Exhibit 4.2
Execution Copy
_________________________________________________________________
CREDIT AGREEMENT
Dated as of August 19, 1994
among
TREDEGAR INDUSTRIES, INC.,
THE BANKS NAMED HEREIN,
and
LTCB TRUST COMPANY, as Agent
_________________________________________________________________
TABLE OF CONTENTS
ARTICLE SECTION Page
I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.1. Defined Terms. . . . . . . . . . . . . . . . 3
SECTION 1.2. Terms Generally . . . . . . . . . . . . . . 14
II. THE CREDITS. . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.1. Commitments . . . . . . . . . . . . . . . . 14
SECTION 2.3. Standby Borrowing Procedure . . . . . . . . 16
SECTION 2.4. Refinancings. . . . . . . . . . . . . . . . 16
SECTION 2.5. Fees. . . . . . . . . . . . . . . . . . . . 17
SECTION 2.6. Notes; Repayment of Loans . . . . . . . . . 17
SECTION 2.7. Interest on Loans. . . . . . . . . . . . . . 18
SECTION 2.8. Default Interest . . . . . . . . . . . . . . 18
SECTION 2.9. Alternate Rate of Interest. . . . . . . . . 18
SECTION 2.10. Termination, Reduction and Extension of
Commitments . . . . . . . . . . . . . . . . 19
SECTION 2.11. Prepayment. . . . . . . . . . . . . . . . . 19
SECTION 2.12. Reserve Requirements; Change in Cir-
cumstances. . . . . . . . . . . . . . . . . 20
SECTION 2.13. Change in Legality. . . . . . . . . . . . . 21
SECTION 2.14. Indemnity . . . . . . . . . . . . . . . . . 22
SECTION 2.15. Pro Rata Treatment. . . . . . . . . . . . . 23
SECTION 2.16. Sharing of Setoffs. . . . . . . . . . . . . 23
SECTION 2.17. Payments. . . . . . . . . . . . . . . . . . 24
SECTION 2.18. Taxes . . . . . . . . . . . . . . . . . . . 24
III. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 26
SECTION 3.1. Organization; Powers. . . . . . . . . . . . 26
SECTION 3.2. Authorization . . . . . . . . . . . . . . . 26
SECTION 3.3. Enforceability. . . . . . . . . . . . . . . 27
SECTION 3.4. Financial Statements. . . . . . . . . . . . 27
SECTION 3.5. No Material Adverse Change. . . . . . . . . 27
SECTION 3.6. Title to Properties and Possession Under
Leases. . . . . . . . . . . . . . . . . . . 27
SECTION 3.7. The Subsidiaries and the Company. . . . . . 28
SECTION 3.8. Litigation; Compliance with Laws. . . . . . 28
SECTION 3.9. Agreements. . . . . . . . . . . . . . . . . 28
SECTION 3.10. Federal Reserve Regulations . . . . . . . . 28
SECTION 3.11. Investment Company Act; Public Utility
Holding Company Act . . . . . . . . . . . . 28
SECTION 3.12. Use of Proceeds . . . . . . . . . . . . . . 29
SECTION 3.13. Tax Returns . . . . . . . . . . . . . . . . 29
SECTION 3.14. No Material Misstatements . . . . . . . . . 29
SECTION 3.15. Employee Benefit Plans. . . . . . . . . . . 29
SECTION 3.16. Environmental Matters . . . . . . . . . . . 29
SECTION 3.17. Solvency. . . . . . . . . . . . . . . . . . 30
IV. CONDITIONS OF LENDING. . . . . . . . . . . . . . . . . . . 30
SECTION 4.1. All Borrowings. . . . . . . . . . . . . . . 30
V. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . 32
SECTION 5.1. Existence; Businesses and Properties;
Compliance. . . . . . . . . . . . . . . . . 32
SECTION 5.2. Insurance . . . . . . . . . . . . . . . . . 33
SECTION 5.3. Obligations and Taxes . . . . . . . . . . . 33
SECTION 5.4. Financial Statements, Reports, etc. . . . . 33
SECTION 5.5. Litigation and Other Notices. . . . . . . . 34
SECTION 5.6. ERISA . . . . . . . . . . . . . . . . . . . 35
SECTION 5.7. Maintaining Records; Access to Properties
and Inspections . . . . . . . . . . . . . . 35
SECTION 5.8. Use of Proceeds . . . . . . . . . . . . . . 35
VI. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.1. Liens . . . . . . . . . . . . . . . . . . . 36
SECTION 6.2. Sale and Lease-Back Transactions. . . . . . 37
SECTION 6.3. Obligations of Subsidiaries . . . . . . . . 37
SECTION 6.4. Mergers, Consolidations and Sales of
