EXHIBIT 10.2
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CREDIT AGREEMENT
by and among
OGDEN CORPORATION,
THE SIGNATORY LENDERS HERETO,
and
THE BANK OF NEW YORK,
AS AGENT
________________
$175,000,000
________________
Dated as of September 20, 1993
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CREDIT AGREEMENT, dated as of September 20, 1993, among OGDEN
CORPORATION, a Delaware corporation (the "Company"), the signatory
LENDERS parties hereto or who become parties hereto pursuant to
paragraph 11.7 (each a "Lender" and, collectively, the "Lenders"),
and THE BANK OF NEW YORK, as agent for the Lenders (in such capacity,
the "Agent").
1. DEFINITIONS
1 Defined Terms.
As used in this Agreement, terms defined in the preamble
have the meanings therein indicated, and the following terms have the
following meanings:
"Accountants": Deloitte & Touche, or any successor thereto, or
such other firm of certified public accountants of recognized
national standing selected by the Company and satisfactory to the
Required Lenders.
"Acquisition": any transaction consummated after the date of
this Agreement by which the Company or any Subsidiary (i) acquires
any going business or all or substantially all of the assets of any
Person (or any division thereof), whether through purchase of assets,
merger, consolidation or otherwise, or (ii) acquires (in one
transaction or as the most recent transaction in a series of
transactions) at least a majority of the securities or equity
interests of a Person having ordinary voting power for the election
of directors or comparable officials.
"Affected Loan": as defined in paragraph 2.9.
"Affected Principal Amount": in the event that (i) the Company
shall not for any reason borrow after it shall have notified the
Agent of its intent to do so and shall have requested a Eurodollar or
CD Loan pursuant to paragraph 2.2 or shall have accepted one or more
offers of Competitive Bid Loans under paragraph 2.3, an amount equal
to the principal amount of such requested Eurodollar or CD Loan or
such Competitive Bid Loan; (ii) a Eurodollar or CD Loan or any Com-
petitive Bid Loan shall terminate for any reason prior to the last
day of the Interest Period applicable thereto, an amount equal to the
principal amount of such Eurodollar or CD Loan or such Competitive
Bid Loan; or (iii) the Company shall prepay or repay all or any part
of the principal balance of a Eurodollar or CD Loan or any
Competitive Bid Loan prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal balance of such
Eurodollar or CD Loan or such Competitive Bid Loan so prepaid or
repaid.
"Affiliate": as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, control
of a Person shall mean the power, direct or indirect, (i) to vote 25%
or more of the securities having ordinary voting power for the
election of directors of such Person or (ii) to direct or cause
direction of the management and policies of such Person whether by
contract or otherwise.
"Agency Agreement": the Fiscal Agency Agreement, dated as of
June 1, 1987, between the Company and Bankers Trust Company, pursuant
to which the Company issued $85,000,000 of its 6% Convertible
Subordinated Debentures due 2002 or the Fiscal Agency Agreement,
dated as of October 15, 1987, between the Company and Bankers Trust
company, pursuant to which the Company issued $75,000,000 of its
5-3/4% Convertible subordinated Debentures Due 2002.
"Aggregate Commitments": the sum of the Commitments set forth in
Exhibit A, as the same may be reduced pursuant to paragraph 2.5
(Reduction of Commitments) or 2.18 (Extension of Termination Date).
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Applicable Lending Office": as to any Lender, such Lender's
Domestic Lending Office or Eurodollar Lending Office, as the case may
be.
"Applicable Margin": at all times during the applicable periods
set forth below: (i) with respect to the unpaid principal balance of
the Eurodollar Loans, the applicable percentage set forth below next
to the words "Eurodollar Rate", and (ii) with respect to the unpaid
principal balance of the CD Loans, the applicable percentage set
forth below next to the words "CD Rate":
Applicable
Period Rate Margin
I. At any time when Eurodollar Rate .250%
the Senior Public Debt CD Rate .375%
Rating is equal to or
more favorable than both
A3 by Moody's Investors
Service, Inc. and A-
by Standard & Poor's
Corporation.
II. At any time when Eurodollar Rate .375%
the Senior Public Debt CD Rate .500%
Rating is equal to or
more favorable than both
Baa3 by Moody's Investors
Service, Inc. and BBB-
by Standard & Poor's
Corporation and Period I
is not applicable.
III. At all other Eurodollar Rate .750%
times. CD Rate .875%
Changes in the Applicable Margin resulting from changes in
the Senior Public Debt Rating shall become effective as of the date
of such change in the Senior Public Debt Rating. During the 30-day
period following the date on which the Company shall no longer have
a Senior Public Debt Rating, the Company and the Banks shall
negotiate in good faith an acceptable, tiered replacement to measure
the Applicable Margin, having due regard to the Company's credit
standing and financial condition and the prevailing interest rate
environment at such time, failing which the margins set forth in III.
above shall be applicable from and after such date on which the
Company shall no longer have a Senior Public Debt Rating.
"Application for Letter of Credit": as defined in paragraph
2.20(b).
"Assessment Rate": with respect to any Interest Period
applicable to a CD Loan, the rate (expressed as a decimal, rounded
upwards, if necessary, to the next higher 1/100 of 1%), as imposed by
the Federal Deposit Insurance Corporation and reported to the Agent,
to be the then current actual assessment rate payable by BNY to the
Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time deposits
made in Dollars at BNY's domestic offices.
"Assignment and Acceptance Agreement": as defined in paragraph
11.7(b).
"Assignment Fee": as defined in paragraph 11.7(b).
"Authorized Signatory": in respect of a Person, the president,
any vice president or any other duly authorized officer (acceptable
to the Agent) of such Person.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to
time as its prime commercial lending rate, such rate to be adjusted
automatically (without notice) on the effective date of any change in
such publicly announced rate.
"Base Rate": on any date, a rate of interest per annum equal to
the higher of (i) the BNY Rate in effect on such date or (ii) 1/2 of 1%
plus the Federal Funds Rate in effect on such date.
"Base Rate Loans": R/C Loans (or any portions thereof) at such
time as they (or such portions) are made or are being maintained at
a rate of interest based upon the Base Rate.
"Borrowing Date": any date specified in a Borrowing Request
delivered pursuant to paragraphs 2.2, 2.3 or 2.20 as a date on which
the Company requests the Lenders to make Loans comprising an R/C
Borrowing or a Competitive Bid Borrowing or the L/C Issuing Bank to
issue a Letter of Credit.
"Borrowing Request": an R/C Borrowing Request, Competitive Bid
Borrowing Request or L/C Issuance Request, as the case may be.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, Sunday or other
day on which commercial banks located in New York City are authorized
or required by law or other governmental action to close and (ii)
with respect to all notices and determinations in connection with,
and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) above and which is
also a day on which dealings in foreign currency and exchange and
Eurodollar funding between banks may be carried on in London,
England.
"CD Loans": collectively, Loans (or any portions thereof) at
such time as they (or such portions) are made or being maintained at
a rate of interest based upon the CD Rate. Each CD Loan shall mature
on the last day of the Interest Period applicable thereto.
"CD Rate": with respect to any Interest Period applicable to any
CD Loan, the rate per annum (rounded to the nearest 1/100 of 1%, or,
if there is no nearest 1/100 of 1%, then to the next higher 1/100 of
1%) equal to the sum of (i) the Assessment Rate plus (ii) the product
of (x) the Dealer Bid Rate and (y) Statutory Reserves. The CD Rate
shall be adjusted automatically on and as of the effective date of
any change in Statutory Reserves or the Assessment Rate. Each
determination by the Agent of the CD Rate shall be conclusive in the
absence of manifest error.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules
and regulations issued thereunder, as from time to time in effect.
"Commitment": as to any Lender, the amount set forth next to the
name of such Lender in Exhibit A under the heading "Commitment," as
such Commitment may be reduced pursuant to paragraphs 2.5 or 11.7(b).
"Commitment Percentage": as to any Lender, the percentage that
the Commitment of such Lender bears to the Aggregate Commitments,
initially, as set forth opposite the name of such Lender in Exhibit
A under the heading "Commitment Percentage", as such percentage may
be reallocated pursuant to paragraph 2.18 (whereupon such percentage
shall become such Lender's Reallocated Commitment Percentage, as such
term is hereinafter defined) or decreased upon an assignment
permitted under paragraph 11.7(b).
"Commitment Period": the period from the Effective Date to, but
excluding, the Termination Date.
"Competitive Bid Borrowing": a borrowing of principal amounts
pursuant to paragraph 2.3 consisting of simultaneous Competitive Bid
Loans from each Lender whose offer to make a Competitive Bid Loan as
part of such borrowing has been accepted by the Company under the
auction bidding procedure set forth in paragraph 2.3.
"Competitive Bid Borrowing Request": a borrowing request in the
form of Exhibit C.
"Competitive Bid Loan": a Loan made pursuant to paragraph 2.3.
"Competitive Bid Reduction": as to any Lender on any date, an
amount equal to such Lender's Commitment Percentage of the aggregate
principal amount of all Competitive Bid Loans outstanding on such
date (after giving effect to the payment of any Competitive Bid Loans
to be paid on such date).
"Consenting Lender": as defined in paragraph 2.18.
"Consolidated": the Company and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidating": the Company and its Subsidiaries taken
separately.
"Contingent Obligation": as applied to the Company and its
Consolidated Subsidiaries, Indebtedness of others (i) which the
Company or any Consolidated Subsidiary has directly or indirectly
guaranteed, indorsed (other than for deposit or collection or in the
ordinary course of business), discounted with recourse, agreed
(contingently or otherwise) to purchase or repurchase or otherwise
acquire, or (ii) with respect to which the Company or any
Consolidated Subsidiary has agreed contingently to supply or advance
funds (whether by way of loan, share purchase or capital
contribution, through a commitment to pay rent or to pay for Property
or services regardless of dispossession from such Property, the
non-delivery of such Property or the non-furnishing of such services,
or otherwise), or (iii) with respect to which the Company or any
Consolidated Subsidiary has otherwise become directly or indirectly
liable, provided, however, that "Contingent Obligations" shall
exclude any Indebtedness of others with respect to which the Company
or any Consolidated Subsidiary is obligated solely upon the
occurrence of a default by any Consolidated Subsidiary of its
covenants and undertakings under any contracts or agreements (except,
however, such Indebtedness of others shall not be excluded after the
occurrence of such default to the extent that the Company or any
Material Subsidiary has directly assumed or has otherwise become
directly liable for such Indebtedness of others as a result of the
exercise of remedies in connection with such default).
"Conversion Date": with respect to R/C Loans, the date on which
a Eurodollar or CD Loan is converted to a Base Rate Loan, or the date
on which a Base Rate Loan is converted to a Eurodollar or CD Loan, or
the date on which a Eurodollar Loan is converted to a CD Loan or a
new Eurodollar Loan or the date on which a CD Loan is converted to a
Eurodollar Loan or a new CD Loan, all in accordance with paragraph
2.7.
"Current Assets": current assets of the Company and its
Subsidiaries determined on a Consolidated basis in accordance with
GAAP.
"Current Liabilities": current liabilities of the Company and
its Subsidiaries determined on a Consolidated basis in accordance
with GAAP.
"Dealer Bid Rate": with respect to any Interest Period
applicable to any CD Loan, the arithmetic average of the bid rates as
determined by each Reference Lender and reported to the Agent
(rounded to the nearest 1/100 of 1% or, if there is no nearest 1/100
of 1%, then to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at approximately 10:00 a.m. (New York City time) to
such Reference Lender on the date upon which a CD Interest Period is
to commence by two New York City negotiable certificate of deposit
dealers of recognized standing selected by such Reference Lender for
the purchase, at par, of negotiable certificates of deposit of such
Reference Lender in an amount equal approximately to such Reference
Lender's CD Loan to which such Interest Period shall apply and having
a maturity comparable to such Interest Period. If any Reference
Lender does not provide its average bid rate to the Agent, the Dealer
Bid Rate shall be determined on the basis of the bid rate(s) reported
by the other Reference Lender(s).
"Default": any of the events specified in paragraph 9.1, whether
any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Lending Office": in respect of any Lender, initially,
the office of such Lender designated as such on Schedule 1.1;
thereafter, such other office or offices of such Lender, if any,
which shall be making or maintaining Base Rate Loans or CD Loans, as
reported by such Lender to the Agent.
"Effective Date": the date on which executed counterparts of
this Agreement have been delivered to the Agent by the Company and
each Lender and the Existing Credit Agreement has been terminated and
all sums due thereunder paid in full.
"Eligible Assignee": an assignee which is any bank, insurance
company or financial institution organized under the laws of the
United States or any state thereof acting for its own account, which
(A) is regularly engaged in the business of making loans in
transactions similar to this Agreement, and (B) has a consolidated
net worth in excess of $200,000,000.
"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting,
manufacturing, handling, discharge, disposal or recycling of
hazardous substances, materials or pollutants or industrial hygiene
and including, without limitation, (i) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended,
42 USCA Section 9601 et seq.; (ii) the Resource Conservation and Recovery
Act of 1976, as amended, 42 USCA Section 6901 et seq.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA Section 2601 et. seq.; (iv) the
Water Pollution Control Act, as amended, 33 USCA Section 1251 et. seq.; (v)
the Clean Air Act, as amended, 42 USCA Section 7401 et seq.; (vi) the
Hazardous Material Transportation Act, as amended, 49 USCA Section 1801 et
seq. and (vii) all rules, regulations, judgments, decrees, injunc-
tions and restrictions thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued
thereunder, as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group of
organizations (i) described in Section 414(b) or (c) of the Code of
which the Company or any Subsidiary is a member, or (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the Lien created under
Section 302(f) of ERISA and Section 412(n) of the Code, described in
Section 414(m) or (o) of the Code of which any Loan Party is a
member.
"Eurodollar Lending Office": in respect of any Lender, in-
itially, the office of such Lender designated as such on Schedule 1.1
(or, if no such office is specified, its Domestic Lending Office);
thereafter, such other office, if any, of such Lender which shall be
making or maintaining Eurodollar Loans, as reported by such Lender to
the Agent.
"Eurodollar Loans": collectively, Loans hereunder (or any por-
tions thereof) at such time as they (or such portions) are made or
being maintained at a rate of interest based upon the Eurodollar
Rate. Each Eurodollar Loan shall mature on the last day of the
Interest Period applicable thereto.
"Eurodollar Rate": with respect to any Interest Period
applicable to any Eurodollar Loan, the arithmetic average of the
rates of interest per annum (rounded to the nearest 1/100 of 1% or,
if there is no nearest 1/100 of 1%, then to the next higher 1/100 of
1%), as reported by each Reference Lender to the Agent, quoted by
such Reference Lender to leading banks in the interbank eurodollar
market as the rate at which such Reference Lender is offering Dollar
deposits in an amount equal approximately to the Eurodollar Loan of
such Reference Lender to which such Interest Period shall apply for
a period equal to such Interest Period, as quoted at approximately
11:00 a.m. (New York City time) two Business Days prior to the first
day of such Interest Period. If any Reference Lender does not provide
its quotation to the Agent, the Eurodollar Rate shall be determined
on the basis of the quotation(s) reported by the other Reference
Lender(s). The Company acknowledges that the Eurodollar Rate is not
adjusted for reserves with respect to Eurodollar liabilities under
Regulation D of the Board of Governors of the Federal Reserve System
and agrees to pay to each Lender any additional costs with respect
thereto to the extent set forth in paragraph 2.12(b).
"Event of Default": any of the events specified in paragraph
9.1, provided that any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.
"Existing Agreement": the Credit Agreement, dated as of January
31, 1990, by and among the Company, the signatory banks thereto,
National Westminstser Bank, PLC, Swiss Bank Corporation and Union
Bank of Switzerland, as lead managers, and The Bank of New York, as
agent, as amended.
"Extension Request": as defined in paragraph 2.18.
"Facility Fee": as defined in paragraph 3.2.
"Federal Funds Rate": for any day, the rate per annum 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 Business Day next succeeding such
day, provided that (i) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding
Business Day as published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average of the quotations for such day
on such transactions received by BNY from three Federal funds brokers
of recognized standing selected by BNY on such day on such
transactions as determined by BNY and reported to the Agent.
"Financial Statements": as defined in paragraph 4.14.
"Fixed Charge Coverage Ratio": the ratio of (i) the sum of
Operating Income, Interest Expense and Rent Expense to (ii) the sum
of Interest Expense and Rent Expense, all on a Consolidated basis.
"GAAP": generally accepted accounting principles as of the date
of any determination dependent thereupon, consistently applied.
"Governmental Body": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any court or arbitrator.
"Highest Lawful Rate": the maximum rate of interest, if any,
that at any time or from time to time may be contracted for, taken,
charged or received on the Notes or which may be owing to any Lender
pursuant to this Agreement under the laws applicable to such Lender
and this transaction.
"Indebtedness": without duplication, with respect to the Company
and its Subsidiaries, all (a) obligations in respect of borrowed
money or for the deferred purchase price of Property or services
which are, in accordance with GAAP, includable as a liability on a
Consolidated balance sheet, and (b) amounts representing the
capitalization of rentals in accordance with GAAP; provided, however,
that "Indebtedness" shall exclude any Indebtedness of any Subsidiary
which, with respect to such Subsidiary, is limited in recourse to the
assets financed with the proceeds of such Indebtedness and any
Property or contract rights related to such assets or revenues
attributable thereto (except, however, such Indebtedness of a
Subsidiary shall not be excluded after the occurrence of a default by
by such Subsidiary in the performance of its obligations under any contract
or agreement to the extent that the Company or any Material Subsidiary has
directly assumed or has otherwise become directly liable for such
indebtedness pursuant to performance guarantees given by the Company or
such Material Subsidiary as a result of the exercise of remedies in
connection with such default).
"Indemnified Liabilities": as defined in paragraph 11.5.
"Interest Expense": for any period, the sum of all interest
(adjusted to give effect to all interest rate swap, cap or other
interest rate hedging arrangements and fees and expenses paid in
connection with the same, all as determined in accordance with GAAP),
paid or accrued in respect of all Indebtedness for such period by the
Company and its Subsidiaries on a Consolidated basis, as determined
in accordance with GAAP.
"Interest Payment Date": (i) as to any Base Rate Loan, the last
day of each February, May, August and November commencing on the
first of such days to occur after such Base Rate Loan is made or any
Eurodollar or CD Loan is converted to a Base Rate Loan, (ii) as to
any Eurodollar Loan, the last day of the applicable Interest Period
and, if such Interest Period is longer than three months, the date
which is three months after the first day of such Interest Period,
(iii) as to any CD Loan, the last day of the applicable Interest
Period and, if such Interest Period is longer than 90 days, the date
which is 90 days after the first day of such Interest Period, and
(iv) with respect to any Competitive Bid Loan, the maturity date for
such Competitive Bid Loan established pursuant to the Competitive Bid
Borrowing Request with respect thereto delivered under paragraph 2.3,
and if the Interest Period with respect thereto exceeds 90 days, the
date which is 90 days after the first day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar or CD Loan
comprising the same R/C Borrowing requested by the Company:
(i) initially, the period commencing on the Borrowing Date
or Conversion Date with respect to such Eurodollar or CD Loan
and ending one, two, three or six months, or 30, 60, 90 or 180
days, as the case may be, thereafter, as selected by the Company
in its irrevocable notice of borrowing given pursuant to
paragraph 2.2 or its irrevocable notice of conversion as given
pursuant to paragraph 2.7; and
(ii) thereafter, each period commencing on the last day of
the immediately preceding Interest Period applicable to such
Eurodollar or CD Loan and ending one, two, three or six months,
or 30, 60, 90 or 180 days, as the case may be, thereafter, as
selected by the Company in its irrevocable notice of conversion
pursuant to paragraph 2.7;
(b) with respect to any Competitive Bid Loan comprising
the same Competitive Bid Borrowing, the period commencing on the
Borrowing Date with respect to such Competitive Bid Loan and ending
on the maturity date thereof specified in the Competitive Bid
Borrowing Request with respect thereto given pursuant to paragraph
2.3;
provided, however, that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar or CD Loan
would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Busi-
ness Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding
Business Day;
(ii) if, with respect to any borrowing or the conversion of
any R/C Loan, the Company shall fail to give due notice as provided in
paragraph 2.2 or 2.7, as the case may be, the Company shall be deemed to
have selected the Base Rate for such R/C Loan or such R/C Loan
shall be automatically converted to a Base Rate Loan upon the
expiration of the Interest Period with respect thereto;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corre-
sponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iv) no Interest Period selected in respect of any Loan shall end
after the Termination Date, as the same may be extended pursuant to
paragraph 2.18; and
(v) the Company shall select Interest Periods so as not to have
more than five different Interest Periods outstanding at any one time.
