Exhibit 4.1
EXECUTION COPY
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of August 18, 1994
among
TREDEGAR INDUSTRIES, INC.
THE BANKS NAMED HEREIN,
CHEMICAL BANK, as Administrative Agent
and
NATIONSBANK OF VIRGINIA, N.A., as Co-Agent
TABLE OF CONTENTS
Article Section Page
I. DEFINITIONS 1
1.01. Defined Terms 1
1.02. Terms Generally 15
II. THE CREDITS 15
2.01. Commitments 15
2.02. Loans 16
2.03. Standby Borrowing Procedure 17
2.04. Refinancings 18
2.05. Fees 18
2.06. Notes; Repayment of Loans 19
2.07. Interest on Loans 19
2.08. Default Interest 20
2.09. Alternate Rate of Interest 20
2.10. Termination, Reduction and
Extension of Commitments 21
2.11. Prepayment 22
2.12. Reserve Requirements; Change in
Circumstances 23
2.13. Change in Legality 24
2.14. Indemnity 25
2.15. Pro Rata Treatment 26
2.16. Sharing of Setoffs 27
2.17. Payments 27
2.18. Taxes 28
III. REPRESENTATIONS AND WARRANTIES 30
3.01. Organization; Powers 30
3.02. Authorization 31
3.03. Enforceability 31
3.04. Financial Statements 31
3.05. No Material Adverse Change 32
3.06. Title to Properties and Possession
Under Leases 32
3.07. The Subsidiaries and the Company 32
3.08. Litigation; Compliance with Laws 32
3.09. Agreements 33
3.10. Federal Reserve Regulations 33
3.11. Investment Company Act; Public
Utility Holding Company Act 33
3.12. Use of Proceeds 33
3.13. Tax Returns 33
3.14. No Material Misstatements 34
3.15. Employee Benefit Plans 34
3.16. Environmental Matters 34
3.17. Solvency 35
IV. CONDITIONS OF LENDING 35
4.01. All Borrowings 35
4.02. Effectiveness of Agreement 36
V. AFFIRMATIVE COVENANTS 37
5.01. Existence; Businesses and
Properties; Compliance 38
5.02. Insurance 38
5.03. Obligations and Taxes 38
5.04. Financial Statements, Reports,
etc. 39
5.05. Litigation and Other Notices 40
5.06. ERISA 40
5.07. Maintaining Records; Access to
Properties and Inspections 41
5.08. Use of Proceeds 41
VI. NEGATIVE COVENANTS 42
6.01. Liens 42
6.02 Sale and Lease-Back Transactions 43
6.03. Obligations of Subsidiaries 44
6.04 Mergers, Consolidations and Sales
of Assets 44
6.05. Dividends and Distributions 45
6.06. Transactions with Affiliates 45
6.07. Consolidated Stockholders' Equity 45
6.08. Debt Ratio 45
VII. EVENTS OF DEFAULT 46
VIII. THE AGENT 50
IX. MISCELLANEOUS 53
9.01. Notices 54
9.02. Survival of Agreement 54
9.03. Binding Effect 54
9.04. Successors and Assigns 54
9.05 Expenses; Indemnity 58
9.06. Right of Setoff 59
9.07. Applicable Law 59
9.08. Waivers; Amendment 59
9.09. Interest Rate Limitation 60
9.10. Entire Agreement 61
9.11. Waiver of Jury Trial 61
9.12. Severability 61
9.13. Counterparts 62
9.14. Headings 62
9.15. Confidentiality 62
9.16. Jurisdiction; Consent to Service
of Process 62
EXHIBIT A Form of Standby Borrowing Request
Exhibit B Form of Standby Note
Exhibit C Administrative Questionnaire
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Opinion of Nancy M. Taylor, Esq.
Schedule 2.01 Commitments
Schedule 3.07 Subsidiaries
Schedule 3.08 Litigation
Schedule 6.01 Liens
REVOLVING CREDIT FACILITY AGREEMENT
dated as of August 18, 1994, among TREDEGAR
INDUSTRIES, INC., a Virginia corporation (the
"Company"); the banks listed in Schedule 2.01
hereto or subsequently becoming parties
hereto as provided herein (the "Banks");
CHEMICAL BANK, a New York banking corpo-
ration, as administrative agent for the Banks
(in such capacity, the "Administrative
Agent"; and NationsBank of Virginia, N.A., a
Virginia banking corporation, as co-agent for
the banks (in such capacity, the "Co-Agent";
the Administrative Agent and the Co-Agent
being collectively called the "Agents").
The Company has requested the Banks to extend credit to the
Company in order to enable it to borrow on a standby revolving
credit basis on and after the date hereof and at any time and
from time to time prior to the Maturity Date (each as herein
defined) a principal amount not in excess of $200,000,000 at any
time outstanding. The proceeds of such borrowings are to be used
for general corporate purposes. The Banks are willing to extend
such credit to the Company on the terms and subject to the
conditions herein set forth.
Accordingly, the Company, the Agents and the Banks agree as
follows:
I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement,
the following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"Adjusted CD Rate" shall mean, with respect to any CD
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the sum of (a) a rate per annum equal to the product of (i) the
Fixed CD Rate in effect for such Interest Period and
(ii) Statutory Reserves, plus (b) the Assessment Rate, plus (c)
12.5 basis points. For purposes hereof, the term "Fixed CD Rate"
shall mean the arithmetic average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the prevailing rates per annum bid at
or about 10:00 a.m., New York City time, to the Administrative
Agent on the first Business Day of the Interest Period applicable
to such CD Borrowing by three New York City negotiable
certificate of deposit dealers of recognized standing selected by
the Administrative Agent for the purchase at face value of
negotiable certificates of deposit of major United States money
center banks in a principal amount approximately equal to the
Administrative Agent's portion of such CD Borrowing.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves. For purposes hereof,
the term "LIBO Rate" shall mean the rate (rounded upwards, if
necessary, to the next 1/16 of 1%) at which dollar deposits
approximately equal in principal amount to the Administrative
Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal
London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Administrative Fees" shall have the meaning assigned to
such term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit C hereto.
"Affiliate" shall mean, when used with respect to a
specified person, another person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by
or is under common Control with the person specified.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as
effective. "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) Statutory
Reserves and (b) the Assessment Rate. "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board,
be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not
be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or
both for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or
the Federal Funds Effective Rate, respectively.
"Applicable Spread" shall mean the applicable spread per
annum set forth below based upon the Company's
Debt/Capitalization Ratio:
Category I Applicable Spread
Debt/Capitalization Ratio less .3125%
than or equal to 35%
Category II
Debt/Capitalization Ratio less .4000%
than or equal to 50%
Category III
Debt/Capitalization Ratio .5000%
greater than 50%
For purposes of the foregoing, the Applicable Spread for any
date shall be determined by reference to the Debt/Capitalization
Ratio as of the last day of the Company's fiscal quarter most
recently ended as of such date and any change in the Applicable
Spread shall become effective upon the delivery to the
Administrative Agent of a certificate of a Responsible Officer of
the Company with respect to the financial statements to be
delivered, pursuant to Section 5.04 for the fiscal quarter or
year most recently ended, as the case may be, (a) setting forth
in reasonable detail the calculation of the Debt/Capitalization
Ratio for and at the end of such fiscal quarter or year and
(b) stating that the signer has reviewed the terms of this
Agreement and other Loan Documents and has made, or caused to be
made under his or her supervision, a review in reasonable detail
of the transactions and condition of the Company, during the
accounting period, and that the signer does not have knowledge of
the existence as at the date of such officer's certificate of any
Event of Default or Default and shall apply to Loans outstanding
on such delivery date or made on and after such delivery date.
Notwithstanding the foregoing, at any time during which the
Company has failed to deliver the certificate referred to above
with respect to a fiscal quarter or year following the date that
delivery of financial statements relating to such fiscal quarter
or year are required to be delivered under Section 5.04, the
Debt/Capitalization Ratio shall be deemed, solely for the
purposes of this definition, to be greater than 50% until such
time as the Company shall have delivered such certificate and
financial statements.
"Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most
recently estimated by the Administrative Agent as the then
current net annual assessment rate that will be employed in
determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time
deposits made in dollars at the Administrative Agent's domestic
offices.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee, and accepted
by the Administrative Agent, in the form of Exhibit D.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrowing" shall mean a Loan or group of Loans of a single
Type made by the Banks on a single date and as to which a single
Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is
a Saturday, Sunday or legal holiday in the State of New York) on
which banks are open for business in New York City; provided,
however, that, when used in connection with a Eurodollar Standby
Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases
on a balance sheet of such person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"CD Borrowing" shall mean a Borrowing comprised of CD Loans.
"CD Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Adjusted CD Rate in
accordance with the provisions of Article II.
A "Change in Control" shall be deemed to have occurred if
(a) any person or group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on the date
hereof) other than (i) any person or group whose beneficial
ownership of common stock is reported on Schedule 13D, filed with
respect to the common stock of the Company on July 20, 1989, as
amended prior to the date of this Agreement, (ii) spouses,
children and lineal descendants of such persons, (iii) trusts
created for the benefit of such persons, or (iv) any combination
of the persons described in the foregoing subclauses (i), (ii) or
(iii) (an "Exempt Person"), shall own directly or indirectly,
beneficially or of record, shares representing more than 25% of
the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Company; (b) a majority of the
seats (other than vacant seats) on the board of directors of the
Company shall at any time have been occupied by persons who were
not Continuing Directors; or (c) any person or group other than
an Exempt Person shall otherwise directly or indirectly Control
the Company.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the
Commitment of such Bank hereunder as set forth in Schedule 2.01
hereto, as such Bank's Commitment may be permanently terminated
or reduced from time to time pursuant to Section 2.11. The
Commitments shall automatically and permanently terminate on the
Maturity Date.
"Consolidated Net Income" with respect to any person for any
period shall mean (a) the aggregate net income (or net loss) of
such person for such period equal to net revenues and other
proper income or gain of such person for such period (including
gains on the sale of capital assets) less, without duplication of
any items deducted in determining such net revenues, income or
gain, the aggregate for such person during such period of,
(i) cost of goods sold, (ii) interest expense, (iii) operating
expense, (iv) selling, general and administrative expenses,
(v) taxes, (vi) depreciation, depletion and amortization and
(vii) any other items that are treated as expenses under GAAP,
plus (b) write-downs of assets, losses from discontinued
operations and other extraordinary losses (net of tax benefits),
in each case to the extent taken into account in determining the
net revenues, income or gain referred to in (a) above.
"Consolidated Stockholders' Equity" shall mean, at any time
(a) the sum of (i) the Company's issued capital stock taken at
par or stated value at such time, (ii) the Company's capital
surplus at such time and (iii) the Company's retained earnings at
such time, less (b) the Company's treasury stock and minority
interest in subsidiaries at such time, all determined in
accordance with GAAP.
"Consolidated Total Capitalization" shall mean, at any time,
the sum of the Company's Consolidated Total Debt and Consolidated
Stockholders' Equity at such time.
"Consolidated Total Debt" shall mean, at any time, all
Indebtedness of the Company and its consolidated Subsidiaries at
such time, computed and consolidated in accordance with GAAP.
"Continuing Director" shall mean (a) any member of the Board
of Directors of the Company on the date of this Agreement and
(b) any person whose subsequent nomination for election or
election to the Board of Directors was recommended or approved by
a majority of the Continuing Directors serving as such at the
time of such nomination.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management
or policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
"Debt/Capitalization Ratio" shall mean the ratio of the
Company's Consolidated Total Debt to the Company's Consolidated
Total Capitalization.
"Default" shall mean an event which upon notice or lapse of
time or both would constitute an Event of Default.
"dollars" and the symbol "$" shall mean the lawful currency
of the United States of America.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether
or not incorporated) that is a member of a group of which the
Company is a member and which is treated as a single employer
under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan
bearing interest at a rate determined by reference to the LIBO
Rate in accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VII.
"Facility Fee" shall have the meaning assigned to such term
in Section 2.05(a).