Assets. . . . . . . . . . . . . . . . . . . 38
SECTION 6.5. Dividends and Distributions . . . . . . . . 38
SECTION 6.6. Transactions with Affiliates. . . . . . . . 39
SECTION 6.7. Consolidated Stockholders' Equity . . . . . 39
SECTION 6.8. Debt Ratio. . . . . . . . . . . . . . . . . 39
VII. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . 39
VIII. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . 42
IX. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.1. Notices . . . . . . . . . . . . . . . . . . 45
SECTION 9.2. Survival of Agreement . . . . . . . . . . . 46
SECTION 9.3. Binding Effect. . . . . . . . . . . . . . . 46
SECTION 9.4. Successors and Assigns. . . . . . . . . . . 46
SECTION 9.5. Expenses; Indemnity . . . . . . . . . . . . 49
SECTION 9.6. Right of Setoff . . . . . . . . . . . . . . 50
SECTION 9.7. Applicable Law. . . . . . . . . . . . . . . 51
SECTION 9.8. Waivers; Amendment. . . . . . . . . . . . . 51
SECTION 9.9. Interest Rate Limitation. . . . . . . . . . 52
SECTION 9.10. Entire Agreement. . . . . . . . . . . . . . 52
SECTION 9.11. Waiver of Jury Trial. . . . . . . . . . . . 52
SECTION 9.12. Severability. . . . . . . . . . . . . . . . 52
SECTION 9.13. Counterparts. . . . . . . . . . . . . . . . 53
SECTION 9.14. Headings. . . . . . . . . . . . . . . . . . 53
SECTION 9.15. Confidentiality . . . . . . . . . . . . . . 53
SECTION 9.16. Jurisdiction; Consent to Service of
Process . . . . . . . . . . . . . . . . . . 53
CREDIT AGREEMENT dated as of August 19, 1994,
among TREDEGAR INDUSTRIES, INC., a Virginia
corporation (the "Company"), the banks whose names
appear at the foot hereof (the "Banks") and LTCB
TRUST COMPANY, a New York trust company, as agent
for the Banks (in such capacity, the "Agent").
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 (as herein defined)
an aggregate principal amount not in excess of $35,000,000 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 Agent and the Banks agree as
follows:
I. DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agree-
ment, the following terms shall have the meanings specified
below:
"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) the LIBO Reserve Percentage.
"Administrative Questionnaire" shall mean an Admin-
istrative 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.
"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 than or equal to 35% .3000%
Category II
Debt Capitalization Ratio
less than or equal to 50% .3750%
Category III
Debt/Capitalization Ratio
greater than 50% .4500%
For purposes of the foregoing, the Applicable Spread for any date
shall be determined by reference to the Debt/Capitali-zation
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 Agent of a
certificate of a Responsible Officer of the Company with respect
to the financial statements to be delivered pursuant to Section
5.4 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/Capi-talization 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 such officer's
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 5.4, 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.
"Assignment and Acceptance" shall mean an assignment
and acceptance entered into by a Bank and an assignee, and
accepted by the Agent, in the form of Exhibit D.
"Base Rate" shall mean, at any time, a rate per annum
equal to the higher of (a) the Prime Rate in effect at such time,
or (b) 0.50% plus the Federal Funds Effective Rate in effect at
such time.
"Base Rate Borrowing" shall mean a Borrowing comprised
of Base Rate Loans.
"Base Rate Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the Base Rate in
accordance with the provisions of Article II.
"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 that, when used in connection with a Eurodollar 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.