"Joint Venture Subsidiary": any Subsidiary of which the Company
or any Subsidiary of the Company, directly or indirectly, owns or
controls less than 80% of the outstanding Stock having ordinary
voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any
contingency.
"L/C Issuance Request": as defined in paragraph 2.20(b).
"L/C Issuing Bank": BNY.
"Letter of Credit" and "Letters of Credit": as defined in
paragraph 2.20(a).
"Letter of Credit Commission": as defined in paragraph 2.23(b).
"Letter of Credit Exposure": at a particular date, the sum of
(i) the undrawn face amounts of the Letters of Credit at such date
and (ii) the aggregate unpaid reimbursement obligations in respect of
the Letters of Credit at such date (after giving effect to any R/C
Loans made on such date to pay any such reimbursement obligations).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature
whatsoever, including, without limitation, any conditional sale or
other title retention agreement and any financing lease having
substantially the same economic effect as any of the foregoing.
"Loan": an R/C Loan or a Competitive Bid Loan, as the case may
be.
"Loan Documents": collectively, this Agreement, the Letters of
Credit, the Applications for Letters of Credit, and the Notes.
"Loans": R/C Loans and Competitive Bid Loans, collectively.
"Material Adverse Change": a material adverse change in the
operations or financial condition of the Company and its Subsidiaries
taken as a whole.
"Material Adverse Effect": a material adverse effect on the
operations or financial condition of the Company and its Subsidiaries
taken as a whole.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System,
as the same may be amended or supplemented from time to time.
"Material Subsidiary": Projects; Ogden Services Corporation, a
Delaware corporation; Ogden Financial Services, Inc., a Delaware
corporation; any successor to any of the foregoing by merger,
consolidation, amalgamation, reorganization, recapitalization,
liquidation, or any similar transaction; and any other Subsidiary
(other than a Subsidiary whose assets are financed with debt which
limited in recourse to such Subsidiary or to the assets being
financed with the proceeds of such debt and any Property or contract
rights related to such assets or revenues attributable thereto)
which, at any time during the Commitment Period, has a Shareholders'
Equity equal to or greater than $60,000,000.
"Material Subsidiary Group": at any time, one or more
Subsidiaries (other than a Subsidiary whose assets are financed with
debt which is limited in recourse to such Subsidiary or to the assets
being financed with the proceeds of such debt and any Property or
contract rights related to such assets or revenues attributable
thereto) which have singly or in the aggregate a Shareholders' Equity
equal to or greater than $60,000,000. For purposes of determining
whether one of the events described in paragraphs 9.1(g) or (h) has
occurred with respect to a Material Subsidiary Group, the
Shareholders' Equity of each Subsidiary as of the most recent fiscal
year-end of such Subsidiary with respect to which one of such events
has occurred and is continuing shall be aggregated from the Effective
Date to the Termination Date.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Nonconsenting Lender": as defined in paragraph 2.18.
"Note and Notes": as defined in paragraph 2.4.
"Operating Income": net income before income taxes and minority
interests of the Company and its Subsidiaries from continuing
operations, determined on a Consolidated basis in accordance with
GAAP.
"Participating Lender": as defined in paragraph 2.3.
"Participation Fee": as defined in paragraph 3.1.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Body
succeeding to the functions thereof.
"Permitted Liens":
(i) any Lien on any Property securing Indebtedness
incurred or assumed for the purpose of financing all or any part
of the acquisition cost or construction cost of such Property, to
the extent that such Lien does not extend to any other Property;
(ii) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provision
(in the opinion of an authorized financial officer of the
Company) shall have been established on the books of the Company;
(iii) statutory Liens of landlords and Liens securing
claims of contractors, subcontractors, suppliers of goods,
materials, equipment or services, or laborers or other like Liens
arising in the ordinary course of business for amounts not yet
due or which are being contested in good faith and with respect
to which adequate reserves or other appropriate provision (in the
opinion of an authorized financial officer of the Company) shall
have been established on the books of the Company;
(iv) Liens (other than any Lien imposed by ERISA)
incurred in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations, surety bonds, appeal and release bonds,
bids, leases, government contracts, performance and return-of-
money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(v) easements, rights-of-way, restrictions and other
similar charges or encumbrances not interfering with the ordinary
conduct of the business of the Company or any of its
Subsidiaries;
(vi) Liens existing on any Property prior to the ac-
quisition thereof, or prior to the acquisition of the Person
which owns such Property, by the Company or any of its Sub-
sidiaries, in each case which Lien was not created in contem-
plation of such acquisition;
(vii) Liens on any Property or contract rights related
to such Property and to revenues attributable thereto, in each
case of a Subsidiary where such Property or contract right is
financed with debt which is limited in recourse to such
Subsidiary or to the assets being financed with the proceeds of
such debt and any Property or contract rights related to such
assets or revenues attributable thereto;
(viii) Liens on assets of a Subsidiary which operates
primarily as a finance company or a leasing company, including,
but not limited to Subsidiaries in the business of investing in
securities and/or financing for third parties, incurred in the
ordinary course of such leasing or financing business;
(ix) any other Liens, up to an amount not to exceed 20%
of the Company's Shareholders' Equity; and
(x) extensions, renewals or replacements of any Lien
referred to in clauses (i) through (viii) above, but only to the
extent that (a) the principal amount of the Indebtedness or
obligation secured thereby is not increased, and (b) any such
extension, renewal or replacement is limited to the Property
originally encumbered thereby.
"Permitted Subsidiary Indebtedness": all Indebtedness of
Subsidiaries which is includible as a liability on a Consolidated
Balance Sheet of the Company prepared in accordance with GAAP,
provided, however, that Permitted Subsidiary Indebtedness shall
be limited to:
(i) Indebtedness of any Subsidiary existing on the
Effective Date as set forth on Schedule 1.1p;
(ii) Indebtedness of any Subsidiary: (a) that is
incurred by a non-operating special purpose Subsidiary, (b) the
payment of which is guaranteed, directly or indirectly by the
Company, and (c) the proceeds of which are loaned by such
Subsidiary to the Company (i) on terms of subordination no less
favorable to the Lenders than the subordination provisions set
forth in Exhibit B to the Agency Agreement (to the extent that
such provisions are in favor of holders of Senior Indebtedness as
defined in the Agency Agreement) as in effect on the Effective
Date and without giving effect to any amendments thereto which
may detract or derogate from the rights of the holders of Senior
Indebtedness, or (ii) on other terms of subordination
satisfactory to the Lenders in form and substance, and which is
immediately repaid upon the repayment of such loan by the
Company;
(iii) Indebtedness of any Subsidiary that is secured by
a Permitted Lien;
(iv) Unsecured, non-revolving Indebtedness of any
Subsidiary which is created in connection with the acquisition or
construction of Property for use in the ordinary course of the
business of such Subsidiary;
(v) Indebtedness of any Person existing at the time
such Person becomes a Subsidiary;
(vi) Indebtedness of any Subsidiary arising out of a
lease, conditional sale or other, similar arrangement in respect
of Property used in the ordinary course of the business of such
Subsidiary;
(vii) Any renewal, extension or refinancing of any
Indebtedness set forth in subparagraphs (i) through (vi) above,
except that, with respect to any revolving Indebtedness included
in subparagraph (v) above of a Person that becomes a Subsidiary
and is not a Joint Venture Subsidiary, such revolving Indebt-
edness shall not be maintained, renewed, extended or refinanced
beyond six months from the date of the acquisition of such
Subsidiary; and
(viii) Other Indebtedness of Subsidiaries not exceeding
an aggregate amount at any time outstanding of $25,000,000.
"Person": an individual, a partnership, a corporation, a
business trust, a joint stock company, a trust, an unincorporated
association, a joint venture, a Governmental Body or any other
entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of
ERISA and which is maintained by or to which contributions are
made by the Company, a Subsidiary or an ERISA Affiliate or in
respect of which the Company, a Subsidiary or an ERISA Affiliate
has or may have any liability.
"Projects": Ogden Projects, Inc., a Delaware corporation.
"Property": all types of real, personal, tangible, intan-
gible or mixed property.
"Proposed Bid Rate": as applied to any Remaining Interest
Period with respect to a Lender's Competitive Bid Loan, the rate
per annum that such Lender in good faith would have quoted to the
Company had the Company requested that such Lender offer to make
a Competitive Bid Loan on the first day of such Remaining
Interest Period, assuming no Default or Event of Default existed
on such day and that the Company had the right to borrow
hereunder on such day; such rate to be determined by such Lender
in good faith in its sole discretion.
"R/C Borrowing": a borrowing of principal amounts pursuant
to paragraph 2.2 consisting of R/C Loans of the same Type made by
each Lender.
"R/C Borrowing Request": a borrowing request in the form of
Exhibit B.
"R/C Loan": a Loan made pursuant to paragraph 2.1.
"Reallocated Commitment Percentage": as defined in paragraph
2.18.
"Reference Lenders": BNY, Chemical Bank and Union Bank of
Switzerland.
"Remaining Interest Period": (i) in the event that the
Company shall not for any reason borrow after it shall have
notified the Agent of its intent to do so and shall have re-
quested a Eurodollar or CD Loan pursuant to paragraph 2.2 or
accepted one or more offers of Competitive Bid Loans under
paragraph 2.3, a period equal to the Interest Period that the
Company elected in respect of such Eurodollar or CD Loan or
Competitive Bid Loans; (ii) in the event that a Eurodollar or CD
Loan or Competitive Bid Loan shall terminate for any reason prior
to the last day of the Interest Period applicable thereto, a
period equal to the remaining portion of such Interest Period if
such Interest Period had not been so terminated; or (iii) in the
event that the Company shall prepay or repay all or any part of
the principal amount of a Eurodollar or CD Loan or Competitive
Bid Loan prior to the last day of the Interest Period applicable
thereto, a period equal to the period from and including the date
of such prepayment or repayment to but excluding the last day of
such Interest Period.
"Rent Expense": expense of the Company and its Subsidiaries
on a Consolidated basis under leases which, pursuant to GAAP,
would be considered to be operating leases. "Rent Expense" shall
not be construed to include amounts based on or in respect of (i)
contingent factors (principally sales) in excess of minimum
rentals under leases of the Company or its Subsidiaries, (ii)
certain payments, set forth on Schedule 1.1(r), in connection
with a waste-to-energy plant located in Tulsa, Oklahoma and a
hydroelectric plant located in New Martinsville, West Virginia,
and (iii) Rent Expense of the Company which is similar in nature
to the Rent Expense described in clause (ii) above and which the
Required Lenders, at the request of the Company, have agreed to
exclude.
"Replacement Lender": as defined in paragraph 2.18.
"Reportable Event": any event described in Section 4043(b)
of ERISA, other than an event (excluding an event described in
Section 4043(b)(i) relating to tax disqualification) with respect
to which the 30-day notice requirement has been waived.
"Required Lenders": at any time when no Loans are out-
standing (whether or not Letters of Credit are then outstanding)
or there are both R/C Loans and Competitive Bid Loans
outstanding, Lenders having Commitments equal to more than
66 2/3% of the Aggregate Commitments. At any time when only R/C
Loans are outstanding (whether or not Letters of Credit are then
outstanding), Lenders holding Notes having an unpaid principal
balance equal to more than 66 2/3% of the aggregate Loans out-
standing. At any time when only Competitive Bid Loans are
outstanding (whether or not Letters of Credit are then
outstanding), Lenders having Commitments equal to more than
66 2/3% of the Aggregate Commitments (whether used or unused),
except that for purposes of paragraph 9.2(a)(i) and paragraphs
9.2(a)(ii)(B) and (D), the term "Required Lenders" shall mean
Lenders holding more than 66 2/3% of the outstanding Competitive
Bid Loans if no Letters of Credit are then outstanding, but if
Letters of Credit are also then outstanding, such term shall mean
Lenders holding more than 66 2/3% of the outstanding Competitive
Bid Loans and Lenders having more than 66 2/3 of the Letter of
Credit Exposure.
"Securities Exchange Act": the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
"Senior Public Debt Rating": the Company's senior public
debt rating or implied senior public debt rating by Moody's
Investors Service, Inc. and Standard & Poor's Corporation.
"Shareholders' Equity": all amounts which would, in con-
formity with GAAP, be included under shareholders' equity on a
Consolidated balance sheet.
"Single Employer Plan": any Plan which is not a Multi-
employer Plan.
"Special Counsel": Emmet, Marvin & Martin.
"Statutory Reserves": the quotient (expressed as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%),
obtained by dividing (i) the number one by (ii) the number one
minus the aggregate of the reserve percentages expressed as a
decimal established by the Board of Governors of the Federal
Reserve System and any other banking authority to which BNY is
subject for new non-personal negotiable time deposits in Dollars
over $100,000 with maturities approximately equal to the Interest
Period pertaining to the CD Loan in question, such reserve
percentages including, without limitation, those imposed under
Regulation D of said Board of Governors.
"Stock": any and all shares, interests, participations,
warrants or other equivalents (however designated) of corporate
stock.
"Subordinated Indebtedness": at any time, the following
Indebtedness:
(a) the then outstanding principal amount of In-
debtedness of the Company evidenced by (i) the 6% Convertible
Subordinated Debentures Due 2002, and (ii) the 5 3/4% Convertible
Subordinated Debentures Due 2002; and
(b) the principal amount of additional Indebtedness
then outstanding incurred after March 31,1993 for which the
Company is directly or primarily obligated and the payment of
which is, by the terms thereof, subordinated to the obligations
of the Company under the Notes (i) by subordination provisions no
less favorable to the Lenders than the subordination provisions
set forth in Exhibit B to the Agency Agreement (to the extent
that such provisions are in favor of holders of Senior
Indebtedness as defined in the Agency Agreement) as in effect on
the Effective Date and without giving effect to any amendments
thereto which may detract or derogate from the rights of the
holders of Senior Indebtedness, or (ii) by other subordination
provisions satisfactory to the Lenders in form and substance.
"Subsidiary": any corporation, association, partnership,
joint venture or other business entity of which the Company or
any Subsidiary of the Company, directly or indirectly, owns or
controls more than 50% of the outstanding Stock having ordinary
voting power to elect a majority of the board of directors or
similar managing body, irrespective of whether a class or classes
shall or might have voting power by reason of the happening of
any contingency.
"Substitute Lender": as defined in paragraph 2.19.
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions,
withholdings, or other charges of whatever nature, now or
hereafter imposed, levied, collected, withheld, or assessed by
any Governmental Body.
"Termination Date": the third anniversary of the Effective
Date or any date subsequent thereto resulting from an extension
of the Termination Date pursuant to paragraph 2.18.
"Transaction Record": as defined in paragraph 2.17.
"Type": R/C Loans made hereunder as Base Rate Loans, Eu-
rodollar Loans or CD Loans, as the case may be.
2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents
or any certificate or other document made or delivered pursuant
thereto, unless otherwise defined therein.
(b) As used in the Loan Documents and in any cer-
tificate or other document made or delivered pursuant thereto,
accounting terms relating to the Company not defined in paragraph
1.1, and accounting terms partly defined in paragraph 1.1, to the
extent not defined, shall have the respective meanings given to
them under GAAP.
(c) The words "hereof", "herein", "hereto" and "here-
under" and similar words when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and paragraph, schedule and exhibit references
contained herein shall refer to paragraphs hereof or schedules or
exhibits hereto unless otherwise expressly provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive; and the singular includes the
plural.
2. AMOUNT AND TERMS OF LOANS
1 R/C Loans.
Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make R/C Loans to the Company
from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed such
Lender's Commitment, provided that the aggregate unpaid principal
balance of all R/C Loans and Competitive Bid Loans at any one
time outstanding, plus the Letter of Credit Exposure at such
time, shall not exceed the Aggregate Commitments. During such
period, the Company may borrow, prepay in whole or in part and
reborrow under the Commitments, all in accordance with the terms
and conditions hereof. Subject to the provisions of paragraphs
2.3 and 2.7, R/C Loans may be (a) Base Rate Loans, (b) Eurodollar
Loans, (c) CD Loans, or any combination thereof.
2 Procedure for R/C Borrowings.
(a) The Company may borrow R/C Loans on any Business
Day occurring on or after the Effective Date and ending on the
Termination Date, by giving the Agent an irrevocable telephonic
or telecopy (to be promptly confirmed in writing) or written
notice of borrowing (each an "R/C Borrowing Request") no later
than 11:00 A.M., New York City time, three Business Days prior to
each requested Borrowing Date, in the case of Eurodollar and CD
Loans, and no later than 11:00 A.M., New York City time, two
Business days prior to the requested Borrowing Date, in the case
of Base Rate Loans, specifying (i) the aggregate amount to be
borrowed under the Aggregate Commitments, (ii) the requested Bor-
rowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, CD Loans, Base Rate Loans, or a combination thereof, and
(iv) if the borrowing is to be of Eurodollar or CD Loans, the
length of the initial Interest Period for such Loans. Each R/C
Borrowing shall be in an aggregate principal amount equal to
$5,000,000 or such amount plus a whole multiple of $1,000,000.
Each borrowing of Base Rate Loans comprising all or a portion of
an R/C Borrowing shall be in an aggregate principal amount equal
to $1,000,000 or such amount plus an integral multiple thereof
or, if less, the unused amount of the Aggregate Commitments. Each
borrowing of Eurodollar or CD Loans comprising all or a portion
of an R/C Borrowing shall be in an aggregate principal amount
equal to $5,000,000 or such amount plus a whole multiple of
$1,000,000. Upon receipt of each notice of borrowing from the
Company, the Agent shall promptly notify each Lender thereof.
Subject to its receipt of the notice referred to in the preceding
sentence, each Lender will make the amount of its Commitment Per-
centage of each R/C Borrowing available to the Agent for the
account of the Company at the office of the Agent set forth in
paragraph 11.2 not later than 12:00 Noon, New York City time, on
the R/C Borrowing Date requested by the Company, in funds im-
mediately available to the Agent at such office. The amounts so
made available to the Agent on a Borrowing Date will then,
subject to the satisfaction of the terms and conditions of this
Agreement as determined by the Agent, be made available on such
date to the Company by the Agent at the office of the Agent
specified in paragraph 11.2 by crediting the account of the
Company on the books of such office with the aggregate of said
amounts in like funds as received by the Agent. In the event of
any inconsistency between the provisions of this paragraph 2.2(a)
and paragraphs 2.20, 2.21 and 2.22 with respect to R/C Loans made
pursuant to paragraph 2.21 to reimburse the L/C Issuing Bank for
amounts paid by the L/C Issuing Bank under Letters of Credit, the
provisions of paragraphs 2.20, 2.21 and 2.22 shall control.
