CONFORMED COPY
$250,000,000
CREDIT AGREEMENT
dated as of
June 15, 1994
among
Premark International, Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.......................... 1
1.02 Accounting Terms and Determinations.. 12
1.03 Types of Borrowings.................. 12
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend.................. 13
2.02 Notice of Committed Borrowings....... 13
2.03 Money Market Borrowings.............. 14
2.04 Notice to Banks; Funding of Loans.... 18
2.05 Notes................................ 19
2.06 Maturity of Loans.................... 19
2.07 Interest Rates....................... 20
2.08 Facility Fees........................ 24
2.09 Optional Termination or
Reduction of Commitments........... 24
2.10 Mandatory Termination of Commitments. 24
2.11 Method of Electing Interest Rates.... 24
2.12 Optional Prepayments................. 26
2.13 General Provisions as to Payments.... 26
2.14 Funding Losses....................... 27
2.15 Computation of Interest and Fees..... 28
2.16 Withholding Tax Exemption............ 28
2.17 Regulation D Compensation............ 29
ARTICLE III
CONDITIONS
SECTION 3.01 Effectiveness; Termination of
1992 Agreement..................... 29
3.02 Borrowings........................... 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power....... 31
4.02 Corporate and Governmental
Authorization; No Contravention... 32
4.03 Binding Effect...................... 32
4.04 Financial Information............... 32
4.05 Litigation.......................... 32
4.06 Compliance with ERISA............... 33
4.07 Environmental Matters............... 33
4.08 Taxes............................... 33
4.09 Subsidiaries........................ 33
4.10 Not an Investment Company........... 34
4.11 Full Disclosure..................... 34
ARTICLE V
COVENANTS
SECTION 5.01 Information......................... 34
5.02 Maintenance of Property; Insurance.. 36
5.03 Debt................................ 37
5.04 Minimum Consolidated Tangible
Net Worth......................... 38
5.05 Negative Pledge..................... 38
5.06 Consolidations, Mergers and
Sales of Assets................... 39
5.07 Use of Proceeds..................... 39
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default................... 40
6.02 Notice of Default................... 42
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization....... 42
7.02 Agent and Affiliates................ 43
7.03 Action by Agent..................... 43
7.04 Consultation with Experts........... 43
7.05 Liability of Agent.................. 43
7.06 Indemnification..................... 44
7.07 Credit Decision..................... 44
7.08 Successor Agent..................... 44
7.09 Agent's Fee......................... 44
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair.......... 45
8.02 Illegality........................... 45
8.03 Increased Cost and Reduced Return.... 46
8.04 Base Rate Loans Substituted for
Affected Fixed Rate Loans.......... 48
8.05 Election of Company to Terminate
or Substitute Banks................ 49
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices.............................. 50
9.02 No Waivers........................... 51
9.03 Expenses; Documentary Taxes;
Indemnification.................... 51
9.04 Sharing of Set-Offs.................. 51
9.05 Amendments and Waivers............... 52
9.06 Successors and Assigns............... 52
9.07 Collateral........................... 54
9.08 Governing Law........................ 54
9.09 Counterparts; Integration............ 54
9.10 Confidentiality...................... 55
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company
Exhibit F - Opinion of Special Counsel for the
Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Purchase/Leaseback Transaction Summary
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 15, 1994 among
PREMARK INTERNATIONAL, INC., the BANKS listed on the
signature pages hereof and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as
used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute Rates
pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a copy
to the Company) duly completed by such Bank.
"Affiliate" means with respect to any Person, the
Parent of such Person, any Subsidiary of such Person, and any
Person that has a Parent in common with such first Person.
"Agent" means Morgan Guaranty Trust Company of New
York in its capacity as agent for the Banks hereunder, and
its successors in such capacity.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its Domestic
Lending Office, (ii) in the case of its Euro-Dollar Loans,
its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Bank" means each bank listed on the signature pages
hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Bank Default" has the meaning set forth in Section
8.05.
"Bank Proceeding" has the meaning set forth in
Section 8.05.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day.
"Base Rate Loan" means (i) a Committed Loan which
bears interest at the Base Rate pursuant to the applicable
Notice of Committed Borrowing or Notice of Interest Rate
Election or the provisions of Article VIII or (ii) an overdue
amount which was a Base Rate Loan immediately before it
became overdue.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Loan" means (i) a Committed Loan which bears
interest at a CD Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or
(ii) an overdue amount which was a CD Loan immediately before
it became overdue.
"CD Rate" means a rate of interest determined
pursuant to Section 2.07(b) on the basis of an Adjusted CD
Rate.
"CD Reference Banks" means Bankers Trust Company,
Chemical Bank and Morgan Guaranty Trust Company of New York
and each such other bank as may be appointed pursuant to
Section 9.06(f).
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Section 2.09.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01; provided that, if any such loan or
loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount
resulting from such combination or to each of the separate
principal amounts resulting from such subdivision, as the
case may be.
"Company" means Premark International, Inc., a
Delaware corporation, and its successors.
"Company's 1993 Form 10-K" means the Company's
Annual Report on Form 10-K for 1993, as filed with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"Consolidated Debt" means at any date the Debt of
the Company and its Consolidated Subsidiaries, determined on
a consolidated basis as of such date.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Company and its
Consolidated Subsidiaries, determined as of such date.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated
financial statements if such statements were prepared as of
such date.
"Consolidated Tangible Net Worth" means at any date
Consolidated Net Worth at such date less the consolidated
intangible assets of the Company and its Consolidated
Subsidiaries determined as of such date.
"Dart" means Dart Industries Inc., a Delaware
corporation, and its successors.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v)
all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person,
and (vi) all Debt of others Guaranteed by such Person;
provided that Debt shall not include (A) "back-to-back"
borrowings by Foreign Subsidiaries of the Company in foreign
currencies for which there are related deposits or
receivables of equivalent amounts so long as (y) such
borrowings are not included in Consolidated Debt under
generally accepted accounting principles and (z) the
borrowing arrangements include rights of offset allowing
defaulted principal and accrued interest to be offset against
the related repayment obligation or (B) the seller
acquisition financing secured by a Lien on certain computer
equipment as described in Exhibit H.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as
its Domestic Lending Office by notice to the Company and the
Agent; provided that any Bank may so designate separate
Domestic Lending Offices for its Base Rate Loans, on the one
hand, and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such Bank
shall be deemed to refer to either or both of such offices,
as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans
or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment
or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Company and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together with the Company, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank,
its office, branch or Affiliate located at its address set
forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or Affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending
Office by notice to the Company and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which
bears interest at a Euro-Dollar Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan immediately before it became overdue.
"Euro-Dollar Rate" means a rate of interest
determined pursuant to Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal
London offices of Bankers Trust Company, Chemical Bank and
Morgan Guaranty Trust Company of New York and each such other
bank as may be appointed pursuant to Section 9.06(f).
"Euro-Dollar Reserve Percentage" has the meaning set
forth in Section 2.17.
"Event of Default" has the meaning set forth in
Section 6.01.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business Day,
the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day
as so published on the next succeeding Domestic Business Day,
and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions as
determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Prime Rate pursuant to Section
8.01) or any combination of the foregoing.
"Foreign Subsidiary" means (i) any Subsidiary
organized under the laws of a jurisdiction outside the United
States of America and (ii) any branch or office located
outside the United States of America of any other Subsidiary.
"Group of Loans" means at any time a group of Loans
consisting of (i) all Committed Loans which are Base Rate
Loans at such time or (ii) all Committed Loans which are
Fixed Rate Loans having the same Interest Period at such
time; provided that, if Committed Loans of any particular
Bank are converted to or made as Base Rate Loans pursuant to
Section 8.02 or 8.04, such Loans shall be included in the
same Group or Groups of Loans from time to time as they would
have been in if they had not been so converted or made.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term
Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Identifiable Assets" means identifiable assets
within the meaning of Item 101(b) of Regulation S-K
promulgated by the Securities and Exchange Commission.
"Interest Period" means: (1) with respect to each
Euro-Dollar Loan, a period commencing on the date of
borrowing specified in the applicable Notice of Committed
Borrowing or on the date specified in the applicable Notice
of Interest Rate Election and ending one, two, three or six
months thereafter, as the Company may elect in the applicable
Notice; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Loan, a period commencing on the
date of borrowing specified in the applicable Notice of
Committed Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending 30,
60, 90 or 180 days thereafter, as the Company may elect in
the applicable Notice; provided that:
(a) any Interest Period (other than an Interest
Period determined pursuant to clause (b) below) which
would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(3) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending
such whole number of months thereafter as the Company may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(4) with respect to each Money Market Absolute Rate Loan,
the period commencing on the date of such Borrowing and
ending such number of days thereafter (but not less than 14
days) as the Company may elect in accordance with Section
2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day;
and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Kraft" means Kraft, Inc. a Delaware corporation,
and its successors.