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) ("Exempt Person") shall own directly or indirectly,
beneficially or of record, shares representing more than 25% of
the aggregate ordinary voting power represented by each class of
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 2.1
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 Loans.
"Eurodollar Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the Adjusted 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 2.5(a).
"Facility Fee Percentage" shall mean the applicable
spread per annum set forth below based upon the Company's
Debt/Capitalization Ratio:
Facility Fee
Category I Percentage
Debt/Capitalization Ratio
less than or equal to 35% .2500%
Category II
Debt Capitalization Ratio
less than or equal to 50% .3000%
Category III
Debt/Capitalization Ratio
greater than 50% .3500%
For purposes of the foregoing, the Facility Fee Percentage for
any date shall be determined by reference to the Debt/Capi-
talization 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 Agent of a certificate of a Responsible Officer of the
Company with respect to the financial statements to be delivered
pursuant to Section 5.4 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
such officer's 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 5.4, 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.
"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 Agent from three Federal funds brokers of
recognized standing selected by it.
"Fees" shall have the meaning assigned to such term in
Section 2.5
"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 obli-
gation, 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 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 each Interest Period applicable thereto
and, in the case of Eurodollar Loan with an Interest Period of
more than three months' duration, each day that would have been
the Interest Payment Date for such Loan had successive Interest
Periods of 3 months been applicable to such Loan and, in
addition, the date of any refinancing 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 the 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 in
accordance with Section 2.3 hereof, and (b) as to any Base Rate
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 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 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.
"LIBO Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period, the rate per annum designated on
Telerate page 3750 (or such other page as may replace such page
for the purpose of displaying the London interbank offered rate)
for the term of such Interest Period as of 11:00 a.m. London time
two Business Days prior to the commencement of such Interest
Period; provided that if no such rate is designated, LIBO Rate
shall mean the arithmetic mean (rounded upwards, if necessary, to
the next 1/16 of 1%) of the rates per annum at which dollar
deposits approximately equal in principal amount to LTCB Trust's
portion of such Loan and for a maturity comparable to such In-
terest Period are offered by three prime banks in the London
interbank market (selected by the Agent) to the principal London
office of LTCB, in immediately available funds at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBO Reserve Percentage" shall mean, for any Interest
Period for any Eurodollar Loan, a fraction, the numerator of
which is the number one and the denominator of which is the
number one minus the reserve percentage (expressed as a decimal)
equal to the aggregate of maximum reserve requirements (including
any basic, emergency, supplemental, marginal and other reserves
and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under
regulations from time to time by the Board and then applicable to
assets or liabilities consisting of and including "Eurocurrency
liabilities", as then defined in Regulation D, having a term
approximately equal or comparable to 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 Loan or a Base Rate Loan.
"Loan Documents" shall mean this Agreement and the
Notes.
"LTCB" shall mean The Long-Term Credit Bank of Japan,
Limited, a Japanese bank, and its successors.
"LTCB Trust" shall mean LTCB Trust Company, a New York
trust company, and its successors.
"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 fifth 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 2.6.
"PBGC" shall mean the Pension Benefit Guaranty Cor-
poration 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 em-
ployees of the Company or any ERISA Affiliate.
"Prime Rate" shall mean, at any time, the rate of
interest per annum adopted by LTCB in New York City as its
reference rate for the determination of interest rates for loans
of varying maturities in dollars to United States residents of
varying degrees of creditworthiness and being quoted at such time
by LTCB in New York City as its "prime rate". Each change in the
rate of interest payable hereunder by the Company due to a change
in the Prime Rate shall be effective as of the opening of
business on the date such change in the Prime Rate shall have
been publicly announced to be effective. The Prime Rate is not
intended to be the lowest rate of interest charged by the Agent
or any Bank in connection with extensions of credit to debtors.
"Register" shall have the meaning given such term in
Section 9.4(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 or if all
Loans have been repaid and no Commitments are in effect, which
held 66-2/3% of the aggregate principal amount of the Loans
outstanding immediately prior to such repayment.
"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 con-
solidated 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 2.3 in the form of Exhibit A.