"Facility Fee Percentage" shall mean the applicable
percentage set forth below based upon the Company's
Debt/Capitalization Ratio:
Facility Fee
Category I Percentage
Debt/Capitalization Ratio .1875%
less than or equal to 35%
Category II
Debt/Capitalization Ratio less .2250%
than or equal to 50%
Category III
Debt/Capitalization Ratio .2500%
greater than 50%
For purposes of the foregoing, the Facility Fee Percentage
for any date shall be determined by reference to the
Debt/Capitalization Ratio as of the last day of the Company's
fiscal quarter most recently ended as of such date and any change
in the Facility Fee Percentage shall become effective upon the
delivery to the Administrative Agent of a certificate of a
Responsible Officer of the Company with respect to the financial
statements to be delivered, pursuant to Section 5.04 for the
fiscal quarter or year most recently ended, as the case may be,
(a) setting forth in reasonable detail the calculation of the
Debt/Capitalization Ratio for and at the end of such fiscal
quarter or year and (b) stating that the signer has reviewed the
terms of this Agreement and other Loan Documents and has made, or
caused to be made under his or her supervision, a review in
reasonable detail of the transactions and condition of the
Company, during the accounting period, and that the signer does
not have knowledge of the existence as at the date of such
officer's certificate of any Event of Default or Default.
Notwithstanding the foregoing, at any time during which the
Company has failed to deliver the certificate referred to above
with respect to a fiscal quarter or year following the date that
delivery of financial statements relating to such fiscal quarter
or year are required to be delivered under Section 5.04, the
Debt/Capitalization Ratio shall be deemed, solely for the
purposes of this definition, to be greater than 50% until such
time as the Company shall have delivered such certificate and
financial statements.
"Fees" shall mean the Facility Fee and the Administrative
Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or
Controller of such corporation.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having
the economic effect of guaranteeing any Indebtedness of any other
person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such person, direct
or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security
for the payment of such Indebtedness, (b) to purchase property,
securities or services for the purpose of assuring the owner of
such Indebtedness of the payment of such Indebtedness or (c) to
maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided,
however, that the term Guarantee shall not include endorsements
for collection or deposit, in either case in the ordinary course
of business.
"Indebtedness" of any person shall mean, without
duplication, (a) all obligations of such person for borrowed
money or with respect to deposits or advances of any kind,
(b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of
such person upon which interest charges are customarily paid
(other than accounts payable), (d) all obligations of such person
under conditional sale or other title retention agreements
relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred
purchase price of property or services, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or
not the obligations secured thereby have been assumed, provided
that the amount of such Indebtedness shall be deemed to be the
lesser of (i) the outstanding principal amount of such
Indebtedness plus all accrued and unpaid interest relating
thereto and (ii) the fair market value of the property secured by
any such Lien, (g) all Guarantees by such person of Indebtedness
of others, (h) all Capital Lease Obligations of such person,
(i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements and (j) all
obligations of such person as an account party in respect of
letters of credit and bankers' acceptances. The Indebtedness of
any person shall include the Indebtedness of any partnership in
which such person is a general partner unless such Indebtedness
is without any recourse whatsoever to such person as a general
partner of any such partnership.
"Interest Payment Date" shall mean, with respect to any
Loan, the last day of the Interest Period applicable thereto and,
in the case of a Eurodollar Standby Loan with an Interest Period
of more than three months' duration or a CD Loan with an Interest
Period of more than 90 days' duration, each day that would have
been the Interest Payment Date for such Loan had successive
Interest Periods of 3 months or 90 days, respectively, been
applicable to such Loan and, in addition, the date of any refi-
nancing or conversion of such Loan with or to a Loan of a
different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day (or if there is
no corresponding day, the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the Company may elect, (b) as
to any CD Borrowing, a period of 30, 60, 90 or 180 days'
duration, as the Company may elect, commencing on the date of
such Borrowing and (c) as to any ABR Borrowing, the period
commencing on the date of such Borrowing and ending on the date
90 days thereafter or, if earlier, on the Maturity Date or the
date of prepayment of such Borrowing; provided, however, that if
any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar
Standby Loans only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day. Interest shall
accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or
security interest in or on such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan" shall mean a Standby Loan, whether made as a
Eurodollar Standby Loan, a CD Loan or an ABR Loan.
"Loan Documents" shall mean this Agreement and the Notes.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially
adverse effect on the business, assets, operations, prospects or
condition, financial or otherwise, of the Company and the
Subsidiaries taken as a whole, (b) material impairment of the
ability of the Company to perform any of its obligations under
any Loan Document to which it is or will be a party or
(c) material impairment of the rights of or benefits available to
the Banks under any Loan Document.
"Maturity Date" shall mean the fourth anniversary of the
date of this Agreement, or any anniversary of such date to which
the Maturity Date shall have been extended pursuant to
Section 2.10.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company or
any ERISA Affiliate (other than one considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the
Code) is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Note" shall mean a Standby Note of the Company executed and
delivered as provided in Section 2.06.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership
or government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code which is maintained for
employees of the Company or any ERISA Affiliate.
"Register" shall have the meaning given such term in
Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(b) of ERISA or the regulations issued
thereunder with respect to a Plan (other than a Plan maintained
by an ERISA Affiliate which is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Code).
"Required Banks" shall mean, at any time, Banks having
Commitments representing at least 66-2/3% of the Total Commitment
and, for purposes of acceleration pursuant to clause (ii) of
Article VII and at any time when no Commitment is in effect,
Banks holding Loans representing at least 66-2/3% of the
aggregate principal amount of the Loans outstanding.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and
any other officer or similar official thereof responsible for the
administration of the obligations of such corporation in respect
of this Agreement.
"Significant Subsidiary" shall mean any Subsidiary whose
gross revenues or assets constitute 1% or more of consolidated
gross revenues or consolidated assets of the Company and its
Subsidiaries.
"Standby Borrowing" shall mean a borrowing consisting of
simultaneous Standby Loans from each of the Banks.
"Standby Borrowing Request" shall mean a request made
pursuant to Section 2.03 in the form of Exhibit A.
"Standby Loans" shall mean the revolving loans made by the
Banks to the Company pursuant to Section 2.03. Each Standby Loan
shall be a Eurodollar Standby Loan, a CD Loan or an ABR Loan.
"Standby Note" shall mean a promissory note of the Company
in the form of Exhibit B executed and delivered as provided in
Section 2.06.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority to which
the Administrative Agent is subject for new negotiable
nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to (i) the applicable Interest
Period, in the case of the Adjusted CD Rate, and (ii) three
months, in the case of the Base CD Rate (as such term is used in
the definition of "Alternate Base Rate"). Statutory Reserves
shall be adjusted automatically on and as of the effective date
of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership,
association or other business entity (a) of which securities or
other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than
50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or
(b) which is, at the time any determination is made, otherwise
Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Company.
"Total Commitment" shall mean at any time the aggregate
amount of the Banks' Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term
in Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or
on the Loans comprising such Borrowing is determined. For
purposes hereof, "Rate" shall include the LIBO Rate, the Adjusted
CD Rate and the Alternate Base Rate.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in
Section 1.01 shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided, however, that, for
purposes of determining compliance with any covenant set forth in
Article VI, such terms shall be construed in accordance with GAAP
as in effect on the date of this Agreement applied on a basis
consistent with the application used in the Company's audited
financial statements referred to in Section 3.04.
II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and
conditions and relying upon the representations and warranties
herein set forth, each Bank agrees, severally and not jointly, to
make Standby Loans to the Company, at any time and from time to
time on and after the date hereof and until the earlier of the
Maturity Date and the termination of the Commitment of such Bank,
in an aggregate principal amount at any time outstanding not to
exceed such Bank's Commitment subject, however, to the condition
that at all times the outstanding aggregate principal amount of
all Standby Loans made by a Bank shall equal the product of
(i) the percentage which its Commitment represents of the Total
Commitment times (ii) the outstanding aggregate principal amount
of all Standby Loans requested by the Company from the Banks
pursuant to Section 2.03. Each Bank's Commitment is set forth
opposite its respective name in Schedule 2.01. Such Commitments
may be terminated, reduced or extended from time to time pursuant
to Section 2.10.
Within the foregoing limits, the Company may borrow, repay,
prepay and reborrow hereunder, on and after the date hereof and
prior to the Maturity Date, subject to the terms, provisions and
limitations set forth herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made
as part of a Borrowing consisting of Loans made by the Banks
ratably in accordance with their Commitments; provided, however,
that the failure of any Bank to make any Standby Loan shall not
in itself relieve any other Bank of its obligation to lend
hereunder (it being understood, however, that no Bank shall be
responsible for the failure of any other Bank to make any Loan
required to be made by such other Bank). Standby Loans comprising
each Borrowing shall be in an aggregate principal amount which is
an integral multiple of $1,000,000 and not less than $5,000,000
(or an aggregate principal amount equal to the remaining balance
of the available Commitments).
(b) Each Standby Borrowing shall be comprised entirely of
Eurodollar Standby Loans, CD Loans or ABR Loans, as the Company
may request pursuant to Section 2.03. Each Bank may at its
option make any Eurodollar Standby Loan by causing any domestic
or foreign branch or Affiliate of such Bank to make such Loan;
provided that any exercise of such option shall not affect the
obligation of the Company to repay such Loan in accordance with
the terms of this Agreement and the applicable Note. Borrowings
of more than one Type may be outstanding at the same time;
provided, however, that the Company shall not be entitled to
request any Borrowing which, if made, would result in an
aggregate of more than ten separate Loans of any Bank being
outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered
separate Loans.
(c) Subject to Section 2.04, each Bank shall make each Loan
to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds to the Administrative
Agent in New York, New York, not later than 12:00 noon, New York
City time, and the Administrative Agent shall by 3:00 p.m., New
York City time, credit the amounts so received to the general
deposit account of the Company with the Administrative Agent or,
if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the
amounts so received to the respective Banks. Subject to
Section 2.04, Standby Loans shall be made by the Banks pro rata
in accordance with Section 2.15. Unless the Administrative Agent
shall have received notice from a Bank prior to the date of any
Borrowing that such Bank will not make available to the
Administrative Agent such Bank's portion of such Borrowing, the
Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c) and the
Administrative 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 made such portion
available to the Administrative Agent, such Bank and the Company
(without prejudice to the Company's rights against the defaulting
Bank) severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Company until the date such amount is repaid to
the Administrative Agent at (i) in the case of the Company, the
interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute
such Bank's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement,
the Company shall not be entitled to request any Borrowing if the
Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Standby Borrowing Procedure. In order to
request a Standby Borrowing, the Company shall give written or
telex notice (or telephone notice promptly confirmed in writing
or by telex) to the Administrative Agent in the form of Exhibit A
(a) in the case of a Eurodollar Standby Borrowing, not later than
10:00 a.m., New York City time, three Business Days before a
proposed borrowing, (b) in the case of a CD Borrowing, not later
than 10:00 a.m., New York City time, two Business Days before a
proposed borrowing and (c) in the case of an ABR Borrowing, not
later than 10:30 a.m., New York City time, on the day of a
proposed borrowing. Such notice shall be irrevocable and shall
in each case refer to this Agreement and specify (i) whether the
Borrowing then being requested is to be a Eurodollar Standby
Borrowing, a CD Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day) and the amount
thereof; and (iii) if such Borrowing is to be a Eurodollar
Standby Borrowing or CD Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing or CD Borrowing is specified in any such
notice, then the Company shall be deemed to have selected an
Interest Period of one month's duration, in the case of a
Eurodollar Borrowing, or 30 days' duration, in the case of a CD
Borrowing. If the Company shall not have given notice in
accordance with this Section 2.03 of its election to refinance a
Standby Borrowing prior to the end of the Interest Period in
effect for such Borrowing, then the Company shall (unless such
Borrowing is repaid at the end of such Interest Period) be deemed
to have given notice of an election to refinance such Borrowing
with an ABR Borrowing. The Administrative Agent shall promptly
advise the Banks of any notice given pursuant to this
Section 2.03 and of each Bank's portion of the requested
Borrowing.
SECTION 2.04. Refinancings. The Company may refinance all
or any part of any Borrowing with a Borrowing of the same or a
different Type made pursuant to Section 2.03, subject to the
conditions and limitations set forth herein and elsewhere in this
Agreement. Any Borrowing or part thereof so refinanced shall be
deemed to be repaid in accordance with Section 2.06 with the
proceeds of a new Borrowing hereunder and the proceeds of the new
Borrowing, to the extent they do not exceed the principal amount
of the Borrowing being refinanced, shall not be paid by the Banks
to the Administrative Agent or by the Administrative Agent to the
Company pursuant to Section 2.02(c).
