interest Period.
The
"Euro-Dollar Reserve Percentage" means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion dollars
in respect of "Eurocurrency liabilities" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a non-United States office of any Bank to United States residents). The Adjusted Euro-Dollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar Reserve Percentage.
The
"Euro-Dollar Margin" means a rate per annum determined in accordance with the Pricing Schedule.
Any
overdue principal of and, to the extent permitted by law, overdue interest on, any Euro-Dollar Loan shall bear interest payable on demand, for each day from the date payment
thereof was due to
the date of actual payment, at a rate per annum equal to 1% plus the Euro-Dollar Margin plus the quotient obtained (rounded upwards, if necessary, to the next higher 1/100 of 1%) by dividing
(i) the interest rate per annum at which one day (or, if such amount due remains unpaid more than three Euro-Dollar Business Days, then for such other period of time as the Agent may elect
which shall in no event be longer than six months) deposits in Dollars in an amount approximately equal to the amount of such overdue payment due to the Reference Bank are offered to the
Reference Bank in the London interbank market for the applicable period determined as provided above by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
(D) The
Agent shall determine each interest rate applicable to the Loans hereunder. The Agent shall give prompt notice to the Borrower and the Banks of each rate of
interest so determined, and its determination thereof shall be conclusive in the absence of manifest error.
2.7 Facility Fee. The Borrower shall pay to the Agent for the account of each Bank (a) a
facility fee computed at the Facility Fee Rate (determined daily in accordance with the Pricing Schedule) on the total amount of such Bank's Commitment, regardless of usage; and (b) for each
day on which the outstanding principal amount of such Bank's loans exceeds 50% of such Bank's Commitment, a utilization fee computed at the Utilization Fee Rate (determined daily in accordance with
the Pricing Schedule) on the outstanding principal amount of such Bank's Loans on such day. Such fees shall accrue from the date hereof to and including the Termination Date and shall be payable
quarterly on the last day of each March, June, September and December.
2.8 Optional Termination or Reduction of Commitments. The Borrower shall have the right, upon at least
five Domestic Business Days' prior written notice to the Agent, to terminate or reduce the unused portion of the Commitments. Any such reduction of the Commitments shall be in the minimum amount of
$1,000,000. The accrued facility fees with respect to the terminated Commitments shall be payable to the Agent for the account of the Banks on the effective date of such termination.
2.9 Mandatory Termination or Reduction of Commitments. The Commitments shall terminate on the
Termination Date, and any Loans then outstanding (together with accrued interest thereon) shall be due and payable on such date.
2.10 Optional Prepayments.
(A) The
Borrower may, upon at least one Domestic Business Day's notice to the Agent, prepay Base Rate Loans without premium or penalty in whole at any time or from time
to time in part in amounts aggregating $1,000,000 or any multiple thereof by paying the principal amount being prepaid together with accrued interest thereon to the date of prepayment.
(B) Except
as provided in Section 4.2 hereof, the Borrower may not prepay all or any portion of the principal amount of any Fixed Rate Loan prior to the maturity
thereof.
(C) Upon
receipt of a notice of repayment pursuant to this Section 2.10, the Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such repayment and such notice shall not thereafter be revocable by the Borrower.
2.11 General Provisions as to Payments. The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder not later than 11:00 a.m. (New York City time) on the date when due in funds immediately available in New York City to the Agent at its address set
forth on the signature pages hereof or at such other address as it may hereafter designate by notice to the Borrower and the Banks for the account of (i) the Domestic Lending Office of
each Bank in the case of Domestic Loans or (ii) the Euro-Dollar Lending Office of each Bank in the case of Euro-Dollar Loans. The Agent will promptly distribute to each Bank its ratable share
of each such payment received for the account of such Bank. Whenever any payment of principal of, or interest on, the Domestic Loans or of any fee shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next succeeding Domestic Business Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the next succeeding Euro-Dollar Business Day unless as a result thereof it would fall in the next
calendar month, in which case it shall be advanced to the next preceding Euro-Dollar Business Day. If the date for any payment of principal is extended by operation of law or otherwise, interest shall
be payable for such extended time.
2.12 Computation of Interest and Fees. Interest on Loans made at the Prime Rate shall be computed on
the basis of a year of 365 or 366 days, as the case may be, and paid for actual days elapsed. All other interest and fees shall be computed on the basis of a year of 360 days and
paid for actual days elapsed.
2.13 Funding Losses. If the Borrower makes any payment of principal with respect to any Fixed Rate Loan
(pursuant to Section 4 or Section 7 or otherwise) on any day other than the last day of an Interest Period applicable to such Loan, or the end of an applicable period fixed pursuant to
the last paragraph of Section 2.6(C) hereof, or if the Borrower fails to borrow any Fixed Rate Loan after notice has been given to the Agent in accordance with Section 2.3 hereof,
the Borrower shall reimburse each Bank on demand for any resulting loss or expense incurred by it including (without limitation) any loss incurred in obtaining, liquidating or employing deposits from
third parties; provided that such Bank shall have delivered to the Borrower a certificate as to the amount of such loss, which certificate shall be
conclusive in the absence of manifest error.
2.14 Extension of Commitment. On or before August 1, 1998, and on or before August 1 in
each year thereafter, the Borrower may, by written request to the Agent, to be delivered to each Bank, request that the Commitments be extended for one year, provided, however, that no request by the
Borrower to extend the Commitments will be considered if the Commitments were not extended for the previous year. If all Banks have agreed to extend within 45 days of receipt by the Agent of
such request for
extension, the Commitments will be extended for an additional period of one year from the then current Termination Date, and the term "Termination Date" shall thereafter refer to the date that the
Commitments, as so extended, shall terminate. If the Commitments are not extended as provided in this Section 2.14, this
Agreement will automatically terminate on the then current Termination Date without further action by the Borrower, the Agent or the Banks.
SECTION 3. CONDITIONS OF LENDING.