"Standby Loans" or "Loans" shall mean the revolving
loans made by the Banks to the Company pursuant to Section 2.3.
Each Standby Loan shall be a Eurodollar Loan or a Base Rate Loan.
"Standby Note" or "Note" shall mean a promissory note
of the Company in the form of Exhibit B executed and delivered as
provided in Section 2.6.
"subsidiary" shall mean, with respect to any person
(herein referred to as the "parent"), any corporation, part-
nership, 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.
"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 Adjusted LIBO Rate
and the Base Rate.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial with-
drawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. Terms Generally. The definitions in
Section 1.1 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 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 3.4.
II. THE CREDITS
SECTION 2.1. Commitments. (a) Subject to the terms
and conditions and relying upon the representations and war-
ranties 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 conditions that 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 from the Banks
pursuant to Section 2.3. Each Bank's Commitment is set forth
opposite its respective name in Schedule 2.1. 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 2.2. Loans. (a) Each Standby Loan shall be
made as part of a Borrowing consisting of Loans made by the the
Banks ratably in accordance with their respective Commitments;
provided 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 Loans or Base Rate Loans, as the Company may
request pursuant to Section 2.3. Each Bank may at its option
make any Eurodollar 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.
(c) Subject to Section 2.4, 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 Agent in New
York, New York, not later than 12:00 noon, New York City time,
and the 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 Chemical Bank 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 2.4, Standby Loans shall be made by
the Banks pro rata in accordance with Section 2.15. Unless the
Agent shall have received notice from a Bank prior to the date of
any Borrowing that such Bank will not make available to the Agent
such Bank's portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on the
date of such Borrowing in accordance with this paragraph (c) and
the Agent may, in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and to
the extent that such Bank shall not have made such portion
available to the Agent, such Bank and the Company (without
prejudice to the Company's rights against the defaulting Bank)
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Company until
the date such amount is repaid to the Agent at (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 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 2.3. 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 Agent in the form of Exhibit A (a) in the
case of a Eurodollar Borrowing, not later than 10:00 a.m., New
York City time, three Business Days before a proposed Borrowing
and (b) in the case of a Base Rate 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 refer to
this Agreement and specify (i) whether the Borrowing then being
requested in to be a Eurodollar Borrowing or a Base Rate
Borrowing; (ii) the date of the Borrowing (which shall be a
Business Day) and the amount thereof; (iii) if such Borrowing is
to be a Eurodollar Borrowing, the Interest Period with respect
thereto; and (iv) any other information required in said Exhibit
A. If no election as to the Type of Borrowing is specified in
any such notice, then the requested Borrowing shall be a Base
Rate Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in such notice, then the
Company shall be deemed to have selected an Interest Period of
one month's duration. If the Company shall not have given notice
in accordance with this Section 2.3 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 a Base Rate Borrowing. The Agent shall promptly advise the
Banks of any notice given pursuant to this Section 2.3 and of
each Bank's portion of the requested Borrowing.
SECTION 2.4. 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 2.3, 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 2.6 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 Agent or by the Agent to the Company pursuant to Section
2.2(c); provided that (i) if the principal amount extended by a
Bank in a refinancing is greater than the principal amount
extended by such Bank in the Borrowing being refinanced, then
such Bank shall pay such difference to the Agent for distribution
to the Banks described in (ii) below, (ii) if the principal
amount extended by a Bank in the Borrowing being refinanced is
greater than the principal amount being extended by such Bank in
the refinancing, the Agent shall return the difference to such
Bank out of amounts received pursuant to (i) above, and (iii) to
the extent any Bank fails to pay the Agent amounts due from it
pursuant to (i) above, any Loan or portion thereof being
refinanced shall not be deemed repaid in accordance with Section
2.6 and shall be payable by the Company (without prejudice to the
Company's rights against the defaulting Bank).
SECTION 2.5. Fees. (a) The Company agrees to pay
each Bank, through the 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 date of this Agreement
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 to the Agent for its own
account the fees set forth in the letter dated July 22, 1994
between the Company and the Agent at the times and in the amounts
set forth therein (collectively with the Facility Fee, the
"Fees").