(b) Unless the Agent shall have received prior notice
from a Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) that such Lender will not
make available to the Agent such Lenders' pro rata share of the
R/C Loans requested by the Company, the Agent may assume that
such Lender has made such share available to the Agent on
such Borrowing Date in accordance with this paragraph, provided
that such Lender received notice of the proposed R/C Borrowing
from the Agent, and the Agent may, in reliance upon such assump-
tion, make available to the Company on such Borrowing Date a
corresponding amount. If and to the extent such Lender shall not
have so made such pro rata share available to the Agent, such
Lender and the Company severally agree to pay without duplication
to the Agent forthwith on demand such corresponding amount (to
the extent not previously paid by the other), together with
interest thereon for each day from the date such amount is made
available to the Company until the date such amount is paid to
the Agent, at a rate per annum equal to, in the case of the
Company, the applicable interest rate set forth in paragraph 2.8,
and, in the case of such Lender, the Federal Funds Rate in effect
on each such day (as determined by the Agent). Such payment by
the Company, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Agent such
corresponding amount, such amount so paid shall constitute such
Lender's R/C Loan as part of such R/C Loans for purposes of this
Agreement, which R/C Loan shall be deemed to have been made by
such Lender on the Borrowing Date applicable to such R/C Loans.
3 Competitive Bid Loans and Procedure for Competitive Bid
Borrowings.
(a) Subject to the terms and conditions of this
Agreement, each Lender severally agrees that the Company may
effect Competitive Bid Borrowings under this paragraph 2.3 from
time to time on any Business Day during the period from the
Effective Date until the date occurring 30 days prior to the
Termination Date in the manner set forth below, provided,
however, that at no time shall the outstanding principal balance
of Competitive Bid Loans outstanding hereunder exceed the
Aggregate Commitments less the sum of (i) the outstanding
principal balance of all R/C Loans, if any, then outstanding and
(ii) the Letter of Credit Exposure at such time.
(i) The Company may request a Competitive Bid Borrowing
under this paragraph 2.3 by giving to the Agent, not later
than 10:00 A.M. (New York City time) at least four Business
Days prior to the date of the proposed Competitive Bid
Borrowing, a notice (each, a "Competitive Bid Borrowing
Request"), specifying the proposed date and aggregate amount
(which shall not be less than $5,000,000 or such amount plus
a whole multiple $1,000,000, or, if less, the unused amount
of the Aggregate Commitments) of the proposed Competitive
Bid Borrowing, the proposed Interest Period for each
Competitive Bid Loan to be made as part of such Competitive
Bid Borrowing (which Interest Period shall not be later than
the Termination Date and shall otherwise comply with the ap-
plicable provisions of the definition of "Interest Period"),
the Interest Payment Date or Dates relating thereto, and
such other terms to be applicable to such Competitive Bid
Borrowing as the Company may specify. The Agent shall
promptly notify (by telex or telecopy) each Lender of each
Competitive Bid Borrowing Request received by it and the
terms contained in such Request.
(ii) Each Lender shall, if, in its sole discretion,
it elects so to do, irrevocably offer to make one or more
Competitive Bid Loans to the Company as part of such
proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by
notifying (by telephone or telecopy (in the case of
telephone, immediately confirmed by telecopy)) the Agent,
before 10:00 A.M. (New York City time) three Business Days
before the Borrowing Date of such proposed Competitive Bid
Borrowing of the minimum amount and maximum amount of each
Competitive Bid Loan which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first
sentence of this paragraph 2.3, exceed such Lender's Com-
mitment), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such
Competitive Bid Loan. The Agent shall notify the Company of
all such offers before 10:30 A.M. three Business Days before
such proposed Borrowing Date, provided that if BNY in its
capacity as a Lender shall in its sole discretion elect to
make any such offer, it shall notify the Company of such
offer before 9:30 A.M. (New York City time) three Business
Days before such proposed Borrowing Date. If any Lender
other than BNY shall fail to notify the Agent before 10:00
A.M., and if BNY in its capacity as a Lender shall fail to
notify the Company before 9:30 A.M. (New York City time),
three Business Days before the proposed Borrowing Date, that
it elects to make such an offer, such Lender shall be deemed
to have elected not to make such an offer and such Lender
shall not be obligated to, and shall not, make any
Competitive Bid Loan as part of such Competitive Bid Borrow-
ing. Any offer submitted after the time required above shall
be disregarded by the Agent unless such offer is submitted
to correct a manifest error in a prior offer.
(iii) The Company shall, before 12:00 noon (New York
City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, either
(A) cancel such Competitive Bid Borrowing
Request by notice to the Agent to that effect, or
(B) in its sole discretion, irrevocably accept
one or more of the offers made by any Lender or Lenders
pursuant to (ii) above, in ascending order of the rates
offered therefor, by giving notice to the Agent of the
amount of each Competitive Bid Loan (which amount shall
be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to
the Company by the Agent on behalf of such Lender for
such Competitive Bid Loan pursuant to (ii) above) to be
made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by
Lenders pursuant to (ii) above, by giving the Agent
notice to that effect, provided, however, that the
aggregate amount of such offers accepted by the Company
shall be equal at least to $5,000,000. If offers for
Competitive Bid Loans at the same interest rate are
made by two or more Lenders for a greater aggregate
minimum principal amount than the amount in respect of
which offers for Competitive Bid Loans are accepted by
the Company at such interest rate, the principal amount
of Competitive Bid Loans accepted at such interest rate
shall be allocated by the Company among such Lenders as
nearly as possible in proportion to the respective
minimum principal amounts offered by such Lenders. No
such Lender shall be obligated to make such Competitive
Bid Loan in a principal amount less than the minimum
amount offered by such Lender without consenting to
such lesser amount. If any Lender declines to make a
Competitive Bid Loan at such lesser amount, the Company
shall be entitled in its sole discretion to determine
which of such offers at the same interest rate it shall
accept.
(iv) If the Company notifies the Agent that a
Competitive Bid Borrowing Request is cancelled pursuant to
(iii)(A) above, the Agent shall give prompt notice (by telex
or telecopy) thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Company accepts one or more of the offers
made by any Lender or Lenders pursuant to clause (iii)(B)
above, the Agent shall, as promptly as practicable on the
third Business Day before such proposed Borrowing Date,
notify (A) each Lender that has made an offer as described
in clause (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether any offer or
offers made by such Lender pursuant to clause (ii) above
have been accepted by the Company and (B) each Lender that
is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing (a "Participating Lender" with
respect to such Competitive Bid Borrowing), of the amount of
each Loan to be made by such Lender as part of such
Competitive Bid Borrowing, together with a specification of
the interest rate and Interest Payment Date or Dates in re-
spect of each such Competitive Bid Loan. Each such
Participating Lender shall, before 12:00 noon (New York City
time) on the date of such Competitive Bid Borrowing make
available for the account of its applicable Lending Office
to the Agent at its address specified in paragraph 11.2 such
Lender's portion of such Competitive Bid Borrowing, in funds
immediately available to the Agent at such office. Upon
satisfaction of the applicable terms and conditions of this
Agreement and after receipt by the Agent of such amount from
each such Participating Lender, the Agent will make such
amount available on such date to the Company at the office
of the Agent specified in paragraph 11.2 by crediting the
account of the Company on the books of such office with the
aggregate of such amounts, in like funds as received by the
Agent, and the Agent will notify each Lender of the amount
of such Competitive Bid Borrowing, such Lender's Competitive
Bid Reduction resulting therefrom and the date upon which
such Competitive Bid Reduction commenced and is anticipated
to terminate. After each Competitive Bid Borrowing, if
requested by any Lender, the Agent shall within a reasonable
time furnish to such Lender such information in respect of
such Competitive Bid Borrowing as such Lender shall rea-
sonably request. Unless the Agent shall have received prior
notice from a Participating Lender (by telephone or
otherwise, such notice to be promptly confirmed by telex,
telecopy or other writing) that such Participating Lender
will not make available such Participating Lender's Com-
petitive Bid Loan, the Agent may assume that such Par-
ticipating Lender has made such Participating Lender's
portion of such Competitive Bid Borrowing available to the
Agent on such Borrowing Date in accordance with this
paragraph, and the Agent may, in reliance upon such as-
sumption, make available to the Company on such Borrowing
Date a corresponding amount. If and to the extent such
Participating Lender shall not have made such portion
available to the Agent, such Participating Lender and the
Company severally agree to pay to the Agent forthwith on
demand (but without duplication) such corresponding amount
with interest thereon for each day from the date such amount
is made available to the Company until the date such amount
is paid to the Agent at a rate per annum equal to, in the
case of the Company, the rate of interest for such
Competitive Bid Loan accepted by the Company in its notice
to the Agent under paragraph 2.3(a)(iii)(B), and, in the
case of such Lender, the Federal Funds Rate in effect on
such day (as determined by the Agent). Such payment by the
Company, however, shall be without prejudice to its rights
against such Participating Lender. If such Participating
Lender shall pay to the Agent such corresponding amount,
such amount so paid shall constitute such Lender's
Competitive Bid Loan as a part of such Competitive Bid Loans
for purposes of this Agreement, which Competitive Bid Loan
shall be deemed to have been made by such Participating
Lender on the Borrowing Date applicable thereto, but without
prejudice to the Company's rights against such Participating
Lender.
(b) Within the limits and on the conditions set forth
in this paragraph 2.3, the Company may from time to time borrow
under this paragraph 2.3, repay pursuant to clause (c) below, and
reborrow under this paragraph 2.3.
(c) The Company shall repay to the Agent for the
account of each Participating Lender which has made a Competitive
Bid Loan on the maturity date of such Competitive Bid Loan (such
maturity date being that specified by the Company for repayment
of such Competitive Bid Loan in the related Competitive Bid
Borrowing Request delivered pursuant to (a)(i), above) the then
unpaid principal amount of such Competitive Bid Loan.
(d) The Company shall pay interest on the unpaid
principal balance of each Competitive Bid Loan from the date of
such Competitive Bid Loan to the date the principal amount of
such Competitive Bid Loan is repaid in full, at the rate of
interest for such Competitive Bid Loan specified by the Par-
ticipating Lender making such Competitive Bid Loan in its notice
with respect thereto delivered pursuant to (a)(ii) above payable
on the Interest Payment Date or Dates specified by the Company
for such Competitive Bid Loan in the related Competitive Bid
Borrowing Request delivered pursuant to (a)(i), above.
4 Notes.
The R/C Loans and Competitive Bid Loans made by each
Lender shall be evidenced by a promissory note of the Company,
substantially in the form of Exhibit E, with appropriate inser-
tions therein (each, as indorsed or modified from time to time,
including all replacements thereof and substitutions therefor, a
"Note" and, collectively with the Notes of all other Lenders, the
"Notes"), payable to the order of such Lender and representing
the obligation of the Company to pay the lesser of
(a) the amount of the Aggregate Commitments or (b) such lesser
amount as shall equal the aggregate unpaid principal balance of
all Loans made by such Lender, in each case with interest thereon
as prescribed in paragraph 2.8 (it being understood that any
Lender may, but is not obligated to, make Competitive Bid Loans
in excess of its Commitment and up to the amount of the Aggregate
Commitments (less the sum of the outstanding principal balance of
the R/C Loans, if any, then outstanding and the Letter of Credit
Exposure) as provided in paragraph 2.3(a)(ii)). Each Lender is
hereby authorized to record (i) the date and amount of each R/C
Loan or Competitive Bid Loan made by such Lender, (ii) its
character (in the case of R/C Loans) as a Base Rate Loan, a
Eurodollar Loan, a CD Loan, or a combination thereof, (iii) the
Interest Period and interest rate applicable to Eurodollar and CD
Loans, and (iv) the date and amount of each conversion of, and
each payment or prepayment of principal of, any R/C Loans or
Competitive Bid Loans, on the schedule (and any continuations
thereof) annexed to and constituting a part of its Note. No
failure to so record or any error in so recording shall affect
the obligation of the Company to repay the R/C Loans and Com-
petitive Bid Loans, with interest thereon, as herein provided.
Each Note shall (1) be dated the first Borrowing Date, (2) be
stated to mature on the Termination Date, and (3) bear interest
for the period from and including the date thereof on the unpaid
principal balance thereof from time to time outstanding at the
applicable interest rate or rates per annum determined as pro-
vided in paragraph 2.3 or paragraph 2.8. Interest on each Note
shall be payable as determined in paragraph 2.3 or as specified
in paragraph 2.8.
5 Reduction of Commitments.
(a) Voluntary Reductions. The Company shall have the
right, upon at least five Business Days' prior written notice to
the Agent, at any time (but not more than four times in any
fiscal year) to reduce permanently the Commitments in whole at
any time, or in part from time to time, to an amount not less
than the sum of the aggregate principal balance of the R/C Loans
and Competitive Bid Loans and the Letter of Credit Exposure then
outstanding (after giving effect to any contemporaneous
prepayment thereof), without premium or penalty, provided that
each partial reduction of the Commitments shall be in an amount
equal to $5,000,000 or such amount plus a whole multiple of
$1,000,000.
(b) In General. Reductions of the Commitments shall be
applied pro rata according to the Commitment Percentage of each
Lender. Simultaneously with each reduction of the Commitments
under this paragraph 2.5, the Company shall pay the Facility Fee
accrued on the amount by which the Commitments have been reduced.
If any prepayment is made under this paragraph 2.5 with respect
to any Eurodollar, CD or Competitive Bid Loans, in whole or in
part, prior to the last day of the applicable Interest Period,
the Company agrees that it shall indemnify the Lenders in accord-
ance with paragraph 2.13. After giving effect to any partial pre-
payment with respect to Eurodollar, CD or Competitive Bid Loans
which were made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest
Period, the outstanding principal balance of such Eurodollar, CD
or Competitive Bid Loans shall not be less than (subject to
paragraph 2.7) $5,000,000 or such amount plus a whole multiple of
$1,000,000.
6 Prepayments of the Loans.
(a) Voluntary Prepayments. The Company may, at its
option, prepay the R/C Loans in whole or in part, without premium
or penalty, at any time and from time to time by notifying the
Agent at least three Business Days prior to the proposed
prepayment date. Each such notice shall be in writing and shall
specify the Loans to be prepaid, the amount to be prepaid, and
the date of prepayment. Upon receipt of such notice, the Agent
shall promptly notify each Lender thereof. If any such notice of
the Company is given pursuant to this paragraph 2.6(a), such
notice shall be irrevocable and payment of the amount specified
in such notice shall be due and payable on the date specified,
together with accrued interest to the date of such payment on the
amount prepaid. Partial prepayments shall be in an aggregate
principal amount of $1,000,000 or an integral multiple thereof
or, if less, the outstanding principal balance of the R/C Loans.
After giving effect to any partial prepayment with respect to
Eurodollar or CD Loans which were made (whether as the result of
a borrowing or a conversion) on the same date and which had the
same Interest Period, the outstanding principal amount of such
Eurodollar or CD Loans shall not be less than (subject to
paragraph 2.7) $5,000,000 or such amount plus a whole multiple of
$1,000,000.
(b) Mandatory Prepayments. The Company shall prepay the
Loans in the amounts, if any, and on the dates set forth in
paragraph 2.18(a) or paragraph 2.18(b).
(c) In General. If any prepayment is made under this
paragraph 2.6 with respect to any Eurodollar or CD Loans, in
whole or in part, prior to the last day of the applicable In-
terest Period, the Company agrees to indemnify the Lenders in
accordance with paragraph 2.13.
7 Conversions.
(a) With respect to R/C Loans, the Company may elect
from time to time to convert Eurodollar or CD Loans to Base Rate
Loans by giving the Agent at least two Business Days' prior ir-
revocable notice of such election, specifying the amount to be so
converted, provided, that any such conversion of Eurodollar or CD
Loans shall only be made on the last day of the Interest Period
applicable thereto. In addition, the Company may elect from time
to time to convert Base Rate Loans to Eurodollar or CD Loans or
to convert Eurodollar or CD Loans to new Eurodollar or CD Loans
by giving the Agent at least three Business Days' prior
irrevocable notice of such election, specifying the amount to be
so converted and the initial Interest Period relating thereto,
provided that any such conversion of Base Rate Loans to
Eurodollar or CD Loans shall only be made on a Business Day and
any such conversion of Eurodollar or CD Loans to new Eurodollar
or CD Loans shall only be made on the last day of the Interest
Period applicable to the Eurodollar or CD Loans which are to be
converted to such new Eurodollar or CD Loans. The Agent shall
promptly provide the Lenders with notice of any such election.
Loans may be converted pursuant to this paragraph 2.7(a) in whole
or in part, provided that conversions of Base Rate Loans to
Eurodollar or CD Loans or Eurodollar or CD Loans to new
Eurodollar or CD Loans shall be in an aggregate principal amount
of (subject to this paragraph 2.7) $5,000,000 or such amount plus
a whole multiple of $1,000,000.
(b) Notwithstanding anything contained in this
paragraph 2.7 to the contrary, no Base Rate Loan may be converted
to a Eurodollar or CD Loan, and no Eurodollar or CD Loan may be
converted to a new Eurodollar or CD Loan, if the Company or the
Agent has knowledge that a Default or an Event of Default has oc-
curred and is continuing at the time the Company shall notify the
Agent of its election to so convert, or at the time such Loan is
to be so converted. In such event, such Base Rate Loan shall be
automatically continued as a Base Rate Loan or such Eurodollar or
CD Loan shall be automatically converted to a Base Rate Loan on
the last day of the Interest Period applicable to such Eurodollar
or CD Loan. If a Default or an Event of Default shall have
occurred and be continuing, the Agent shall, at the request of
the Required Lenders, notify the Company (by telephone or other-
wise) that all, or such lesser amount as the Agent and the
Required Lenders shall designate, of the outstanding Eurodollar
and CD Loans shall be automatically converted to Base Rate Loans,
in which event such Eurodollar and CD Loans shall be auto-
matically converted to Base Rate Loans on the date such notice is
given. If any Eurodollar or CD Loan shall be terminated prior to
the last day of the Interest Period applicable thereto pursuant
to this paragraph 2.7(b), the Company agrees that it shall
indemnify the Lenders in accordance with paragraph 2.13.
(c) Each conversion shall be effected by each Lender by
applying the proceeds of the new Base Rate Loan or Eurodollar or
CD Loan, as the case may be, to the Loan (or portion thereof)
being converted (it being understood that such conversion shall
not constitute a borrowing for purposes of paragraphs 4, 5 or 6).
Accrued interest on the Loans (or portion thereof) being
converted shall be paid by the Company at the time of conversion.
8 Interest Rate and Payment Dates.
(a) R/C Loans Prior to Maturity. Prior to maturity, the
outstanding principal balance of the R/C Loans shall bear
interest on the unpaid principal balance thereof at the ap-
plicable interest rate or rates per annum set forth below:
LOAN TYPE RATE
Each Base Rate Loan Base Rate.
Each Eurodollar Loan Eurodollar Rate for the ap-
plicable Interest Period plus
the Applicable Margin.
Each CD Loan CD Rate for the applicable
Interest Period plus the
Applicable Margin.