The obligation of the Banks to make each Loan hereunder is subject to the performance by the Borrower of all its obligations under this Agreement and to the
satisfaction of the following further conditions:
3.1 All Loans. In the case of each Loan hereunder (except for Loans made pursuant to Section 4
hereof), including the initial Loans:
(a) receipt
by the Agent of the Notice of Borrowing as required by Section 2.3 hereof;
(b) the
fact that immediately before and after the making of the Loan no Default or Event of Default shall have occurred and be continuing;
(c) the
fact that the representations and warranties contained in this Agreement (except in the case of a Refunding Loan, the representation and warranty set forth in
Section 5.4 hereof as to any material adverse change which has theretofore been disclosed in writing by the Borrower to the Banks) are true on and as of the date of the Loan with the same force
and effect as if made on and as of such date; and
(d) receipt
by the Agent or the Banks of such other documents, evidence, materials and information with respect to the matters contemplated hereby as the Agent or the
Banks may reasonably request.
Each
Notice of Borrowing and borrowing by the Borrower hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such borrowing as to the facts specified in
(b) and (c) above.
3.2 Initial Loans. In the case of the initial Loans:
(a) receipt
by the Agent for the account of each Bank of a duly executed Note for such Bank;
(b) receipt
by the Agent of an opinion of Scott W. Johnson, Senior Vice President, General Counsel and Secretary of the Borrower dated the date of such Loans and
substantially in the form of Exhibit B hereto;
(c) receipt
by the Agent of an opinion of Mayer, Brown & Platt, special counsel to the Agent, substantially in the form of Exhibit C hereto;
(d) receipt
by the Agent of certified copies of all corporate action taken by the Borrower to authorize the execution, delivery and performance of this Agreement and
the Notes, and such other corporate documents and other papers as the Agent may reasonably request;
(e) receipt
by the Agent of a certificate of a duly authorized officer of the Borrower as to the incumbency, and setting forth a specimen signature, of each of the
persons (i) who has signed this Agreement on behalf of the Borrower; (ii) who will sign the Notes on behalf of the Borrower; and (iii) who will, until replaced by other persons duly
authorized for that purpose, act as the representatives of the Borrower for the purpose of signing documents in connection with this Agreement and the transactions contemplated hereby; and
(f) receipt
by the Agent of a certificate of a duly authorized officer of the Borrower to the effect set forth in Section 3.1(b) and 3.1(c) hereof.
SECTION 4. CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS.
4.1 Basis for Determining Interest Rate Inadequate. If with respect to any Interest Period
(i) the Agent determines that deposits in Dollars (in the applicable amounts) are not being offered to the Reference Bank in the relevant market for such Interest Period, or (ii) Banks
holding Notes evidencing at least 50% in aggregate principal amount of the Fixed Rate Loans (or the Commitments, if no Fixed Rate Loans are then outstanding) advise the Agent that the London Interbank
Offered Rate or the CD Base Rate, as the case may be, as determined by the Agent will not adequately and fairly reflect the cost to such Banks of maintaining or funding their Euro-Dollar Loans or CD
Loans, as the case may be, for such Interest Period, the Agent shall forthwith give notice thereof to the Borrower, whereupon the obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the
case may be, shall be suspended until the Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist. Unless the Borrower notifies the Agent at least two
Domestic Business Days before the date of any Fixed Rate Loan for which a Notice of Borrowing has previously been given that it elects not to borrow on such date, such Loans shall instead by made as
Base Rate Loans.
4.2 Illegality. If, after the date of this Agreement, the adoption of any applicable law, rule or
regulation, 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 Euro-Dollar Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so notify the Agent, the
Agent shall forthwith so notify the other Banks and the Borrower, whereupon such Bank's obligation to make Euro-Dollar Loans shall be suspended until such Bank notifies the Agent and the Agent
notifies the Borrower that the circumstances giving rise to such suspension no longer exist. Before giving any notice to the Agent pursuant to this Section 4.2, such Bank will designate a
different Euro-Dollar Lending office if such designation will avoid the need for giving such notice and will not, in the sole judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar Loan, together with accrued interest thereon. Unless the Borrower notifies such Bank and the Agent to the contrary within
two Euro-Dollar Business Days after receiving a notice from the Agent pursuant to this Section, the Borrower shall, concurrently with prepaying each such Euro-Dollar Loan, borrow a Base Rate Loan in
an equal principal amount for an Interest Period coincident with the remaining term of the Interest Period applicable to such Euro-Dollar Loan.
4.3 Increased Costs. (A) If after the date hereof, the adoption of any applicable law, rule or
regulation, 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 Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or comparable agency:
(1) shall
subject such Bank (or its Euro-Dollar Lending Office) to any tax, duty or other charge with respect to its obligation to make Fixed Rate Loans, its Fixed Rate
Loans, or its Notes, or shall change the basis of taxation of payments to such Bank (or its Euro-Dollar Lending Office) of the principal of or interest on its Fixed Rate Loans or in respect of any
other amounts due under this Agreement in respect of its Fixed Rate Loans or its obligation to make Fixed Rate Loans (except for changes in the rate of tax on the overall net income of such Bank or
its Euro-Dollar Lending Office imposed by the jurisdiction in which such Bank's principal executive office or Euro-Dollar Lending Office is located); or
(2) shall
impose, modify or deem applicable any reserve (including, without limitation, any imposed by the Board of Governors of the Federal Reserve System, but
excluding any included in an applicable Reserve Percentage), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, such Bank's
Euro-Dollar Lending Office or shall impose on such Bank (or its Euro-Dollar Lending office) or on the United States market for certificates of deposit or the London interbank market any other
condition affecting its obligation to make Fixed Rate Loans, its Fixed Rate Loans or its Notes;
and
the result of any of the foregoing is to increase the cost to such Bank (or its Euro-Dollar Lending office) of making or maintaining any Fixed Rate Loan, or to reduce the amount of any sum
received or receivable by such Bank (or its Euro-Dollar Lending Office) under this Agreement or under its Notes with respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Borrower agrees to pay for the account of such Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction. Each Bank will promptly notify the Borrower and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section 4.3 and will designate a different Domestic Lending Office or Euro-Dollar Lending Office, as the case may be, if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the sole judgment of such Bank, be otherwise disadvantageous to such Bank.
(B) If,
after the date hereof, any Bank shall have determined that the adoption 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 Domestic Lending Office or Euro-Dollar Lending office, as the case may be) with any request or directive regarding capital adequacy (whether or not having the force of
any 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 (taking into consideration such Bank's policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction.