"LIBOR Auction" means a solicitation of Money Market
Quotes setting forth Money Market Margins based on the London
Interbank Offered Rate pursuant to Section 2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, the Company or any Subsidiary
shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or
other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination of
the foregoing.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Material Debt" means (i) Debt (other than the
Notes) of the Company or one of its Consolidated Subsidiaries
arising under a single indenture, loan agreement or similar
document in an aggregate principal amount exceeding
$10,000,000, or (ii) Debt (other than the Notes) of the
Company and/or one or more of its Consolidated Subsidiaries,
arising in one or more related or unrelated transactions, in
an aggregate principal amount exceeding $25,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$25,000,000.
"Material Subsidiary" means at any time, any
Subsidiary of the Company which as of such time meets the
definition of a "significant subsidiary" contained as of the
date hereof in Regulation S-K of the Securities and Exchange
Commission.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be
made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to the
Company and the Agent; provided that any Bank may from time
to time by notice to the Company and the Agent designate
separate Money Market Lending Offices for its Money Market
LIBOR Loans, on the one hand, and its Money Market Absolute
Rate Loans, on the other hand, in which case all references
herein to the Money Market Lending Office of such Bank shall
be deemed to refer to either or both of such offices, as the
context may require.
"Money Market LIBOR Loan" means a loan to be made by
a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Prime Rate pursuant to Section 8.01).
"Money Market Loan" means a Money Market LIBOR Loan
or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section 4001(a)(3)
of ERISA to which any member of the ERISA Group is then
making or accruing an obligation to make contributions or has
within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"1992 Agreement" means the Credit Agreement dated as
of May 12, 1992 among the Company, the banks listed therein
and Morgan Guaranty Trust Company of New York, as agent.
"Notes" means promissory notes of the Company,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Company to repay the Loans, and "Note"
means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
"Notice of Interest Rate Election" has the meaning
set forth in Section 2.11.
"Parent" means, with respect to any Person, any
other Person controlling such Person.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Permitted Guarantees" means Guarantees existing on
the date hereof by Dart of certain existing Debt of Kraft.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision
or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan (other than a Multiemployer Plan) which is covered by
Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i)
is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii)
has at any time within the preceding five years been
maintained, or contributed to, by any Person which was at
such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Premark FEG" means Premark FEG Corporation, a
Delaware corporation, and its successors.
"Pricing Schedule" means the Schedule attached
hereto identified as such.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in New
York City from time to time as its Prime Rate.
"Quarterly Date" means the last day of each January,
April, July and October.
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes
evidencing at least 66 2/3% of the aggregate unpaid principal
amount of the Loans.
"Subsidiary" means any corporation or other entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are
at the time directly or indirectly owned by the Company.
"Termination Date" means the last Euro-Dollar
Business Day falling in May 1999.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the
present value of all benefits under such Plan exceeds (ii)
the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for
such Plan, but only to the extent that such amount represents
a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Wholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly
owned by the Company.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as
in effect from time to time; provided that, if the Company
notifies the Agent that the Company wishes to amend any
covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation
of such covenant (or if the Agent notifies the Company that
the Required Banks wish to amend Article V for such purpose),
then the Company's compliance with such covenant shall be
determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change
in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the
Required Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Company pursuant to Article II on a
single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference
to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of
Article II under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance
therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. From time to
time prior to the Termination Date, each Bank severally
agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Company pursuant to this
Section from time to time in amounts such that the aggregate
principal amount of Committed Loans by such Bank at any one
time outstanding shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an
aggregate principal amount of $10,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be
in the aggregate amount available in accordance with Section
3.02(b)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the
foregoing limits, the Company may borrow under this Section,
prepay Loans to the extent permitted by Section 2.12, and
reborrow at any time prior to the Termination Date.
SECTION 2.02. Notice of Committed Borrowings. The
Company shall give the Agent notice (a "Notice of Committed
Borrowing") not later than 12:00 Noon (New York City time) on
(x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the
third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic Borrowing
or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are
to bear interest initially at the Base Rate or at a CD
Rate or a Euro-Dollar Rate, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the initial Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period.
It is understood that more than one Borrowing may occur on
the same day.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Company
may, as set forth in this Section, request the Banks to make
offers to make Money Market Loans to the Company. The Banks
may, but shall have no obligation to, make such offers and
the Company may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Company
wishes to request offers to make Money Market Loans under
this Section, it shall transmit to the Agent by telex or
facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be
received no later than 12:00 Noon (New York City time) on (x)
the fifth Euro-Dollar Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction or
(y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Company and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective) specifying:
(i) the proposed date of Borrowing, which shall be
a Euro-Dollar Business Day in the case of a LIBOR Auction
or a Domestic Business Day in the case of an Absolute
Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Absolute Rate.
The Company may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote
Request and may request different aggregate principal amounts
(each of which shall be $5,000,000 or a larger multiple of
$1,000,000) for each such Interest Period. No Money Market
Quote Request shall be given within five Euro-Dollar Business
Days (or such other number of days as the Company and the
Agent may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent shall
send to the Banks by telex or facsimile transmission an
Invitation for Money Market Quotes substantially in the form
of Exhibit C hereto, which shall constitute an invitation by
the Company to each Bank to submit Money Market Quotes
offering to make the Money Market Loans to which such Money
Market Quote Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes.
(i) Each Bank may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any
Invitation for Money Market Quotes. Each Money Market Quote
must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telex or facsimile
transmission at its offices specified in or pursuant to
Section 9.01 not later than (x) 2:00 P.M. (New York City
time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or
(y) 11:00 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Company and the
Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective); provided that
Money Market Quotes submitted by the Agent (or any affiliate
of the Agent) in the capacity of a Bank may be submitted, and
may only be submitted, if the Agent or such affiliate
notifies the Company of the terms of the offer or offers
contained therein not later than (x) one hour prior to the
deadline for the other Banks, in the case of a LIBOR Auction
or (y) 15 minutes prior to the deadline for the other Banks,
in the case of an Absolute Rate Auction. Subject to Articles
III and VI, any Money Market Quote so made shall be
irrevocable except with the written consent of the Agent
given on the instructions of the Company.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal
amount (w) may be greater than or less than the
Commitment of the quoting Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers
were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Money Market
Loans for which offers being made by such quoting Bank
may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers
by the quoting Bank with respect to each Interest Period
specified in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with Exhibit
D hereto or does not specify all of the information
required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to Company. The Agent shall promptly
notify the Company of the terms (x) of any Money Market Quote
submitted by a Bank that is in accordance with subsection (d)
and (y) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall
be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error
in such former Money Market Quote. The Agent's notice to the
Company shall specify (A) the aggregate principal amount of
Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case
may be, so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Company. Not later
than 12:00 Noon (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Company
and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective), the
Company shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a
"Notice of Money Market Borrowing") shall specify the
aggregate principal amount of offers for each Interest Period
that are accepted. The Company may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $5,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
(iv) the Company may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two
or more Banks with the same Money Market Margins or Money
Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect
of which such offers are accepted shall be allocated by the
Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion
to the aggregate principal amounts of such offers.
Determinations by the Agent of the amounts of Money Market
Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents thereof
and of such Bank's share (if any) of such Borrowing and such
Notice of Borrowing shall not thereafter be revocable by the
Company.
(b) Not later than 2:00 P.M. (New York City time)
on the date of each Borrowing, each Bank participating
therein shall make available its share of such Borrowing, in
Federal or other funds immediately available in New York
City, to the Agent at its address specified in or pursuant to
Section 9.01. Unless the Agent determines that any
applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the
Banks available to the Company at the Agent's aforesaid
address.
(c) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank
will not make available to the Agent such Bank's share of
such Borrowing, the Agent may assume that such Bank has made
such share available to the Agent on the date of such
Borrowing in accordance with subsection (b) of this Section
2.04 and the Agent may, in reliance upon such assumption,
make available to the Company on such date a corresponding
amount. If and to the extent that such Bank shall not have
so made such share available to the Agent, such Bank and the
Company severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest
thereon, for each day from the date such amount is made
available to the Company until the date such amount is repaid
to the Agent, at the Federal Funds Rate. If such Bank shall
repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office in
an amount equal to the aggregate unpaid principal amount of
such Bank's Loans.