(b) Late Charges on All Loans. If all or any portion
of the principal balance of or interest payable on any of the
Loans (whether R/C Loans or Competitive Bid Loans) shall not be
paid when due (whether at the stated maturity thereof, by
acceleration or otherwise), such overdue balance or amount shall
bear interest at a rate per annum equal to the applicable
interest rate (as determined under paragraph 2.3 or as set forth
in paragraph 2.8(a)) plus 2%, and if any reimbursement of a
drawing under a Letter of Credit, or any other amount payable
under the Loan Documents, is not paid when due, such overdue
amount shall bear interest at a rate per annum equal to Base Rate
plus 2%, in all of the foregoing cases from the date of such
nonpayment until paid in full (whether before or after the entry
of any judgment thereon).
(c) General. Interest on all Base Rate Loans, to the
extent based on the BNY Rate, shall be calculated on the basis of
a 365 or 366 day year (as the case may be), and interest on all
Eurodollar Loans, CD Loans, Competitive Bid Loans and Base
Rate Loans, to the extent based on the Federal Funds Rate, shall
be calculated on the basis of a 360 day year, in all such cases
for the actual number of days elapsed. Interest shall be payable
in arrears on each Interest Payment Date and upon payment (in-
cluding prepayment) of the Loans. Any change in the interest rate
on a Loan resulting from a change in the Base Rate shall become
effective as of the opening of business on the day on which such
change in the Base Rate shall become effective. The Agent shall,
as soon as practicable, notify the Company and the Lenders of the
effective date and the amount of each such change in the Base
Rate, but failure to so notify shall not in any manner affect the
obligation of the Company to pay interest on the Loans in the
amounts and on the dates required. Each determination of the Base
Rate or Eurodollar or CD Rate by the Agent pursuant to this
Agreement shall be conclusive and binding absent manifest error.
At no time shall the interest rate payable on the Loans, together
with the Facility Fee and all other fees and other amounts pay-
able hereunder, to the extent the same are construed to
constitute interest, exceed the Highest Lawful Rate. If interest
payable to a Lender on any date would exceed the maximum amount
permitted by the Highest Lawful Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and
interest for any subsequent period, to the extent less than the
maximum amount permitted for such period by the Highest Lawful
Rate, shall be increased by the unpaid amount of such reduction.
Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have
been applied as a prepayment of the Loans. The Company
acknowledges that to the extent interest payable on the Loans is
based on the BNY Rate, the BNY Rate is only one of the bases for
computing interest on loans made by the Lenders, and by basing
interest payable on the Loans on the BNY Rate, the Lenders have
not committed to charge, and the Company has not in any way bar-
gained for, interest based on a lower or the lowest rate at which
any Lender may now or in the future make loans to other
borrowers.
9 Substituted Interest Rate.
In the event that (a) the Agent (after consultation
with the Reference Lenders) shall have reasonably determined
(which determination shall be conclusive and binding upon the
Company) that by reason of circumstances affecting the interbank
eurodollar market or the domestic certificate of deposit market
either adequate and reasonable means do not exist for
ascertaining the Eurodollar or CD Rate applicable pursuant to
paragraph 2.8 or (b) in the event that Required Lenders shall
have notified the Agent that they have determined (which de-
termination shall be conclusive and binding on the Company) that
the applicable Eurodollar or CD Rate will not adequately and
fairly reflect the cost to the Required Lenders of maintaining or
funding loans bearing interest based on such Eurodollar or CD
Rate, in either case with respect to proposed Loans that the
Company has requested be made as Eurodollar or CD Loans or Euro-
dollar or CD Loans that will result from the requested conversion
of any Loans to Eurodollar or CD Loans (any such Loan being
herein called an "Affected Loan"), the Agent shall promptly
notify the Company and the Lenders (by telephone or otherwise) of
such determination, to be promptly confirmed in writing to the
Company on or prior to the requested Borrowing Date for such Af-
fected Loan or the requested Conversion Date of such Loan. If the
Agent shall give such notice, (i) any requested Affected Loan
shall be made as a Base Rate Loan, (ii) any Loan that was to have
been converted to an Affected Loan shall be converted to or
continued as a Base Rate Loan and (iii) any outstanding Affected
Loan shall be converted, on the last day of the then current
Interest Period with respect thereto, to a Base Rate Loan. Until
any such notice under clause (a) of this paragraph 2.9 has been
withdrawn by the Agent (by notice to the Company promptly upon
the Agent having determined (after consultation with the Ref-
erence Lenders) that such circumstances affecting the interbank
eurodollar market or the domestic certificate of deposit market
no longer exist and that adequate and reasonable means do exist
for determining the Eurodollar or CD Rate, as the case may be,
pursuant to paragraph 2.8), no further Eurodollar or CD Loans, as
the case may be, shall be made, nor shall the Company have the
right to convert any Loans to Eurodollar or CD Loans, as the case
may be. Until any such notice under clause (b) of this paragraph
2.9 has been withdrawn by the Agent (by notice to the Company
promptly upon the Agent having been notified by the Required
Lenders that circumstances no longer render any Loan an Affected
Loan), no further Eurodollar or CD Loans, as the case may be,
shall be required to be made by the Lenders nor shall the Company
have the right to convert any Loan to a Eurodollar or CD Loan, as
the case may be.
10 Taxes; Net Payments.
(a) All payments made by the Company under the Loan
Documents shall be made free and clear of, and without reduction
for or on account of, any taxes required by law to be withheld
from any amounts payable under the Loan Documents. A statement
setting forth the calculations of any amounts payable pursuant to
this paragraph submitted by a Lender to the Company shall be
conclusive absent manifest error.
(b) Each Lender shall deliver to the Company such
certificates, documents or other evidence as the Company may
reasonably require from time to time as are necessary to es-
tablish that such Lender is not subject to withholding under
Section 1441 or 1442 of the Code or as may be necessary to
establish, under any law imposing upon the Company hereafter, an
obligation to withhold any portion of the payments made by the
Company under the Loan Documents, that payments to the Agent on
behalf of such Lender are not subject to withholding.
Notwithstanding any provision herein to the contrary, the Company
shall have no obligation to pay to any Lender any amount which
the Company is liable to withhold due to the failure of such
Lender to file any statement of exemption required by the Code.
11 Illegality.
Notwithstanding any other provisions herein, if any
law, regulation, treaty or directive, or any change therein or in
the interpretation or application thereof, shall make it unlawful
for any Lender to make or maintain its Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans or convert Base Rate Loans or
CD Loans to Eurodollar Loans shall forthwith be suspended and (b)
such Lender's Loans then outstanding as Eurodollar Loans affected
hereby, if any, shall be converted automatically to Base Rate
Loans on the last day of the then current Interest Period
applicable thereto or earlier if required by law. If the commit-
ment of any Lender with respect to Eurodollar Loans is suspended
pursuant to this paragraph and such Lender shall notify the Agent
and the Company that it is once again legal for such Lender to
make or maintain Eurodollar Loans, such Lender's commitment to
make or maintain Eurodollar Loans shall be reinstated.
1. Increased Costs.
(a) In the event that any law, regulation, treaty or
directive hereafter enacted, promulgated, approved or issued or
any change in any presently existing law, regulation, treaty or
directive therein or in the interpretation or application thereof
by any Governmental Body charged with the administration thereof
or compliance by any Lender (or any corporation directly or
indirectly owning or controlling such Lender) with any request or
directive hereafter received from any central bank or other
Governmental Body:
(i) does or shall subject any Lender to any tax of
any kind whatsoever with respect to any Eurodollar or CD Loans or
its obligations under this Agreement to make Eurodollar or CD
Loans, or Letters of Credit or its issuance thereof or
participation therein, or change the basis of taxation of pay-
ments to any Lender of principal, interest or any other amount
payable hereunder in respect of its Eurodollar or CD Loans or
Letters of Credit (except for the imposition of, or change in the
rate of, a tax on the overall net income of such Lender); or
(ii) does or shall impose, modify or make appli-
cable any reserve, special deposit, compulsory loan, assessment,
increased cost or similar requirement against assets held by, or
deposits of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such
Lender in respect of its Eurodollar or CD Loans or Letters of
Credit which is not otherwise included in the determination of
the Eurodollar or CD Rate or the Letter of Credit commissions;
and the result of any of the foregoing is to increase the cost to
such Lender of making, renewing, converting or maintaining its
Eurodollar or CD Loans or issuing or participating in the Letters
of Credit or its commitment to make such Loans hereunder or to so
issue or participate, or to reduce any amount receivable
hereunder in respect of its Eurodollar or CD Loans, its Letters
of Credit or its participations therein, then, in any such case
such Lender shall notify the Company promptly after learning of
such increase in cost or reduction of amount stating the reasons
therefor and, the Company shall thereafter promptly pay such
Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduction in
such amount receivable which such Lender reasonably and in good
faith deems to be material as determined by such Lender,
provided, however, that the Company shall not be obligated to
reimburse such Lender for such additional amounts unless such
Lender at such time shall be generally assessing such amounts on
a non-discriminatory basis against borrowers under agreements
having provisions similar to this paragraph. No failure by any
Lender to demand compensation for any increased cost shall
constitute a waiver of such Lender's right to demand such
compensation at any time, provided that the Company shall not be
obligated to compensate any Lender for any amount attributable to
a period more than 60 days before such Lender demands
compensation under this paragraph 2.12(a). A statement setting
forth the calculations of any additional amounts payable pursuant
to the foregoing sentence submitted by a Lender to the Company
shall be conclusive absent manifest error. In the event that a
Lender makes a demand for additional amounts pursuant to this
paragraph 2.12, such Lender agrees to designate a different
Eurodollar Lending Office if such designation will avoid the need
for or reduce such additional amount and will not (i) in the
judgment of the Agent and such Lender, be otherwise
disadvantageous to the Agent or such Lender or (ii) in the
judgment of the Company, be otherwise disadvantageous to the
Company.
(b) Without limiting the effect of the foregoing, the
Company agrees to pay to each Lender on the last day of each
Interest Period for a Eurodollar Loan so long as such Lender is
maintaining reserves against "Eurocurrency liabilities" under
Regulation D (or, unless the provisions of paragraph (a) above
are applicable, so long as such Lender is, by reason of any
regulatory change, maintaining reserves against any other
category of liabilities which includes deposits by reference to
which the interest rate on Eurodollar Loans is determined as
provided in this Agreement or against any category of extensions
of credit or other assets of such Lender which includes any
Eurodollar Loans) an additional amount (determined by such Lender
and notified to the Company through the Agent) equal to the
product of the following for each Eurodollar Loan for each day
during such Interest Period:
(i) the principal balance of such Eurodollar Loan
outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of
which is the rate (expressed as a decimal) at which interest
accrues on such Eurodollar Loan for such Interest Period as
provided in this Agreement (less the Applicable Margin) and
the denominator of which is one minus the effective rate
(expressed as a decimal) at which such reserve requirements
are imposed on such Lender on such day minus (y) such
numerator; and
(iii) 1/360.
12 Indemnification for Loss.
Notwithstanding anything contained herein to the
contrary, if the Company shall fail to borrow on a Borrowing Date
after it shall have given notice to do so and shall have
requested a Eurodollar or CD Loan pursuant to paragraph 2.2, or
shall have accepted one or more offers of Competitive Bid Loans
under paragraph 2.3, or if a Eurodollar Loan, CD Loan or
Competitive Bid Loan shall be terminated for any reason prior to
the last day of the Interest Period applicable thereto, or if,
while a Eurodollar or CD Loan or Competitive Bid Loan is
outstanding, any repayment or prepayment of such Eurodollar Loan,
CD Loan or Competitive Bid Loan is made for any reason
(including, without limitation, as a result of acceleration or
illegality) on a date which is prior to the last day of the
Interest Period applicable thereto, the Company agrees to in-
demnify each Lender against, and to pay on demand directly to
such Lender, an amount, if greater than zero, equal to:
A x (B-C) x D
360
where:
"A" equals such Lender's pro rata share of the Affected Principal
Amount;
"B" equals the Eurodollar Rate, CD Rate or rate which such
Competitive Bid Loan bears (in each case, expressed as a decimal)
applicable to such Loan;
"C" equals the applicable Eurodollar Rate, CD Rate or Proposed
Bid Rate (in each case, expressed as a decimal), as the case may
be, in effect on or about the first day of the applicable
Remaining Interest Period, based on the applicable rates offered
on or about such date, for deposits (or, in the case of a
Proposed Bid Rate, based on the rate such Lender would have
quoted) in an amount equal approximately to such Lender's pro
rata share of the Affected Principal Amount with an Interest
Period equal approximately to the applicable Remaining Interest
Period, as determined by such Lender;
"D" equals the number of days from and including the first day of
the applicable Remaining Interest Period to but excluding the
last day of such Remaining Interest Period;
and any other out-of-pocket loss or expense (including any
internal processing charge customarily charged by such Lender)
suffered by such Lender in liquidating deposits prior to maturity
in amounts which correspond to such Lender's pro rata share of
such proposed borrowing, terminated Eurodollar Loan, CD Loan,
Competitive Bid Loan or repayment.
13 Option to Fund.
Each Lender has indicated that, if the Company elects
to borrow or convert to a Eurodollar or CD Loan or to borrow a
Competitive Bid Loan, such Lender may wish to purchase one or
more deposits in order to fund or maintain its funding of such
Loan during the Interest Period in question; it being understood
that the provisions of this Agreement relating to such funding
are included only for the purpose of determining the rate of
interest to be paid on such Eurodollar or CD Loan or Competitive
Bid Loan and any amounts owing under paragraphs 2.7, 2.10, 2.11,
2.12, and 2.13. Each Lender shall be entitled to fund and
maintain its funding of all or any part of each Eurodollar or CD
Loan or Competitive Bid Loan made by it in any manner it sees
fit, but all determinations under paragraphs 2.7, 2.10, 2.11,
2.12, and 2.13 shall be made as if such Lender had actually
funded and maintained such Eurodollar or CD Loan or Competitive
Bid Loan during the applicable Interest Period through the
purchase of deposits in an amount equal to such Eurodollar or CD
Loan or Competitive Bid Loan and having a maturity corresponding
to such Interest Period. The obligations of the Company under
paragraphs 2.7, 2.10, 2.11, 2.12, and 2.13 shall survive the
termination of the Commitments, the payment of the Notes, the
payment of the reimbursement obligations in respect of drawings
under the Letters of Credit, and the payment of any other amounts
due under the Loan Documents.
14 Use of Proceeds.
The proceeds of the Loans shall be used for general
corporate purposes of the Company, and the Letters of Credit
shall be used to support obligations of the Company and/or any of
its Subsidiaries (other than, unless otherwise agreed to by the
Required Lenders, obligations in respect of Indebtedness for
borrowed money extended, or other extensions of credit or credit
enhancements made, to the Company and/or any of its
Subsidiaries), and the Loans and the Letters of Credit shall
conform with the provisions of paragraph 4.12.
15 Capital Adequacy.
If either (i) the enactment or promulgation of or any
change after the date hereof in any law or regulation or in the
interpretation thereof by any Governmental Body charged with the
administration thereof, or (ii) compliance with any directive,
guideline or request from any central bank or Governmental Body
(whether or not having the force of law) promulgated or made
after the date hereof, affects or would affect the amount of
capital required to be maintained by a Lender (or any lending
office of such Lender) or any corporation directly or indirectly
controlling such Lender, as a result of its Commitment to make
and maintain the funding of Loans or issue or participate in the
issuance of Letters of Credit hereunder, and such Lender shall
have determined that such introduction or change has or would
have the effect of reducing the rate of return on such Lender's
capital as a result of such Lender having committed to make Loans
and issue or participate in Letters of Credit hereunder or having
made Loans or issued or participated in Letters of Credit
hereunder at a rate of return below that which such Lender could
have achieved but for such enactment, promulgation, change or
compliance (after taking into account such Lender's policies re-
garding capital adequacy) by an amount deemed by such Lender to
be material, such Lender shall notify the Company promptly after
learning of such reduction in such rate of return stating the
reasons therefor, and, upon demand by such Lender, the Company
shall thereafter promptly pay to such Lender such additional
amount or amounts as shall be sufficient to compensate such
Lender for such reduction in such rate of return, provided,
however, that the Company shall not be obligated to reimburse
such Lender for such additional amounts unless such Lender at
such time shall be generally assessing such amounts on a
non-discriminatory basis against borrowers under agreements
having provisions similar to this paragraph. The Company shall
not be obligated to compensate any Lender under this paragraph
for any amount attributable to a period more than 60 days prior
to the date such Lender demands compensation under this para-
graph. A statement setting forth the calculations of any amounts
payable under this paragraph submitted by a Lender to the Company
shall be conclusive absent manifest error.
16 Transaction Record.
The Agent has established a transaction record (the
"Transaction Record") with respect to this Agreement. The
Transaction Record sets forth each Lender's Base Rate Loans,
Eurodollar Loans, CD Loans and Competitive Bid Loans, the is-
suance of each Letter of Credit and each Lender's payment of
reimbursement obligations with respect thereto, each payment by
the Company of principal and interest on the Loans and certain
additional information. The Transaction Record shall be
presumptively correct absent manifest error as to the amount of
each Lender's Loans and as to the amount of principal and
interest paid by the Company in respect of such Loans and Letters
of Credit and as to the other information relating to the Loans
and Letters of Credit and amounts paid and payable by the Company
hereunder and under the Notes set forth in such Transaction
Record.
17 Extension of Termination Date.
(a) Provided that no Default or Event of Default exists
during the periods set forth below, the Company may request that
the Termination Date be extended for an additional one-year
period or periods by giving written notice of each such request
(each, an "Extension Request") to the Agent and each Lender
during the period which is not less than 60 nor more than 90 days
prior to any anniversary of the Effective Date, with respect to
an extension of one year beyond the then Termination Date; it
being understood that not more than two such one-year extensions
may be requested. If each Lender consents to an Extension Request
within 45 days from the date of such Extension Request (by giving
written notice thereof to the Company and the Agent) the
Termination Date shall be extended by one year from the then
current Termination Date. If Required Lenders do not consent to
an Extension Request within such 45-day period, the Termination
Date shall not be extended. If Lenders (each a
"Nonconsenting Lender") having Commitments equal to 33 1/3% or
less of the Aggregate Commitments do not consent to an Extension
Request within such 45-day period, the Company may elect to (i)
withdraw such Extension Request, or (ii) terminate the Commitment
of each Nonconsenting Lender effective on the then current
Termination Date with respect to such Nonconsenting Lender, and,
on such Date, pay to the Agent for distribution to such
Nonconsenting Lender the outstanding principal balance, if any,
of the Note of such Nonconsenting Lender, together with any
accrued and unpaid interest thereon to the date of such payment,
any accrued and unpaid Facility Fee and Letter of Credit
Commission due to such Lender, and any amount due to such Lender
under paragraph 2.13, whereupon (y) the then current Termination
Date shall be extended for one year, and (z) each Nonconsenting
Lender shall cease to be a "Lender" for all purposes of this
Agreement (except with respect to its rights hereunder to be
reimbursed for costs and expenses, and to indemnification with
respect to, matters attributable to events, acts or conditions
occurring prior to such assumption and purchase) and shall no
longer have any obligations hereunder.
(b) In the event the Company elects to terminate the Commit-
ment of a Nonconsenting Lender under paragraph 2.18(a)(ii) above,
the Agent is authorized and directed to amend Exhibit A,
effective on the then current Termination Date, and promptly dis-
tribute a copy thereof to the Company and the remaining Lenders
(the "Consenting Lenders") reflecting the new Commitment Per-
centage of each Consenting Lender, being the percentage (the
"Reallocated Commitment Percentage") that the Commitment of such
Consenting Lender bears to the Aggregate Commitments (after
giving effect to the termination of each Nonconsenting Lender's
Commitment), and the Consenting Lenders agree (subject to their
receipt of any mandatory prepayment referred to below), effective
on the then current Termination Date, to assume their Reallocated
Commitment Percentages of the Letter of Credit Exposure, pro-
vided, that if, after giving effect to such assumption, the sum
of (i) the outstanding principal balance of the Consenting Lend-
ers' Loans and (ii) the Letter of Credit Exposure would exceed
the Aggregate Commitments, then the Company will pay to the Agent
on the then current Termination Date for distribution to the
Consenting Lenders, an amount sufficient to reduce the out-
standing principal balance of the Loans to an amount which, when
added to the Letter of Credit Exposure, does not exceed the
Aggregate Commitments and each Consenting Lender's Commitment.