(C) A
certificate of any Bank claiming compensation under this Section 4.3 and setting forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest
error. In determining such amount, such Bank may use any reasonable averaging and attribution methods.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
5.1 Corporate Existence and Power. The Borrower and each Subsidiary is a corporation duly organized and
validly existing, and the Borrower and each Material Subsidiary is in good standing, under the laws of the State of its incorporation, has all power and authority to carry on its business as now being
conducted and to own its properties and is duly licensed or qualified and in good standing as a foreign corporation in each other jurisdiction in which its properties are located or in which failure
to qualify would materially and adversely affect the conduct of its business or the enforceability of contractual rights of the Borrower.
5.2 Corporate Authorization. The execution, delivery and performance by the Borrower of this Agreement
and the Notes are within the Borrower's corporate power, have been duly authorized by all necessary corporate action and will not contravene, or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or by-laws of the Borrower, or of any
judgment, order, decree, agreement or instrument binding on the Borrower or result in the creation of any Lien upon any of its property or assets.
5.3 Binding Effect. This Agreement constitutes, and the Notes when duly executed on behalf of the
Borrower and delivered in accordance with this Agreement will constitute, the valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms.
5.4 Financial Statements.
(A) The
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 1995 and the related consolidated statements of income
and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, certified by Price, Waterhouse & Company, certified public accountants, and set forth in the
Borrower's 1995 Form 10-K, a copy of which has been delivered to each of the Banks, fairly present, in conformity with generally accepted accounting principles, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries at such date and the consolidated results of operations for such fiscal year.
(B) The
unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 1996 and the related consolidated statements
of income and cash flows of the Borrower and its Consolidated Subsidiaries for the three months then ended, set forth in the Borrower's quarterly report for the fiscal quarter ended
September 30, 1996 as filed with the Securities and Exchange Commission on Form 10-Q, a copy of which has been delivered to each of the Banks, fairly present in accordance with generally
accepted accounting principles, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of operations for such period.
(C) No
material adverse change has occurred in the financial position, results of operations or business of the Borrower and its Consolidated Subsidiaries since
December 31, 1995.
5.5 Litigation. There are no actions, suits or proceedings pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary in any court or before or by
any governmental department, agency or instrumentality, an adverse decision in which could materially and adversely affect the financial condition or business of the Borrower or the ability of the
Borrower to perform its obligations under this Agreement or the Notes.
5.6 Taxes. The Borrower has filed (or has obtained extensions of the time by which it is required to
file) all United States federal income tax returns and all other material tax returns required to be filed by it and has paid all taxes shown due on the returns so filed as well as all other taxes,
assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided.
5.7 Governmental and other Approvals. No approval, consent or authorization of or filing or
registration with any governmental authority or body is necessary for the execution, delivery or performance by the Borrower of this Agreement or the Notes or for the performance by the Borrower of
any of the terms or conditions hereof or thereof, except for such approvals, consents or authorizations (copies of which have been delivered to the Banks) as have been obtained and are in full force
and effect.
5.8 Compliance with ERISA. Each member of the Controlled Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, and has not
incurred liabilities which are due and payable aggregating in excess of $5,000,000 to the PBGC or a Plan under Title IV of ERISA.
5.9 Environmental Matters. In the ordinary course of its business, the Borrower conducts an ongoing
review of the effect of Environmental Laws on the business, operations and properties of the Borrower and its Subsidiaries, in the course of which it identifies and evaluates associated liabilities
and costs (including, without limitation, any capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential liabilities to third parties, including employees, and any related costs and expenses). On the basis of such review, the
Borrower has reasonably concluded that such associated liabilities and costs, including the costs of compliance with Environmental Laws, are unlikely to have a material adverse effect on the financial
condition, business or results of operations of the Borrower and its Consolidated Subsidiaries, taken as a whole.
SECTION 6. COVENANTS.
So long as the Commitments shall be in effect or any Notes are outstanding, the Borrower agrees that:
6.1 Financial Statements. The Borrower will deliver to each of the Banks:
(a) as
soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such year, and consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for such year, setting forth in each case
in comparative form corresponding consolidated figures from the preceding fiscal year, all reported on in a manner acceptable to the Securities and Exchange Commission by Price, Waterhouse &
Company or other independent certified public accountants of nationally recognized standing;
(b) as
soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as at the end of such quarter and the related consolidated statements of income and cash flow of the Borrower and its Consolidated
Subsidiaries for such quarter and for the portion of the Borrower's fiscal year ended at the end of such quarter setting forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or the chief accounting officer of the Borrower;
(c) simultaneously
with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate of the chief financial
officer or the chief accounting officer of the Borrower (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the
requirements of Sections 6.9 and 6.10 on the date of such financial statements and (ii) stating whether there exists on the date of such certificate any Default or Event of Default and,
if any Default or Event of Default exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(d) simultaneously
with the delivery of each set of financial statements referred to in clause (a) above, a statement of the firm of independent public
accountants which reported on such statements (i) to the
effect that nothing has come to their attention to cause them to believe that there existed on the date of such statements any Default or Event of Default and (ii) confirming the calculations
set forth in the officer's certificate delivered simultaneously therewith pursuant to clause (c) above;
(e) forthwith
upon the occurrence of any Default or Event of Default, a certificate of the chief financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(f) promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;
(g) promptly
upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and annual, quarterly or monthly reports which the Borrower shall have filed with the Securities and Exchange Commission;
(h) if
and when any member of the Controlled Group (i) receives notice of complete or partial withdrawal liability or liabilities aggregating in excess of
$5,000,000 under Title IV of ERISA, a copy of such notice; or (ii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee to administer any
Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000, a copy of such notice;
(i) if
at any time the value of all "margin stock" (as defined in Regulation U) owned by the Borrower and its Consolidated Subsidiaries exceeds (or would, following
application of the proceeds of an intended Loan hereunder, exceed) 25% of the value of the total assets of the Borrower and its Consolidated Subsidiaries, in each case as reasonably determined by the
Borrower, prompt notice of such fact and, promptly upon the request of any Bank, a duly completed statement of purpose on Form U-1 for each Bank together with such other information or
documents as each Bank may be required to obtain under said Regulation U in connection with this Agreement; and
(j) from
time to time such additional information regarding the financial position or business of the Borrower as the Agent at the request of any Bank may reasonably
request.