SECTION 2.05. Fees. (a) The Company agrees to pay to each
Bank, through the Administrative Agent, on each March 31,
June 30, September 30 and December 31, commencing September 30,
1994, and on the date on which the Commitment of such Bank shall
be terminated as provided herein, a facility fee (a "Facility
Fee") equal to the Facility Fee Percentage of the daily average
amount of the Commitment of such Lender, whether used or unused,
during the preceding quarter (or other period commencing with the
date of this agreement or ending with the Maturity Date or any
date on which the Commitment of such Bank shall be terminated).
All Facility Fees shall be computed on the basis of the actual
number of days elapsed over a 360 day year. The Facility Fee due
to each Bank shall commence to accrue on the Closing Date and
shall cease to accrue on the earlier of the Maturity Date and the
termination of the Commitment of such Bank as provided herein.
(b) The Company agrees to pay the Administrative Agent, for
its own account, the fees set forth in the Engagement Letter
dated July 20, 1994, among the Administrative Agent, Chemical
Securities Inc. and the Company at the times and in the amounts
set forth therein.
(c) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if
and as appropriate, among the Banks. Once paid, none of the Fees
shall be refundable under any circumstances.
SECTION 2.06. Notes; Repayment of Loans. The Standby Loans
made by each Bank shall be evidenced by a single Standby Note
duly executed on behalf of the Company, dated the Closing Date,
in substantially the form attached hereto as Exhibit B with the
blanks appropriately filled, payable to the order of such Bank in
a principal amount equal to the Commitment of such Bank. The
outstanding principal balance of each Standby Loan, as evidenced
by the relevant Note, shall be payable on the last day of the
Interest Period applicable to such Loan and on the Maturity Date.
Each Note shall bear interest from the date thereof on the
outstanding principal balance thereof as set forth in
Section 2.07. Each Bank shall, and is hereby authorized by the
Company to, endorse on the schedule attached to the relevant Note
held by such Bank (or on a continuation of such schedule attached
to each such Note and made a part thereof), or otherwise to
record in such Bank's internal records, an appropriate notation
evidencing the date and amount of each Standby Loan of such Bank,
each payment or prepayment of principal of any Standby Loan and
the other information provided for on such schedule; provided,
however, that the failure of any Bank to make such a notation or
any error therein shall not in any manner affect the obligation
of the Company to repay the Standby Loans made by such Bank in
accordance with the terms of the relevant Note.
SECTION 2.07. Interest on Loans. (a) Subject to the
provisions of Section 2.08, the Loans comprising each Eurodollar
Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate
per annum equal to the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Spread in effect
at such time.
(b) Subject to the provisions of Section 2.08, the Loans
comprising each CD Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of
360 days) at a rate per annum equal to the Adjusted CD Rate for
the Interest Period in effect plus the Applicable Spread in
effect at such time.
(c) Subject to the provisions of Section 2.08, the Loans
comprising each ABR Borrowing shall bear interest (if the
Alternate Base Rate is based on the Prime Rate, computed on the
basis of the actual number of days elapsed over a year of 365 or
366 days, as the case may be, or if the Alternate Base Rate is
based on the Base CD Rate or the Federal Funds Effective Rate,
computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the Alternate Base
Rate.
(d) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise
provided in this Agreement. The applicable Adjusted LIBO Rate,
Adjusted CD Rate or Alternate Base Rate for each Interest Period
or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.08. Default Interest. If the Company shall
default in the payment of the principal of or interest on any
Loan or any other amount becoming due hereunder, by acceleration
or otherwise, the Company shall on demand from time to time pay
interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of
360 days) equal to the Alternate Base Rate plus 2%.
SECTION 2.09. Alternate Rate of Interest. (a) In the
event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar
Borrowing the Administrative Agent shall have determined that
dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London
interbank market, or that the rates at which such dollar deposits
are being offered will not adequately and fairly reflect the cost
to any Bank of making or maintaining its Eurodollar Standby Loan
during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or
telex notice of such determination to the Company and the Banks.
In the event of any such determination, until the Administrative
Agent shall have advised the Company and the Banks that the
circumstances giving rise to such notice no longer exist, any
request by the Company for a Eurodollar Standby Borrowing
pursuant to Section 2.03 shall be deemed to be a request for an
ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
(b) In the event, and on each occasion, that on or before
the day on which the Adjusted CD Rate for a CD Borrowing is to be
determined the Administrative Agent shall have determined that
such Adjusted CD Rate cannot be determined for any reason,
including the inability of the Agent to obtain sufficient bids in
accordance with the terms of the definition of Fixed CD Rate, or
the Agent shall determine that the Adjusted CD Rate for such CD
Borrowing will not adequately and fairly reflect the cost to any
Bank of making or maintaining its CD Loan during such Interest
Period, the Administrative Agent shall, as soon as practicable
thereafter, give written or telex notice of such determination to
the Company and the Banks. In the event of any such
determination, any request by the Company for a CD Borrowing
pursuant to Section 2.03 shall, until the Administrative Agent
shall have advised the Company and the Banks that the
circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing. Each determination
by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.10. Termination, Reduction and Extension of
Commitments. (a) The Commitments shall be automatically
terminated on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable
written or telex notice to the Administrative Agent, the Company
may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Commitments; provided,
however, that each partial reduction of the Commitments shall be
in an integral multiple of $1,000,000 and in a minimum principal
amount of $10,000,000.
(c) Each reduction in the Commitments hereunder shall be
made ratably among the Banks in accordance with their respective
applicable Commitments. The Company shall pay to the
Administrative Agent for the account of the Banks, on the date of
each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued through the date
of such termination or reduction.
(d) Not later than the date 45 days prior to (i) the first
anniversary of the date hereof or (ii) any anniversary of the
date hereof during the 45 days prior to which the Commitments
shall have been extended as provided in this paragraph (d), the
Company may deliver to the Administrative Agent (which shall
promptly transmit to each Bank) a notice requesting that the
Commitments be extended to the first anniversary of the Maturity
Date at the time in effect. Within 30 days after its receipt of
any such notice, each Bank shall notify the Administrative Agent
of its willingness or unwillingness so to extend its Commitment.
In the event each Bank shall be willing to extend its Commitment,
the Administrative Agent shall so notify the Company and each
Bank and the Maturity Date shall without further act be extended
to the first anniversary of the date which shall theretofore have
been the Maturity Date.
SECTION 2.11. Prepayment. (a) The Company shall have the
right at any time and from time to time to prepay any Standby
Borrowing, in whole or in part, upon at least three Business
Days' prior written or telex notice (or telephone notice promptly
confirmed by written or telex notice) to the Administrative
Agent; provided, however, that each partial prepayment shall be
in an amount which is an integral multiple of $1,000,000 and not
less than $5,000,000.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.10, the Company shall pay or
prepay so much of the Standby Borrowings as shall be necessary in
order that the aggregate principal amount of the Loans
outstanding will not exceed the aggregate Commitments after
giving effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion
thereof) to be prepaid, shall be irrevocable and shall commit the
Company to prepay such Borrowing by the amount stated therein on
the date stated therein. All prepayments under this Section 2.11
shall be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be
accompanied by accrued interest on the principal amount being
prepaid to the date of payment.
SECTION 2.12. Reserve Requirements; Change in
Circumstances. (a) Notwithstanding any other provision herein,
if after the date of this Agreement any change in applicable law
or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law)
shall change the basis of taxation of payments to any Bank of the
principal of or interest on any Eurodollar Standby Loan or CD
Loan made by such Bank or any other fees or amounts payable
hereunder (other than changes in respect of taxes imposed on the
overall net income of such Bank by the jurisdiction in which such
Bank has its principal office or by any political subdivision or
taxing authority therein), shall impose, modify or deem
applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of or credit
extended by, such Bank (except any reserve requirement reflected
in the Adjusted LIBO Rate), or shall impose on such Bank or the
London interbank market any other condition affecting this
Agreement or any Eurodollar Standby Loan or CD Loan made by such
Bank, and the result of any of the foregoing shall be to increase
the cost to such Bank of making or maintaining any Eurodollar
Standby Loan or CD Loan or to reduce the amount of any sum
received or receivable by such Bank hereunder (whether of
principal, interest or otherwise) in respect thereof by an amount
deemed by such Bank to be material, then the Company shall pay to
such Bank upon demand such additional amount or amounts as will
compensate such Bank for such additional cost incurred or
reduction suffered.
(b) If any Bank shall have determined that the
applicability of any law, rule, regulation or guideline adopted
pursuant to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and
Capital Standards", or the adoption after the date hereof of any
other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Bank (or any lending office of such Bank) or any Bank's
holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Bank's capital
or on the capital of such Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by such Bank
pursuant hereto to a level below that which such Bank or such
Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's
policies and the policies of such Bank's holding company with
respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time the Company shall pay to such
Bank such additional amount or amounts as will compensate such
Bank or such Bank's holding company for any such reduction
suffered.
(c) A certificate of a Bank setting forth such amount or
amounts as shall be necessary to compensate such Bank (or
participating banks or other entities pursuant to Section 9.04)
as specified in paragraph (a) or (b) above, as the case may be,
shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay each Bank the amount shown
as due on any such certificate delivered by it within 10 days
after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation
for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any
period shall not constitute a waiver of such Bank's right with
respect to such period or any other period. The protection of
this Section shall be available to each Bank regardless of any
possible contention of invalidity or inapplicability of the law,
rule, regulation, guideline or other change or condition which
shall have been imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or
in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall
make it unlawful for any Bank to make or maintain any Eurodollar
Standby Loan or to give effect to its obligations as contemplated
hereby with respect to any Eurodollar Standby Loan, then, by
written notice to the Company and to the Administrative Agent,
such Bank may:
(i) declare that Eurodollar Standby Loans will not
thereafter be made by such Bank hereunder, whereupon any
request by the Company for a Eurodollar Standby Borrowing
shall, as to such Bank only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Standby
Loans made by it be converted to ABR Loans, in which event
all such Eurodollar Standby Loans shall be automatically
converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal which would
otherwise have been applied to repay the Eurodollar Standby Loans
that would have been made by such Bank or the converted
Eurodollar Standby Loans of such Bank shall instead be applied to
repay the ABR Loans made by such Bank in lieu of, or resulting
from the conversion of, such Eurodollar Standby Loans.
(b) For purposes of this Section 2.13, a notice to the
Company by any Bank shall be effective as to each Eurodollar
Standby Loan, if lawful, on the last day of the Interest Period
currently applicable to such Eurodollar Standby Loan; in all
other cases such notice shall be effective on the date of receipt
by the Company.
SECTION 2.14. Indemnity. The Company shall indemnify each
Bank against any loss or expense which such Bank may sustain or
incur as a consequence of (a) any failure by the Company to
fulfill on the date of any borrowing hereunder the applicable
conditions set forth in Article IV, (b) any failure by the
Company to borrow or to refinance or continue any Loan hereunder
after irrevocable notice of such borrowing, refinancing or
continuation has been given pursuant to Section 2.03, (c) any
payment, prepayment or conversion of a Eurodollar Standby Loan or
CD Loan required by any other provision of this Agreement or
otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (d) any default in
payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, by irrevocable notice of
prepayment or otherwise) or (e) the occurrence of any Event of
Default, including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof as a Eurodollar
Standby Loan or CD Loan. Such loss or reasonable expense shall
include an amount equal to the excess, if any, as reasonably
determined by such Bank, of (i) its cost of obtaining the funds
for the Loan being paid, prepaid, converted or not borrowed
(based on the Adjusted LIBO Rate or Adjusted CD Rate for the
period from the date of such payment, prepayment, conversion or
failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period
for such Loan which would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid, converted or not borrowed
for such period or Interest Period, as the case may be. A
certificate of any Bank setting forth any amount or amounts which
such Bank is entitled to receive pursuant to this Section shall
be delivered to the Company and shall be conclusive absent
manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under
Sections 2.12 and 2.13, each Standby Borrowing, each payment or
prepayment of principal of any Standby Borrowing, each payment of
interest on the Standby Loans, each payment of the Facility Fees,
each reduction of the Commitments and each refinancing of any
Borrowing with a Standby Borrowing of any Type, shall be
allocated pro rata among the Banks in accordance with their
respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective
principal amounts of their outstanding Standby Loans). Each Bank
agrees that in computing such Bank's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its
discretion, round each Bank's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Bank agrees that if
it shall, through the exercise of a right of banker's lien,
setoff or counterclaim against the Company, or pursuant to a
secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Bank under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in
respect of any Loan or Loans as a result of which the unpaid
principal portion of its Loans shall be proportionately less than
the unpaid principal portion of the Loans of any other Bank, it
shall promptly purchase from such other Bank at face value a
participation in the Loans of such other Bank, so that the
aggregate unpaid principal amount of the Loans and participations
in Loans held by each Bank shall be in the same proportion to the
aggregate unpaid principal amount of all Loans then outstanding
as the principal amount of its Loans prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise
of banker's lien, setoff or counterclaim or other event;
provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section and the
payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Company expressly
consents to the foregoing arrangements and agrees that any Bank
holding a participation in a Loan deemed to have been so
purchased may exercise any and all rights of banker's lien,
setoff or counterclaim with respect to any and all moneys owing
by the Company to such Bank by reason thereof as fully as if such
Bank had made a Loan directly to the Company in the amount of
such participation.