(b) Each Bank may, by notice to the Company and the
Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(a)(iii), the Agent shall mail such Note to such
Bank. Each Bank shall record the date and amount of each
Loan made by it and the date and amount of each payment of
principal made by the Company with respect thereto, and may,
if such Bank so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligations
of the Company hereunder or under the Notes. Each Bank is
hereby irrevocably authorized by the Company so to endorse
its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. (a) Each
Committed Loan shall mature, and the principal amount thereof
shall be due and payable on the Termination Date.
(b) Each Money Market Loan included in any Money
Market Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate
Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until
it becomes due, at a rate per annum equal to the Base Rate
for such day. Such interest shall be payable quarterly in
arrears on each Quarterly Date and on each date a Base Rate
Loan is converted to a Euro-Dollar Loan or a CD Loan. Any
overdue principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 1% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during
each Interest Period applicable thereto, at a rate per annum
equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided
that if any CD Loan or any portion thereof shall, as a result
of clause (2)(b) of the definition of Interest Period, have
an Interest Period of less than 30 days, such portion shall
bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such
interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than
90 days, at intervals of 90 days after the first day thereof.
Any overdue principal of or interest on any CD Loan shall
bear interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 1% plus the higher of
(i) the sum of the CD Margin for such day, plus the Adjusted
CD Rate applicable to the Interest Period for such Loan and
(ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period
is the rate of interest determined by the Agent to be the
average (rounded upward, if necessary, to the next higher
1/100 of 1%) of the prevailing rates per annum bid at 10:00
A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of recognized
standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD
Reference Bank to which such Interest Period applies and
having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank
of the Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of new non-personal
time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of
$100,000 or more. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. Section 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day during
each Interest Period applicable thereto, at a rate per annum
equal to the sum of the Euro-Dollar Margin for such day plus
the applicable London Interbank Offered Rate. Such interest
shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day
thereof.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/32 of 1%) of the respective
rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due
to but excluding the date of actual payment, at a rate per
annum equal to the sum of 1% plus the higher of (i) the sum
of the Euro-Dollar Margin for such day plus the applicable
London Interbank Offered Rate and (ii) the Euro-Dollar Margin
for such day plus the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (x)
the average (rounded upward, if necessary, to the next higher
1/32 of 1%) of the respective rates per annum at which one
day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time
not longer than three months as the Agent may select)
deposits in dollars in an amount approximately equal to such
overdue payment due to each of the Euro-Dollar Reference
Banks are offered to such Euro-Dollar Reference Bank in the
London interbank market for the applicable period determined
as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal
to the sum of 1% plus the rate applicable to Base Rate Loans
for such day).
(e) Subject to Section 8.01, each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03.
Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall be
payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the
Prime Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Company and the participating Banks by
telex or facsimile transmission of each rate of interest so
determined, and its determination thereof shall be conclusive
in the absence of manifest error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated by
this Section. If any Reference Bank does not furnish a
timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if
none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Facility Fee. The Company shall pay
to the Agent for the account of the Banks ratably a facility
fee at the Facility Fee Rate (determined daily in accordance
with the Pricing Schedule). Such facility fee shall accrue
(i) from and including the Effective Date to but excluding
the Termination Date, on the daily aggregate amount of the
Commitments (whether used or unused) and (ii) from and
including the Termination Date to but excluding the date the
Loans shall be repaid in their entirety, on the daily
outstanding principal amount of the Loans. Accrued fees
under this Section shall be payable quarterly on each
Quarterly Date and upon the date of termination of the
Commitments in their entirety and, if later, the date the
Loans shall be repaid in their entirety.
SECTION 2.09. Optional Termination or Reduction of
Commitments. The Company may, upon at least three Domestic
Business Days' notice to the Agent, (i) terminate the
Commitments at any time, if no Loans are outstanding at such
time or (ii) ratably reduce from time to time by an aggregate
amount of at least $5,000,000 or any larger multiple thereof,
the aggregate amount of the Commitments in excess of the
aggregate outstanding principal amount of the Loans.
SECTION 2.10. Mandatory Termination of Commitments.
The Commitments shall terminate on the Termination Date, and
any Loans then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
SECTION 2.11. Method of Electing Interest Rates.
(a) The Loans included in each Committed Borrowing shall bear
interest initially at the type of rate specified by the
Company in the applicable Notice of Committed Borrowing.
Thereafter, the Company may from time to time elect to change
or continue the type of interest rate borne by each Group of
Loans (subject in each case to the provisions of Article
VIII), as follows:
(i) if such Loans are Base Rate Loans, the Company
may elect to convert such Loans to CD Loans as of any
Domestic Business Day or to Euro-Dollar Loans as of any
Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Company may
elect to convert such Loans to Base Rate Loans or
Euro-Dollar Loans or elect to continue such Loans as CD
Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest
Period applicable to such Loans;
(iii) if such Loans are Euro-Dollar Loans, the
Company may elect to convert such Loans to Base Rate
Loans or CD Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in
each case effective on the last day of the then current
Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a
"Notice of Interest Rate Election") to the Agent at least
three Euro-Dollar Business Days before the conversion or
continuation selected in such notice is to be effective
(unless the relevant Loans are to be converted from Domestic
Loans to Domestic Loans of the other type or continued as
Domestic Loans of the same type for an additional Interest
Period, in which case such notice shall be delivered to the
Agent at least two Domestic Business Days before such
conversion or continuation is to be effective). A Notice of
Interest Rate Election may, if it so specifies, apply to only
a portion of the aggregate principal amount of the relevant
Group of Loans; provided that (i) such portion is allocated
ratably among the Loans comprising such Group and (ii) the
portion to which such Notice applies, and the remaining
portion to which it does not apply, are each $5,000,000 or
any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Group of Loans (or portion thereof) to which
such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be effective,
which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans
are Fixed Rate Loans, the duration of the initial
Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans
or Euro-Dollar Loans for an additional Interest Period,
the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition
of Interest Period.
(c) Upon receipt of a Notice of Interest Rate
Election from the Company pursuant to subsection (a) above,
the Agent shall promptly notify each Bank of the contents
thereof and such notice shall not thereafter be revocable by
the Company. If the Company fails to deliver a timely Notice
of Interest Rate Election to the Agent for any Group of
Committed Fixed Rate Loans, such Loans shall be converted
into Base Rate Loans on the last day of the then current
Interest Period applicable thereto.
SECTION 2.12. Optional Prepayments. (a) The
Company may, upon at least one Domestic Business Day's notice
to the Agent, prepay a Group of Base Rate Loans (or a Money
Market Borrowing bearing interest at the Prime Rate pursuant
to Section 8.01) in whole at any time, or from time to time
in part in amounts aggregating $5,000,000 or any larger
multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied
to prepay ratably the Loans of the several Banks included in
such Group or Borrowing.
(b) The Borrower may, upon at least two Domestic
Business Day's notice to the Agent, in the case of a Group of
CD Loans or upon at least three Euro-Dollar Business Day's
notice to the Agent, in the case of a Group of Euro-Dollar
Loans, prepay the Loans comprising such a Group on the last
day of any Interest Period applicable to such Group, in whole
at any time, or from time to time in part in amounts
aggregating $5,000,000 or any larger multiple of $1,000,000,
by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably
the Loans of the several Banks included in such Group.
(c) Except as provided in subsection (a) above, the
Borrower may not prepay all or any portion of the principal
amount of any Money Market Loans prior to the maturity
thereof.
(d) Upon receipt of a notice of prepayment pursuant
to this Section, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share (if
any) of such prepayment and such notice shall not thereafter
be revocable by the Company.
SECTION 2.13. General Provisions as to Payments.
(a) The Company shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than
2:00 P.M. (New York City time) on the date when due, in
Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal
of, or interest on, the Domestic Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of,
or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the
Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day.
If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be
payable for such extended time.
(b) Unless the Agent shall have received notice
from the Company prior to the date on which any payment is
due to the Banks hereunder that the Company will not make
such payment in full, the Agent may assume that the Company
has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that the
Company shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Company makes
any payment of principal with respect to any Fixed Rate Loan
or any Fixed Rate Loan is converted to a Base Rate Loan
(pursuant to Article VI or VIII or otherwise) on any day
other than the last day of an Interest Period applicable
thereto, or the end of an applicable period fixed pursuant to
Section 2.07(d), or if the Company fails to borrow or prepay
any Fixed Rate Loans after notice has been given to any Bank
in accordance with Section 2.04(a) or 2.12(d), the Company
shall reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing
or committed Participant in the related Loan), including
(without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such
payment or conversion or failure to borrow or prepay,
provided that such Bank shall have delivered to the Company a
certificate containing a computation in reasonable detail of
the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error. For purposes
of this Section 2.14, each Bank may compute its losses or
expenses as if each Fixed Rate Loan made by such Bank was
funded by or on behalf of such Bank by a deposit
corresponding in amount and maturity to such Fixed Rate Loan.