6.2 Maintenance of Existence. Except as permitted by Section 6.12 hereof, the Borrower will, and
will cause each Subsidiary to, preserve and maintain its corporate existence and all of its rights, privileges and franchises necessary or desirable in the normal conduct of its business, and will
conduct its business in a regular manner.
6.3 Maintenance of Properties. The Borrower will, and will cause each Subsidiary to, keep all of its
properties necessary, in the judgment of the Board of Directors of the Borrower, in its business in good working order and condition, ordinary wear and tear excepted, and will permit representatives
of the Banks to inspect such properties, and to examine and make extracts from the books and records of the Borrower or any Subsidiary, during normal business hours.
6.4 Compliance with Laws. The Borrower will, and will cause each Subsidiary to, comply with the
requirements of all applicable laws, rules, regulations and orders of any governmental body or regulatory agency having jurisdiction, a breach of which could have a material adverse effect on the
consolidated financial condition or the business taken as a whole of the Borrower and its Subsidiaries, except where contested in good faith and by proper proceedings.
6.5 Notice of Proceedings. The Borrower will promptly give notice in writing to each Bank of all
litigation, arbitral proceedings and regulatory proceedings affecting the Borrower or any Subsidiary or the property of the Borrower or any Subsidiary, except litigation or proceedings which, if
adversely determined, could not materially and adversely affect the consolidated financial condition or the business taken as a whole of the Borrower and its Subsidiaries.
6.6 Use of Proceeds. No part of the proceeds of any Loan hereunder will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. If requested by any Bank, the Borrower will furnish to any Bank in connection with any Loan
hereunder a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in Regulation U.
6.7 Payment of Taxes. The Borrower will, and will cause each Subsidiary to, pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except that the Borrower
or any Subsidiary will not be required hereby to pay any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which it is
maintaining adequate reserves.
6.8 Insurance. The Borrower will, and will cause each Subsidiary to, maintain insurance with
responsible companies in such amounts and against such risks as is usually carried by owners of similar businesses and properties in the same general areas in which the Borrower and its Subsidiaries
operate.
6.9 Ratio of Total Debt to Consolidated Tangible Net Worth. The Borrower will not permit consolidated
Debt at any time to exceed 150% of Consolidated Tangible Net Worth.
6.10 Minimum Consolidated Tangible Net Worth. The Borrower will not permit Consolidated Tangible Net
Worth at any time to be less than the greater of (i) $250,000,000 or (ii) 80% of Consolidated Tangible Net Worth as at the end of the most recently completed fiscal year of the Borrower.
6.11 Negative Pledge. Neither the Borrower nor any Subsidiary will create, assume or suffer to exist
any Lien securing Debt on any asset now owned or hereafter acquired by it, except for:
(a) Liens
existing on the date hereof securing Debt outstanding on the date hereof;
(b) any
Lien existing on any asset of any corporation at the time such corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any
Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or within 90 days after the acquisition thereof;
(d) any
Lien on any asset of any corporation existing at the time such corporation is merged into or consolidated with the Borrower or a Subsidiary and not created in
contemplation of such event;
(e) any
Lien existing on any asset prior to the acquisition thereof by the Borrower or a Subsidiary and not created in contemplation of such acquisition;
(f) any
Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses of this
Section, provided that such Debt is not increased and is not secured by any additional assets;
(g) any
Lien arising pursuant to any order of attachment, distraint or similar legal process arising in connection with court proceedings so long as the execution or
other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings; and
(h) Liens
not otherwise permitted by the foregoing clauses of this Section securing Debt in aggregate principal amount not to exceed 4% of the consolidated assets of
the Borrower and the Consolidated Subsidiaries at any time outstanding.
6.12 Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge
with or into any other Person unless the Borrower shall be the surviving corporation or (ii) sell, lease or otherwise transfer (whether in one transaction or in a series of transactions) all or
any substantial part of its assets to any other Person. The Borrower will not permit any Subsidiary to consolidate with, merge with or into or sell, lease or otherwise transfer (whether in one
transaction or in a series of transactions) all or any substantial part of its assets to any Person other than the Borrower or a Wholly-Owned Consolidated Subsidiary.
For
purposes of this Section 6.12, "substantial part" means 15% or more of the consolidated assets of the Borrower and the Consolidated Subsidiaries.
SECTION 7. EVENTS OF DEFAULT.
If any one or more of the following events ("Events of Default") shall have occurred and be continuing:
(a) the
Borrower shall fail to pay any principal of any Note when due; or
(b) the
Borrower shall fail to pay any interest on any Note, any fee or any other amount due hereunder or under the Notes when due and such failure shall continue for
five consecutive days; or
(c) the
Borrower shall fail to perform or observe any of the covenants contained in Section 6.1(e) or Sections 6.9 to 6.12 (inclusive) hereof; or
(d) any
representation and warranty made by the Borrower herein or in any instrument or document delivered pursuant hereto shall prove to be incorrect or misleading in
any material respect upon the date when made; or
(e) the
Borrower shall fail to perform any term, covenant or agreement contained herein (other than those specified in clauses (a), (b) or (c) above) for
30 days after written notice thereof has been given to the Borrower by the Agent at the request of any Bank; or
(f) the
Borrower or any Subsidiary shall (i) fail to pay any Debt (other than the Notes) when due or interest thereon and such failure shall continue for more
than any applicable period of grace with respect thereto, or (ii) fail to observe or perform any term, covenant or agreement contained in any agreement or instrument (other than this Agreement
or the Notes) by which it is bound evidencing or securing or relating to any Debt, if the effect thereof is to permit (or, with the giving of notice or lapse
of time or both, would permit) the holder or holders thereof or of any obligations issued thereunder or a trustee or trustees acting on behalf of such holder or holders to cause acceleration of the
maturity thereof or of any such obligation; provided, that the aggregate amount of Debt with respect to which any such event or condition shall have
occurred shall equal or exceed $1,000,000; or
(g) the
Borrower or any Material Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any
of the foregoing; or
(h) an
involuntary case or other proceeding shall be commenced against the Borrower or any Material Subsidiary seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Borrower or any Material Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or
(i) the
Borrower or any other member of the Controlled Group shall fail to pay when due any amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000
shall be filed under Title IV of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000 or a proceeding shall be instituted by
a fiduciary of any Plan against any member of the Controlled Group to enforce Section 515 of ERISA with respect to any amount or amounts aggregating in excess of $5,000,000 and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan or Plans having
aggregated Unfunded Vested Liabilities in excess of $5,000,000 must be terminated; or
(j) judgments
or orders for the payment of money in excess of $1,000,000 in the aggregate shall be rendered against the Borrower or any Subsidiary and such judgments
or orders shall continue unsatisfied and unstayed for a period of 30 days; or
(k) any
Change of Control shall occur;
then,
and in every such event, (1) in the case of any of the Events of Default specified in paragraphs (g) or (h) above, the Commitments shall thereupon automatically be
terminated and the principal of and accrued interest on the Notes shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which
are hereby expressly waived and (2) in the case of any other Event of Default specified above, the Agent shall, if requested by the Required Banks, by notice in writing to the Borrower,
terminate the Commitments hereunder, if still in existence, and they shall thereupon be terminated, and the Agent shall, if requested by the Required Banks, by notice in writing to the Borrower,
declare the Notes and all other sums payable under this Agreement to be, and the same shall thereupon forthwith become, due and payable without presentment, demand, protest or other notice or
formality of any kind, all of which are hereby expressly waived.