SECTION 2.17. Payments. (a) The Company shall make each
payment (including principal of or interest on any Borrowing or
any Fees or other amounts) hereunder and under any other Loan
Document not later than 12:00 (noon), New York City time, on the
date when due in dollars to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York, in immediately
available funds.
(b) Whenever any payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder
or under any other Loan Document shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment
may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of interest or Fees, if applicable.
SECTION 2.18. Taxes. (a) Any and all payments by the
Company hereunder shall be made, in accordance with Section 2.17,
free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding
taxes imposed on the Administrative Agent's or any Bank's income,
and franchise taxes imposed on the Administrative Agent or any
Bank, by the United States or any jurisdiction under the laws of
which it is organized or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Company shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to the
Banks or the Administrative Agent (i) the sum payable shall be
increased by the amount necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 2.18) such Bank or the
Administrative Agent (as the case may be) shall receive an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Company shall make such deductions and
(iii) the Company shall pay the full amount deducted to the
relevant taxing authority or other Governmental Authority in
accordance with applicable law.
(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any other
Loan Document (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.18) paid by such Bank or
the Administrative Agent, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted by the relevant taxing
authority or other Governmental Authority. Such indemnification
shall be made within 30 days after the date any Bank or the
Administrative Agent, as the case may be, makes written demand
therefor. If a Bank or the Administrative Agent shall become
aware that it is entitled to receive a refund in respect of Taxes
or Other Taxes, it shall promptly notify the Company of the
availability of such refund and shall, within 30 days after
receipt of a request by the Company, apply for such refund at the
Company's expense. If any Bank or the Administrative Agent
receives a refund in respect of any Taxes or Other Taxes for
which such Bank or the Administrative Agent has received payment
from the Company hereunder it shall promptly notify the Company
of such refund and shall, within 30 days after receipt of a
request by the Company (or promptly upon receipt, if the Company
has requested application for such refund pursuant hereto), repay
such refund to the Company without interest, provided that the
Company, upon the request of such Bank or the Administrative
Agent, agrees to return such refund (plus penalties, interest or
other charges) to such Bank or the Administrative Agent in the
event such Bank or the Administrative Agent is required to repay
such refund.
(d) Within 30 days after the date of any payment of Taxes
or Other Taxes withheld by the Company in respect of any payment
to any Bank or the Administrative Agent, the Company will furnish
to the Administrative Agent, at its address referred to in Sec-
tion 2.17, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations
contained in this Section 2.18 shall survive the payment in full
of the principal of and interest on all Loans made hereunder.
(f) Each Bank which is organized outside the United States
shall promptly notify the Company of any change in its funding
office and upon written request of the Company shall, prior to
the immediately following due date of any payment by the Company
hereunder, deliver to the Company such certificates, documents or
other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service
Form 4224 and any other certificate or statement of exemption
required by Treasury Regulation Section 1.1441-1(a) or Sec-
tion 1.1441-6(c) or any subsequent version thereof, properly
completed and duly executed by such Bank establishing that such
payment is (i) not subject to withholding under the Code because
such payment is effectively connected with the conduct by such
Bank of a trade or business in the United States or (ii) totally
exempt from United States tax under a provision of an applicable
tax treaty. Unless the Company and the Administrative Agent have
received forms or other documents satisfactory to them indicating
that payments hereunder or under the Notes are not subject to
United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Company or the
Administrative Agent shall withhold taxes from such payments at
the applicable statutory rate in the case of payments to or for
any Bank or assignee organized under the laws of a jurisdiction
outside the United States.
(g) Any Bank claiming any additional amounts payable
pursuant to this Section 2.18 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Company or to change the
jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank.
III. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Banks
that:
SECTION 3.01. Organization; Powers. Each of the Company
and the Subsidiaries (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do
business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result
in a Material Adverse Effect, and (d) in the case of the Company,
has the corporate power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated thereby to which it is
or will be a party and to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Company of each of the Loan Documents, the
actions taken by the Company in connection with the borrowings
hereunder (the "Transactions") (a) have been duly authorized by
all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of law, statute, rule
or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of the Company or any
Subsidiary, (B) any order of any Governmental Authority
applicable to the Company or (C) any provision of any indenture,
agreement or other instrument to which the Company or any
Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in
a breach of or constitute (alone or with notice or lapse of time
or both) a default under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any
Lien upon any property or assets of the Company or any Subsidiary
except Liens set forth on Schedule 6.01.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Company and constitutes, and each
other Loan Document when executed and delivered by the Company
will constitute, a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms.
SECTION 3.04. Financial Statements. The Company has
heretofore furnished to the Banks (a) consolidated balance sheets
and statements of income and changes in stockholders' equity and
cash flows as of and for the fiscal year ended December 31, 1993,
audited by and accompanied by the opinion of Coopers & Lybrand,
independent public accountants, and (b)its consolidated balance
sheets and statements of income and consolidated statement of
cash flows as of and for the fiscal quarter ended March 31, 1994,
certified by its chief financial officer. Such financial
statements present fairly the financial condition and results of
operations of the Company and its consolidated Subsidiaries as of
such dates and for such periods. Such balance sheets and notes
thereto disclose all material liabilities, direct or contingent,
of the Company and its Subsidiaries as of the dates thereof.
Such financial statements were prepared in accordance with GAAP
applied on a consistent basis.
SECTION 3.05. No Material Adverse Change. There has been
no material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the Company
and the Subsidiaries, taken as a whole, since March 31, 1994.
SECTION 3.06. Title to Properties and Possession Under
Leases. (a) Each of the Company and the Subsidiaries will, on
the Closing Date and at all times thereafter, have good and
marketable title to, or valid leasehold interests in, all its
material properties and assets, except for minor defects in title
that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties and assets for
their intended purposes and except for Liens permitted by
Section 6.01. All such material properties and assets are free
and clear of Liens, other than Liens expressly permitted by
Section 6.01.
(b) Each of the Company and the Subsidiaries (or their
respective predecessors) has complied with all obligations under
all material leases to which it is a party and all such leases
are in full force and effect. Each of the Company and the
Subsidiaries enjoys peaceful and undisturbed possession under all
such material leases.
SECTION 3.07. The Subsidiaries and the Company.
Schedule 3.07 sets forth as of the Closing Date a list of all
Subsidiaries and the percentage ownership interest of the Company
therein.
SECTION 3.08. Litigation; Compliance with Laws.
(a) Except as set forth in Schedule 3.08, there are not any
actions, suits or proceedings at law or in equity or by or before
any Governmental Authority now pending or, to the knowledge of
the Company, threatened against or affecting the Company or any
Subsidiary or any business, property or rights of any such person
(i) which involve any Loan Document or the Transactions or
(ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, could,
individually or in the aggregate, result in a Material Adverse
Effect.
(b) Neither the Company nor any of the Subsidiaries is in
violation of any law, rule or regulation, or in default with
respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could
result in a Material Adverse Effect.
SECTION 3.09. Agreements. (a) Neither the Company nor any
of the Subsidiaries is a party to any agreement or instrument or
subject to any corporate restriction that has resulted or, in the
absence of a material default by the Company or such Subsidiary,
could result in a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is in
default in any manner under any provision of any indenture or
other agreement or instrument evidencing Indebtedness, or any
other material agreement or instrument to which it is a party or
by which it or any of its properties or assets are or may be
bound, where such default could result in a Material Adverse
Effect.
SECTION 3.10. Federal Reserve Regulations. (a) Neither
the Company nor any of the Subsidiaries is engaged principally,
or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin
Stock.
(b) No part of the proceeds of any Loan will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose which entails a
violation of, or which is inconsistent with, the provisions of
the Regulations of the Board, including Regulation G, U or X.
SECTION 3.11. Investment Company Act; Public Utility
Holding Company Act. Neither the Company nor any Subsidiary is
(a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.12. Use of Proceeds. The Company will use the
proceeds of the Loans only for the purposes specified in the
preamble to this Agreement.
SECTION 3.13. Tax Returns. Each of the Company and the
Subsidiaries has filed or caused to be filed all Federal, state
and local tax returns required to have been filed by it and has
paid or caused to be paid all taxes shown to be due and payable
on such returns or on any assessments received by it, except
taxes that are being contested in accordance with Section 5.03.
SECTION 3.14. No Material Misstatements. No information,
report, financial statement, exhibit or schedule furnished by or
on behalf of the Company to the Administrative Agent or any Bank
in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary
to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading.
SECTION 3.15. Employee Benefit Plans. Each of the Company
and its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the
regulations and published interpretations thereunder. No
Reportable Event has occurred as to which the Company or any
ERISA Affiliate was required to file a report with the PBGC, and
the present value of all benefit liabilities under each Plan
(based on those assumptions used to fund such Plan) did not, as
of the last annual valuation date applicable thereto, exceed by
more than $1,000,000 the value of the assets of such Plan.
Neither the Company nor any ERISA Affiliate has incurred any
Withdrawal Liability that could result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization
or has been terminated within the meaning of Title IV of ERISA,
and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated where such reorganization or
termination has resulted or could reasonably be expected to
result, through increases in the contributions required to be
made to such Plan or otherwise, in a Material Adverse Effect.
SECTION 3.16. Environmental Matters. Each of the Company
and the Subsidiaries, and each of their respective businesses,
has complied in all material respects with all Federal, state,
local and other statutes, ordinances, orders, judgments, rulings
and regulations relating to environmental pollution or to
environmental regulation or control. Neither the Company nor any
Subsidiary has received notice of any failure so to comply which
alone or together with any other such failure could result in a
Material Adverse Effect. The Company's and the Subsidiaries'
plants do not manage any hazardous wastes, hazardous substances,
hazardous materials, toxic substances or toxic pollutants, as
those terms are used in the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response Compensation and
Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act or the Clean Water
Act, in violation of any regulations promulgated pursuant thereto
or in any other applicable law where such violation could result,
individually or together with other violations, in a Material
Adverse Effect.
SECTION 3.17. Solvency. On the date hereof and on the date
of each Borrowing hereunder after giving effect to each Loan to
be made and the use of the proceeds thereof, (a) the fair salable
value of the assets of the Company will exceed the amount that
will be required to be paid on or in respect of the existing
debts and other liabilities (including contingent liabilities) of
the Company as they mature; (b) the assets of the Company will
not constitute unreasonably small capital to carry out its
business as conducted or as proposed to be conducted; and (c) the
Company will not intend to, and will not believe that it will,
incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be
received by it and the amounts to be payable on or in respect of
its obligations).
IV. CONDITIONS OF LENDING
SECTION 4.01. All Borrowings. The obligations of the Banks
to make Loans hereunder on the date of each Borrowing hereunder,
including each Borrowing in which Loans are refinanced with new
Loans as contemplated by Section 2.04, shall be subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received a
notice of such Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in
Article III (excluding, in the case of a refinancing of a
Standby Borrowing with a new Standby Borrowing that does not
increase the aggregate principal amount of the Loans of any
Bank outstanding, the representations set forth in
Sections 3.05 and 3.08(a)) shall be true and correct in all
material respects on and as of the date of such Borrowing
with the same effect as if made on and as of such date,
except to the extent that such representations and
warranties expressly relate to an earlier date.