(c) In addition, the Company shall pay to the Agent, for the
pro rata account of each Consenting Lender a fee equal to .05% of
the Commitment of such Consenting Lender on the then current
Termination Date, payable on the Termination Date so
extended. Each Lender will use its best efforts to respond
promptly to any request for an extension of the Termination Date,
provided that no Lender's failure to so respond shall create any
claim against it or have the effect of extending the Termination
Date of such Lender's Commitment.
18 Substitute Lender.
If (i) the Company becomes obligated to withhold all or any
part of any payments to be made under any Loan Documents to any
Lender as a result of conditions described in paragraph 2.10(a),
or (ii) the obligation of any Lender to make Eurodollar or CD
Loans is suspended pursuant to paragraph 2.9 or 2.11, or (iii)
any Lender has demanded compensation under paragraph 2.12(a) or
2.16, then unless such Lender has taken steps to remove or cure,
and has removed or cured, the conditions creating the cause of
such withholding or the obligation to pay such compensation, the
Company shall have the right, provided that no Default or Event
of Default shall then exist, with the assistance of the Agent, to
seek a substitute bank or banks (each, a "Substitute Lender")
(which may be one or more of the Lenders) which is reasonably
acceptable to the Agent, to purchase, without recourse to, or
warranty by, or expense to, such Lender, the Notes, and to assume
the Commitment and, with respect to the Letters of Credit, the
reimbursement obligations, of such Lender, for a purchase price
equal to the outstanding principal balance of the Notes payable
to such Lender, plus any accrued and unpaid interest thereon,
Facility Fee in respect of such Lender's Commitment and any
amount which would be due to such Lender under paragraph 2.13 had
the Company paid such Lender's Notes, and upon such purchase and
assumption, such Lender shall no longer be a party hereto or have
any rights hereunder and such Substitute Lender shall succeed to
the rights of such Lender.
19 Letter of Credit Sub-Facility.
(a) Subject to the terms and conditions of this
Agreement, the L/C Issuing Bank agrees, in reliance on the
agreement of the other Lenders set forth in paragraph 2.21, to
issue standby letters of credit (the "Letters of Credit"; each,
individually, a "Letter of Credit") during the period from the
Effective Date to the date occurring 90 days prior to the
Termination Date for the account of the Company. The amount of
each Letter of Credit shall not be less than $500,000, and the
aggregate amount of all Letters of Credit at any one time
outstanding shall not exceed the lesser of (i) $30,000,000 or
(ii) the difference between the Aggregate Commitments then in
effect less the aggregate outstanding Loans. Each Letter of
Credit issued pursuant to this paragraph 2.20 shall have an
expiration date which shall be not later than the earlier of the
Termination Date or the date which is one year after the date of
issuance thereof. No Letter of Credit shall be issued if the
Agent shall have determined that the conditions set forth in
paragraphs 5 and 6 have not been satisfied.
(b) Each Letter of Credit may be issued for the
account of the Company, in accordance with the provisions of
paragraph 2.15, in support of an obligation of the Company and/or
any of its Subsidiaries in favor of a beneficiary who has
required the issuance of such Letter of Credit as a condition to
a transaction entered into in the ordinary course of the
Company's or such Subsidiary's business. The Company shall give
the Agent an irrevocable telephonic or telecopy (to be promptly
confirmed in writing) or written request (each an "L/C Issuance
Request" in the form of Exhibit D) for the issuance of each
Letter of Credit by 10:00 A.M., New York City time, at least
three Business Days prior to the requested date of issuance. Each
L/C Issuance Request shall be accompanied by the L/C Issuing
Bank's standard Application and Agreement for Standby Letter of
Credit (each an "Application for Letter of Credit"), executed by
a duly authorized officer of the Company, and shall specify (i)
the beneficiary of such Letter of Credit and the obligations of
the Company or its Subsidiary in respect of which such Letter of
Credit is to be issued, (ii) the Company's proposal as to the
conditions under which a drawing may be made under such Letter of
Credit and the documentation to be required in respect thereof,
(iii) the maximum amount to be available under such Letter of
Credit, and (iv) the requested dates of issuance and expiration
thereof. Upon receipt of such L/C Issuance Request from the Com-
pany, the Agent shall promptly notify the L/C Issuing Bank and
each other Lender thereof. The L/C Issuing Bank shall, on the
proposed date of issuance and subject to the other terms and con-
ditions of this Agreement, issue the requested Letter of Credit.
Each Letter of Credit shall be in form and substance satisfactory
to the L/C Issuing Bank, with such provisions with respect to the
conditions under which a drawing may be made thereunder and the
documentation required in respect of such drawing as the L/C
Issuing Bank shall require.
(c) Each payment by the L/C Issuing Bank of a draft
drawn under a Letter of Credit shall give rise to an obligation
on the part of the Company to reimburse the L/C Issuing Bank
immediately for the amount thereof. If the Company shall have
failed to reimburse the L/C Issuing Bank in full on or before
12:00 noon, New York City time, on the date the L/C Issuing Bank
shall make payment on a draft drawn under a Letter of Credit, the
Company's obligations to make such reimbursement shall be
satisfied by the automatic making of an R/C Loan, in accordance
with paragraph 2.2, by each Lender under its Note in the
principal amount equal to its Commitment Percentage of the amount
of such draft paid by the L/C Issuing Bank. The Company shall be
deemed to have elected that each such Loan be made initially as
a Base Rate Loan. The Agent agrees to notify the L/C Issuing
Bank, each Lender and the Company of the making of each such
Loan, and the Company, subject to the provisions of this
Agreement with respect thereto, thereafter shall be entitled to
convert each such Loan to a Loan of another Type.
20 Letter of Credit Participation and Funding Commitments.
(a) Each Lender hereby unconditionally and ir-
revocably, severally for itself only and without any notice to or
the taking of any action by such Lender, takes an undivided
participating interest in the obligations of the L/C Issuing Bank
under and in connection with each Letter of Credit in an amount
equal to such Lender's Commitment Percentage of the amount of
such Letter of Credit. Each Lender shall be liable to the L/C
Issuing Bank for its Commitment Percentage of the unreimbursed
amount of any draft drawn and honored under each Letter of
Credit. Each Lender shall also be liable for an amount equal to
the product of its Commitment Percentage and any amounts paid by
the Company pursuant to paragraph 2.22 that are subsequently
rescinded or avoided, or must otherwise be restored or returned.
Such liabilities shall be unconditional and without regard to the
occurrence of any Default or Event of Default or the compliance
by the Company with any of its obligations under this Agreement.
Each payment by a Lender of such Commitment Percentage or of any
amounts so rescinded, avoided, restored or returned shall be
treated as the making by such Lender of an automatic R/C Loan.
(b) The Agent will promptly notify each Lender (which
notice shall be promptly confirmed in writing) of the date and
the amount of any draft presented under any Letter of Credit with
respect to which full reimbursement of payment is not made by the
Company, and forthwith upon receipt of such notice, such Lender
(other than the L/C Issuing Bank) shall make available to the
Agent for the account of the L/C Issuing Bank its Commitment
Percentage of the amount of such unreimbursed draft (which shall
constitute such Lender's R/C Loan) at the office of the Agent
specified in paragraph 11.2, in lawful money of the United States
and in immediately available funds, before 4:00 P.M., New York
City time, on the day such notice was given by the Agent, if the
relevant notice was given by the Agent at or prior to 1:00 P.M.,
New York City time, on such day, and before 12:00 noon, New York
City time, on the next succeeding Business Day, if the relevant
notice was given by the Agent after 1:00 P.M., New York City
time, on such day. The Agent shall distribute the
payments made by each Lender (other than the L/C Issuing Bank)
pursuant to the immediately preceding sentence to the L/C Issuing
Bank promptly upon receipt thereof in like funds as received.
Each Lender shall indemnify and hold harmless the Agent and the
L/C Issuing Bank from and against any and all losses, liabilities
(including liabilities for penalties), actions, suits, judgments,
demands, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) resulting from any
failure on the part of such Lender to provide, or from any delay
in providing, the Agent with such Lender's Commitment Percentage
of the amount of any payment made by the L/C Issuing Bank under
a Letter of Credit in accordance with this clause (b) (except in
respect of losses, liabilities or other obligations suffered by
the Agent or the L/C Issuing Bank resulting from the gross
negligence or willful misconduct of the Agent or the L/C Issuing
Bank). If a Lender does not make available to the Agent when due
such Lender's Commitment Percentage of any unreimbursed payment
made by the L/C Issuing Bank under a Letter of Credit (other than
payments made by the L/C Issuing Bank by reason of its gross
negligence or willful misconduct), such Lender shall be required
to pay interest to the Agent for the account of the L/C Issuing
Bank on such Lender's Commitment Percentage of such payment at a
rate of interest per annum equal to the Federal Funds Rate from
the date such Lender's payment is due until the date it is re-
ceived by the Agent. The Agent shall distribute such interest
payments to the L/C Issuing Bank upon receipt thereof in like
funds as received. If the Agent receives a Lender's Commitment
Percentage of any unreimbursed payment under a Letter of Credit
after the date when due and the Agent receives interest on any
late payment from such Lender in accordance with the provisions
of the preceding sentence, such Lender's R/C Loan shall be deemed
to have been made to the Company on the date the L/C Issuing Bank
made payment under such Letter of Credit.
(c) Whenever the Agent is reimbursed by the Company
for any payment under a Letter of Credit and such payment relates
to an amount for which the Agent has received the Commitment
Percentage for the account of the L/C Issuing Bank from a Lender
pursuant to this Agreement, the Agent will pay to such Lender in
immediately available funds such Lender's pro rata share,
computed in accordance with such Lender's Commitment Percentage,
of such payment (i) before the close of business on the day such
payment from the Company is received, if such payment is received
at or prior to 1:00 P.M., New York City time, on such day, or
(ii) before 12:00 Noon, New York City time, on the next
succeeding Business Day, if such payment from the Company is
received after 1:00 P.M., New York City time, on such day.
(d) Each Lender hereby irrevocably authorizes the L/C
Issuing Bank to issue Letters of Credit and to pay the amount of
any draft presented under a Letter of Credit upon presentation of
documents which, upon their face, conform to the terms of such
Letter of Credit, and each Lender authorizes the Agent to receive
from the Company reimbursement for payments under such Letter of
Credit, to receive from the Company payment of all fees, charges
and interest in respect of the Letters of Credit, and to take
such action on its behalf under the provisions of this Agreement
and to exercise such powers and to perform such duties hereunder
as are specifically delegated to or required of the Agent and the
L/C Issuing Bank by the terms hereof, together with such powers
as are reasonably incidental thereto, and the L/C Issuing Bank
shall have no liability for any of the foregoing, except for its
gross negligence or wilful misconduct.
21 Absolute Obligation with respect to Letter of Credit
Payments.
The Company's obligation to reimburse the Agent for the
account of the L/C Issuing Bank in respect of a Letter of Credit
for each payment under or in respect of such Letter of Credit
shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Company may have or have had against
the beneficiary of such Letter of Credit, the Agent, the L/C
Issuing Bank as issuer of such Letter of Credit, any Lender or
any other Person, including, without limitation, any defense
based on the failure of any drawing to conform to the terms of
such Letter of Credit, any drawing document proving to be forged,
fraudulent or invalid, or the legality, validity, regularity or
enforceability of such Letter of Credit.
22 Letter of Credit Fees and Commissions.
The Company agrees to pay the following:
(a) to the L/C Issuing Bank, for its own account, the
standard fees and charges customarily charged by the L/C Issuing
Bank in connection with the issuance, administration, amendment,
payment and/or cancellation of any Letter of Credit, as
determined by the L/C Issuing Bank in its sole discretion,
together with such other fees as are set forth in writing between
the Company and the L/C Issuing Bank; and
(b) to the Agent, for the account of the Lenders on a
pro rata basis in accordance with each Lender's Commitment
Percentage, a non-refundable commission (each, a "Letter of
Credit Commission") with respect to each Letter of Credit for the
period from and including the date of issuance thereof to,
but not including, the expiration date thereof, at a rate per
annum (calculated on the basis of a 360 day year for the actual
number of days elapsed) for the amount of each Letter of Credit
equal to (i) if the Company's Senior Public Debt Rating is equal
to or more favorable than A3 by Moody's Investors Service, Inc.
and A- by Standard & Poor's Corporation, 0.25%, (ii) if the
Company's Senior Public Debt Rating is equal to or more favorable
than Baa3 by Moody's Investors Service, Inc. and BBB- by Standard
& Poor's Corporation, and clause (i) is not applicable, 0.375%
and (iii) in all cases when clauses (i) and (ii) are not
applicable, 0.75%. The Letter of Credit Commissions shall be pay-
able quarterly in arrears on the last day of each February, May,
August and November of each year, commencing on the first such
day following the Effective Date, and upon the expiration or
cancellation of any Letter of Credit, with respect to such Letter
of Credit.
3. FEES; PAYMENTS
1 Participation Fee.
The Company agrees to pay to the Agent, for the account
of the Lenders on a pro rata basis according to each Lender's
Commitment Percentage, a fee (the "Participation Fee") in an
aggregate amount equal to 0.125% of the Aggregate Commitments,
payable on the date on which executed counterparts of this
Agreement have been delivered to the Agent by the Company and
each Lender.
2 Facility Fee.
The Company agrees to pay to the Agent, for the account
of the Lenders on a pro rata basis according to each Lender's
Commitment Percentage, a fee (the "Facility Fee"), for the period
from and including the Effective Date to and including the
expiration or other termination of the Commitments, equal to (i)
if the Company's Senior Public Debt Rating is equal to or more
favorable than Baa3 by Moody's Investor Services, Inc. and BBB-
by Standard & Poor's Corporation, 0.250% per annum of the
Aggregate Commitments whether utilized, and (ii) in all
circumstances when clause (i) above is not satisfied, 0.375% per
annum of the Aggregate Commitments whether utilized, in either
case payable quarterly in arrears on the last day of each
February, May, August and November of each year, commencing on
the first such day following the Effective Date, and on the
Termination Date. The Facility Fee shall be calculated on the
basis of a 360-day year for the actual number of days elapsed.
3 Pro Rata Treatment and Application of Payments.
With respect to the R/C Loans, each borrowing by the
Company from the Lenders, any conversion of R/C Loans from one
Type to another, and any reduction of the Commitments (other than
a reduction arising under paragraph 2.18), shall be made pro rata
according to the Commitment Percentage of each Lender. All
payments (including prepayments) made by the Company to the Agent
on account of principal of or interest on the R/C Loans, all
payments in respect of unreimbursed obligations for the Letters
of Credit, and any reduction of the participation in the face
amount of a Letter of Credit, shall be made pro rata according to
the outstanding principal amount of each Lender's R/C Loans, and
all payments (including prepayments) made by the Company on
account of principal of or interest on the Competitive Bid Loans
comprising the same Competitive Bid Borrowing shall be made as
specified in paragraphs 2.3(c) and 2.3(d). All payments by the
Company shall be made without set-off or counterclaim and shall
be made prior to 12:00 Noon (New York City time) on the date such
payment is due, to the Agent for the account of the Lenders at
the Agent's office specified in paragraph 11.2, in each case in
lawful money of the United States of America and in immediately
available funds, and, as between the Company and the Lenders, any
payment by the Company to the Agent for the account of the
Lenders shall be deemed to be payment by the Company to the
Lenders. The failure of the Company to make any such payment by
12:00 Noon (New York City time) on such due date shall not
constitute a Default or Event of Default hereunder, provided that
such payment is made on such due date, but any such payment
received by the Agent on any Business Day after 12:00 Noon (New
York City time) shall be deemed to have been received on the im-
mediately succeeding Business Day for the purpose of calculating
any interest payable in respect thereof. The Agent agrees
promptly to notify the Company if it shall not receive any such
payment by 12:00 Noon (New York City time) on the due date
thereof, provided that the failure of the Agent to give such
prompt notice shall in no way affect the Company's obligation to
make any payment hereunder on the date such payment is due. The
Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder or on
any Note becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next suc-
ceeding Business Day (unless, in the case of Eurodollar or CD
Loans, the result of such extension would be to extend such
payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day) and,
with respect to payments of principal, interest thereon shall be
payable at the then applicable rate or rates during such ex-
tension.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into
this Agreement and to make the Loans, the Company hereby makes
the following representations and warranties to the Agent and to
each Lender:
1 Subsidiaries.
The Company has only the Material Subsidiaries set
forth on Schedule 4.1. The shares of each Material Subsidiary are
duly authorized, validly issued, fully paid and nonassessable and
are owned free and clear of any Liens, except Permitted Liens.
2 Corporate Existence and Power.
The Company and each Material Subsidiary is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or formation, has all
requisite corporate power and authority to own its Property and
to carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction in
which there is a reasonable likelihood of a Material Adverse Ef-
fect as a consequence of the failure to be so authorized.
3 Corporate Authority.
The Company has full corporate power and authority to
enter into, execute, deliver and carry out the terms of the Loan
Documents, and to make the borrowings and to incur the other
obligations contemplated hereby, to execute, deliver and carry
out the terms of the Notes and to incur the obligations provided
for herein and therein, all of which have been duly authorized by
all proper and necessary corporate action and are not in
violation of its Restated Certificate of Incorporation and
By-Laws.
4 Governmental Body Approvals.
No consent, authorization or approval of, filing with,
notice to, or exemption by, stockholders, any Governmental Body
or any other Person (except for those which have been obtained,
made or given) is required to authorize, or is required in con-
nection with the execution, delivery and performance of the Loan
Documents or is required as a condition to the validity or
enforceability of the Loan Documents. No provision of any ap-
plicable statute, law (including, without limitation, any ap-
plicable usury or similar law), rule or regulation of any
Governmental Body will prevent the execution, delivery or
performance of, or affect the validity of, the Loan Documents.
5 Binding Agreement.
This Agreement constitutes, and the other Loan
Documents, when issued and delivered pursuant hereto for value
received, will constitute, the valid and legally binding obli-
gations of the Company enforceable in accordance with their
respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other simi-
lar laws affecting the enforcement of creditors' rights generally
or by general principles of equity.
6 Litigation.
There are no actions, suits, arbitration proceedings
or claims pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary, or maintained by the
Company or any Subsidiary, at law or in equity, before any
Governmental Body as to which, there is a reasonable likelihood
of a Material Adverse Effect. There are no proceedings pending
or, to the knowledge of the Company, threatened against the Com-
pany or any Subsidiary which call into question the validity or
enforceability of any of the Loan Documents.
7 No Conflicting Agreements.
Neither the Company nor any Subsidiary is in default
under any mortgage, indenture, contract or agreement to which it
is a party or by which it or any of its Property is bound, as to
which, taken as a whole, there is a reasonable likelihood of a
Material Adverse Effect. The execution, delivery or carrying out
of the terms of the Loan Documents will not constitute a default
under, conflict with, require any consent under (other than
consents which have been obtained), or result in the creation or
imposition of, or obligation to create, any Lien upon the
Property of the Company or any Subsidiary pursuant to the terms
of any such mortgage, indenture, contract, agreement, judgment,
decree or order, as to which, if not obtained, there is a
reasonable likelihood of a Material Adverse Effect.