SECTION 8. THE AGENT.
8.1 Appointment and Authorization. Each Bank irrevocably appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement and the Notes as are delegated to the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
8.2 Agent and Affiliates. Morgan Guaranty Trust Company of New York shall have the same rights and
powers under this Agreement as any other Bank and may exercise or refrain from exercising the same as though it were not the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the Agent hereunder.
8.3 Action by Agent. The obligations of the Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Agent shall not be required to take any action with respect to any Default, except as expressly provided in Section 7 hereof.
8.4 Consultation with Experts. The Agent may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
8.5 Liability of Agent. Neither the Agent nor any of its directors, officers, agents, or employees
shall be liable for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify
(a) any statement, warranty or representation made in connection with this Agreement or any Borrowing hereunder; (b) the performance or observance of any of the covenants or agreements
of the Borrower; (c) the satisfaction of any condition specified in Section 3, except receipt of items required to be delivered to the Agent; or (d) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing furnished in connection herewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex, facsimile or similar writing) believed by it to be genuine or to be signed by the proper party or parties. As to any matters
not expressly provided for by this Agreement, the Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks and any action taken or failure to act pursuant thereto shall be binding on all of the Banks.
8.6 Indemnification. Each Bank shall, ratably in accordance with its Commitment, indemnify the Agent
(to the extent not reimbursed by the Borrower) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Agent's
gross negligence or willful misconduct) that the Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Agent hereunder.
8.7 Failure to Act. Except for action expressly required of the Agent hereunder the Agent shall in all
cases be fully justified in failing or refusing to act hereunder unless it shall be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.
8.8 Resignation or Removal of Agent. Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving notice thereof to the Banks and the Borrower and the Agent may be removed at any time with or without cause by the Required Banks with the
prior written consent of the Borrower. Upon any such resignation or removal, the Required Banks shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment within 30 days after the retiring Agent's giving of notice of resignation or the Required Bank's removal of the retiring Agent, then
the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a bank which has an office in New York, New York. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's resignation or removal hereunder as Agent, the provisions of this Section 8 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as the Agent.
8.9 Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the
Agent or any other Bank, and based on such 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 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 any action under this Agreement.
SECTION 9. MISCELLANEOUS.
9.1 Notices. Unless otherwise specified herein all notices, requests, demands or other communications
to or from the parties hereto shall be deemed to have been duly given and made when sent by United States mail, certified, return receipt requested, or by facsimile, when sent and receipt is
electronically confirmed, provided that notices to the Agent pursuant to Sections 2.3 and 2.10 hereof shall not be effective until received by the Agent. Any such notice, request, demand or
communication shall be delivered or addressed as follows:
(a) if
to any party hereto, to it at its address or facsimile number set forth on the signature pages hereof; and
(b) if
to any holder of a Note, other than a Bank, to it at the address or facsimile number of the original payee thereof or at the address or facsimile number of any
subsequent holder if notice of the transfer of such Note and the name and the address or facsimile number of such subsequent holder shall have been given to the Agent and the Borrower;
or
at such other address or facsimile number as any party hereto or any subsequent holder may designate by written notice to the Agent and the Borrower.
9.2 Amendments and Waivers; Cumulative Remedies.
(A) None
of the terms of this Agreement may be waived, altered or amended except by an instrument in writing duly executed by the Borrower and the Required Banks (and,
if the rights or duties of the Agent are affected thereby, by the Agent); provided that no such amendment or waiver shall, unless signed by all the Banks, (i) increase the Commitment of any
Bank or subject any Bank to any additional obligation, (ii) reduce the principal of or rate of interest on the Notes or any fees hereunder, (iii) postpone the date fixed for any payment
of principal of or interest on the Notes or any fees hereunder or (iv) change the 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 holders of Notes or the Banks or any of them to take any action hereunder.
(B) No
failure or delay on the part of the Agent, any Bank, or the holder of any Note in exercising any right, power or privilege under this Agreement or the Notes
shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement or the Notes preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. Tho rights and remedies provided in and contemplated by this Agreement and the Notes are cumulative and not exclusive of any rights or remedies
provided by law.
9.3 Successors and Assigns.
(A) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of all Banks.
(B) Any
Bank may at any time grant to one or more banks or other institutions (each a "Participant") participating interests in its Commitment or any or all of its
Loans. In the event of any such grant by a Bank of a participating interest to a Participant, whether or not upon notice to the Borrower and the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agent shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of
the Borrower hereunder, including, without limitation, the right to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification, amendment or waiver described in clause (i), (ii), (iii) or (iv) of Section 9.2(A) without the
consent of the Participant. The Borrower agrees that each Participant shall, to the extent provided in its participation agreement, be entitled to the benefits of Sections 2.13, 4 and 9.5
hereof with respect to its participating interest. The Borrower agrees that any Participant may exercise any and all rights of banker's lien, set-off and counterclaim with respect to its participating
interest as fully as if such Participant were the holder of a Commitment and Loan in the amount of its participating interest.