(c) The Company shall be in compliance with all the
terms and provisions set forth herein on its part to be
observed or performed, and at the time of and immediately
after such Borrowing no Event of Default or Default shall
have occurred and be continuing.
(d) Each Bank that shall not have previously received
an appropriate Note shall have received a duly executed
Standby Note payable to its order and otherwise complying
with the provisions of Section 2.06.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Company on the date of such Borrowing as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effectiveness of Agreement. The obligations
of the Banks to make Loans hereunder shall be subject to
satisfaction on the Closing Date of the following additional
conditions precedent:
(a) Each Bank shall have received a duly executed
Standby Note complying with the provisions of Section 2.06.
(b) The Administrative Agent shall have received a
favorable written opinion of Nancy M. Taylor, Esq. dated the
Closing Date and addressed to the Banks, to the effect set
forth in Exhibit E hereto.
(c) All legal matters incident to this Agreement and
the borrowings hereunder shall be satisfactory to the Banks
and their counsel and to Cravath, Swaine & Moore, counsel
for the Administrative Agent.
(d) The Administrative Agent shall have received (i) a
copy of the certificate or articles of incorporation,
including all amendments thereto, of the Company, certified
as of a recent date by the Secretary of State of the state
of its organization, and a certificate as to the good
standing of the Company as of a recent date, from such
Secretary of State; (ii) a certificate of the Secretary or
Assistant Secretary of the Company dated the Closing Date
and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on
the Closing Date and at all times since a date prior to the
date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance
of the Loan Documents and the borrowings hereunder, and that
such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the
certificate or articles of incorporation of the Company have
not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan
Document or any other document delivered in connection
herewith on behalf of the Company; (iii) a certificate of
another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other
documents as the Banks or their counsel or Cravath, Swaine &
Moore, counsel for the Administrative Agent, may reasonably
request.
(e) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a
Financial Officer of the Company, confirming compliance with
the conditions precedent set forth in paragraphs (b) and (c)
of Section 4.01.
(f) The commitments under the Competitive Advance and
Revolving Credit Facility Agreement dated as of June 16,
1989, and amended as of June 8, 1992, among the Company, the
lenders party thereto and Chemical, as agent, shall have
been terminated and all principal, interest and other
amounts outstanding thereunder shall have been paid in full.
V. AFFIRMATIVE COVENANTS
The Company covenants and agrees with each Bank and the
Agents that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other
expenses or amounts payable under any Loan Document shall be
unpaid, unless the Required Banks shall otherwise consent in
writing, the Company will, and will cause each of the
Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties;
Compliance. (a) Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under
Section 6.04.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the
rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names material to the conduct of
its business; maintain and operate such business in substantially
the manner in which it is presently conducted and operated;
comply in all material respects with all applicable laws, rules,
regulations and orders of any Governmental Authority, whether now
in effect or hereafter enacted; and at all times maintain and
preserve all property material to the conduct of such business
and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried
on in connection therewith may be properly conducted at all
times.
SECTION 5.02. Insurance. Keep its insurable properties
adequately insured at all times by financially sound and
reputable insurers; maintain such other insurance, to such extent
and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in
the same or similar businesses, including public liability
insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain
such other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness
and other obligations promptly and in accordance with their terms
and pay and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon it or upon its income
or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise which, if unpaid,
might give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall
not be required with respect to any such tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the
Company shall have set aside on its books adequate reserves with
respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. In the
case of the Company, furnish to the Administrative Agent and each
Bank:
(a) within 90 days after the end of each fiscal year,
its consolidated balance sheets and related statements of
income and cash flows, showing the financial condition of
the Company and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations
and the operations of such Subsidiaries during such year,
all audited by Coopers & Lybrand or other independent public
accountants of recognized national standing acceptable to
the Required Banks and accompanied by an opinion of such
accountants (which shall not be qualified in any material
respect) to the effect that such consolidated financial
statements fairly present the financial condition and
results of operations of the Company on a consolidated basis
in accordance with GAAP;
(b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year, its consolidated
balance sheets and related statements of income and cash
flows, showing the financial condition of the Company and
its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations
of such Subsidiaries during such fiscal quarter and the then
elapsed portion of the fiscal year, all certified by one of
its Financial Officers as fairly presenting the financial
condition and results of operations of the Company on a
consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments;
(c) concurrently with any delivery of financial
statements under (a) or (b) above, a certificate of the
accounting firm or Financial Officer opining on or
certifying such statements (which certificate, when
furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be
taken with respect thereto and (ii) setting forth
computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.05, 6.07 and 6.08;
(d) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements
and other materials filed by it with the Securities and
Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said
Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other
information regarding the operations, business affairs and
financial condition of the Company or any Subsidiary, or
compliance with the terms of any Loan Document, as the
Administrative Agent or any Bank may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent and each Bank prompt written notice of the
following:
(a) any Event of Default or Default, specifying the
nature and extent thereof and the corrective action (if any)
proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or
notice of intention of any person to file or commence, any
action, suit or proceeding, whether at law or in equity or
by or before any Governmental Authority, against the Company
or any Affiliate thereof which, if adversely determined,
could result in a Material Adverse Effect;
(c) any development that has resulted in, or could
reasonably be anticipated to result in, a Material Adverse
Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects
with the applicable provisions of ERISA and (b) furnish to the
Administrative Agent and each Bank (i) as soon as possible, and
in any event within 30 days after any Responsible Officer of the
Company or any ERISA Affiliate either knows or has reason to know
that any Reportable Event has occurred that alone or together
with any other Reportable Event could reasonably be expected to
result in liability of the Company to the PBGC in an aggregate
amount exceeding $5,000,000, a statement of a Financial Officer
setting forth details as to such Reportable Event and the action
proposed to be taken with respect thereto, together with a copy
of the notice, if any, of such Reportable Event given to the
PBGC, (ii) promptly after receipt thereof, a copy of any notice
the Company or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or
Plans (other than a Plan maintained by an ERISA Affiliate which
is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 412 of the Code) or to appoint a trustee to
administer any Plan or Plans, (iii) within 20 days after the due
date for filing with the PBGC pursuant to Section 412(n) of the
Code of a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of a Financial
Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy
of such notice given to the PBGC and (iv) promptly and in any
event within 30 days after receipt thereof by the Company or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy
of each notice received by the Company or any ERISA Affiliate
concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be,
terminated or in reorganization, in each case within the meaning
of Title IV of ERISA.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with
GAAP and permit any representatives designated by any Bank to
visit and inspect the financial records and the properties of the
Company or any Subsidiary at reasonable times and as often as
requested and to make extracts from and copies of such financial
records, and permit any representatives designated by any Bank to
discuss the affairs, finances and condition of the Company or any
Subsidiary with the officers thereof and independent accountants
therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the
Loans only for the purposes set forth in the preamble to this
Agreement.
VI. NEGATIVE COVENANTS
The Company covenants and agrees with each Bank and the
Agents that, so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other
expenses or amounts payable under any Loan Document shall be
unpaid, unless the Required Banks shall otherwise consent in
writing, the Company will not, and will not cause or permit any
of the Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or permit to
exist any Lien on any property or assets (including stock or
other securities of any person, including any Subsidiary, but
excluding Margin Stock to the extent that the book value of such
Margin Stock exceeds 25% of the book value of the assets and
properties that would be subject to this Section 6.01 without
giving effect to this parenthetical, or such other maximum amount
or percentage as is then provided for or permitted under
Regulation U or any successor regulation in order that no Loan
shall be deemed "indirectly secured" by Margin Stock for purposes
of such regulation), now owned or hereafter acquired by it or on
any income or rights in respect of any thereof, except:
(a) Liens on property or assets of the Company and its
Subsidiaries existing on the date hereof and set forth in
Schedule 6.01; provided that such Liens shall secure only
those obligations which they secure on the date hereof;
(b) any Lien existing on any property or asset prior
to the acquisition thereof by the Company or any Subsidiary;
provided that (i) such Lien is not created in contemplation
of or in connection with such acquisition and (ii) such Lien
does not apply to any other property or assets of the
Company or any Subsidiary;
(c) Liens for taxes not yet due or which are being
contested in compliance with Section 5.03;
(d) carriers', warehousemen's, mechanic's, mater-
ialmen's, repairmen's or other like Liens arising in the
ordinary course of business and securing obligations which
are not due or which are being contested in compliance with
Section 5.03;
(e) pledges and deposits made in the ordinary course
of business in compliance with workmen's compensation,
unemployment insurance and other social security laws or
regulations;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than
Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(h) purchase money security interests in real
property, improvements thereto or equipment hereafter
acquired (or, in the case of improvements, constructed) by
the Company or any Subsidiary; provided that (i) such
security interests are incurred, and the Indebtedness
secured thereby is created, within 90 days after such
acquisition (or construction), (ii) the Indebtedness secured
thereby does not exceed 80% of the lesser of the cost or the
fair market value of such real property, improvements or
equipment at the time of such acquisition (or construction)
and (iii) such security interests do not apply to any other
property or assets of the Company or any Subsidiary; and
(i) Liens other than those referred to in sub-
paragraphs (a) through (h) above, provided that the sum of
the aggregate amount of all Indebtedness or other
obligations which are secured or evidenced by Liens other
than those referred to in subparagraphs (a) through (h)
above plus the fair market value in the aggregate of
properties sold by the Company in the sale and lease-back
transactions permitted under Section 6.02, does not at any
time exceed an amount equal to 10% of Consolidated
Stockholders' Equity.
SECTION 6.02. Sale and Lease-Back Transactions. Enter into
any arrangement, directly or indirectly, with any person whereby
it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided,
however, that the Company shall be permitted to enter into any
such arrangements to the extent that the sum of the fair market
value in the aggregate of properties sold by the Company pursuant
to all such arrangements, plus the aggregate amount of indebt-
edness secured by Liens under paragraph (i) of Section 6.01, is
not greater than 10% of Consolidated Stockholders' Equity.
SECTION 6.03. Obligations of Subsidiaries. Permit the
Subsidiaries to incur Indebtedness, except for Indebtedness which
in the aggregate for all the Subsidiaries constitutes not more
than 10% of Consolidated Stockholders' Equity at any time or
Indebtedness to the Company incurred by the Subsidiaries in the
ordinary course of business.
SECTION 6.04. Mergers, Consolidations and Sales of Assets.
Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in
a series of transactions) all or any substantial part of its
assets (whether now owned or hereafter acquired) or any capital
stock of any Subsidiary, or purchase, lease or otherwise acquire
(in one transaction or a series of transactions) all or any
substantial part of the assets or capital stock of any other
person (excluding the sale of The Elk Horn Coal Corporation and
its subsidiaries), except that (a) the Company and any Subsidiary
may purchase and sell inventory in the ordinary course of
business and (b) if at the time thereof and immediately after
giving effect thereto no Event of Default or Default shall have
occurred and be continuing (i) any entity may merge into the
Company or any wholly owned Subsidiary in a transaction in which
the Company or such wholly owned Subsidiary, as the case may be,
is the surviving corporation, and (ii) the Company and any
Subsidiary may acquire all or any substantial part of the assets
or capital stock of any other person. Notwithstanding the
foregoing, nothing in this Section 6.04 shall prevent the Company
and its Subsidiaries from selling, transferring, leasing or
otherwise disposing of (in one transaction or in a series of
transactions) during any fiscal year in arms' length transactions
(a) assets the fair market value of which is not more than 5% of
the consolidated assets of the Company calculated in accordance
with GAAP, determined as of the beginning of such fiscal year and
(b) any other assets to the extent that the Commitments of the
Banks are permanently reduced pursuant to Section 2.10 by the
amount of the proceeds received by the Company from the sale of
such assets.
SECTION 6.05. Dividends and Distributions. Declare or pay,
directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in
cash, property, securities or a combination thereof, with respect
to any shares of its capital stock or set aside any amount for
any such purpose; provided, however, that (a) any Subsidiary may
declare and pay dividends or make other distributions to the
Company and (b) if no Event of Default or Default shall have
occurred and be continuing, the Company may at any time declare
and pay dividends in an aggregate amount not at any time to
exceed $48,000,003 plus the Company's Consolidated Net Income for
the period (which shall be treated as a single accounting period)
beginning on April 1, 1994 and ending on the last day of the
fiscal quarter for which financial statements of the Company
shall at such time most recently have been delivered pursuant to
Section 5.04.