8 Taxes.
Except as set forth on Schedule 4.8, the Company and
each Subsidiary has filed or caused to be filed all tax returns
of any material financial significance required to be filed and
has paid, or has made adequate provision for the payment of, all
taxes shown to be due and payable on said returns or in any
assessments made against it which would be material to the
Company or any Material Subsidiary, and no tax Liens that are not
Permitted Liens have been filed. The charges, accruals and
reserves on the books of the Company and its consolidated Subsid-
iaries with respect to all federal, state, local and other Taxes
are, to the best knowledge of the Company, adequate, and the
Company knows of no unpaid assessment which is due and payable or
any claims being asserted as to which there is a reasonable
likelihood of a Material Adverse Effect, except such thereof as
are being contested in good faith and by appropriate proceedings
diligently conducted, and for which adequate reserves have been
set aside in accordance with GAAP.
9 Compliance with Applicable Laws.
Neither the Company nor any Subsidiary is in default
with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Body as to which there is a
reasonable likelihood of a Material Adverse Effect. The Company
and each Subsidiary is complying in all material respects with
all applicable statutes and regulations, including ERISA, of all
Governmental Bodies, a violation of which is reasonably likely to
have a Material Adverse Effect.
10 Governmental Regulations.
Neither the Company nor any Subsidiary (a) is subject
to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act (other than the minimum statutory
requirements that do not violate clause (b) below) or the
Investment Company Act of 1940, or (b) is subject to any statute
or regulation which prohibits or restricts the incurrence of In-
debtedness under the Loan Documents, including, without
limitation, statutes or regulations relative to common or
contract carriers or to the sale of electricity, gas, steam,
water, telephone, telegraph or other public utility services.
11 Property.
The Company and each Subsidiary has good and mar-
ketable title to all of its Property, title to which is material
to the Company and its Subsidiaries taken as a whole, subject to
no Liens, except Permitted Liens.
12 Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Company nor any Subsidiary is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying any Margin Stock. No part of the proceeds of the Loans
or the Letters of Credit will be used, directly or indirectly,
for a purpose which violates any law, rule or regulation of any
Governmental Body, including without limitation the provisions of
Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System, as amended. Margin Stock constitutes less than
25% of the assets (as determined by any reasonable method) of the
Company and/or any of its Subsidiaries.
13 Plans.
Each Single Employer Plan and, to the best knowledge
of the Company, each Multiemployer Plan is in substantial
compliance with the applicable provisions of ERISA and the Code,
and the Company and each ERISA Affiliate has filed all material
reports required to be filed by it under ERISA and the Code with
respect to each such Plan. The Company and each ERISA Affiliate
has met all material requirements imposed by ERISA and the Code
with respect to the funding of all Single Employer Plans, and to
the best knowledge of the Company, Multiemployer Plans. Since the
effective date of ERISA, there have not been, nor are there now
existing, any events or conditions which would permit any Single
Employer Plan or, to the best knowledge of the Company, any
Multiemployer Plan to be terminated under circumstances which
would cause the lien provided under Section 4068 of ERISA to
attach to the Property of the Company or any ERISA Affiliate. No
Reportable Event currently exists which would constitute grounds
for the termination of any Single Employer Plan or, to the best
knowledge of the Company, any Multiemployer Plan under Title IV
of ERISA.
14 Financial Statements.
The Company has heretofore delivered to the Lenders
copies of its audited Consolidated Balance Sheets as of December
31, 1992, and the related Consolidated Statements of Income, Cash
Flows and Shareholders' Equity for the period then ended, and the
unaudited Consolidated Balance Sheet of the Company as of
March 31, 1993 and the related unaudited Consolidated Statements
of Income, Cash Flows and Shareholders' Equity, for the fiscal
quarter then ended (collectively, with the related notes and
schedules, the "Financial Statements"). The Financial Statements
fairly present the Consolidated financial condition and results
of the operations of the Company as of the dates and for the
periods indicated therein and have been prepared in conformity
with GAAP. Except as reflected in the Financial Statements or in
the footnotes thereto, neither the Company nor any Subsidiary has
any obligation or liability of any kind (whether fixed, accrued,
contingent, unmatured or otherwise) which, in accordance with
GAAP, should have been disclosed in the Financial Statements and
was not. Since December 31, 1992, there has been no Material
Adverse Change.
15 Environmental Matters.
Neither the Company nor any Subsidiary (i) has re-
ceived written notice or otherwise learned of any claim, demand,
action, event, condition, report or investigation indicating or
concerning any potential or actual liability as to which
individually or in the aggregate there is a reasonable likelihood
of a Material Adverse Effect, arising in connection with: (a) any
non-compliance with or violation of the requirements of any
Environmental Laws or (b) the release or threatened release of
any toxic or hazardous waste, substance or constituent, or other
substance into the environment, (ii) to the best knowledge of the
Company, has any liability in connection with the release or
threatened release of any toxic or hazardous waste, substance or
constituent, or other substance into the environment as to which
individually or in the aggregate there is a reasonable likelihood
of a Material Adverse Effect, (iii) has received notice of any
federal or state investigation evaluating whether any remedial
action is needed to respond to a release or threatened release of
any toxic or hazardous waste, substance or constituent or other
substance into the environment for which the Company or any
Subsidiary is or may be liable as to which there is a reasonable
likelihood of a Material Adverse Effect, or (iv) has received
notice of any claimed liability by the Company or any Subsidiary,
to any Person under any Environmental Law, as to which there is
a reasonable likelihood of a Material Adverse Effect. The Company
and each Subsidiary is in compliance in all material respects
with the financial responsibility requirements of all
Environmental Laws the failure to comply with which would rea-
sonably likely have a Material Adverse Effect.
16 Documents.
The Company has delivered to the Agent and each Lender
conformed copies of the Agency Agreement and the form of
Debenture issued pursuant thereto, together with all consents,
waivers, amendments thereof and supplements thereto. Each of such
agreements as amended or supplemented, as the case may be, is in
full force and effect.
17 Labor Relations.
There are no material controversies pending between
the Company or any Subsidiary and any of their respective em-
ployees, as to which there is a reasonable likelihood of a Mate-
rial Adverse Effect.
18 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Company
or any Subsidiary in connection with the transactions
contemplated hereby, contains or will contain a misstatement of
material fact, or, to the best knowledge of the Company, omits or
will omit to state a material fact required to be stated in order
to make the statements herein or therein contained not misleading
in the light of the circumstances under which made.
5. CONDITIONS TO LENDING - FIRST LOANS OR L/C
In addition to the conditions precedent set forth in
Paragraph 6, the obligation of each Lender to make its first Loan
or of the L/C Issuing Bank to issue a Letter of Credit on the
first Borrowing Date shall be subject to the fulfillment of the
following conditions precedent:
1 Evidence of Corporate Action.
The Agent shall have received a certificate, dated the
first Borrowing Date, of the Secretary or Assistant Secretary of
the Company (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and sub-
stance satisfactory to the Agent and to Special Counsel) taken by
it to authorize the Loan Documents and the transactions
contemplated thereby, (ii) attaching a true and complete copy of
its Restated Certificate of Incorporation and By-Laws, and (iii)
setting forth the incumbency of its officer or officers who may
sign the Loan Documents, including therein a signature specimen
of such officer or officers, together with such other documents
as the Agent or Special Counsel shall reasonably require.
2 Notes.
The Agent shall have received the Notes duly executed
by an Authorized Signatory of the Company.
3 Participation Fee.
The Company shall have paid the Participation Fee.
4 No Material Adverse Change.
There shall have occurred no Material Adverse Change
since December 31, 1992, and the Agent shall have received a
certificate of an Authorized Signatory of the Company to such
effect.
5 Opinion of Counsel to the Company.
The Agent shall have received an opinion of counsel to
the Company, addressed to the Agent and the Lenders, dated the
first Borrowing Date, substantially in the form of Exhibit F.
6 Opinion of Special Counsel.
The Agent shall have received an opinion of Special
Counsel substantially in the form of Exhibit G.
7 Termination of Existing Agreement.
Simultaneously with the making of the first Loans, the
Company shall have terminated in writing, and paid in full all
amounts owing under, the Existing Agreement.
8 This Agreement.
The Agent shall have received counterparts of this
Agreement signed by each of the parties hereto (or receipt by the
Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Agent
with originally executed counterparts hereof).
6. CONDITIONS OF LENDING - ALL LOANS AND L/Cs.
The obligation of each Lender to make any Loan, and of the
L/C Issuing Bank to issue a Letter of Credit, on a Borrowing Date
is subject to the satisfaction of the following conditions
precedent as of the date of such Loan or of the issuance of such
L/C:
1 Compliance.
On each Borrowing Date and after giving effect to the
Loans to be made or created or the Letters of Credit to be
issued, as the case may be, thereon, (a) there shall exist no
Default or Event of Default, (b) the representations and war-
ranties contained in the Loan Documents shall be true and correct
with the same effect as though such representations and war-
ranties had been made on such Borrowing Date, except as the
context otherwise requires and except such matters relating
thereto as are indicated in each Borrowing Request which shall be
satisfactory to the Agent and the Lenders in their sole
discretion and (c) there shall have occurred no Material Adverse
Change. Each borrowing by the Company and each issuance of a
Letter of Credit shall constitute a certification by the Company
as of the date of such borrowing or issuance that each of the
foregoing matters is true and correct in all respects.
2 Closings.
All documents required by the provisions of this
Agreement to be executed or delivered to the Agent on or before
the applicable Borrowing Date shall have been executed and shall
have been delivered to the office of the Agent set forth in
paragraph 11.2 on or before such Borrowing Date.
3 Borrowing Request.
With respect to any request for Loans or the issuance
of a Letter of Credit, the Agent shall have received an R/C
Borrowing Request, Competitive Bid Borrowing Request or L/C
Issuance Request, as the case may be, duly executed by an
Authorized Signatory of the Company, accompanied by, with respect
to each request for a Letter of Credit, an Application for Letter
of Credit.
7. AFFIRMATIVE COVENANTS
The Company hereby agrees that so long as this Agreement is
in effect, any Loan or Letter of Credit remains outstanding and
unpaid, or any other amount is owing under any of the Loan
Documents to any Lender or the Agent, the Company shall:
1 Financial Statements.
Maintain, and cause each Subsidiary to maintain, a
system of accounting in accordance with GAAP, and furnish or
cause to be furnished to the Agent and each Lender:
(a) As soon as available, but in any event within 120
days after the end of each fiscal year of the Company, a copy of
its Consolidated and Consolidating Balance Sheets as at the end
of such fiscal year, together with the related Consolidated and
Consolidating Statements of Income, Cash Flows and Shareholders'
Equity as of and through the end of such fiscal year, setting
forth, with respect to Consolidated Statements, in each case in
comparative form the figures for the preceding fiscal year. The
Consolidated Balance Sheet and Statements of Income, Cash Flows
and Shareholders' Equity shall be certified by the Accountants.
The Consolidating Balance Sheets and Statements of Income, Cash
Flows and Shareholders' Equity shall be certified by the Chief
Financial Officer of the Company (or such other officer as shall
acceptable to the Agent) as being complete and correct in all
material respects and as presenting fairly the Consolidating
financial condition and results of operations of the company and
its Subsidiaries.
(b) As soon as available, but in any event not later
than 60 days after the end of each of the first three quarterly
accounting periods in each fiscal year of the Company (i) a copy
of the Consolidated and Consolidating Balance Sheet as at the end
of each such quarterly period, and the Consolidated and
Consolidating Statements of Income, Cash Flows and Shareholders'
Equity, for such period and for the elapsed portion of the fiscal
year through such date, setting forth, with respect to
Consolidated Statements, in each case in comparative form the
figures for the corresponding periods of the preceding fiscal
year, certified by the Chief Financial Officer of the Company (or
such other officer acceptable to the Agent) as having been
prepared in accordance with GAAP (except that notes to such
Statements need not be included) and as presenting fairly the
Consolidated financial condition and the Consolidated results of
operations of the Company and its Subsidiaries, and (ii) a
certificate of the Chief Financial Officer of the Company (or
such other officer as shall be acceptable to the Agent) in detail
reasonably satisfactory to the Agent (x) stating that there
exists no violation of any of the terms or provisions of the Loan
Documents, or the occurrence of any condition or event which
would constitute a Default or Event of Default, and, if so,
specifying in such certificate all such violations, conditions
and events, and the nature and status thereof, (y) containing
computations showing compliance with the provisions of paragraphs
7.11, 8.1, 8.2, 8.3, 8.4, 8.5, 8.8 and 8.10, and setting forth
the Senior Public Debt Rating.
(c) As soon as available, but in any event not later
than 120 days after the end of the last quarterly accounting
period in each fiscal year of the Company, the same certificate
as is required by clause (b) (ii) above.
2 Certificates; Other Information.
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness or
Contingent Obligation of the Company or any Subsidiary in excess
of $25,000,000 is declared or shall become due and payable prior
to its stated maturity, or is called and not paid when due, (ii)
a default shall have occurred under any note (other than the
Notes) or the holder of any such note, or other evidence of In-
debtedness, certificate or security evidencing any such
Indebtedness or any obligee with respect to any other
Indebtedness of the Company or any Subsidiary has the right to
declare any such Indebtedness due and payable prior to its stated
maturity as a result of such default, or (iii) any officer of the
Company shall have obtained knowledge of the occurrence of a
Default or an Event of Default.
(b) Prompt written notice of: (i) any citation,
summons, subpoena, order to show cause or other order naming the
Company or any Subsidiary a party to any proceeding before any
Governmental Body as to which there is a reasonable likelihood of
a Material Adverse Effect or which calls into question the
validity or enforceability of any of the Loan Documents, and in-
clude with such notice a copy of such citation, summons, sub-
poena, order to show cause or other order, (ii) any lapse or
other termination of any material license, permit, franchise or
other authorization issued to the Company or any Subsidiary by
any Governmental Body, (iii) any refusal by any Governmental Body
to renew or extend any such material license, permit, franchise
or other authorization, and (iv) any dispute between the Company
or any Subsidiary and any Person, as to which lapse, termination,
refusal or dispute there is a reasonable likelihood of a Material
Adverse Effect.
(c) Promptly upon becoming available, copies of all
(i) financial statements, reports and proxy statements which the
Company may have sent to its stockholders generally and copies of
all registration statements and regular, periodic or special
reports, schedules and other material which the Company may now
or hereafter be required to file with or deliver to any
securities exchange or the Securities and Exchange Commission, or
any other Governmental Body succeeding to the functions thereof,
and with any national securities exchange, and (ii) material news
releases and annual reports relating to the Company.
(d) Promptly after the request of the Agent or any
Lender therefor, copies of each annual report filed pursuant to
Section 104 of ERISA with respect to each Plan (including, to the
extent required by Section 104 of ERISA, the related financial
and actuarial statements and opinions and other supporting
statements, certifications, schedules and information referred to
in Section 103 of ERISA) and each annual report filed with
respect to each Plan under Section 4065 of ERISA; provided,
however, that in the case of a Multiemployer Plan, such annual
reports shall be furnished only if they are available to the
Company or any ERISA Affiliate; and
(e) Prompt written notice of any order, notice, claim
or proceeding received by, or brought against, the Company or any
Subsidiary under any Environmental Law, as to which,
there is a reasonable likelihood that there would be a Material
Adverse Effect; and
(f) With reasonable promptness, such other financial
data as the Agent or any Lender may reasonably request; provided,
however, that the Company shall not be required to furnish
financial data it reasonably believes to be proprietary and
confidential unless such financial data is material to the
business or financial position of the Company or any Subsidiary.
Any financial data or other information provided pursuant to this
subparagraph to the Agent or the Lenders shall be kept in
confidence as required under paragraph 11.16.
3 Legal Existence.
Except as permitted by paragraph 8.4, maintain, and
cause each Subsidiary to maintain, its corporate existence, in
good standing in the jurisdiction of its incorporation or or-
ganization and in each other jurisdiction in which the failure so
to do would reasonably likely have a Material Adverse Effect,
provided that the foregoing shall not require the Company to
maintain the corporate existence or the business of any
Subsidiary which in the judgment of the Company is no longer
necessary or desirable, unless the failure to so maintain would
reasonably likely have a Material Adverse Effect.
4 Taxes.
Pay and discharge when due, and cause each Subsidiary
so to do, all taxes, assessments and governmental charges,
license fees and levies upon or with respect to the Company or
such Subsidiary and upon the income, profits and Property of the
Company and its Subsidiaries, which if unpaid, could reasonably
be expected to have a Material Adverse Effect or become a Lien on
the Property of the Company or such Subsidiary not permitted
under paragraph 8.2, unless and to the extent only that such
taxes, assessments, charges, license fees and levies shall be
contested in good faith and by appropriate proceedings diligently
conducted by the Company or such Subsidiary and provided that any
such contested tax, assessment, charge, license, fee or levy
shall not constitute, or create, a Lien on any Property of the
Company or such Subsidiary other than a Permitted Lien.
5 Insurance.
Maintain, and cause each Subsidiary to maintain,
insurance on its Property against such risks and in such amounts
as is customarily maintained by Persons organized for profit
engaged in similar businesses and owning similar Properties in
the same general areas in which the Company or the relevant
Subsidiary operates, except to the extent of self-insurance
programs of the Company or a Subsidiary covering such risks as
the Company's or such Subsidiary's management, acting in good
faith, determines to be commercially reasonable, including,
without limitation, public liability and workers' compensation
insurance. The Company shall file with the Agent such information
concerning its insurance program and that of its Subsidiaries as
the Agent may reasonably request.
6 Payment of Indebtedness and Performance of Obliga-
tions.
Pay and discharge, and cause each Subsidiary to pay
and discharge, when due all lawful Indebtedness, obligations and
claims for labor, materials and supplies or otherwise which, if
unpaid, would reasonably likely (i) have a Material Adverse Ef-
fect, or (ii) become a Lien upon Property of the Company or such
Subsidiary other than a Permitted Lien.
7 Condition of Property.
At all times, maintain, protect and keep in good
repair, working order and condition (ordinary wear and tear
excepted), and cause each Material Subsidiary so to do, all
Property necessary to the operation of the business of the
Company and its Material Subsidiaries.
8 Observance of Legal Requirements; ERISA.
Observe and comply in all material respects, and cause
each Subsidiary so to do, with all laws (including ERISA),
ordinances, orders, judgments, rules, regulations, certifica-
tions, franchises, permits, licenses, directions and requirements
of all Governmental Bodies, which now or at any time hereafter
may be applicable to the Company and its Subsidiaries, a viola-
tion of which would reasonably likely have a Material Adverse
Effect, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by the
Company or such Subsidiary.
9 Inspection of Property; Books and Records; Discus-
sions.
Without expense to the Company, upon reasonable
notice, permit representatives of the Agent and each Lender to
visit the offices of the Company and its Subsidiaries, to inspect
and to discuss the business, operations, prospects, licenses,
Property and financial condition of the Company and its
Subsidiaries with the principal officers thereof, provided,
however, that the Company shall not be required to disclose or
permit the Agent or the Lenders or others to acquire access to
any trade secrets of the Company or its Subsidiaries or any other
process, techniques or information reasonably deemed by the
Company to be proprietary and confidential, and provided further
that Persons other than the Agent or the Lenders who are retained
for purposes of the foregoing inspection rights shall in any
event be limited to such information as is within the scope of
their expertise and engagement. Any financial data or other
information provided pursuant to this paragraph to the Agent or
the Lenders shall be kept in confidence as required under
paragraph 11.16.