(C) Any
Bank may at any time assign to one or more banks or other institutions (each an "Assignee") all, or a proportionate part (equivalent to an initial Commitment of
not less than $10,000,000) of all, of its rights and obligations under this Agreement and its Note, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit D hereto executed by such Assignee and such transferor Bank, with (and subject to) the written consent of the Borrower and the Agent, which
consents shall not be unreasonably withheld; provided that if an Assignee is an affiliate of such transferor Bank, no such consent shall be required.
Upon execution and delivery of such instrument, payment by such Assignee to such transferor Bank of an amount equal to the purchase price agreed between such transferor Bank and such Assignee and
payment to the Agent of a processing fee of $3,000, such Assignee shall be a Bank party to this Agreement and shall have all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower shall make appropriate arrangements so that a new Note is issued to the Assignee
and, if the transferor Bank has retained a Commitment hereunder, the Assignor. If the Assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver
to the Borrower and the Agent certification as to exemption from deduction or withholding of any United States federal income taxes in connection herewith.
(D) Any
Bank may at any time assign all or any portion of its rights under this Agreement and its Note to a Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
9.4 Expenses; Documentary Taxes. The Borrower shall pay all out-of-pocket expenses of the Agent
(including fees and disbursements of special counsel for the Banks) in connection with the preparation and administration of this Agreement, the Notes and any waiver or amendment of any provision
hereof
or thereof and, if there is an Event of Default, all out-of-pocket expenses incurred by the Agent or any Bank (including fees and disbursements of counsel and time charges of attorneys who may be
employees of the Agent or such Bank) in connection with such Event of Default and collection and other enforcement proceedings resulting therefrom. The Borrower agrees to indemnify the Banks from and
hold them harmless against any documentary taxes, assessments or charges made by any governmental authority by reason of the execution and delivery of this Agreement or the Notes.
9.5 Sharing of Set-Offs. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest due with respect to any Note held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due with respect to any Note held by such other Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to Notes held by
Banks shall be shared by the Banks pro rata; provided that nothing in this Section 9.5 shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than the indebtedness evidenced by the Notes. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar law, any Bank receives a secured claim in lieu of a set-off to which this Section would apply, such Bank shall, to
the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Banks entitled under this Section to share in the benefits of any
recovery on such secured claim.
9.6 Collateral. Each of the Banks represents that it in good faith is not relying on any "margin stock"
(as defined in Regulation U) as collateral in the extension or maintenance of the credit provided for in this Agreement.
9.7 Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if
the signatures thereto and hereto were upon the same instrument.
9.8 Headings; Table of Contents. The section and subsection headings used herein and the
Table of Contents have been inserted for convenience of reference only and do not constitute matters to be considered in interpreting this Agreement.
9.9 Governing Law. This Agreement and the Notes shall be construed in accordance with and governed by
the law of the State of New York.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
| |
|
BEMIS COMPANY, INC. |
|
|
By: |
|
| |
|
|
Title: |
|
|
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent |
|
|
By: |
|
| |
|
|
Title: |
Commitments
|
|
|
|
| $60,000,000 |
|
THE FIRST NATIONAL BANK OF CHICAGO |
|
|
By: |
|
| |
|
|
Title: |
|
|
Domestic and Euro-Dollar
Lending Office: |
|
|
One First National Plaza
14th Floor
Chicago, Illinois 60670
Attention: Garland Smith
Facsimile: (312) 732-1117 |
$60,000,000.00 |
|
NORWEST BANK MINNESOTA, N.A. |
|
|
By: |
|
| |
|
|
Title: |
|
|
Domestic and Euro-Dollar
Lending Office: |
|
|
Norwest Center
6th Street and Marquette Avenue
Minneapolis, Minnesota
55479-0085
Attention: Molly S. Van Metre
Vice President
Facsimile: 612-667-2276 |
$60,000,000.00 |
|
U.S. BANK NATIONAL ASSOCIATION
(formerly First Bank National Association) |
|
|
By: |
|
| |
|
|
Title: |
|
|
Domestic and Euro-Dollar
Lending Office: |
|
|
U.S. Bank Place
601 Second Avenue South
Minneapolis, Minnesota
55402-4302
Attention: Elliot Jaffee
Facsimile: 612-973-0825
|
$45,000,000.00 |
|
WACHOVIA BANK, N.A. |
|
|
By: |
|
| |
|
|
Title: |
|
|
Domestic and Euro-Dollar
Lending Office: |
|
|
191 Peachtree Street, NE,
MC-6A370
Atlanta, Georgia 30303
Attention: Frances Josephic
Facsimile: 404-332-6898 |
$25,000,000.00 |
|
FIRST HAWAIIAN BANK |
|
|
By: |
|
| |
|
|
Title: |
|
|
Domestic and Euro-Dollar
Lending Office: |
|
|
999 Bishop Street, 11th Floor
Honolulu, Hawaii 96813
Attention: Charles L. Jenkins
Facsimile: 808-525-6372 |
$84,000,000.00 |
|
REVOLVING COMMITMENT VEHICLE CORPORATION |
|
|
Morgan Guaranty Trust Company of New York,
as Attorney-in-Fact for
Revolving Commitment Vehicle Corporation |
|
|
By: |
|
| |
|
|
Title: |
|
|
Domestic and Euro-Dollar
Lending Office: |
|
|
60 Wall Street
New York, New York 10260-0060
Attention: Loan Capital Markets
Facsimile: 212-648-5336 |
$334,000,000.00 |
|
TOTAL |
Schedule
A
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin", "Facility Fee" and "Utilization Fee" for any day are the respective percentages set forth below in the applicable row
under the column corresponding to the Status that exists on such day:
Status
|
|
Level I
|
|
Level II
|
|
Level III
|
|
Level IV
|
| Euro-Dollar Margin |
|
22.00 |
|
33.00 |
|
50.00 |
|
62.50 |
| CD Margin |
|
34.50 |
|
45.50 |
|
62.50 |
|
75.00 |
| Facility Fee |
|
8.00 |
|
12.00 |
|
15.00 |
|
25.00 |
| Utilization Fee |
|
10.00 |
|
10.00 |
|
10.00 |
|
37.50 |
For
purposes of this Schedule, the following terms have the following meanings:
"Level
I Status" exists at any date if, at such date, the Borrower's Relevant Debt is rated AA- or higher by S&P.