SECTION 2.15. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day).
SECTION 2.16. Withholding Tax Exemption. At least
five Domestic Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any
Bank, each Bank that is not incorporated under the laws of
the United States of America or a state thereof agrees that
it will deliver to each of the Company and the Agent two duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, certifying in either case that such Bank
is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States
federal income taxes. Each Bank which so delivers a Form
1001 or 4224 further undertakes to deliver to each of the
Company and the Agent two additional copies of such form (or
a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Company or the
Agent, in each case certifying that such Bank is entitled to
receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering
any such form with respect to it and such Bank advises the
Company and the Agent that it is not capable of receiving
payments without any deduction or withholding of United
States federal income tax.
SECTION 2.17. Regulation D Compensation. Each Bank
may require the Company to pay, contemporaneously with each
payment of interest on the Euro-Dollar Loans, additional
interest on the related Euro-Dollar Loan of such Bank at a
rate per annum determined by such Bank up to but not
exceeding the excess of (i)(A) the applicable London
Interbank Offered Rate divided by (B) one minus the Euro-
Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment
of such additional interest (x) shall so notify the Company
and the Agent, in which case such additional interest on the
Euro-Dollar Loans of such Bank shall be payable to such Bank
at the place indicated in such notice with respect to each
Interest Period commencing at least three Euro-Dollar
Business Days after the giving of such notice and (y) shall
notify the Company at least five Euro-Dollar Business Days
prior to each date on which interest is payable on the Euro-
Dollar Loans of the amount then due it under this Section.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the
maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or
in respect of any other category of liabilities which
includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a
non-United States office of any Bank to United States
residents).
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness; Termination of 1992
Agreement. (a) This Agreement shall become effective on the
date that each of the following conditions shall have been
satisfied (or waived in accordance with Section 9.05):
(i) receipt by the Agent, as defined, for the
purposes of this clause (i), in the 1992 Agreement,
of payment of all loans, accrued interest and other
amounts outstanding under the 1992 Agreement (except
principal of and accrued interest on outstanding
"Money Market Loans" under the 1992 Agreement made
by Banks parties to this Agreement);
(ii) receipt by the Agent of counterparts
hereof signed by each of the parties hereto (or, in
the case of any party as to which an executed
counterpart shall not have been received, receipt by
the Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party
of execution of a counterpart hereof by such party);
(iii) receipt by the Agent for the account of
each Bank of a duly executed Note dated on or before
the Effective Date complying with the provisions of
Section 2.05;
(iv) receipt by the Agent of an opinion of
Thomas M. Roehlk, Assistant General Counsel for the
Company, substantially in the form of Exhibit E
hereto and covering such additional matters relating
to the transactions contemplated hereby as the
Required Banks may reasonably request;
(v) receipt by the Agent of an opinion of
Davis Polk & Wardwell, special counsel for the
Agent, substantially in the form of Exhibit F hereto
and covering such additional matters relating to the
transactions contemplated hereby as the Required
Banks may reasonably request;
(vi) receipt by the Agent of a certificate,
dated the Effective Date, signed by the chief
financial officer, the chief accounting officer, or
the treasurer of the Company to the effect set forth
in clauses (c) and (d) of Section 3.02;
(vii) receipt by the Agent of the written
consent and agreement of each bank party to the 1992
Agreement which is not a party to this Agreement to
the termination of the commitments under the 1992
Agreement in accordance with this Section 3.01; and
(viii) receipt by the Agent of all documents
it may reasonably request prior to the date hereof
relating to the existence of the Company, the
corporate authority for and the validity of this
Agreement and the Notes, and any other matters
relevant hereto, all in form and substance
satisfactory to the Agent;
Provided that this Agreement shall not become effective or be
binding on any party hereto unless all of the foregoing
conditions are satisfied not later than 10 days after the
execution of this Agreement. The Agent shall promptly notify
the Company and the Banks of the Effective Date, and such
notice shall be conclusive and binding on all parties hereto.
(b) The Company and the Banks which are parties to
the 1992 Agreement hereby agree that the commitments under
the 1992 Agreement shall terminate upon the Effective Date.
(c) Each "Money Market Loan" outstanding under the
1992 Agreement made by a Bank party to this Agreement shall
on and after the Effective Date be deemed to be a Money
Market Loan made hereunder, with a maturity and interest rate
as determined under the 1992 Agreement.
SECTION 3.02. Borrowings. The obligation of any
Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such
Borrowing, the aggregate outstanding principal amount of
the Loans will not exceed the aggregate amount of the
Commitments;
(c) the fact that, immediately after such
Borrowing, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and
warranties of the Company contained in this Agreement
(except the representations and warranties set forth in
Sections 4.04(b), 4.05(i) and 4.07) shall be true on and
as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Company on the date of
such Borrowing as to the facts specified in clauses (b), (c)
and (d) of this Section. An election by the Company to
change or continue the type of interest rate borne by a Loan,
pursuant to Section 2.11, is not a Borrowing subject to the
requirements of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Company is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement and the Notes
are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute
a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws
of the Company or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Company or
result in the creation or imposition of any Lien on any asset
of the Company or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Company and
the Notes, when executed and delivered in accordance with
this Agreement, will constitute valid and binding obligations
of the Company, in each case enforceable in accordance with
their respective terms except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of December 25, 1993 and
the related consolidated statements of income and cash flows
for the fiscal year then ended, reported on by Price
Waterhouse and set forth in the Company's 1993 Form 10-K, a
copy of which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting
principles, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for
the fiscal year then ended.
(b) Except as disclosed in the Company's 1993 Form
10-K, since December 25, 1993, there has been no material
adverse change in the business, financial position, results
of operations or prospects of the Company and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Except as disclosed in
the Company's 1993 Form 10-K, there is no action, suit or
proceeding pending against, or to the knowledge of the
Company threatened against or affecting, the Company or any
of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a
reasonable possibility of an adverse decision (i) which could
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries, considered as
a whole, or (ii) which in any manner draws into question the
validity of this Agreement or any Note.
SECTION 4.06. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer
Plan or made any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a
bond or other security under ERISA or the Internal Revenue
Code or (iii) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section
4007 of ERISA.
SECTION 4.07. Environmental Matters. Except as
disclosed in the Company's 1993 Form 10-K, there are no
matters or activities involving the Company or its
Consolidated Subsidiaries in respect of Environmental Laws
which the Company reasonably believes will have a material
adverse effect on the business, financial condition, results
of operations or prospects of the Company and its Consoli-
dated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. The Company and its
Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the
Company or any Subsidiary. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in
respect of taxes or payments in lieu of taxes are, in the
opinion of the Company, adequate.
SECTION 4.09. Subsidiaries. Each of the Company's
Material Subsidiaries is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers
and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as
now conducted.
SECTION 4.10. Not an Investment Company. The
Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All written
information heretofore furnished by the Company to the Agent
or any Bank for purposes of or in connection with this
Agreement is, and all such information hereafter furnished by
the Company to the Agent or any Bank will be, true and
accurate in all material respects on the date as of which
such information is stated or certified. The Company has
disclosed to the Banks in writing any and all facts which, in
the reasonable judgment of the Company, materially and
adversely affect or may affect (to the extent the Company can
now reasonably foresee), the business, operations or
financial condition of the Company and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Company
to perform its obligations under this Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note
remains unpaid:
SECTION 5.01. Information. The Company will
deliver to each of the Banks:
(a) as soon as available and in any event within
120 days after the end of each fiscal year of the
Company, a consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of
income and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the
previous fiscal year, all certified as to fairness of
presentation and conformity with generally accepted
accounting principles by Price Waterhouse or other
independent public accountants of nationally recognized
standing;
(b) as soon as available and in any event within 60
days after the end of each of the first three quarters of
each fiscal year of the Company, a consolidated balance
sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated
statements of income and the related consolidated
statement of cash flows for such quarter and for the
portion of the Company's fiscal year ended at the end of
such quarter, setting forth in each case in comparative
form the figures for the corresponding quarter and the
corresponding portion of the Company's previous fiscal
year, all certified (subject to normal year-end adjust-
ments) as to fairness of presentation and conformity with
generally accepted accounting principles by the chief
financial officer, the chief accounting officer or the
treasurer of the Company;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate of the chief financial officer, the
chief accounting officer or the treasurer of the Company
(i) setting forth in reasonable detail the calculations
required to establish whether the Company was in
compliance with the requirements of Sections 5.03, 5.04,
5.05(b), 5.05(c), 5.05(i) and 5.05(k) on the date of such
financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to
take with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a
statement of the firm of independent public accountants
which reported on such statements confirming the
calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c)
above;
(e) within five days after any officer of the
Company obtains knowledge of any Default, if such Default
is then continuing, a certificate of the chief financial
officer, the chief accounting officer or the treasurer of
the Company setting forth the details thereof and the
action which the Company is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) within the respective time frames specified in
clauses (a) and (b) above, reports on Forms 10-K and 10-Q
(or their equivalents), and promptly upon the filing
thereof, copies of all registration statements (other
than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Form 8-K
(or its equivalent) which the Company shall have filed
with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has
given or is required to give notice of any such
reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii)
receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii)
receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code,
a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy
of such notice and other information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii)
fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan
which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a
certificate of the chief financial officer, the chief
accounting officer or the treasurer of the Company
setting forth details as to such occurrence and action,
if any, which the Company or applicable member of the
ERISA Group is required or proposes to take; and
(i) from time to time such additional information
regarding the financial position or business of the
Company and its Consolidated Subsidiaries as the Agent,
at the request of any Bank, may reasonably request.