(c) All Fees shall be paid on the dates due, in
immediately available funds, to the Agent for distribution, if
and as appropriate, among the Banks. Once paid, none of the Fees
shall be refundable under any circumstances.
SECTION 2.6. 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 or, if earlier, on
the Maturity Date. Each Note shall bear interest from the date
thereof on the outstanding principal balance thereof as set forth
in Section 2.7. 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 the disbursement 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 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 or interest thereon in accordance with the
terms of this Agreement or the relevant Note.
SECTION 2.7. Interest on Loans. (a) Subject to the
provisions of Sections 2.8, 2.13 and 9.9, 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 Sections 2.8, 2.13
and 9.9, the Loans comprising each Base Rate Borrowing shall bear
interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) at a
rate per annum equal to the Base Rate.
(c) Interest on each Loan shall be payable on the
Interest Payment Dates applicable to such Loan except as
otherwise provided in this Agreement, on the Maturity Date and on
any other date on which such Loan shall be paid in full. The
applicable Adjusted LIBO Rate or Base Rate for each Interest
Period or day within an Interest Period, as the case may be,
shall be determined by the Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.8. 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 or under the
Notes, 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 Base Rate in effect from
time to time plus 2%.
SECTION 2.9. Alternate Rate of Interest. 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 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, in such
Bank's reasonable judgment, of making or maintaining its
Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the LIBO Rate, the 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 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 Borrowing pursuant to Section 2.3 shall be
deemed to be a request for a Base Rate Borrowing. Each
determination by the 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 Agent, the Company may
at any time in whole permanently terminate, or from time to time
permanently reduce, the Commitments; provided 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
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 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 Agent of its willingness or
unwillingness so to extend its Commitment. In the event that
each Bank shall be willing to extend its Commitment, the 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. In
any other event, no such extension shall be effected.
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 Agent; provided that
(i) each partial prepayment shall be in an amount which is an
integral multiple of $1,000,000 and not less than $5,000,000 and
(ii) partial prepayments shall be applied to the Loans of all the
Banks pro rata in accordance with the outstanding principal
amounts thereof.
(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 pursuant to Section
2.11(a) 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 Cir-
cumstances. (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 Loan made by such Bank
or fees or other 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, or shall
impose on such Bank or the London interbank market any other
condition affecting this Agreement or any Eurodollar 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 Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder (whether of principal, interest
or otherwise) 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 Basel
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 9.4) 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 com-
pensation 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 inap-
plicability 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 Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Company and to the Agent, such Bank may:
(i)declare that Eurodollar Loans will not thereafter be made
by such Bank hereunder, whereupon any request by the Company for a
Eurodollar Borrowing shall, as to such Bank only, be deemed a
request for a Base Rate Loan unless such declaration shall be
subsequently withdrawn; and
(ii)require that all outstanding Eurodollar Loans made
by it be converted to Base Rate Loans, in which event all
such Eurodollar Loans shall be automatically converted to
Base Rate 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 Loans that
would have been made by such Bank or other converted Eurodollar
Loans of such Bank shall instead be applied to repay the Base
Rate Loans made by such Bank in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the
Company by any Bank shall be effective as to each Eurodollar
Loan, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar 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 2.3, (c) any
payment, prepayment or conversion of a Eurodollar 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
Loan. Such loss or reasonable expense shall include, without
limitation, 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 applicable thereto) 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 pay-
ment 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 or 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 re-
spective 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 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 the 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 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 any 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 Loan 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 and in immediately available funds, to
the Agent at its account no. 04203606 at Bankers Trust Company,
New York, New York, ABA #021001033 attention: Loan Operations;
reference: Tredegar Industries, Inc., or at such other place or
in such other manner as the Agent may notify the Company from
time to time, without set-off, counterclaim or deduction of any
kind.