10 Licenses, Etc.
Maintain and cause each Subsidiary to maintain, in
full force and effect, all material licenses, copyrights, pat-
ents, permits, applications, reports, authorizations and other
rights, including, without limitation, all rights under the
Cooperation Agreement between Ogden Martin Systems, Inc. and
Martin GmbH fur Umwelt und Energietechnik, as amended, as are
necessary for the conduct of its business a termination of which
would reasonably likely have a Material Adverse Effect.
Tr Shareholders' Equity.
Maintain at all times its Shareholders' Equity in an
amount at least equal to $400,000,000.
8. NEGATIVE COVENANTS
The Company hereby agrees that, so long as this Agreement is
in effect, any Loan or Letter of Credit remains outstanding and
unpaid, or any other amount is owing under any Loan Document to
any Lender or the Agent, the Company shall not, directly or
indirectly:
1 Subsidiary Indebtedness.
Permit Subsidiaries to create, incur or assume any
liability for Indebtedness, except Permitted Subsidiary In-
debtedness, provided that immediately after giving effect to the
incurrence thereof, there shall exist no Default or Event of De-
fault.
2 Liens.
Create, incur, assume or suffer to exist any Lien upon
any of its or its Subsidiaries' Property or assets, whether now
owned or hereafter acquired, securing any Indebtedness or
obligation, or permit any Subsidiary so to do, except Permitted
Liens.
3 Unencumbered Asset Coverage.
At any time, permit Consolidated total assets not
subject to any Lien, less goodwill and other intangible assets
and unamortized debt issuance costs (all as set forth on a
Consolidated Balance Sheet of the Company prepared in accordance
with GAAP) to be less than 150% of the sum of (i) the unpaid
balance of all unsecured Indebtedness of the Company (other than
Subordinated Indebtedness of the Company, and not including any
Indebtedness of any Subsidiary), whether existing on the
Effective Date or arising thereafter, (ii) the unpaid balance of
all unsecured Indebtedness of Subsidiaries of the Company
existing on the Effective Date as set forth on Schedule 1.1p,
(iii) 133% of the unpaid balance of all unsecured Indebtedness of
Subsidiaries of the Company arising after the Effective Date, and
(iv) Consolidated unsecured Contingent Obligations (it being
understood that, for purposes of this paragraph 8.3, (i) leased
assets representing the capitalization of rentals in accordance
with GAAP shall not be construed to be unencumbered assets, and
(ii) in calculating Consolidated total assets not subject to any
Lien as aforesaid, the Company need not exclude assets subject to
Liens described in clauses (ii) through (v) of the definition of
Permitted Liens unless and until such time as the amount of such
Liens exceeds $25,000,000 in the aggregate, whereupon the
aggregate amount of such Liens shall be deducted in calculating
Consolidated total assets not subject to any Lien as aforesaid).
4 Merger and Acquisition or Sale of Property.
Merge or consolidate with any corporation, or acquire
by purchase or otherwise all or substantially all of the assets
of any Person, or permit any of its Subsidiaries so to do, except
that:
(i) any Subsidiary may be merged into or con-
solidated with any other Subsidiary;
(ii) any Subsidiary may be merged into or con-
solidated with the Company, provided that if the continuing or
surviving corporation shall not be the Company, then (a) the
Subsidiary constituting such continuing or surviving corporation
shall have been directly or indirectly wholly-owned by the
Company immediately prior to such merger or consolidation, (b)
such continuing or surviving corporation shall be a corporation
organized and existing under the laws of the United States of
America, or any State thereof or the District of Columbia, (c)
such continuing or surviving corporation shall have expressly
assumed the obligations of the Company under this Agreement and
the Notes, as fully and effectually as if such continuing or
surviving corporation had been an original party to this
Agreement and the original issuer of the Notes, and (d)
immediately after such merger or consolidation, and giving effect
thereto, there shall exist no Default or Event of Default;
(iii) the Company or any Subsidiary may acquire
the assets of a Subsidiary, provided that immediately after such
acquisition, and giving effect thereto, there shall exist no
Default or Event of Default; and
(iv) the Company or any Subsidiary may consummate
any Acquisition, provided that (a) immediately after consummation
of such Acquisition, and giving effect thereto, there shall exist
no Default or Event of Default and (b) if the Company shall
consummate such Acquisition, the Company shall be the continuing
or surviving corporation, and if any Subsidiary shall consummate
such Acquisition, the continuing or surviving corporation shall
be a Subsidiary.
5 Consolidated Indebtedness.
Permit its ratio of the sum of (i) Consolidated
Indebtedness plus (ii) Consolidated Contingent Obligations to the
sum of (x) Consolidated Indebtedness plus (y) Consolidated
Contingent Obligations plus (z) the Company's Shareholders'
Equity to be greater than 0.625:1.0 at any time.
6 Sale of Property.
Sell, assign, exchange, lease, transfer or otherwise
dispose of any Property, whether now owned or hereafter acquired,
to any Person, or permit any Subsidiary so to do, except:
(i) dispositions to a Subsidiary for a consid-
eration at least equal to the fair value of the Property disposed
of;
(ii) dispositions by one Subsidiary to the
Company or to another Subsidiary;
(iii) dispositions of the Stock or assets of
a Subsidiary of Projects in which the Company or another
Subsidiary retains a long-term operating interest;
(iv) other dispositions of Stock or assets of the
Company or a Subsidiary for a consideration at least equal
to the fair value of the Stock or assets so sold or transferred;
provided that, immediately after each such transaction (other
than any disposition permitted under clause (vi) below), the
value of all such transactions under this clause (iv) (determined
at the time it occurs as reflected on the books of the Company
determined in accordance with GAAP) shall not exceed 15% of the
Consolidated total assets of the Company, total assets being
computed after giving effect to the most recent proposed
transaction (other than any disposition permitted under clause
(vi) below) (determined in accordance with GAAP) and there shall
exist no Default or Event of Default;
(v) the payment of dividends and distribution of
Stock of the Company in the ordinary course of business; and
(vi) dispositions of shares of the Stock of
Projects, provided that no disposition permitted pursuant to this
clause (vi) shall result in the Company owning less than 80% of
the Stock of Projects.
7 Compliance with ERISA.
Engage in any "prohibited transaction", as such term
is defined in Section 4975 of the Code or Section 406 of ERISA,
with respect to any Plan, or incur any "accumulated funding
deficiency", as such term is defined in Section 412 of the Code
or Section 302 of ERISA, or terminate, or permit any Subsidiary
or any ERISA Affiliate to terminate, any Plan which would
reasonably likely result in any liability of the Company, any
Subsidiary or any ERISA Affiliate to the PBGC, or permit the
occurrence of any Reportable Event or any other event or
condition which presents a risk of such a termination by the PBGC
of any Plan, or withdraw or effect a partial withdrawal from a
Multiemployer Plan, or permit any Subsidiary or any ERISA Af-
filiate which is an employer under such a Multiemployer Plan so
to do, if any thereof would reasonably likely have a Material
Adverse Effect.
8 Certificate of Incorporation and By-laws.
Amend or otherwise modify its certificate of incor-
poration or by-laws, or permit any Subsidiary so to do, in any
way which would reasonably likely materially and adversely affect
the validity or enforceability of the Loan Documents.
9 Fixed Charge Coverage.
Permit the Fixed Charge Coverage Ratio to be less than
1.50 to 1.00 for any preceding period of four fiscal quarters
(taken as a whole).
10 Agency Agreement.
Amend the subordination provisions contained in the
Agency Agreement in a manner not satisfactory to the Required
Lenders.
11 Current Ratio.
Permit its ratio of Current Assets to Current Li-
abilities to be less than 1.25:1 at any time.
9. DEFAULT
1 Events of Default.
The following shall each constitute an "Event of
Default" hereunder:
(a) The failure of the Company to pay (i) any in-
stallment of principal payable hereunder or under the Notes when
the same shall be due and payable or (ii) interest payable
hereunder or under the Notes for three days after the same shall
be due and payable or (iii) any fees, Letter of Credit
Commissions or expenses payable hereunder or under the Notes for
five days after the same shall be due and payable; or
(b) The use by the Company of the proceeds of any Loan
in a manner inconsistent with or in violation of paragraph 2.15;
or
(c) The failure of the Company to observe or perform
any covenant or agreement contained in paragraphs 7.3, 7.11, or
paragraph 8; or
(d) The failure of the Company to observe or perform
any other term, covenant, or agreement contained in this
Agreement and such failure shall have continued unremedied for a
period of 30 days after the Company shall have obtained knowledge
thereof; or
(e) Any representation or warranty of the Company (or
of any officer of the Company on its behalf) made in this
Agreement or any other Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant to this Agreement
or any other Loan Document, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any
material respect when made; or
(f) Any obligation of the Company or any Subsidiary,
whether as principal, guarantor, surety or other obligor, for the
payment of Indebtedness or Contingent Obligations aggregating in
excess of $25,000,000 shall not be paid when due (including any
grace period for the payment thereof) or shall become or shall be
declared to be due and payable prior to the expressed maturity or
expiration thereof, or any event or circumstance shall occur
which permits the holder or holders of any such obligation or
obligations to declare such obligation due and payable prior to
the expressed maturity thereof; or
(g) The Company or any Material Subsidiary or any
Material Subsidiary Group, shall (i) suspend or discontinue its
business, or (ii) make an assignment for the benefit of
creditors, or (iii) generally not be paying its debts as such
debts become due, or (iv) admit in writing its inability to pay
its debts as they become due, or (v) file a voluntary petition in
bankruptcy, or (vi) become insolvent (however such insolvency
shall be evidenced), or (vii) file any petition or answer seeking
for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar
relief under any present or future statute, law or regulation of
any jurisdiction, or (viii) petition or apply to any tribunal for
any receiver, custodian or any trustee for any substantial part
of its Property, or (ix) be the subject of any such proceeding
filed against it which remains undismissed for a period of 60
days, or (x) file any answer admitting or not contesting the
material allegations of any such petition filed against it or any
order, judgment or decree approving such petition in any such
proceeding, or (xi) seek, approve, consent to, or acquiesce in
any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any
substantial part of its Property, or an order is entered ap-
pointing any such trustee, receiver, custodian, liquidator or
fiscal agent and such order remains in effect for 60 days, or
(xii) take any formal action for the purpose of effecting any of
the foregoing or looking to the liquidation or dissolution of the
Company or such Material Subsidiary or Material Subsidiary Group;
or
(h) An order for relief is entered under the United
States bankruptcy laws or any other decree or order is entered by
a court having jurisdiction (i) adjudging the Company or any
Material Subsidiary or any Material Subsidiary Group a bankrupt
or insolvent, or (ii) approving as properly filed a petition
seeking reorganization, liquidation, arrangement, adjustment or
composition of or in respect of the Company or any Material
Subsidiary or any Material Subsidiary Group under the United
States bankruptcy laws or any other applicable Federal or state
law, or (iii) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator, fiscal agent (or other similar
official) of the Company or any Material Subsidiary or any
Material Subsidiary Group or of any substantial part of the
Property thereof, or (iv) ordering the winding up or liquidation
of the affairs of the Company or any Material Subsidiary or any
Material Subsidiary Group, and any such decree or order continues
unstayed and in effect for a period of 60 days; or
(i) Any judgment or decree against the Company or any
Subsidiary in excess of $25,000,000 or judgments or decrees
against the Company and its Subsidiaries aggregating in excess of
$25,000,000 shall remain unpaid, unstayed on appeal, undis-
charged, unbonded or undismissed for a period of 60 days; or
(j) (i) any Reportable Event (as described in Section
4043 of ERISA), which constitutes grounds for the termination of
any Plan or Plans by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to
administer or liquidate any Plan or Plans, shall have occurred
and be continuing 30 days after written or telegraphic or
telephonic notice to such effect shall have been given to the
Company by the Agent; or (ii) a decision shall have been made by
the Board of Directors (or any committee thereof), any authorized
officer or other authorized employee of the Company, or any
trustee or trustees of any Plan or Plans to terminate any Plan or
Plans or to file a termination notice with respect to any Plan or
Plans; or (iii) a trustee shall be appointed by the appropriate
United States District Court to administer any Plan or Plans, or
any Plan or Plans shall be terminated by such trustee; or (iv)
the PBGC shall institute proceedings to terminate any Plan or
Plans or to appoint a trustee to administer any Plan or Plans; or
(v) the Company, any Subsidiary or any ERISA Affiliate shall fail
with respect to any Plan or Plans to meet the minimum funding
standards established in Section 412 of the Code, or shall obtain
a waiver of such minimum funding standards; or (vi) the Company,
any Subsidiary or any ERISA Affiliate shall completely or par-
tially withdraw from any Multiemployer Plan or Plans, or (vii)
the Company, any Subsidiary or any ERISA Affiliate shall make a
decision to cease operations at a facility or facilities where
such cessation would result in a separation from employment of
more than 20% of the total number of employees who are
participants under a Plan; where in the case of any one or more
of the events described in the preceding clauses (i) through
(vii) the aggregate outstanding amount of unfunded vested
liabilities under such Plan if a single employer plan (including
unfunded vested liabilities which arise or might arise as a
result of the termination of or withdrawal from such Plan) or the
allocable portion of such outstanding unfunded vested liabilities
under a Multiemployer Plan shall exceed (either singly or in the
aggregate in the case of any such liability arising out of one or
more of the events described in the preceding clauses (i) through
(vii) under more than one such Plan) 8% of the Shareholders'
Equity of the Company and shall be determined by the Required
Lenders (which determination shall be final and conclusive) to be
reasonably expected to have a Material Adverse Effect.
9.2 Remedies.
2 Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (i) if such event is
an Event of Default specified in clauses (g) or (h) above, the
Commitments shall immediately and automatically terminate and the
Loans, and any reimbursement obligations owing or contingently
owing in respect of all outstanding Letters of Credit and drafts
drawn thereunder and acceptances issued in respect thereof, and
all accrued and unpaid interest on any thereof and all other
amounts owing under the Loan Documents shall immediately become
due and payable, and the Company shall forthwith deposit an
amount equal to the Letter of Credit Exposure in a cash
collateral account with and under the exclusive control of the
Agent for the ratable benefit of the Agent and the Lenders, and
the Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided
pursuant to the Loan Documents, and (ii) if such event is any
other Event of Default, any or all of the following actions may
be taken: (A) with the consent of the Required Lenders, the Agent
may, and upon the direction of the Required Lenders shall, by
notice to the Company, declare the Commitments to be terminated,
forthwith, whereupon the Commitments shall immediately terminate,
(B) with the consent of the Required Lenders, the Agent may, and
upon the direction of the Required Lenders shall, by notice of
default to the Company, declare the Loans and any reimbursement
obligations owing or contingently owing in respect of the Letters
of Credit and all accrued and unpaid interest on any thereof and
all other amounts owing under the Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become
due and payable, (C) upon the direction of the Required Lenders,
the Agent shall require the Company to forthwith deposit an
amount equal to the Letter of Credit Exposure in a cash
collateral account with and under the exclusive control of the
Agent for the ratable benefit of the Agent and the Lenders and
(D) the Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided
pursuant to the Loan Documents or by law. Except as otherwise
provided in this paragraph 9.2(a), presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
The Company hereby further expressly waives and covenants not to
assert any appraisement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of any
of the Loan Documents.
3 In the event that the Commitments shall have been termi-
nated or the Notes shall have been declared due and payable
pursuant to the provisions of paragraph 9.2(a), any funds
received by the Agent and the Lenders from or on behalf of the
Company shall be applied by the Agent and the Lenders in liqui-
dation of the Loans and the obligations of the Company hereunder
and under the Notes and the L/Cs in the following manner and
order: (i) first, to reimburse the Agent and the Lenders for any
expenses due pursuant to the provisions of paragraph 11.5; (ii)
second, to the payment of accrued and unpaid Facility Fees,
Letter of Credit Commissions and all other fees, expenses and
amounts due hereunder (other than principal and interest on the
Notes); (iii) third, to the payment of interest due on the Notes;
(iv) fourth, to the payment of principal outstanding on the
Notes; (v) fifth, to the payment of all obligations under and
with respect to the Letters of Credit or, to the extent such
obligations are contingent, to prepay or provide cash collateral
in respect thereof; and (vi) sixth, to the payment of any other
amounts owing to the Agent and the Lenders under any of the Loan
Documents. Any funds remaining after the foregoing applications
shall be paid over to the Company.
10. THE AGENT
1 Appointment.
Each Lender hereby irrevocably designates and appoints
BNY as the Agent of such Lender under the Loan Documents and each
such Lender hereby irrevocably authorizes BNY, as the Agent for
such Lender, to take such action on its behalf under the
provisions of the Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by
the terms of the Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any of
the other Loan Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein or
therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents
or otherwise exist against the Agent.
2 Delegation of Duties.
The Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys-in-fact and shall be
entitled to rely upon the advice of counsel concerning all
matters pertaining to such duties.
3 Exculpatory Provisions.
Neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with the Loan Documents
(except the Agent for its own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warran-
ties made by the Company or any officer thereof contained in the
Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, the Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or suf-
ficiency of any of the Loan Documents or for any failure of any
party thereto, or any other Person to perform its obligations
hereunder or thereunder. The Agent shall not be under any obliga-
tion to any Lender to ascertain or to inquire as to the observ-
ance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties,
books or records of the Company or any of it Subsidiaries. The
Agent shall not be under any liability or responsibility
whatsoever, as Agent, to the Company or any other Person as a
consequence of any failure or delay in performance, or any
breach, by any Lender of any of its obligations under any of the
Loan Documents.
4 Reliance by Agent.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, opinion, letter, telegram,
telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), in-
dependent accountants and other experts selected by the Agent.
The Agent may treat each Lender, or the Person designated in the
last notice filed with it under this paragraph, as the holder of
all of the interests of such Lender in its Loans and in its Note
until written notice of transfer, signed by such Lender (or the
Person designated in the last notice filed with the Agent) and
by the Person designated in such written notice of transfer, in
form and substance satisfactory to the Agent, shall have been
filed with the Agent. The Agent shall not be under any duty to
examine or pass upon the validity, effectiveness or genuineness
of the Loan Documents or any instrument, document or communica-
tion furnished pursuant thereto or in connection therewith, and
the Agent shall be entitled to assume that the same are valid,
effective and genuine, have been signed or sent by the proper
parties and are what they purport to be. The Agent shall be fully
justified in failing or refusing to take any action under the
Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance
with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Notes.
5 Notice of Default.
The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice thereof
from a Lender or the Company. In the event that the Agent re-
ceives such a notice, the Agent shall promptly give notice
thereof to the Lenders. The Agent shall take such action with
respect to such Default or Event of Default as shall be rea-
sonably directed by the Required Lenders; provided, however, that
unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem to be in the best interests
of the Lenders.