SECTION 5.02. Maintenance of Property; Insurance.
(a) The Company will keep, and will cause each Subsidiary to
keep, all property useful and necessary in its business in
good working order and condition, ordinary wear and tear
excepted.
(b) The Company will maintain, and will cause each
Subsidiary to maintain (either in the name of the Company or
in such Subsidiary's own name), with financially sound and
responsible insurance companies, insurance on all their
respective properties in at least such amounts and against at
least such risks (and with such risk retention) as are
usually insured against in the same general area by companies
of established repute engaged in the same or similar
business; and will furnish to the Banks, upon request from
the Agent, information presented in reasonable detail as to
the insurance so carried.
SECTION 5.03. Debt. (a) Consolidated Debt
(exclusive of Permitted Guarantees) will at no time exceed
90% of Consolidated Net Worth.
(b) The Company shall not permit any of its
Consolidated Subsidiaries to incur, assume or suffer to exist
any Debt or to issue any preferred stock, except:
(i) Debt existing or preferred stock outstanding
prior to the Effective Date and Debt or preferred stock
arising out of the refinancing, extension, renewal or
refunding of any such Debt or preferred stock, as the
case may be, provided that such Debt or preferred stock
is not increased;
(ii) Debt payable to or preferred stock owned by the
Company or a Wholly-Owned Consolidated Subsidiary;
(iii) Debt of any corporation existing at the time
such corporation becomes a Consolidated Subsidiary and
not incurred or assumed in contemplation of such event;
(iv) Debt of any corporation existing at the time
such corporation is merged into a Consolidated Subsidiary
and not incurred or assumed in connection with such
event;
(v) Debt of Foreign Subsidiaries of the Company in
aggregate principal amount at any one time outstanding
(inclusive of Debt of Foreign Subsidiaries permitted by
clause (i) above) not to exceed the higher of (a) a
dollar amount equal at such time to Consolidated Debt
multiplied by the percentage equivalent of a fraction (i)
the numerator of which is Identifiable Assets of Foreign
Subsidiaries, and (ii) the denominator of which is total
Identifiable Assets of the Company and its Consolidated
Subsidiaries and (b) $200,000,000;
(vi) Debt secured by Liens permitted by Section
5.05(f); and
(vii) Debt of Subsidiaries not permitted by clauses
(i) through (vi) above in an aggregate principal amount
at any time outstanding not to exceed $70,000,000.
SECTION 5.04. Minimum Consolidated Tangible Net
Worth. Consolidated Tangible Net Worth will at no time be
less than $377,100,000.
SECTION 5.05. Negative Pledge. Neither the Company
nor any Consolidated Subsidiary will create, assume or suffer
to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) Liens existing on the date hereof securing Debt
outstanding on the date hereof in an aggregate principal
amount not exceeding $25,000,000;
(b) Liens hereafter created or assumed securing
obligations in respect of tax exempt revenue bonds not
exceeding $25,000,000 in aggregate principal amount at
any one time outstanding;
(c) any Lien on any asset securing Debt hereafter
incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such asset, provided
that (i) such Lien attaches to such asset concurrently
with or within 90 days after the acquisition thereof and
(ii) the aggregate principal amount of Debt secured by
all such Liens at any one time outstanding shall not
exceed $50,000,000;
(d) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Consolidated Subsidiary and not created in contemplation
of such event;
(e) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into a Consolidated Subsidiary and
not created in contemplation of such event;
(f) any Lien existing on any asset prior to the
acquisition thereof by the Company or a Consolidated
Subsidiary and not created in contemplation of such
acquisition;
(g) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by
any Lien permitted by any of the foregoing clauses of
this Section, provided that such Debt is not increased
and is not secured by any additional assets other than
fixed improvements constructed on real estate previously
subject to a Lien securing such Debt;
(h) Liens incidental to conduct of its business or
the ownership of its assets which (i) do not secure Debt
and (ii) do not in the aggregate materially detract from
the value of its assets or materially impair the use
thereof in the operation of its business;
(i) Liens arising from capital leases entered into
by the Company or a Subsidiary of the Company as part of
a sale and leaseback transaction provided that the
aggregate principal amount of Debt secured by such Liens
at any time outstanding shall not exceed $70,000,000;
(j) Liens securing Debt permitted by Section
5.03(b)(ii); and
(k) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate
principal amount at any time outstanding not to exceed
$25,000,000.
SECTION 5.06. Consolidations, Mergers and Sales of
Assets. The Company will not (i) consolidate or merge with
or into any other Person or (ii) sell, lease or otherwise
transfer all or substantially all of its assets to any other
Person. Notwithstanding the foregoing, the Company may merge
or consolidate with a Subsidiary, provided that the surviving
entity in any such transaction shall assume, by operation of
law or in a writing reasonably satisfactory to the Banks, the
obligations hereunder of all parties to such transaction (it
being understood that the surviving entity in any such
transaction shall be treated as the "Company" for all
purposes of this Agreement).
SECTION 5.07. Use of Proceeds. The proceeds of the
Loans made under this Agreement will be used for general
corporate purposes, including (i) payments of the face amount
of commercial paper when due and (ii) acquisitions. None of
such proceeds will be used in violation of any applicable
law.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of
the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Company shall fail to pay when due any
principal of any Loan, or shall fail to pay within five
Domestic Business Days any interest or commitment or
facility fees payable hereunder;
(b) the Company shall fail to observe or
perform any covenant contained in Section 5.04, 5.06 or
5.07;
(c) the Company shall fail to observe or perform
any covenant contained in Section 5.03 or 5.05 and, if
such failure is susceptible of cure, such failure shall
not have been cured within 30 days after the chief
financial officer, the chief accounting officer or the
treasurer of the Company obtains knowledge thereof;
(d) the Company shall fail to observe or perform
any covenant or agreement contained in this Agreement
(other than those covered by clause (a), (b) or (c)
above) for 30 days after notice thereof has been given to
the Company by the Agent at the request of any Bank;
(e) any representation, warranty, certification or
statement made by the Company in this Agreement or in any
certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made (or
deemed made);
(f) the Company or any Subsidiary shall fail to
make any payment in respect of any Material Debt when due
or within any applicable grace period;
(g) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt (other than the Permitted Guarantees) or
enables the holder of such Debt or any Person acting on
such holder's behalf to accelerate the maturity thereof;
(h) the Company or any Material Subsidiary shall
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking
possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or
shall take any corporate action to authorize any of the
foregoing;
(i) an involuntary case or other proceeding shall
be commenced against the Company or any Material
Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the
Company or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(j) any member of the ERISA Group shall fail to pay
when due an amount or amounts aggregating in excess of
$10,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or
any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan;
or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group
to incur a current payment obligation in excess of
$25,000,000;
(k) a single judgment or order for the payment of
money in excess of $25,000,000 or judgments or orders for
the payment of money in excess of $40,000,000 in the
aggregate shall be rendered against the Company or any
Material Subsidiary and such judgment(s) or order(s)
shall continue unsatisfied and unstayed for a period of
60 days; or
(l) either Dart or Premark FEG shall not be a
Wholly-Owned Consolidated Subsidiary.
then, and in every such event, the Agent shall (i) if
requested by Banks having more than 66 2/3% in aggregate
amount of the Commitments, by notice to the Company terminate
the Commitments and they shall thereupon terminate, and (ii)
if requested by Banks holding Notes evidencing more than
66 2/3% in aggregate principal amount of the Loans, by notice
to the Company declare the Notes (together with accrued
interest thereon) to be, and the Notes shall thereupon
become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Company; provided that in the case of
any of the Events of Default specified in clause (h) or (i)
above with respect to the Company, without any notice to the
Company or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together
with accrued interest thereon) shall become immediately due
and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Company.