"Level
II Status" exists at any date if, at such date, (i) the Borrower's Relevant Debt is rated at least A-by S&P and (ii) Level I Status does not exist.
"Level
III Status" exists at any date if, at such date, (i) the Borrower's Relevant Debt is rated at least BBB by S&P and (ii) neither Level I Status nor Level II Status
exists.
"Level
IV Status" exists at any date if, at such date, (i) the Borrower's Relevant Debt rating is lower than BBB and (ii) none of Level I Status, Level II Status and
Level III Status exists.
"Relevant
Debt" means any unsecured long-term Debt of the Borrower that does not have the benefit of credit enhancement from any third Person and includes $8,000,000 City of Crossett,
Arkansas Industrial Development Revenue Bonds, Bemis Company, Inc., Project 1989.
"S&P"
means Standard & Poor's Corporation.
"Status"
refers to the determination of which of Level I Status, Level II Status, Level III Status or Level IV Status exists at any date.
The
credit rating to be utilized for purposes of this Schedule is that assigned to the Relevant Debt of the Borrower without third-party credit enhancement and any rating assigned to
any other debt security of the Borrower shall be disregarded. The rating in effect at any date is that in effect at the close of business on such date.
EXHIBIT A
FORM OF NOTE
New
York, New York
FOR
VALUE RECEIVED, BEMIS COMPANY, INC., a Missouri corporation (the "Borrower"), hereby unconditionally promises to pay to the order of (the "Bank") for the
account of (i) in the case of Domestic Loans, its Domestic Lending office and (ii) in the case of Euro-Dollar Loans, its Euro-Dollar Lending office, the unpaid principal amount of each
Loan made by the Bank to the Borrower pursuant to the Credit Agreement referred to below on the last day of the Interest Period relating to such Loan. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or rates provided for in the Credit Agreement.
All
such payments of principal and interest shall be made in lawful money of the United States of America in Federal or other immediately available funds at the office of the Agent
located at 60 Wall Street, New York, New York 10260-0060.
All
Loans made by the Bank, the respective types and maturities thereof and all repayments of the principal thereof shall be recorded by the Bank and, prior to any transfer hereof,
appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding shall be endorsed by the Bank on the schedule attached hereto and made a part
hereof; provided that the failure of the Bank to make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This
note is one of the Notes referred to in the Fourth Amended and Restated Credit Agreement dated as of August 2, 1999, among the Borrower, various financial institutions and
Morgan Guaranty Trust Company of New York, as Agent (as the same may be amended from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof.
| |
|
BEMIS COMPANY, INC. |
|
|
By: |
|
| |
|
|
Name
Title: |
EXHIBIT B
FORM OF OPINION OF COUNSEL
TO THE COMPANY
August __,
1999
To
the Banks Party to the
Credit Agreement referred
to below and Morgan Guaranty
Trust Company of New York,
as Agent
Gentlemen:
I
am Senior Vice President, General Counsel and Secretary of Bemis Company, Inc. (the "Borrower") and, as such, I have acted as counsel to the Borrower in connection with the Fourth
Amended and Restated Credit Agreement dated as of August 2, 1999 (the "Agreement") among the Borrower, the Banks listed on the signature pages thereof (the "Banks") and Morgan Guaranty
Trust Company of New York, as Agent. Terms defined in the Agreement are used herein as defined therein.
In
addition to the Agreement, I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of fact and law as I have deemed necessary or advisable for the purposes of this opinion.
Based
on the foregoing, I am of the opinion that:
(A) The
Borrower and each Subsidiary is a corporation duly organized and validly existing, and the Borrower and, to the best of my knowledge, each Material Subsidiary
is in good standing, under the laws of the State of its incorporation, has all power and authority to carry on its business as now being conducted and to own its properties and is duly licensed or
qualified and in good standing as a foreign corporation in each other jurisdiction in which its properties are located or in which failure to qualify would materially or adversely affect the conduct
of its business or the enforceability of contractual rights of the Borrower.
(B) The
execution, delivery and performance by the Borrower of the Agreement and the New Notes are within the Borrower's corporate power, have been duly authorized by
all necessary corporate action and will not contravene, or constitute a default under, any provision of applicable law or regulation or the certificate of incorporation or by-laws of the Borrower, or
of any judgment, order, decree, agreement or instrument binding on the Borrower or result in the creation of any Lien upon any of its property or assets.
(C) The
Agreement and the New Notes constitute the valid and binding obligations of the Borrower.
(D) Except
as may have been disclosed in writing to the Banks prior to the signing of the Agreement, there are no actions, suits or proceedings pending against or, to
the best of my knowledge, threatened against or affecting the Borrower or any Subsidiary in any court or before any governmental department, agency or instrumentality, an adverse decision in which
could materially and adversely affect the financial condition or business of the Borrower or the ability of the Borrower to perform its obligations under the Agreement or the New Notes.
(E) No
approval, consent or authorization of or filing or registration with any governmental authority or body is necessary for the execution, delivery or performance
by the Borrower of the Agreement or the New Notes or for the performance by the Borrower of any of the terms or conditions thereof, except for such approvals, consents or authorizations (copies of
which have been delivered to the Banks) as have been obtained and are in full force and effect.
EXHIBIT C
FORM OF OPINION OF SPECIAL COUNSEL
TO THE AGENT
August __,
1999
To
the Banks which are parties to
the Credit Agreement referred to
below and to Morgan Guaranty Trust
Company of New York, as Agent
Re: Bemis
Company, Inc.
Ladies/Gentlemen:
We
have acted as special counsel to Morgan Guaranty Trust Company of New York, in its capacity as Agent (in such capacity, the "Agent"), in connection with the Fourth Amended and
Restated Credit Agreement (the "Credit Agreement") dated as of August 2, 1999 among Bemis Company, Inc., the Banks listed on the signature pages thereof and the Agent. Capitalized
terms used herein and not otherwise defined shall have the meanings attributed to them in the Credit Agreement.