SECTION 6.06. Transactions with Affiliates. Sell or
transfer any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that as long as
no Default or Event of Default shall have occurred and be
continuing, the Company or any Subsidiary may engage in any of
the foregoing transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the
Company or such Subsidiary than could be obtained on an arm's-
length basis from unrelated third parties.
SECTION 6.07. Consolidated Stockholders' Equity. Permit
Consolidated Stockholders' Equity of the Company to be less than
$100,000,000 at any time.
SECTION 6.08. Debt Ratio. Permit the ratio of Consolidated
Total Debt to Consolidated Total Capitalization to exceed 0.6 to
1.00 at any time.
VII. EVENTS OF DEFAULT
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made
in or in connection with any Loan Document or the borrowings
hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial
statement or other instrument furnished in connection with
or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made,
deemed made or furnished;
(b) default shall be made in the payment of any
principal of any Loan when and as the same shall become due
and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any
interest on any Loan or any Fee or any other amount (other
than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable,
and such default shall continue unremedied for a period of
five Business Days;
(d) default shall be made in the due observance or
performance by the Company or any Subsidiary of any
covenant, condition or agreement contained in Sec-
tion 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or
performance by the Company or any Subsidiary of any
covenant, condition or agreement contained in any Loan
Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a
period of ten Business Days after notice thereof from the
Administrative Agent or any Bank to the Company;
(f) the Company or any Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in
respect of any Indebtedness in an aggregate principal amount
in excess of $5,000,000, when and as the same shall become
due and payable, or (ii) fail to observe or perform any
other term, covenant, condition or agreement on its part to
be performed under any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure
referred to in this clause (ii) is to cause, or to permit
the holder or holders of such Indebtedness or a trustee on
its or their behalf (with or without the giving of notice,
the lapse of time or both) to cause, such Indebtedness to
become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or
any Subsidiary, or of a substantial part of the property or
assets of the Company or a Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a
substantial part of the property or assets of the Company or
a Subsidiary or (iii) the winding-up or liquidation of the
Company or any Subsidiary; and such proceeding or petition
shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(h) the Company or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or the
filing of any petition described in (g) above, (iii) apply
for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for
the Company or such Significant Subsidiary or for a
substantial part of the property or assets of the Company or
such Significant Subsidiary, (iv) file an answer admitting
the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) one or more judgments for the payment of money in
an aggregate amount in excess of $1,000,000 shall be
rendered against the Company, any Subsidiary or any
combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to levy upon assets or
properties of the Company or any Subsidiary to enforce any
such judgment;
(j) a Reportable Event or Reportable Events, or a
failure to make a required installment or other payment
(within the meaning of Section 412(n)(1) of the Code), shall
have occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of the
Company to the PBGC or to a Plan in an aggregate amount
exceeding $5,000,000 and, within 30 days after the reporting
of any such Reportable Event to the Administrative Agent or
after the receipt by the Administrative Agent of the
statement required pursuant to Section 5.06, the
Administrative Agent shall have notified the Company in
writing that (i) the Required Banks have made a
determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment,
there are reasonable grounds (A) for the termination of such
Plan or Plans by the PBGC, (B) for the appointment by the
appropriate United States District Court of a trustee to
administer such Plan or Plans or (C) for the imposition of a
lien in favor of a Plan and (ii) as a result thereof an
Event of Default exists hereunder; or a trustee shall be
appointed by a United States District Court to administer
any such Plan or Plans; or the PBGC shall institute
proceedings to terminate any Plan or Plans;
(k) (i) the Company or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer
Plan, (ii) the Company or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability
or is not in fact contesting such Withdrawal Liability in a
timely and appropriate manner and (iii) the amount of the
Withdrawal Liability specified in such notice, when aggre-
gated with all other amounts required to be paid to
Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date or dates of such
notification), exceeds $5,000,000 or requires payments
exceeding $1,000,000 in any year;
(l) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if
solely as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have
been or will be increased over the amounts required to be
contributed to such Multiemployer Plans for their most
recently completed plan years by an amount exceeding
$1,000,000; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect
to the Company described in paragraph (g) or (h) above), and at
any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required
Banks shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable, whereupon the
principal of the Loans, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the
Company accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Company, anything contained herein
or in any other Loan Document to the contrary notwithstanding;
and in any event with respect to the Company described in para-
graph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Company accrued hereunder
and under any other Loan Document, shall automatically become due
and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by
the Company, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
VIII. The Administrative Agent
In order to expedite the transactions contemplated by this
Agreement, Chemical Bank is hereby appointed to act as
Administrative Agent on behalf of the Banks. Each of the Banks,
and each subsequent holder of any Note by its acceptance thereof,
hereby irrevocably authorizes the Administrative Agent to take
such actions on behalf of such Bank or holder and to exercise
such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Banks,
without hereby limiting any implied authority, (a) to receive on
behalf of the Banks all payments of principal of and interest on
the Loans and all other amounts due to the Banks hereunder, and
promptly to distribute to each Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the
Banks to the Company of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to
distribute to each Bank copies of all notices, financial
statements and other materials delivered by the Company pursuant
to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or administrative agents shall be liable as
such for any action taken or omitted by any of them except for
its or his own gross negligence or wilful misconduct, or be re-
sponsible for any statement, warranty or representation herein or
the contents of any document delivered in connection herewith, or
be required to ascertain or to make any inquiry concerning the
performance or observance by the Company of any of the terms,
conditions, covenants or agreements contained in any Loan
Document. The Administrative Agent shall not be responsible to
the Banks or the holders of the Notes for the due execution,
genuineness, validity, enforceability or effectiveness of this
Agreement, the Notes or any other Loan Documents or other
instruments or agreements. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes
hereof until it shall have received from the payee of such Note
notice, given as provided herein, of the transfer thereof. The
Administrative Agent shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written
instructions signed by the Required Banks and, except as
otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the
Banks and each subsequent holder of any Note. The Administrative
Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or
sent by the proper person or persons. Neither the Administrative
Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Company on account of the
failure of or delay in performance or breach by any Bank of any
of its obligations hereunder or to any Bank on account of the
failure of or delay in performance or breach by any other Bank or
the Company of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or
therewith. The Administrative Agent may execute any and all
duties hereunder by or through administrative agents or employees
and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
The Banks hereby acknowledge that the Administrative Agent
shall be under no duty to take any discretionary action permitted
to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required
Banks.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent
may resign at any time by notifying the Banks and the Company.
Upon any such resignation, the Required Banks shall appoint
either NationsBank of Virginia, N.A. as successor Administrative
Agent and, if such appointment is not accepted by NationsBank of
Virginia, N.A., shall have the right to appoint a different
successor. If no successor shall have been appointed by the
Required Banks and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent,
which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500,000,000 or
an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
bank, such successor shall succeed to and become vested with all
the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After
the Administrative Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder and the Notes
issued to it, the Administrative Agent in its individual capacity
and not as Administrative Agent shall have the same rights and
powers as any other Bank and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent
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 other Affiliate thereof as if it were not the
Administrative Agent.
Each Bank agrees (i) to reimburse the Administrative Agent,
on demand, in the amount of its pro rata share (based on its
Commitment hereunder) of any expenses incurred for the benefit of
the Banks by the Administrative Agent, including counsel fees and
compensation of administrative agents and employees paid for
services rendered on behalf of the Banks, which shall not have
been reimbursed by the Company and (ii) to indemnify and hold
harmless the Administrative Agent and any of its directors,
officers, employees or administrative agents, on demand, in the
amount of such pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or
asserted against it in its capacity as the Administrative Agent
or any of them in any way relating to or arising out of this
Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been
reimbursed by the Company; provided that no Bank shall be liable
to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of the Administrative Agent or
any of its directors, officers, employees or administrative
agents.
Each Bank acknowledges that it has, independently and
without reliance upon the Administrative 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 Administrative Agent
or any other Bank and based on such documents and information as
it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon
this Agreement or any other Loan Document, any related agreement
or any document furnished hereunder or thereunder. NationsBank of
Virginia, N.A. shall have no duties or obligations whatsoever
under this Agreement or any other document or matter related
hereto, other than as a Bank.
IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed or sent by telex,
graphic scanning or other telegraphic communications equipment of
the sending party, as follows:
(a) if to the Company, to it at 1100 Boulders Parkway,
Richmond, Virginia 23225, Attention of Norman A. Scher
(Telecopy No. (804) 330-1010);
(b) if to the Administrative Agent, to it at 270 Park
Avenue, New York, New York 10017, Attention of William Ewing
III (Telecopy No. (212) 270-3279); and
(c) if to a Bank, to it at its address (or telecopy
number) set forth in Schedule 2.01.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed
to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telex, graphic scanning or
other telegraphic communications equipment of the sender, or on
the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Company
herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon
by the Banks and shall survive the making by the Banks of the
Loans, and the execution and delivery to the Banks of the Notes
evidencing such Loans, regardless of any investigation made by
the Banks or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on
any Loan or any Fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid
and so long as the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Company and the
Administrative Agent and when the Administrative Agent shall have
received copies hereof which, when taken together, bear the
signatures of each Bank, and thereafter shall be binding upon and
inure to the benefit of the Company, the Administrative Agent and
each Bank and their respective successors and assigns, except
that the Company shall not have the right to assign its rights
hereunder or any interest herein without the prior consent of all
the Banks.
SECTION 9.04. Successors and Assigns. (a) Whenever in
this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and (to the
extent permitted by Section 9.04) assigns of such party; and all
covenants, promises and agreements by or on behalf of the
Company, the Administrative Agent or the Banks that are contained
in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Bank may assign to one or more assignees all or a
portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it and the Notes held by it);
provided, however, that (i) except in the case of an assignment
by a Bank to an Affiliate of such Bank, the Company and the
Administrative Agent must give their prior written consent to
such assignment (which consent shall not be unreasonably
withheld), (ii) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, (iii) the amount of the
Commitment of the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative
Agent) shall not be less than $20,000,000 and the amount of the
Commitment of such Bank remaining after such assignment shall not
be less than $20,000,000 or shall be zero, (iv) the parties to
each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with
the Note or Notes subject to such assignment and a processing and
recordation fee of $2,000, and (v) each assignee shall deliver to
the Administrative Agent a completed Administrative
Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective
date specified in each Assignment and Acceptance, which effective
date shall be at least five Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Bank under this Agreement and
(B) the assigning Bank thereunder shall, to the extent provided
in such assignment, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's
rights and obligations under this Agreement, such Bank shall
cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) other than
the representation and warranty that it is the legal and
beneficial owner of the interest being assigned thereby free and
clear of any adverse claim, such assigning Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement, any other Loan Document or any other instrument
or document furnished pursuant hereto; (ii) such assigning Bank
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company or any
Subsidiary or the performance or observance by the Company of any
of its obligations under this Agreement, any other Loan Document
or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will independently
and without reliance upon the Administrative Agent, such
assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes
the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto;
and (vi) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at one of its
offices in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of
the names and addresses of the Banks, and the Commitment of, and
principal amount of the Loans owing to, each Bank pursuant to the
terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error
and the Company, the Administrative Agent and the Banks may treat
each person whose name is recorded in the Register pursuant to
the terms hereof as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Company and any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee together
with the Note or Notes subject to such assignment, the processing
and recordation fee referred to in paragraph (b) above and, if
required, the written consent of the Company to such assignment,
the Administrative Agent shall (subject to the consent of the
Administrative Agent to such assignment, if required), (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Banks. Within five Business Days after receipt of
notice, the Company, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for the
surrendered Standby Note or Standby Notes,(x) a new Standby Note
or Standby Notes to the order of such assignee in an amount equal
to the portion of the Commitment assumed by it pursuant to such
Assignment and Acceptance and, (y) if the assigning Bank has
retained a Commitment, a new Standby Note or Standby Notes to the
order of such assigning Bank in a principal amount equal to the
applicable Commitment retained by it. Such new Standby Note or
Standby Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Standby Note
or Standby Notes; such new Notes shall be dated the date of the
surrendered Notes which they replace and shall otherwise be in
substantially the form of Exhibit B hereto. Canceled Standby
Notes shall be returned to the Company.