SECTION 6.02. Notice of Default. The Agent shall
give notice to the Company under Section 6.01(d) promptly
upon being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each
Bank irrevocably appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same rights
and powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it
were not the Agent, and Morgan Guaranty Trust Company of New
York and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the
Company or any Subsidiary or Affiliate of the Company as if
it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of
the Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing,
the Agent shall not be required to take any action with
respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. The Agent
may consult with legal counsel (who may be counsel for the
Company), independent public accountants and other experts
selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its Affiliates nor any of their respective
directors, officers, agents, or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its Affiliates nor
any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of the Company; (iii)
the satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to the
Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur
any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank
wire, telex, facsimile transmission or similar writing)
believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify the
Agent, its Affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Company) against any cost, expense (including counsel
fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross
negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with this Agreement or any
action taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent or any other Bank, and based on such documents
and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks and
the Company. Upon any such resignation, (a) the Company,
with the consent of the Required Banks, shall have the right
to appoint a successor Agent, if no Default shall have
occurred and be continuing or (b) the Required Banks, if a
Default shall have occurred and be continuing, shall have the
right to appoint a successor Agent. If no successor Agent
shall have been so appointed, and shall have accepted such
appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which 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 $50,000,000. Upon
the acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights and duties of the
retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Company shall pay
to the Agent for its own account fees in the amounts and at
the times previously agreed upon between the Company and the
Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period for any CD Loan, Euro-Dollar Loan or Money
Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are
not being offered to the Reference Banks in the relevant
market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans,
Banks having 50% or more of the aggregate principal
amount of the affected Loans advise the Agent that the
Adjusted CD Rate or the London Interbank Offered Rate, as
the case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the case
may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Company
and the Banks, whereupon until the Agent notifies the Company
that the circumstances giving rise to such suspension no
longer exist, (i) the obligations of the Banks to make CD
Loans or Euro-Dollar Loans, as the case may be, or to convert
outstanding Loans into CD Loans or Euro-Dollar Loans, as the
case may be, shall be suspended and (ii) each outstanding CD
Loan or Euro-Dollar Loan, as the case may be, shall be
converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the
Company notifies the Agent at least two Domestic Business
Days before the date of any Fixed Rate Borrowing for which a
Notice of Borrowing has previously been given that it elects
not to borrow on such date, (i) if such Fixed Rate Borrowing
is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Fixed Rate
Borrowing is a Money Market LIBOR Borrowing, the Money Market
LIBOR Loans comprising such Borrowing shall bear interest for
each day from and including the first day to but excluding
the last day of the Interest Period applicable thereto at the
Prime Rate for such day.
SECTION 8.02. Illegality. If, on or after the date
of this Agreement, the adoption of any applicable law, rule
or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks and
the Company, whereupon until such Bank notifies the Company
and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to
make Euro-Dollar Loans, or to convert outstanding Loans into
Euro-Dollar Loans, shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and
will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each
Euro-Dollar Loan of such Bank then outstanding shall be
converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Euro-
Dollar Loan if such Bank may lawfully continue to maintain
and fund such Loan to such day or (b) immediately if such
Bank shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule
or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such
authority, central bank or comparable agency (other than any
such request or directive which merely requires compliance
with a law, rule or regulation as in effect and interpreted
and administered on the date hereof):
(i) shall subject any Bank (or its Applicable
Lending Office) to any tax, duty or other charge with
respect to its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans, or shall change the
basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or
interest on its Fixed Rate Loans or any other amounts due
under this Agreement in respect of its Fixed Rate Loans
or its obligation to make Fixed Rate Loans (except for
changes in the rate of tax on the overall net income of
such Bank or its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such
requirements imposed by the Board of Governors of the
Federal Reserve System, but excluding (A) with respect to
any CD Loan any such requirement included in an
applicable Domestic Reserve Percentage and (B) with
respect to any Euro-Dollar Loan any such requirement with
respect to which such Bank is entitled to compensation
during the relevant Interest Period under Section 2.17),
special deposit, insurance assessment (excluding, with
respect to any CD Loan, any such requirement reflected in
an applicable Assessment Rate) or similar requirement
against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable
Lending Office) or on the United States market for
certificates of deposit or the London interbank market
any other condition affecting its Fixed Rate Loans, its
Note or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the
cost to such Bank (or its Applicable Lending Office) of
making or maintaining any Fixed Rate Loan, or to reduce the
amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by such Bank
to be material, then within 15 days after demand by such Bank
(with a copy to the Agent), the Company shall, subject to
clause (c) below, pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased cost
or reduction.
(b) If any Bank shall have determined that, on or
after the date hereof, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change
in any such law, rule or regulation or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or
comparable agency (other than any such request or directive
which merely requires compliance with a law, rule or
regulation as in effect and interpreted and administered on
the date hereof), has or would have the effect of reducing
the rate of return on capital of such Bank (or its Parent) as
a consequence of such Bank's obligations hereunder to a level
below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Company shall,
subject to clause (c) below, pay to such Bank such additional
amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Company and
the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section and setting
forth in reasonable detail the basis for and computation of
the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable
averaging and attribution methods. Notwithstanding clauses
(a) and (b) above, the Company shall only be obligated to
compensate any Bank for any amount arising or accruing during
(i) any time or period commencing not more than 90 days prior
to the date on which such Bank notifies the Agent and the
Company that it proposes to demand such compensation and
identifies to the Agent and the Company the statute,
regulation or other basis upon which the claimed compensation
is or will be based and (ii) any time or period during which,
because of the retroactive application of such statute,
regulation or other basis, such Bank did not know, and could
not reasonably have been expected to know, that such amount
would arise or accrue.
SECTION 8.04. Base Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any Bank
to make or maintain Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) and the Company shall, by
at least five Euro-Dollar Business Days' prior notice to such
Bank through the Agent, have elected that the provisions of
this Section shall apply to such Bank, then, unless and until
such Bank notifies the Company that the circumstances giving
rise to such suspension or demand for compensation no longer
apply:
(a) all Loans which would otherwise be made by such
Bank as (or continued as or converted into) CD Loans or
Euro-Dollar Loans, as the case may be, shall instead be
Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate
Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid (or converted
to a Base Rate Loan), all payments of principal which
would otherwise be applied to repay such Fixed Rate Loans
shall be applied to repay its Base Rate Loans instead.
If such Bank notifies the Company that the circumstances
giving rise to such notice no longer apply, the principal
amount of each such Base Rate Loan shall be converted into a
CD Loan or Euro-Dollar Loan, as the case may be, on the first
day of the next succeeding Interest Period applicable to the
related CD Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.05. Election of Company to Terminate or
Substitute Banks. If (i) the obligation of any Bank to make
Euro-Dollar Loans has been suspended pursuant to Section
8.02, (ii) any Bank has demanded compensation under Section
2.17 or 8.03, (iii) any Bank shall become, or a substantial
part of the property of any Bank shall become, the subject of
any receivership, conservatorship, insolvency, reorganization
or similar proceeding (a "Bank Proceeding") or (iv) any Bank
shall default on its commitment to lend hereunder (a "Bank
Default"), the Company
(a) may elect to terminate this Agreement
as to such Bank, and in connection therewith not to
borrow any Base Rate Loan provided for in Section 8.02 or
to prepay any Base Rate Loan made pursuant to Section
8.02 or 8.04, provided that the Company: (x) notify such
Bank through the Agent of such election at least three
Euro-Dollar Business Days before any date fixed for such
borrowing or such prepayment, as the case may be, (y)
repay all of such Bank's outstanding Loans, on at least
three Euro-Dollar Business Days' notice, not later than
the end of the respective Interest Periods applicable
thereto or as otherwise required by Section 8.02 and (z)
reimburse such Bank for the amount it is entitled to
receive under Section 2.14, provided that in the case of
a Bank Proceeding or a Bank Default, the Company shall
not be required to pay any outstanding Loan to such Bank
on any date prior to the date that the Group of which
such Loan comprises a part is repaid in full; and
(b) shall have the right, with the assistance of
the Agent, to seek a mutually satisfactory substitute
bank or banks (which may be one or more of the Banks) to
purchase the Notes and assume the Commitment of such
Bank, and in such case such Bank shall be entitled to
receive, from the purchasing bank or banks or the
Company, the amount it would have been entitled to
receive under Section 2.14 if its Notes were prepaid
rather than purchased.