6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any rep-
resentations or warranties to it and that no act by the Agent
hereinafter, including any review of the affairs of the Company
or any Subsidiaries thereof, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made
its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness
of the Company and its Subsidiaries and made its own
decision to enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, evaluations and decisions in taking
or not taking action under this Agreement or any of the Loan
Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, Property, finan-
cial and other condition and creditworthiness of the Company and
its Subsidiaries. Each Lender acknowledges that a copy of this
Agreement and all exhibits and schedules hereto has been made
available to it and its individual legal counsel for review, and
each Lender acknowledges that it is satisfied with the form and
substance of this Agreement and the exhibits and schedules
hereto. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder,
the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the
business, operations, Property, financial and other condition or
creditworthiness of the Company or its Subsidiaries which may
come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
7 Indemnification.
Each Lender agrees to indemnify the Agent in its
capacity as such (to the extent not promptly reimbursed by the
Company and without limiting the obligation of the Company to do
so), ratably according to its Commitment Percentage from and
against any and all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever, including, without
limitation, any amounts paid to the Lenders (through the Agent)
by the Company pursuant to the terms hereof, that are
subsequently rescinded or avoided, or must otherwise be restored
or returned which may at any time (including, without limitation,
at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement, the other Loan Documents or any
other documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted
to be taken by the Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from the gross
negligence or willful misconduct of the Agent. The agreements in
this paragraph shall survive the payment of the Notes and all
other amounts payable hereunder.
8 Agent in Its Individual Capacity.
BNY and its respective affiliates may make loans to,
accept deposits from, issue letters of credit for the account of
and generally engage in any kind of business with, the Company
and its Subsidiaries as though BNY was not Agent hereunder. With
respect to the Commitment made or renewed by BNY and any Note
issued to BNY, BNY shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though
it was not the Agent, and the terms "Lender" and "Lenders" shall
in each case include BNY.
9 Successor Agent.
If at any time the Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written
notification of its resignation as Agent under the Loan
Documents, such resignation to be effective on the thirtieth day
after the date of such notice. Upon any such resignation, the
Required Lenders shall have the right, with the prior written
consent of the Company (which consent shall not be required if at
such time a Default or Event of Default exists), to appoint from
among the Lenders a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders and accepted such
appointment within 30 days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may with the
consent of the Company (which consent shall not be unreasonably
withheld and shall not be required if at such time a Default or
Event of Default exists), on behalf of the Lenders, appoint a
successor Agent, which successor Agent shall be a commercial bank
organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. At any time when no Default or
Event of Default exists, the Company may replace the Agent with
another Lender with the consent of the Required Lenders, such
replacement to take effect on the thirtieth day after notice to
the Agent. 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 the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent's rights, powers, privileges and duties as Agent
under the Loan Documents shall be terminated. The Company and
the Lenders shall execute such documents as shall be necessary to
effect such appointment. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this paragraph
10.9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under the Loan
Documents. If at any time hereunder there shall not be a duly
appointed and acting Agent, the Company agrees to make each
payment due under the Loan Documents directly to the Lenders
entitled thereto during such time.
10 Concerning Exhibit A.
The Agent is authorized and directed to amend Exhibit
A and promptly distribute a copy thereof to the Company and the
Lenders to reflect the Commitment of each Lender as a result of
any changes therein arising under paragraphs 2.5 (Reduction of
Commitments), 2.18 (Extension of Termination Date), 2.19
(Substitute Lender) and 11.7 (Successors and Assigns).
11. OTHER PROVISIONS.
1 Amendments and Waivers.
With the written consent of the Required Lenders, the
Agent and the Company may from time to time enter into written
amendments, supplements or modifications hereof and, with the
consent of the Required Lenders, the Agent on behalf of the
Lenders may execute and deliver to any such parties a written
instrument waiving or consenting to the departure from, on such
terms and conditions as the Agent may specify in such instrument,
any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences, or releasing or
discharging any guarantor from its obligations under a guarantee;
provided, however, that no such amendment, supplement,
modification, waiver or consent shall (i) increase the Commitment
of any Lender (but the Commitment Percentage of a Consenting
Lender may be reallocated as provided in paragraph 2.18(b)), (ii)
extend the maturity date of any Note or extend the Termination
Date except as provided in paragraph 2.18, (iii) decrease the
rate of interest of, extend the time or manner of payment of, or
increase or forgive the principal amount of any Note, (iv)
decrease the Facility Fee or the Letter of Credit commissions set
forth in paragraph 2.23, or extend the time of payment thereof,
or (v) change the provisions of this paragraph 11.1 without the
consent of all of the Lenders; and provided further that no such
amendment, supplement, modification, waiver or consent shall
amend, modify or waive any provision of (a) Paragraph 10 or
otherwise change any of the rights or obligations of the Agent
under the Loan Documents without the written consent of the Agent
or (b) paragraphs 2.20, 2.21, 2.22 or 2.23 or otherwise change
any of the rights or obligations of the L/C Issuing Bank
hereunder or under the other Loan Documents with respect to the
Letters of Credit without the written consent of the L/C Issuing
Bank. Any such amendment, supplement, modification, waiver or
consent shall apply equally to each of the Lenders and shall be
binding upon the parties to the applicable agreement, the Lenders,
the Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and
the Agent shall be restored to their former position and rights
hereunder and under the Notes and the Loan Documents, and any
Default or Event of Default waived shall not extend to any subsequent
or other Default or Event of Default, or impair any right consequent
thereon.
2 Notices.
All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered by hand, or when
deposited in the mail, first-class postage prepaid, or, in the
case of telecopier notice, when sent, addressed as follows in the
case of the Company and the Agent, and as set forth in Schedule
1.1 in the case of each of the Lenders, or to such other
addresses as to which the Agent may be hereafter notified by the
respective parties hereto or any future holders of the Notes:
The Company:
OGDEN CORPORATION
Two Pennsylvania Plaza
New York, New York 10121
Attention: Philip G. Husby,
Senior Vice President and
Chief Financial Officer
Telephone: (212) 868-6040
Telecopy: (212) 868-5714
The Agent:
The Bank of New York
Agency Function Administration
One Wall Street
New York, New York 10286
Attention: Ralph Matragrano,
Vice President
Telephone: (212) 635-4690
Telecopy: (212) 635-8852,
except that any notice, request or demand by the Company to or
upon the Agent or the Lenders pursuant to paragraphs 2.2, 2.3,
2.5, 2.6 or 2.7 shall not be effective until received. Any party
to a Loan Document may rely on signatures of the parties thereto
which are transmitted by telecopier or other electronic means as
fully as if originally signed.
3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on
the part of the Agent or any Lender, any right, remedy, power or
privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege under any Loan Document preclude any
other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers
and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided
by law.
4 Survival of Representations and Warranties.
All representations and warranties made hereunder and
in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and
delivery of this Agreement, the Notes and the other Loan
Documents.
5 Payment of Expenses and Taxes.
The Company agrees, within 30 days after presentation
of a statement or invoice therefor, and whether any Loan is made,
(a) to pay or reimburse the Agent for all reasonable out-of-
pocket costs and expenses, incurred in connection with the
development, preparation, syndication and execution of, and any
requested amendment, supplement or modification to, or waiver or
consent under, the Loan Documents, and any documents prepared in
connection therewith and the consummation of the transactions
contemplated thereby, and the preparation of any new Notes
required to be executed and delivered by the Company hereunder,
including, without limitation, the reasonable fees and
disbursements of counsel, (b) to pay or reimburse the Agent and
each Lender for its costs and expenses incurred in connection
with the enforcement of any rights under the Loan Documents and
the Notes, including, without limitation, reasonable fees and
disbursements of their respective counsel, (c) to pay, indemnify,
and hold each Lender and the Agent harmless from, any and all
recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise
and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent
under or in respect of, the Loan Documents and any such other
documents, and (d) to pay, indemnify and hold each Lender and the
Agent and each of their respective officers, directors and
employees harmless from and against any and all other liabilities,
obligations, claims, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be or becomes payable to any third party
(including, without limitation, reasonable counsel fees and
disbursements) with respect to the execution, delivery, enforcement
and performance of the Loan Documents or the use of the proceeds of
the Loans (all the foregoing, collectively, the "Indemnified
Liabilities") and, if and to the extent that the foregoing indemnity
may be unenforceable for any reason, the Company agrees to make the
maximum payment permitted under applicable law; provided, how-
ever, that the Company shall have no obligation hereunder to pay
Indemnified Liabilities to the Agent or any Lender arising from
the gross negligence or willful misconduct of the Agent or such
Lender. The agreements in this paragraph shall survive the
termination of the Commitments and the payment of the Notes, and
all other amounts payable hereunder.
6 Lending Offices.
Each Lender shall have the right at any time and from
time to time to transfer any Loan to a different office, provided
that such Lender shall promptly notify the Agent and the Company
of any such change of office. Such office shall thereon become
such Lender's Domestic Lending Office or Eurodollar Lending
Office, as the case may be.
7 Successors and Assigns.
(a) This Agreement and the Notes shall be binding upon
and inure to the benefit of the Company, the Lenders, the Agent,
all future holders of the Notes and their respective successors
and assigns, except that the Company may not assign, delegate or
transfer any of its rights or obligations under the Loan
Documents without the prior written consent of the Agent and each
Lender.
(b) Each Lender shall have the right at any time, upon
written notice to the Agent of its intent to do so, to sell,
assign, transfer or negotiate, on a pro rata basis, a constant,
and not a varying, percentage of all of such Lender's rights and
obligations with respect to its Loans, its Commitment, its
obligations with respect to the Letters of
Credit and its Notes (x) upon written notice to the Company, the
L/C Issuing Bank and the Agent, to one or more of the other
Lenders (or to Affiliates of such Lender or such other Lenders)
or (y) with the prior written consent of the Company (which
consent shall not be unreasonably withheld and shall not be
required if, at the time, an Event of Default shall exist), the
L/C Issuing Bank and the Agent, to any other Eligible Assignee,
and with respect only to clause (y) above, provided that (i) such
Lender shall continue at all times to hold at least 50% of such
Lender's original Commitment, (ii) each such sale, assignment,
transfer or negotiation shall be in a minimum amount of
$5,000,000 and (iii) there shall be paid to the Agent an as-
signment fee (the "Assignment Fee") of $2,000 payable to the
Agent. For each assignment, the parties to such assignment shall
execute and deliver to the Agent for its acceptance and
recording, an assignment and acceptance agreement in the form of
Exhibit H (each, an "Assignment and Acceptance Agreement"). Upon
such execution, delivery, acceptance and recording by the Agent,
from and after the effective date specified in such Assignment
and Acceptance Agreement and agreed to by the Agent, the assignee
thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance Agreement, the assignor Lender
thereunder shall be released from its obligations under this
Agreement. The Company agrees upon written request of the Agent
to execute and deliver (i) to such assignee, a Note, dated the
effective date of such Assignment and Acceptance Agreement, in an
aggregate principal amount equal to the Loans assigned to, and
Commitment assumed by, such assignee and (ii) to such assignor
Lender, a Note, dated the effective date of such Assignment and
Acceptance Agreement, in an aggregate principal amount equal to
the balance of such assignor Lender's Loans and Commitment.
Notwithstanding anything to the contrary contained in this
subsection (b), each Lender may at any time, upon 30 days' prior
written notice to the Agent, the L/C Issuing Bank and the
Company, sell, assign, transfer or negotiate all or any part of
its Loans, its Note or its Commitment to any of the other Lenders
or any other Eligible Assignee whose long-term senior credit
rating is at least BBB- or the equivalent, if, but only if,
concurrently therewith or prior thereto any Person or two or more
Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act) of a
"controlling interest" (as defined below) of the outstanding
shares of voting stock of the Company pursuant to one or more
transactions not approved by at least a majority of the
individuals, in their capacities as directors, who served as
directors of the Company on the date one year prior to the date
of the first acquisition of voting Stock leading to such
acquisition, provided, however, that a director who was not a
director at the beginning of such period shall be deemed to have
satisfied the one year requirement if such director was elected
by, or on the recommendation of, at least a majority of the
directors who were directors at the beginning of such period
(either actually or by prior operation of this provision). For
purposes of this paragraph, a "controlling interest" shall mean
either (1) a majority of the outstanding shares of voting Stock
of the Company or (2) such lesser amount of shares of voting
Stock that, in practice, enables such Person or Persons to
replace a majority of the board of directors of the Company
during any 12 month period.
(c) Each Lender may grant participations in all or any
part of its Loans, its Note, its obligations with respect to the
Letters of Credit or its Commitment to the parent, any Affiliate,
any wholly-owned Subsidiary or any Branch of such Lender and to
one or more banks, insurance companies, financial institutions,
pension funds or mutual funds, provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the
Company, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (iv) such
Lender shall give prior written notice to the Agent of the
identity and amount of such participation, (v) no
sub-participations shall be permitted and (vi) the rights of any
holder of any such participation shall be limited to the right to
consent to any action taken or omitted to be taken by such Lender
under this Agreement which would (a) increase the Commitment of
such Lender, (b) reduce the Facility Fee, the Letter of Credit
commissions set forth in paragraph 2.23 or the interest rate
payable on the Notes, or (c) extend the maturity date of the
Notes or extend the Termination Date except as provided in
paragraph 2.18, or postpone the payment or scheduled due dates
for payments of principal, interest, Facility Fee and Letter of
Credit commissions. The Company hereby acknowledges and agrees
that any such participant shall for purposes of paragraphs 2.11,
2.12, 2.13, 2.16 and 11.5, be deemed to be a "Lender", provided,
that in no event shall the Company be liable for any amounts
under said paragraphs in excess of the amounts for which it would
be liable but for any participation.
(d) No Lender shall, as between and among the Company,
the Agent and such Lender, be relieved of any of its obligations
hereunder as a result of any sale, assignment, transfer or ne-
gotiation of, or granting of participations in, all or any part
of its Loans, its Commitment or its Note, except that a Lender
shall be relieved of its obligations to the extent of any such
sale, assignment, transfer, or negotiation of all or
any part of its Loans, its Commitment or its Note pursuant to
paragraph (b) above.
(e) Notwithstanding anything to the contrary contained
in this paragraph 11.7, any Lender may at any time or from time
to time assign all or any portion of its rights under this
Agreement with respect to its Loans and its Note to a Federal
Reserve Bank, provided that no such assignment shall release such
Lender from its obligations hereunder.
8 Counterparts.
Each Loan Document (other than the Notes) may be
executed by one or more of the parties thereto on any number of
separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same document. It shall
not be necessary in making proof of any Loan Document to produce
or account for more than one counterpart signed by the party to
be charged. A telecopied counterpart of any Loan Document or of
any document evidencing, and of any an amendment, modification,
consent or waiver to or of any Loan Document, shall be deemed to
be an originally executed counterpart. A set of the copies of the
Loan Documents signed by all the parties thereto shall be
deposited with each of the Company and the Agent. Any party to a
Loan Document may rely upon the signatures of any other party
thereto which are transmitted by telecopier or other electronic
means to the same extent as if originally signed.
9 Lenders' Representations.
Each Lender represents to the Agent and the Company
that, in acquiring its Notes hereunder, it is acquiring same for
its own account for the purpose of investment and not with a view
to selling the same in connection with any distribution thereof,
provided that the disposition of each Lender's own Property shall
at all times be and remain within its control.
10 Governing Law.
This Agreement and the Notes and the rights and
obligations of the parties hereunder and thereunder shall be
governed by, and construed and interpreted in accordance with,
the laws of the State of New York, without regard to principles
of conflict of laws.
11 Headings, Plurals.
convenience only and shall not be construed to be a part hereof
Paragraph headings have been inserted herein for
or thereof. Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural
include the singular.
12 Severability.
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid,
illegal or unenforceable for any reason, the validity, legality
and enforceability of the remaining provisions thereof shall not
be affected or impaired thereby, and any invalidity, illegality
or unenforceability in any jurisdiction shall not affect the
validity, legality or enforceability of any such term or
provision in any other jurisdiction.
13 Integration.
This Agreement and the Notes embody the entire
agreement and understanding among the Company, the Agent and the
Lenders with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings among the
Company, the Agent and the Lenders with respect to the subject
matter hereof and thereof.
14 Consent to Jurisdiction.
The Company, the Agent and the Lenders hereby ir-
revocably submit to the jurisdiction of any New York State or
Federal Court sitting in the City of New York over any suit,
action or proceeding arising out of or relating to the Loan
Documents. The Company, the Agent and the Lenders hereby ir-
revocably waive, to the fullest extent permitted by law, any
objection which any thereof may now or hereafter have to the
laying of the venue of any such suit, action or proceeding
brought in such a court and any claim that any such suit, action
or proceeding brought in such a court has been brought in an
inconvenient forum. The Company, Agent and the Lenders hereby
agree that a final judgment in any such suit, action or
proceeding brought in such a court, after all appropriate ap-
peals, shall be conclusive and binding upon each thereof.
15 WAIVER OF TRIAL BY JURY.
THE AGENT, THE LENDERS, AND THE COMPANY HEREBY KNOW-
INGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREIN. FURTHER, THE COMPANY HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE AGENT OR THE LENDERS, OR COUNSEL TO
THE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE COMPANY ACKNOWLEDGES THAT THE AGENT AND THE LENDERS
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE
PROVISIONS OF THIS PARAGRAPH.
16 Confidentiality.
The Agent and the Lenders agree to keep confidential all
non-public information pertaining to the Company and its
Subsidiaries and its Affiliates which is provided to any of them by
any of such parties, and shall not disclose and shall take all
appropriate action to restrict access to such information to any
Person except (i) to the extent such information is public when
received by the Agent or the Lenders or becomes public thereafter
due to the act or omission of any Person other than the Agent or the
Lenders, (ii) to the extent such information is independently
obtained from a source other than the Company, its Subsidiaries or
its Affiliates and such information from such source is not, to the
knowledge of the Agent or the Lender, subject to an obligation of
confidentiality or, if such information is subject to an obligation
of confidentiality, that disclosure of such information is per-
mitted, (iii) to counsel, examiners, auditors, accountants or other
professional advisors retained by the Agent or any Lender or to Af-
filiates of the same, provided that such Affiliates agree to keep
such information confidential as set forth herein, (iv) to the
extent necessary in connection with any litigation or the
enforcement of the rights of the Agent or any Lender hereunder or
under the Notes or as provided by law, (v) to the extent required by
any applicable statute, rule or regulation or court order
(including, without limitation, by way of subpoena) or pursuant to
the request of Governmental Body having jurisdiction over the Agent
or any Lender, (vi) to the extent disclosure to other financial in-
stitutions is appropriate in connection with any proposed or actual
assignment or grant of a participation by any Lender of interest
hereunder or under the Notes to such other financial institutions
(who will in turn agree to maintain confidentiality as if they were
parties to this Agreement), or (vii) to the extent such information
is disclosed with prior consent of the Company.
1 Acknowledgments.
The Company acknowledges that (a) it has been advised by
counsel in the negotiation, execution and delivery of the Loan
Documents, (b) by virtue of the Loan Documents, neither the Agent
nor any Lender has any fiduciary relationship to the Company, and
the relationship between the Agent and the Lenders, on the one
hand, and the Company, on the other hand, is solely that of debtor
and creditor, and (c) by virtue of the Loan Documents, no joint
venture exists among the Lenders or among the Company and the
Lenders.
The parties hereto 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.
OGDEN CORPORATION
By: ________________________
Title: _____________________
THE BANK OF NEW YORK,
Individually and as Agent
By: ________________________
Title: _____________________
NATIONAL WESTMINSTER BANK, PLC,
New York Branch
By: ________________________
Title: _____________________
NATIONAL WESTMINSTER BANK, PLC
Nassau Branch
By:
Title:
SWISS BANK CORPORATION
New York Branch
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
UNION BANK OF SWITZERLAND,
New York Branch
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: ________________________
Title: _____________________
CHEMICAL BANK
By: ________________________
Title: _____________________
NATIONSBANK OF VIRGINIA, N.A.
By: ________________________
Title: _____________________
DEUTSCHE BANK AG
New York and/or Cayman Islands
Branches
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
THE MITSUBISHI BANK, LIMITED
By: ________________________
Title: _____________________