(f) Each Bank may without the consent of the Company or the
Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its
Commitment and the Loans owing to it and the Notes held by it);
provided, however, that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.12 and 2.14 to the
same extent as if they were Banks and (iv) the Company, the
Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement, and such Bank shall
retain the sole right to enforce the obligations of the Company
relating to the Loans and to approve any amendment, modification
or waiver of any provision of this Agreement (other than
amendments, modifications or waivers with respect to any fees
payable hereunder or the amount of principal of or the rate at
which interest is payable on the Loans, or the dates fixed for
payments of principal of or interest on the Loans).
(g) Any Bank or participant may, in connection with any
assignment or participation or proposed assignment or
participation pursuant to this Section 9.04, disclose to the
assignee or participant or proposed assignee or participant any
information relating to the Company furnished to such Bank by or
on behalf of the Company; provided that, prior to any such
disclosure, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such
assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any confidential
information relating to the Company received from such Bank.
(h) The Company shall not assign or delegate any of its
respective rights and duties hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Company agrees
to pay all out-of-pocket expenses incurred by the Administrative
Agent in connection with the preparation of this Agreement and
the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Administrative Agent or any Bank
in connection with the enforcement or protection of their rights
in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or the Notes issued hereunder,
including the fees and disbursements of Cravath, Swaine & Moore,
counsel for the Administrative Agent, and, in connection with any
such amendment, modification or waiver or any such enforcement or
protection, the fees and disbursements of any other counsel for
the Administrative Agent or any Bank. The Company further agrees
that it shall indemnify the Banks from and hold them harmless
against any documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of
this Agreement or any of the other Loan Documents.
(b) The Company agrees to indemnify the Administrative
Agent, each Bank and its directors, officers, employees and
agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including
reasonable counsel fees and expenses, incurred by or asserted
against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement
or any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto of
their respective obligations thereunder or the consummation of
the Transactions, (ii) the use of the proceeds of the Loans or
(iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain
operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the
Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent or
any Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default
shall have occurred and be continuing and any Bank shall have
requested the Administrative Agent to declare the Loans immedi-
ately due and payable pursuant to Article VII, each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Company
against any of and all the obligations of the Company now or
hereafter existing under this Agreement and other Loan Documents
held by such Bank, irrespective of whether or not such Bank shall
have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The
rights of each Bank under this Section are in addition to other
rights and remedies (including other rights of setoff) which such
Bank may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay
of the Administrative Agent or any Bank in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Banks hereunder and under the
other Loan Documents are cumulative and exclusive of any rights
or remedies which they would otherwise have. No waiver of any
provision of this Agreement or any other Loan Document or consent
to any departure by the Company therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No
notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or
other circumstances. Each holder of any of the Notes shall be
bound by any amendment, modification, waiver or consent
authorized as provided herein, whether or not such Note shall
have been marked to indicate such amendment, modification, waiver
or consent.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Company and the
Required Banks; provided, however, that no such agreement shall
(i) change the principal amount of, or extend or advance the
maturity of or any date for the payment of any principal of or
interest on, any Loan, or waive or excuse any such payment or any
part thereof, or change the rate of interest on any Loan, without
the prior written consent of each holder of a Note affected
thereby, (ii) change the Commitment or Commitment Fees or
Facility Fees of any Bank without the prior written consent of
such Bank, or (iii) amend or modify the provisions of Sec-
tion 2.15, the provisions of this Section or the definition of
the "Required Banks", without the prior written consent of each
Bank; provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the
Administrative Agent. Each Bank and each holder of a Note shall
be bound by any modification or amendment authorized by this
Section regardless of whether its Note shall have been marked to
make reference thereto, and any consent by any Bank or holder of
a Note pursuant to this Section shall bind any person
subsequently acquiring a Note from it, whether or not such Note
shall have been so marked.
SECTION 9.09. Interest Rate Limitation. Notwithstanding
anything herein or in the Notes to the contrary, if at any time
the applicable interest rate, together with all fees and charges
which are treated as interest under applicable law (collectively,
the "Charges") as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed
the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Bank
in accordance with applicable law, the rate of interest payable
under the Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement and the
other Loan Documents and the letter agreements referred to in
Section 2.05(b) constitute the entire contract between the
parties relative to the subject matter hereof. Any previous
agreement among the parties with respect to the subject matter
hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any
party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement
or the other Loan Documents.
SECTION 9.11. Waiver of Jury Trial. Each party hereto
hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in
connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no
representative, administrative agent or attorney of any other
party has represented, expressly or otherwise, that such other
party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement and
the other Loan Documents, as applicable, by, among other things,
the mutual waivers and certifications in this Section 9.11.
SECTION 9.12. Severability. In the event any one or more
of the provisions contained in this Agreement or in any other
Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall constitute an
original but all of which when taken together shall constitute
but one contract, and shall become effective as provided in
Section 9.03.
SECTION 9.14. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.15. Confidentiality. Any information obtained by
the Administrative Agent or any of the Banks from the Company
shall not be disclosed by the Administrative Agent or such Bank
to any other person if such information is not otherwise in the
public domain except (i) to its officers, directors, employees,
administrative agents, independent accountants, Affiliates and
legal counsel (it being understood that the persons to whom such
disclosure is made will be informed of the confidential nature of
such information and instructed to keep such information
confidential), (ii) pursuant to statutory and regulatory
requirements or requests of regulatory authorities,
(iii) pursuant to any mandatory court order, subpoena or other
legal process, (iv) to the Administrative Agent or any other
Bank, (v) pursuant to any agreement heretofore or hereafter made
between such Bank and the Company which permits such disclosure,
(vi) in connection with the exercise of any remedy under or
litigation in connection with the Loan Documents or (vii) subject
to Section 9.04(g), to any participant in or assignee of, or
prospective participant in or assignee of, any Loan or
Commitment.
SECTION 9.16. Jurisdiction; Consent to Service of Process.
(a) The Company hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or Federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that any Bank may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents
against the Company or its properties in the courts of any
jurisdiction.
(b) The Company hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of
or relating to this agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
IN WITNESS WHEREOF, the Company, the Agents and the Banks
have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above
written.
TREDEGAR INDUSTRIES, INC.,
by /s/ N. A. Scher
Name: Norman A. Scher
Title: Executive Vice President
CHEMICAL BANK, individually
and as Administrative Agent,
by /s/ William Ewing, III
Name: William Ewing, III
Title: Managing Director
NATIONSBNAK OF VIRIGNIA, N.A.,
individually and as Co-Agent,
by /s/ E. Turner Coggin
Name: E. Turner Coggin
Title: Vice President
BANK OF NOVA SCOTIA,
by /s/ J. W. Campbell
Name: J. W. Campbell
Title: VP/Agent
CENTRAL FIDELITY,
by /s/ Harry A. Turton, Jr.
Name: Harry A. Turton, Jr.
Title: Vice President
CRESTAR BANK,
by /s/ J. F. Gayle, Jr.
Name: J. F. Gayle, Jr.
Title: Senior Vice President
LTCB TRUST COMPANY,
by /s/ John A. Krob
Name: John A. Krob
Title: Senior Vice President
PNC BANK,
by /s/ Jill M. Felzan
Name: Jill M. Felzan
Title: Vice President
SIGNET BANK/VIRGINIA
by /s/ Kevin W. Walsh
Name: Kevin W. Walsh
Title: VP
SOCIETE GENERALE,
by /s/ Brian Campbell
Name: Brian Campbell
Title: Vice President
THE SUMITOMO BANK, LIMITED
(New York Branch),
by /s/ Y. Kawamura
Name: Y. Kawamura
Title: Joint General Manager
THE YASUDA TRUST AND BANKING
CO., LIMITED,
by /s/ Neil T. Chau
Name: Neil T. Chau
Title: First Vice President
EXHIBIT A
FORM OF STANDBY BORROWING REQUEST
Chemical Bank, as Agent for the
Banks referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Sirs:
The undersigned, TREDEGAR INDUSTRIES, INC. (the "Company"),
refers to the Revolving Credit Facility Agreement dated as of
August 18, 1994 (as the same may be modified, amended, extended
or restated from time to time, the "Credit Agreement"), among the
Company and the Banks named therein. Capitalized terms used
herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Company
hereby gives you notice pursuant to Section 2.03 of the Credit
Agreement that it requests a Standby Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on
which such Standby Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day)
(B) Principal Amount of
Standby Borrowing 1/
(C) Interest rate basis 2/
(D) Interest Period and the last
day thereof 3/
Upon acceptance of any or all of the Loans made by the Banks
in response to this request, the Company shall be deemed to have
represented and warranted that the conditions to lending
specified in Section 4.01(b) and (c) of the Credit Agreement have
been satisfied.
Very truly yours,
TREDEGAR INDUSTRIES, INC.,
By
Title: (Responsible Officer]
_________________
1/ Not less than $5,000,000 and in integral multiples of
$1,000,000.
2/ Eurodollar Standby Loan, CD Loan or ABR Loan.
3/ Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
EXHIBIT B
FORM OF STANDBY NOTE
$ [Amount of Bank's Commitment] New York, New York
[Effective Date]
FOR VALUE RECEIVED, the undersigned, TREDEGAR INDUSTRIES,
INC., a Virginia corporation (the "Company"), hereby promises to
pay to the order of (the
"Bank"), at the office of Chemical Bank (the "Administrative
Agent"), at 270 Park Avenue, New York, New York 10017, on (i) the
last day of each Interest Period as defined in the Revolving
Credit Facility Agreement dated as of August 18, 1994 (as the
same may be modified, amended, extended or restated from time to
time, the "Credit Agreement"), among the Company and the Banks
named therein, the aggregate unpaid principal amount of all
Standby Loans made by the Bank to the Company pursuant to
Sections 2.01 and 2.03 of the Credit Agreement to which such
Interest Period applies and (ii) on the Maturity Date (as defined
in the Credit Agreement), the lesser of the principal sum of
[amount of Bank's Commitment] Dollars ($ ) and the
aggregate unpaid principal amount of all Standby Loans made by
the Bank to the Company pursuant to Sections 2.01 and 2.03 of the
Credit Agreement, in lawful money of the United States of America
in same day funds, and to pay interest from the date hereof on
such principal amount from time to time outstanding, in like
funds, at said office, at a rate or rates per annum and payable
on such dates as determined pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue
interest from their due dates at a rate or rates determined as
set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by
the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any
subsequent instance.
All borrowings evidenced by this Standby Note and all
payments and prepayments of the principal hereof and interest
hereon and the respective dates thereof shall be endorsed by the
holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such
holder in its internal records; provided, however, that any
failure of the holder hereof to make such a notation or any error
in such notation shall not in any manner affect the obligation of
the Company to make payments of principal and interest in
accordance with the terms of this Standby Note and the Credit
Agreement.
This Standby Note is one of the Standby Notes referred to in
the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the
happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity thereof
and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein
specified. THIS STANDBY NOTE SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
TREDEGAR INDUSTRIES, INC.,
by
Title:
EXHIBIT C
[Form of]
Administrative Questionnaire--Tredegar Industries, Inc.
Agent Bank Services (ABS) will be providing the administrative
servicing on the above mentioned credit.
Please accurately complete the following information and return
via FAX to the attention of Pamela Rivers at your earliest
convenience.
The FAX number for return is 212/622-0122.
LEGAL NAME OF LENDER (TO APPEAR ON THE SIGNATURE LINE IN
DOCUMENTATION):
_________________________________________________________________
GENERAL INFORMATION - Domestic Lending Office:
Institution Name: _______________________________________
Street Address: _______________________________________
City/State/Zip: _______________________________________
GENERAL INFORMATION - Eurodollar Lending Office:
Institution Name: _______________________________________
Street Address: _______________________________________
City/State/Zip: _______________________________________
TAX WITHHOLDING:
Non-Resident Alien: ____Yes* ____No
*Form 4224 Enclosed
Tax ID Number: ______________________
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact: _______________________________
Street Address: _______________________________
City/State/Zip: _______________________________
Phone Number: ______________________
FAX Number: ______________________
Back-up Contact: _______________________________
Street Address: _______________________________
City/State/Zip: _______________________________
Phone Number: ______________________
FAX Number: ______________________
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYMENTS, INTEREST, ETC...