Upon receipt by the Agent of the notice referred to in clause
(a) above, the Commitment of such Bank shall terminate and, if
such notice shall relate to a Bank Proceeding, such Bank shall
cease to have any voting rights with respect to any matters
arising hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party: (x) in the
case of the Company or the Agent, at its address, facsimile
number or telex number set forth on the signature pages
hereof, (y) in the case of any Bank, at its address, facsimile
number or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other
address, facsimile number or telex number as such party may
hereafter specify for the purpose by notice to the Agent and
the Company. Each such notice, request or other communication
shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by
facsimile transmission, when transmitted to the facsimile
number specified in this Section and confirmation of receipt
is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by
any other means, when delivered at the address specified in
this Section; provided that notices to the Agent under Article
II or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by
the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification. (a) The Company shall pay (i) all
out-of-pocket expenses of the Agent, including fees and
disbursements of Davis Polk and Wardwell or such other firm as
shall be acting as special counsel for the Banks and the
Agent, in connection with the preparation of this Agreement,
any waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (ii) all
out-of-pocket expenses incurred by the Agent and each Bank,
including fees and disbursements of counsel, in connection
with collection, bankruptcy, insolvency and other enforcement
proceedings resulting from an Event of Default. The Company
shall indemnify each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery
of this Agreement or the Notes.
(b) The Company agrees to indemnify the Agent and
each Bank, their respective Affiliates and the respective
directors, officers, agents and employees of the foregoing
(each an "Indemnitee") and hold each Bank harmless from and
against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether
or not such Indemnitee shall be designated a party thereto)
relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no
Indemnitee shall have the right to be indemnified hereunder
for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of
the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect to
any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such
participation in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to
the Notes held by the Banks shall be shared by the Banks pro
rata; provided that nothing in this Section shall impair the
right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Company
other than its indebtedness under the Notes. The Company
agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note,
whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully
as if such holder of a participation were a direct creditor of
the Company in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or
waived if, but only if, such amendment or waiver is in writing
and is signed by the Company and the Required Banks (and, if
the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the
Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the
date fixed for any payment of principal of or interest on any
Loan or any fees hereunder or for any reduction or termination
of any Commitment or (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks, which shall be required for the
Banks or any of them to take any action under this Section or
any other provision of this Agreement. In the event that the
effective adoption of any waiver or amendment hereunder
depends upon the validity or enforceability of the last
sentence of Section 8.05, but only in the case of a Bank
Proceeding, the Agent may require an opinion of counsel
satisfactory to it as to such matter as a condition to the
effectiveness of such waiver or amendment.
SECTION 9.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign
or otherwise transfer any of its rights under this Agreement
(other than as permitted by Section 5.06) without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of its
Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon
notice to the Company and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder,
and the Company and the Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the
Company hereunder including, without limitation, the right to
approve any amendment, modification or waiver of any provision
of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i),
(ii), (iii) or (iv) of Section 9.05 without the consent of the
Participant. The Company agrees that each Participant shall,
to the extent provided in its participation agreement, be
entitled to the benefits of Article VIII with respect to its
participating interest. An assignment or other transfer which
is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more
banks or other institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations under
this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G
hereto executed by such Assignee and such transferor Bank,
with (and subject to) the subscribed consent of the Company
and the Agent; provided that if an Assignee is an Affiliate of
such transferor Bank, no such consent shall be required; and
provided further that such assignment may, but need not,
include rights of the transferor Bank in respect of
outstanding Money Market Loans. Upon execution and delivery
of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and
the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Company shall make
appropriate arrangements so that, if required, a new Note is
issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an
administrative fee for processing such assignment in the
amount of $2,000. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to the Company
and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in
accordance with Section 2.16.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of
any Bank's rights shall be entitled to receive any greater
payment under Section 8.03 than such Bank would have been
entitled to receive with respect to the rights transferred,
unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02 or 8.03
requiring such Bank to designate a different Applicable
Lending Office under certain circumstances or at a time when
the circumstances giving rise to such greater payment did not
exist.
(f) If any Reference Bank assigns its Notes to a
Person which is not an Affiliate, the Company may, in
consultation with the Agent and with the consent of the
Required Banks, appoint another bank to act as a Reference
Bank hereunder.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as defined
7 in Regulation U) as collateral in the extension or maintenance
of the credit provided for in this Agreement.
SECTION 9.08. Governing Law. This Agreement and
each Note shall be governed by and construed in accordance
with the laws of the State of New York.
SECTION 9.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and
all prior agreements and understandings, oral or written,
relating to the subject matter hereof.
SECTION 9.10. Confidentiality. The Agent and each
of the Banks agree to keep confidential any financial
information delivered by the Company hereunder which the
Company clearly indicates in writing to be confidential
information; provided that nothing herein shall prevent the
Agent or any Bank from disclosing such information (i) to the
Agent or any Bank, (ii) to any affiliate of the Agent or any
Bank or any actual or potential purchaser, participant,
assignee or transferee of any Bank's rights or obligations
hereunder or under any Note that agrees in writing to be bound
by this Section 9.10, (iii) upon order of any court or
administrative agency, (iv) upon the request or demand of any
regulatory agency or authority having (or claiming)
jurisdiction over such party, (v) which has been publicly
disclosed, (vi) which has been obtained from any Person that
is not a party hereto or an affiliate of any such party, (vii)
in connection with the exercise of any remedy hereunder,
(viii) to the certified public accountants or legal counsel
for any Bank (on a confidential basis) or (ix) as otherwise
expressly contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.
PREMARK INTERNATIONAL, INC.
By /s/ Lisa Kearns Richardson
Title: Vice President and
Treasurer
1717 Deerfield Road
Deerfield, Illinois 60015
Telex number: 190447
Facsimile number:
Commitments
$30,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Charles H. King
Title: Vice President
$20,000,000 BANKERS TRUST COMPANY
By /s/ Mary Jo Jolly
Title: Assistant Vice President
$20,000,000 CHEMICAL BANK
By /s/ C.C. Wardell
Title: Managing Director
Commitments
$20,000,000 CITIBANK, N.A.
By /s/ Barbara A. Cohen
Title: Vice President
$20,000,000 COMMERZBANK AKTIENGESELLSCHAFT
By /s/ Helmut R. Tollner
Title: Executive Vice President
By /s/ William Brent Peterson
Title: Assistant Treasurer
$20,000,000 CONTINENTAL BANK N.A.
By /s/ William F. Sweeney
Title: Vice President
$20,000,000 CREDIT LYONNAIS, CHICAGO BRANCH
By /s/ Sandra E. Horwitz
Title: Vice President
$20,000,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Howard V. Hennigar
Title: Managing Director
Commitments
$20,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Steven R. Fercho
Title: Vice President
$20,000,000 THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
Title: Joint General Manager
$20,000,000 THE NORTHERN TRUST COMPANY
By /s/ Jeffrey C. Douglas
Title: Vice President
$20,000,000 ROYAL BANK OF CANADA
By /s/ Shelley Browne
Title: Senior Manager
Total Commitments
$250,000,000.00
===============
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Charles H. King
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: Loan Department
Telex number: 177615 MGT UT
Facsimile number: (212) 648-5014
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin", and "Facility
Fee Rate" for any day are the respective percentages set forth
below in the applicable row under the column corresponding to
the Status that exists on such day:
Level Level Level Level Level
Status I II III IV V
---------- ----- ----- ----- ----- -----
Euro-Dollar
Margin
If Utiliza-
tion is less
than 50% 0.225% 0.265% 0.300% 0.350% 0.500%
If Utiliza-
tion is
equal to or
greater than
50% 0.275% 0.315% 0.350% 0.400% 0.500%
-----------------------------------------------------------
CD Margin
If Utiliza-
tion is less
than 50% 0.350% 0.390% 0.425% 0.475% 0.625%
If Utiliza-
tion is
equal to or
greater than
50% 0.400% 0.440% 0.475% 0.525% 0.625%
-----------------------------------------------------------
Facility Fee 0.125% 0.135% 0.150% 0.250% 0.375%
Rate
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Status" exists at any date if, at such
date, the Borrower's long-term debt is rated A- or higher by
S&P and A3 or higher by Moody's.
"Level II Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB+ or
higher by S&P and Baa1 or higher by Moody's and (ii) Level I
Status does not exist.
"Level III Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB or higher
by S&P and Baa2 or higher by Moody's and (ii) neither Level I
Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB- or
higher by S&P and Baa3 or higher by Moody's and (ii) none of
Level I Status, Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such
date, no other Status exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Corporation.
"Status" refers to the determination of which of
Level I Status, Level II Status, Level III Status, Level IV
Status or Level V Status exists at any date.