In
connection herewith, we have examined (i) counterparts of the Credit Agreement executed by the Borrower, the Banks and the Agent; and (ii) copies of the Notes issued
by the Borrower on the date hereof pursuant to the Credit Agreement (the "Notes"). In connection with such examination, we have assumed the authenticity of all documents submitted to us as originals
and the conformity to authentic original documents of all documents submitted to us as copies (including copies received by facsimile). We also have assumed, without any independent investigation,
(a) that each of the parties to the Credit Agreement has duly authorized, executed and delivered the Credit Agreement pursuant to due power and authority, (b) that the Borrower has duly
authorized, executed and delivered the Notes pursuant to due authority and (c) that the Credit Agreement is the legal, valid and binding obligation of each party thereto other than the
Borrower, and is enforceable against each such party in accordance with its terms.
Based
upon the foregoing, and subject to the qualifications set forth below, we are of the opinion that, under the laws of the State of New York:
- (1)
- The
Credit Agreement is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.
- (2)
- Each
Note is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.
Our
opinions are subject to the following qualifications:
(a) Our
opinions are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and
to the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law), including, without limitation, concepts of materiality, reasonableness, good faith
and fair dealing.
(b) We
express no opinion as to indemnification or contribution obligations which contravene public policy.
(c) Our
opinions are limited to the laws of the State of New York, and we express no opinion as to the laws of any other jurisdiction.
(d) We
express no opinion as to any provision of the Credit Agreement that purports to establish an evidentiary standard for determinations by the Banks or the Agent.
(e) We
express no opinion as to Section 9.5 of the Credit Agreement insofar as it authorizes any Person to exercise any right of offset.
(f) We
express no opinion as to whether any court outside the State of New York would honor the choice of New York law as the governing law of the Credit Agreement and
the Notes.
(g) We
express no opinion as to any provision of the Credit Agreement purporting to convey rights to Persons other than parties to the Credit Agreement.
This
opinion letter speaks solely as of the date hereof and is based solely upon current laws and regulations and facts known to us as of the date hereof and we have not undertaken
any obligation to update this opinion in the event of changes thereto or additional legislation.
This
opinion letter is solely for the benefit of the addressees hereof (and their respective successors and permitted assigns) in connection with the transactions contemplated by the
Credit Agreement, and this opinion letter may not be relied upon by any other Person or for any other purpose.
Very
truly yours,
MAYER,
BROWN & PLATT
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, ____ among [ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"), BEMIS
COMPANY, INC. (the "Borrower") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (this "Agreement") relates to the Fourth Amended and Restated Credit Agreement dated as of August 2, 1999
among the Borrower, the Assignor, the other Banks party thereto, as Banks, and the Agent (as amended or otherwise modified prior to the date hereof, the "Credit Agreement");
WHEREAS,
as provided under the Credit Agreement, the Assignor has a Commitment to make Loans to the Borrower in an aggregate principal amount at any time outstanding not to exceed
$ ; and
WHEREAS,
the Assignor proposes to assign to the Assignee the rights of the Assignor under the Credit Agreement in respect of a portion of its Commitment thereunder in an amount equal
to $ (the "Assigned Amount"), together with a corresponding portion of its outstanding Committed Loans, and the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.
Section 2. Assignment. The Assignor hereby assigns and sells to the Assignee all rights of the
Assignor under the Credit Agreement to the extent of the Assigned Amount, and the Assignee hereby accepts such assignment from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase from the Assignor of the corresponding portion of the principal amount of the Loans made by the Assignor outstanding at
the date hereof. Upon the execution and delivery hereof by the Assignor, the Assignee, the Borrower and the Agent and the payment of the amounts specified in Sections 3 and 4 required to be
paid on the date hereof, (i) the Assignee shall, as of the date hereof, succeed to the rights and be obligated to perform the obligations [of a Bank under the Credit Agreement with
a Commitment in an amount equal to] [of the Assignor under the Credit Agreement in respect of, and the Commitment of the Assignor shall be increased an amount equal
to,] the Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date hereof, be reduced by a like amount and the Assignor released from its obligations under the
Credit Agreement to the extent such obligations have been assumed by the Assignee. The assignment provided for herein shall be without recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and sale contemplated in
Section 2 hereof, the Assignee shall pay to the Assignor on the date hereof in Federal funds the amount heretofore agreed
between them. It is understood that facility fees and utilization fees accrued to the date hereof in respect of the Assigned Amount are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under the Credit Agreement which is for the account of
the other party hereto, it shall receive the same for the account of such other party to the extent of such other party's interest therein and shall promptly pay the same to such other party.
Section 4. Consent of the Borrower and the Agent. This Agreement is conditioned upon the consent
of the Borrower and the Agent pursuant to Section 9.3(c) of the Credit Agreement and the payment to the Agent of the $3,000 fee referenced in such Section. The execution of this
Agreement by the Borrower and the Agent is evidence of their consent to the assignment contemplated hereby. Pursuant to such Section 9.3(c), the Borrower agrees to execute and deliver
(i) to the Assignee and, if the Assignor has retained a Commitment under the Credit Agreement, the Assignor, a new Note in the amount of its respective Commitment after giving effect hereto.
Section 5. Non-Reliance on Assignor. The Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency, financial condition, or statements of the Borrower, or the validity and enforceability of the obligations of the
Borrower in respect of the Credit Agreement or any Note. The Assignee acknowledges that it has, independently and without reliance on the Assignor, and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and will continue to be responsible for making its own independent appraisal of the business, affairs and
financial condition of the Borrower.
Section 6. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Section 7. Counterparts. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[Section 8. No Assumption of Rights or Duties of the Agent. Notwithstanding any of
the foregoing provisions of this Agreement, the Assignor is not assigning, and the Assignee is not assuming, any of the rights, duties or responsibilities of the Assignor in its capacity as Agent
under the Credit Agreement.]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly authorized officers as of the date first above written.
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[ASSIGNEE] |
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BEMIS COMPANY, INC. |
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MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent |
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EXHIBIT 10(i) - AMENDED AND RESTATED COMPOSIT CREDIT AGREEMENT
TABLE OF CONTENTS
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
PRICING SCHEDULE
FORM OF NOTE
FORM OF OPINION OF COUNSEL TO THE COMPANY
FORM OF OPINION OF SPECIAL COUNSEL TO THE AGENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