Contact(s): _______________________________
Street Address: _______________________________
City/State/Zip: _______________________________
Phone Number: ______________________
FAX Number: ______________________
ACCOUNT INFORMATION - PLEASE PROVIDE ONLY ONE SET OF
INSTRUCTIONS FOR ALL TYPES OF PAYMENTS:
Name of Bank where funds are to be transferred:
______________________________________________
Routing Transit/ABA Number of Bank where funds are to be
transferred:
____________________
Name of Account: ____________________________
Account Number: ____________________________
Additional Information: _____________________________
_____________________________
It is very important that all of the above information is
accurately filled in and promptly returned. If there is someone
other than yourself who should receive this questionnaire, please
notify us of their name and FAX number and we will FAX them a
copy of the questionnaire. If you have any questions, please
call Pamela Rivers at 212/622-8091. Thank you.
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated , 19
Reference is made to the Revolving Credit Facility Agreement
dated as of August 18, 1994 (as the same may be modified,
amended, extended or restated from time to time, the "Credit
Agreement"), among Tredegar Industries, Inc., a Virginia
corporation (the "Company") and the Banks named therein.
Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement.
(the "Assignor") and
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor,
a % interest in and to all the Assignor's rights and
obligations under the Credit Agreement as of the Assignment Date
(as defined below) (including, without limitation, such
percentage interest in the Commitment of the Assignor on the
Assignment Date and such percentage interest in the Standby Loans
owing to the Assignor outstanding on the Assignment Date together
with such percentage interest in all unpaid interest with respect
to such Standby Loans and Facility Fees accrued to the Assignment
Date and such percentage interest in the Standby Note held by the
Assignor).
2. The Assignor (i) represents that as of the date hereof,
its Commitment (without giving effect to assignments thereof
which have not yet become effective) is $ and the
outstanding balance of its Standby Loans (unreduced by any
assignments thereof which have not yet become effective) is
$ ; (ii) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto, other
than that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and
clear of any adverse claim; (iii) makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or
observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished
pursuant thereto and (iv) attaches the Standby Note held by it
and requests that the Administrative Agent exchange such Note[s]
for a new Standby Note payable to the Assignee in a principal
amount equal to, and a new Standby Note payable
to the Assignor in a principal amount equal to and,
respectively].
3. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance;
(ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 3.04 or 5.04 thereof and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (iii) agrees that it will,
independently and without reliance upon the Administrative Agent,
the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms
all the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Bank; and (vi) agrees
that it will keep confidential all information with respect to
the Company furnished to it by the Company or the Assignor (other
than information generally available to the public or otherwise
available to the Assignor on a nonconfidential basis and other
than disclosures to bank regulatory authorities and otherwise as
required by law or in connection with the enforcement of the Loan
Documents) [; and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to
the Assignee's exemption from United States withholding taxes
with respect to all payments to be made to the Assignee under the
Credit Agreement or such other documents as are necessary to
indicate that all such payments are subject to such tax at a rate
reduced by an applicable tax treaty]. 1/
4. The effective date for this Assignment and Acceptance
shall be (the "Assignment Date"). 2/ Following the
execution of this Assignment and Acceptance, it will be delivered
to the Administrative Agent for acceptance and recording by the
Administrative Agent pursuant to Section 9.04 (e) of the Credit
Agreement.
5. Upon such acceptance and recording, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after the
Assignment Date, the Administrative Agent shall make all payments
in respect of the interest assigned hereby (including payments of
principal, interest, fees and other amounts) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments
in payments for periods prior to the Assignment Date by the
Administrative Agent or with respect to the making of this
assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOV-
ERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
[NAME OF ASSIGNOR],
by
Title:
[NAME OF ASSIGNEE],
by
Title:
Accepted this day
of , 19
CHEMICAL BANK,
as Administrative Agent,
by
Title:
1/ If the Assignee is organized under the laws of a
jurisdiction outside the United States.
2/ See Section 9.04. Such date shall be at least five
Business Days after the execution of this Assignment and
Acceptance and delivery thereof to the Administrative Agent.
EXHIBIT E
Form of Opinion of Nancy M. Taylor, Esq.
Counsel for the Borrower
[Closing Date]
To the Banks party to the Credit Agreement
referred to below
In care of Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Gentlemen:
I am Corporate Counsel of Tredegar Industries, Inc., a
Virginia corporation (the "Company"), and have acted as counsel
to the Company in connection with the Credit Agreement (as the
same may be modified, amended, extended or restated from time to
time, the "Credit Agreement") dated as of August 18, 1994, among
the Company and the Banks named in the Credit Agreement,
providing for loans to be made to the Company in the aggregate
principal amount of $200,000,000. Unless otherwise noted, terms
defined in the Credit Agreement are used herein as defined
therein.
In connection with the foregoing, I have reviewed the Credit
Agreement and the form of the Standby Note. I have also examined
and relied upon copies, certified or otherwise authenticated to
my satisfaction, of documents reflecting corporate action of the
Company with respect to the Credit Agreement and certificates of
public officials, and have reviewed such other documents and
matters of law as I have deemed necessary to enable me to express
the opinions set forth herein. As to questions of fact material
to my opinion, I have relied upon certificates of officers of the
Company and representations in the Credit Agreement by the
Company.
I do not purport to express an opinion on any laws other
than those of the Commonwealth of Virginia and the United States
of America except that I have assumed that the laws of the State
of New York are the same as the Commonwealth of Virginia with
respect to the opinions expressed in Paragraph 3 below.
Based upon and subject to the foregoing, and to the further
limitations and qualifications stated below, I am of the opinion
that:
1. Each of the Company and the Subsidiaries of the Company
listed on Schedule 3.08 (Part I) of the Credit Agreement (the
"United States Subsidiaries" and each a "United States
Subsidiary") (a) is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and is duly qualified to transact business
in each state where the failure to so qualify would have a
material effect on the business or financial condition of the
Company and the Subsidiaries taken as a whole and (b) has all
requisite power and authority to own its property and assets and
to carry on its business as now conducted and as proposed to be
conducted. The Company has the necessary corporate power to
enter into and perform its obligations under the Credit Agreement
and the Notes and to borrow under the Credit Agreement.
2. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Credit
Agreement and the Notes, the borrowings by the Company under the
Credit Agreement (a) have been duly authorized by all necessary
corporate action of the Company and all requisite stockholder
action, and do not and will not violate any provision of the
articles of incorporation or by-laws of the Company or any United
States Subsidiary or any provision of law or regulation,
including Regulations G, U and X, (b) do not, to the best of my
knowledge, result in the breach of, or constitute a default or
require any consent under, or result in the creation of any Lien
upon any of its properties, revenues or assets pursuant to, any
indenture or other agreement or instrument to which the Company
or any United States Subsidiary is a party or by which the
Company or any United States Subsidiary or their properties may
be bound, or (c) result in the creation or imposition of any Lien
upon property or assets of the Company or any United States
Subsidiary except Liens permitted by Section 6.01 of the Credit
Agreement.
3. The Credit Agreement constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with
its terms, and the Notes when executed and delivered for value
will constitute its legal, valid and binding obligations
enforceable in accordance with their respective terms, except, in
each case, as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability affecting the enforcement
of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
4. To the best of my knowledge, there are no legal or
arbitral proceedings, and no proceedings by or before any
Governmental Authority, pending or threatened against or
affecting the Company or any properties or rights of the Company
that, if adversely determined, would have a material adverse
effect on (a) the financial condition, operations or business of
the Company, or (b) the ability of the Company to perform any of
its obligations under the Loan Documents or the Transactions or
any rights or remedies available to the Banks under the Loan
Documents.
5. No authorizations, consents, approvals, licenses,
filings or registrations, with any Governmental Authority are
required in connection with the execution, delivery or
performance by the Company of its obligations under the Credit
Agreement or the Notes, other than those the failure of which to
obtain would not give rise to a Material Adverse Effect.
6. To the best of my knowledge, neither the Company nor
any of the United States Subsidiaries is in violation of any law,
rule or regulation, or in default with respect to any judgment,
writ, injunction or decree of any Governmental Authority, where
such violation or default could result in a Material Adverse
Effect.
7. Neither the Company nor any United States Subsidiary is
(a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
I have not been asked to and do not express any opinion with
respect to any matters except as expressly set forth above. This
opinion is solely for your benefit and may not be distributed to
or relied upon by any other person, quoted in whole or in part or
otherwise reproduced in any other document without my prior
written consent.
Very truly yours,
SCHEDULE 2.01
COMMITMENTS
Name and Address of Bank Commitment
Chemical Bank $25,000,000
270 Park Avenue
New York, NY 10017
Attn: Mr. William Ewing III
Managing Director
Telephone: (212) 270-3491
Telecopy: (212) 270-3279
NationsBank of Virginia, N.A. $25,000,000
1111 East Main Street
Richmond, VA 23277-0001
Attn: Mr. E. Turner Coggin
Sr. Vice President
Telephone: (804) 788-3455
Telecopy: (804) 788-3669
Bank of Nova Scotia $15,000,000
One Liberty Plaza
New York, NY 10006
Attn: Mr. James Trimble
Representative
Telephone: (212) 225-5011
Telecopy: (212) 225-5090
Central Fidelity $15,000,000
1021 East Cary Street
Richmond, VA 23261
Attn: Mr. Harry A. Turton, Jr.
Vice President
Telephone: (804) 697-6801
Telecopy: (804) 697-6869
Crestar Bank $20,000,000
919 East Main Street, 22nd Floor
Richmond, VA 23219
Attn: Mr. Chris B. Werner
Vice President
Telephone: (804) 782-5998
Telecopy: (804) 782-5413
LTCB Trust Company $20,000,000
245 Peachtree Center Ave. N.E., (Suite 2801)
Atlanta, GA 30303
Attn: Mr. Thomas Meyer
Vice President
Telephone: (404) 659-7210
Telecopy: (404) 658-9751
PNC Bank $15,000,000
Broad & Chestnut Streets
Philadelphia, PA 19101
Attn: Ms. Jill Felzan
Vice President
Telephone: (215) 585-5559
Telecopy: (215) 585-5972
Signet Bank/Virginia $20,000,000
800 East Main Street
Richmond, VA 23212
Attn: Mr. Kevin Walsh
Vice President
Telephone: (804) 771-7395
Telecopy: (804) 771-7151
Societe Generale $20,000,000
303 Peachtree Street, 3840
Atlanta, GA 30308
Attn: Mr. Brian J. Campbell
Vice President
Telephone: (404) 865-7400
Telecopy: (404) 865-7419
The Sumitomo Bank, Limited $10,000,000
(New York Branch)
One World Trade Center (Suite 9651)
New York, NY 10048
Attn: Mr. Robert Wehmer
Vice President
Telephone: (212) 323-0441
Telecopy: (212) 553-0118
The Yasuda Trust and Banking Co., Limited $15,000,000
285 Peachtree Center Ave. N.E. (Suite 2104)
Atlanta, GA 30303
Attn: Sanjay Sinha
Vice President
Telephone: (404) 584-8230
Telecopy: (404) 584-7816
Total Commitment $200,000,000
SCHEDULE 3.07
Part 1
Part 1
UNITED STATES SUBSIDIARIES
Percentage of
Common Stock
Owned Directly
or Indirectly
Name of Subsidiary by the Company
APPX Software, Inc. 100%
The William L. Bonnell Company, Inc. 100%
Brudi, Inc. 100%
Capitol Products Corporation 100%
Fiberlux, Inc. 100%
Idlewood Properties, Inc. 100%
Massie Tool, Mold & Die, Inc. 100%
Molecumetics Institute, Ltd. 100%
Molecumetics, Ltd. 90.5%
Polestar Plastics Manufacturing Company 100%
Tredegar Development Corporation 100%
Tredegar Exploration, Inc. 100%
Tredegar Investments, Inc. 100%
Tredegar Molded Products Company 100%
Virginia Techport, Inc. 100%
SCHEDULE 3.07
Part 2
Part 2
NON-UNITED STATES SUBSIDIARIES
Percentage of
Common Stock
Owned Directly
or Indirectly
Name of Subsidiary by the Company
Brudi Limited 100%
Swing-Shift Brudi Pacific Pty Ltd 99.99%
Tredegar Brasil Industria De Plasticos Ltda. 100%
Tredegar Film Products, B.V. 100%
Tredegar Foreign Sales Corporation 100%
SCHEDULE 3.08
LITIGATION
None.
SCHEDULE 6.01
LIENS
None.