"Utilization" means at any date the percentage
equivalent of a fraction (i) the numerator of which is the
aggregate outstanding principal amount of the Loans at such
date, after giving effect to any borrowing or payment on such
date, and (ii) the denominator of which is the aggregate
amount of the Commitments at such date, after giving effect to
any reduction of the Commitments on such date. For purposes
of this Schedule, if for any reason any Loans remain
outstanding after termination of the Commitments, the
Utilization for each date on or after the date of such
termination shall be deemed to be equal to or greater than
50%.
The credit ratings to be utilized for purposes of this
Schedule are those assigned to the senior unsecured long-term
debt securities of the Borrower without third-party credit
enhancement, and any rating assigned to any other debt
security of the Borrower shall be disregarded. The rating in
effect at any date is that in effect at the close of business
on such date.
EXHIBIT A
NOTE
New York, New York
, 19
For value received, Premark International, Inc., a
Delaware corporation (the "Company"), promises to pay to the
order of _______________ (the "Bank"), for the account of its
Applicable Lending Office, the unpaid principal amount of each
Loan made by the Bank to the Company pursuant to the Credit
Agreement referred to below on the maturity date provided for
in the Credit Agreement. The Company promises to pay interest
on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty
Trust Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank and all repayments of the
principal thereof shall be recorded by the Bank and, if the
Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding
may be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any
such recordation or endorsement shall not affect the
obligations of the Company hereunder or under the Credit
Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of June 15, 1994 among the Company,
the banks listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as Agent (as the same may
be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for
provisions for the mandatory and optional prepayment hereof
and the acceleration of the maturity hereof.
PREMARK INTERNATIONAL, INC.
By________________________
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
____________________________________________________________
Amount of Principal Notation
Date Loan Repaid Made By
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
______________________________________________________________
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: Premark International, Inc.
Re: Credit Agreement (the "Credit Agreement") dated as
of June 15, 1994 among the Company, the Banks
listed on the signature pages thereof and the Agent
We hereby give notice pursuant to Section 2.03 of
the Credit Agreement that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the
London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them
in the Credit Agreement.
PREMARK INTERNATIONAL, INC.
By________________________
Title:
______________
* Amount must be $___________ or a larger multiple of
$_______________.
** Not less than one month (LIBOR Auction) or not less than
14 days (Absolute Rate Auction), subject to the provisions of
the definition of Interest Period.
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Premark International, Inc.
(the "Company")
Pursuant to Section 2.03 of the Credit Agreement
dated as of June 15, 1994 among the Company, the Banks parties
thereto and the undersigned, as Agent, we are pleased on
behalf of the Company to invite you to submit Money Market
Quotes to the Company for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the
London Interbank Offered Rate.]
Please respond to this invitation by no later than
[2:00 P.M.] [11:00 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By______________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company
of New York, as Agent
Re: Money Market Quote to
Premark International, Inc.
(the "Company")
In response to your invitation on behalf of the
Company dated _____________, 19__, we hereby make the
following Money Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $____________.]**
__________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
We understand and agree that the offer(s)
set forth above, subject to the satisfaction of the
applicable conditions set forth in the Credit
Agreement dated as of June 15, 1994 among the
Company, the Banks listed on the signature pages
thereof and yourselves, as Agent, irrevocably
obligates us to make the Money Market Loan(s) for
which any offer(s) are accepted, in whole or in
part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
*** Not less than one month or not less than 30 days, as
specified in the related Invitation. No more than five bids
are permitted for each Interest Period.
**** Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify whether
"PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest
1/10,000th of 1%).
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I have acted as counsel for Premark International,
Inc. (the "Company") in connection with the Credit Agreement
(the "Credit Agreement") dated as of June 15, 1994 among the
Company, the banks listed on the signature pages thereof and
Morgan Guaranty Trust Company of New York, as Agent. This
opinion is being rendered to you pursuant to Section
3.01(a)(iv) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion
that:
1. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the
Company of the Credit Agreement and the Notes are within the
Company's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official
and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Company or of
any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any asset of the Company or any
of its Subsidiaries.
3. The Credit Agreement constitutes a valid and
binding agreement of the Company and the Notes constitute
valid and binding obligations of the Company in each case
enforceable in accordance with their respective terms except
as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by
general principles of equity.
4. Except as disclosed in the Company's 1993 Form
10-K, there is no action, suit or proceeding pending against,
or to the best of my knowledge threatened against or
affecting, the Company or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated
results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole or which in any manner
draws into question the validity of the Credit Agreement or
the Notes.
5. Each of the Company's Material Subsidiaries is a
corporation validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
I am a member of the Bar of the State of Illinois
and the foregoing opinion is limited to the laws of the State
of Illinois, the federal laws of the United States of America
and the General Corporation Law of the State of Delaware. In
so far as the opinion in paragraph 3 above addresses
instruments expressed to be governed by New York law, it is my
opinion that (i) an Illinois court should give effect to such
choice of New York law and (ii) in any event, the conclusion
stated in paragraph 3 would be correct as a matter of Illinois
law.
Very truly yours,
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the
Credit Agreement (the "Credit Agreement") dated as of June 15,
1994 among Premark International, Inc., a Delaware corporation
(the "Company"), the banks listed on the signature pages
thereof (the "Banks") and Morgan Guaranty Trust Company of New
York, as Agent (the "Agent"), and have acted as special
counsel for the Agent for the purpose of rendering this
opinion pursuant to Section 3.01(a)(v) of the Credit
Agreement. Terms defined in the Credit Agreement are used
herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Company of the Credit Agreement and the Notes are within the
Company's corporate powers and have been duly authorized by
all necessary corporate action.
2. The Credit Agreement constitutes a valid and
binding agreement of the Company and the Notes constitute
valid and binding obligations of the Company in each case
enforceable in accordance with their respective terms except
as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by
general principles of equity.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the State
of New York, the federal laws of the United States of America
and the General Corporation Law of the State of Delaware. In
giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits
the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon by
you for any other purpose or relied upon by any other person
without our prior written consent.
Very truly yours,
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
PREMARK INTERNATIONAL, INC. (the "Company") and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the Credit Agreement dated as of
June 15, 1994 among the Company, the Assignor and the other
Banks party thereto, as Banks, and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Loans to the Company in an
aggregate principal amount at any time outstanding not to
exceed $__________;
WHEREAS, Committed Loans made to the Company by the
Assignor under the Credit Agreement in the aggregate principal
amount of $__________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment thereunder
in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding
Committed Loans, and the Assignee proposes to accept
assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties hereto
agree as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings
set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns
and sells to the Assignee all of the rights of the Assignor
under the Credit Agreement to the extent of the Assigned
Amount, and the Assignee hereby accepts such assignment from
the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the
Assigned Amount, including the purchase from the Assignor of
the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee, the Company and the Agent and the
payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof,
be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds an amount equal to $_________.* It is understood
that facility fees in respect of the Assigned Amount accrued
to the date hereof are for the account of the Assignor and
such fees accruing from and including the date hereof are for
the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under
the Credit Agreement which is for the account of the other
party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
_______________________
* Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by the
Assignee, net of any portion of any upfront fee to be paid by
the Assignor to the Assignee. It may be preferable in an
appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
SECTION 4. Consent of the Company and the Agent.
This Agreement is conditioned upon the consent of the Company
and the Agent pursuant to Section 9.06(c) of the Credit
Agreement. The execution of this Agreement by the Company and
the Agent is evidence of this consent. Pursuant to Section
9.06(c) the Company agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor
makes no representation or warranty in connection with, and
shall have no responsibility with respect to, the solvency,
financial condition, or statements of the Company, or the
validity and enforceability of the obligations of the Company
in respect of the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance
on the Assignor, and based on such documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the
business, affairs and financial condition of the Company.
SECTION 6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
PREMARK INTERNATIONAL, INC.
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title:
EXHIBIT H
PURCHASE/LEASEBACK TRANSACTION SUMMARY
In December 1991, Premark International, Inc.
("Premark"), through two of its subsidiaries, entered into a
purchase/leaseback transaction with a leasing company (the
"seller"). Premark purchased certain computer equipment
totalling $35.85 million and immediately leased the equipment
back to the seller for 66 months. At the same time, a
majority of the lease receivables were sold on a non-recourse
basis for $30.5 million cash.
When purchased, the computer equipment was under
lease to third parties by the seller. The equipment and the
user leases are subject to existing liens in favor of the
seller's lenders. The liens may not be removed or
subordinated to Premark's interest. Additional liens may be
placed upon the computer equipment which may be subject to the
lease. Premark has no obligation in respect of the seller's
financing.