(b) Whenever any payment (including principal of or
interest on any Loans 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. DQT 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 Agent's or any Bank's income, and franchise
taxes imposed on the 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 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 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 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 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 Agent, as the case may be, makes written demand
therefor. If a Bank or the 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 Agent receives a refund in respect of any Taxes
or Other Taxes for which such Bank or the 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
Agent, agrees to return such refund (plus penalties, interest or
other charges) to such Bank or the Agent in the event such Bank
or the 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 Agent, the Company will furnish to the
Agent, at its address referred to in Schedule 2.1, 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
Section 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 (or payable at a reduced rate of withholding) from United
States tax under a provision of an applicable tax treaty. Unless
the Company and the 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 trea-
ty, the Company or the 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 3.1. 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 3.2. Authorization. The execution, delivery
and performance by the Company of each of the Loan Documents and
the actions taken by the Company in connection with the
borrowings hereunder (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 6.1.
SECTION 3.3. 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 3.4. 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 the 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 the
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 3.5. 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 3.6. Title to Properties and Possession Under
Leases. (a) Each of the Company and the Subsidiaries has, on the
Closing Date and at all times thereafter, 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
6.1. All such material properties and assets are free and clear
of Liens, other than Liens expressly permitted by Section 6.1.
(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 3.7. The Subsidiaries and the Company. Sched-
ule 3.7 sets forth as of the Closing Date a list of all
Subsidiaries and the percentage ownership interest of the Company
therein.
SECTION 3.8. Litigation; Compliance with Laws. (a)
Except as set forth in Schedule 3.8, 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 (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 3.9. 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 5.3.
SECTION 3.14. No Material Misstatements. No infor-
mation, report, financial statement, exhibit or schedule fur-
nished by or on behalf of the Company to the Agent or any Bank in
connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto contained or contains or,
when delivered, will contain any material misstatement of fact or
omitted or omits or, when delivered, will omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were or are or, when
delivered, 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 4.1. 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 2.4, shall be subject
to satisfaction of the following conditions precedent:
(a) The Agent shall have received a notice of such
Borrowing as required by Section 2.3.
(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
3.5 and 3.8(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 2.6.
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 4.1.
SECTION 4.2. 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 2.6.
(b) The Agent shall have received a favorable written
opinion of Nancy M. Taylor, counsel for the Company, dated the
Closing Date and addressed to the Banks, to the effect set
forth in Exhibit E hereto.
(d) All legal matters incident to this Agreement and the
borrowings hereunder shall be satisfactory to the Banks and
their counsel and to Christy & Viener, special New York
counsel for the Agent.
(e) The 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 Christy
& Viener, special New York counsel for the Agent, may
reasonably request.
(f) The 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 4.1.
(g) All principal of all loans, interest accrued thereon
to the date of repayment and all other amounts outstanding
under the Loan Agreement, dated as of June 8, 1992, as
amended, among the Company, the banks named therein and LTCB
Trust as agent for such banks shall have been repaid in full.
V. AFFIRMATIVE COVENANTS
The Company covenants and agrees with each Bank and the
Agent 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 5.1. 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
6.4.
(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 5.2. 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 5.3. Obligations and Taxes. Pay its In-
debtedness 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 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 5.4. Financial Statements, Reports, etc. In
the case of the Company, furnish to the 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 Agent demonstrating compliance with the
covenants contained in Sections 6.5, 6.7 and 6.8;
(d) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements,
registration 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 Agent or any Bank may
reasonably request.
SECTION 5.5. Litigation and Other Notices. Furnish to
the Agent and each Bank prompt 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; and
(c) any development that has resulted in, or could
reasonably be anticipated to result in, a Material Adverse
Effect.
SECTION 5.6. ERISA. (a) Comply in all material
respects with the applicable provisions of ERISA and (b) furnish
to the 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 5.7. 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 5.8. 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
Agent 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 6.1. 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 does not exceed 25% of the book value of the assets
and properties that would be subject to this Section 6.1 without
giving effect to this parenthetical phrase, 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 6.1; 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 5.3;
(d) carriers', warehousemen's, mechanic's,
materialmen'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 5.3;
(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;
\10 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 subparagraphs
(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 6.2, does
not at any time exceed an amount equal to 10% of Consolidated
Stockholders' Equity.
SECTION 6.2. 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 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
indebtedness secured by Liens under paragraph (i) of Section 6.1,
is not greater than 10% of Consolidated Stockholders' Equity.
SECTION 6.3. 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 6.4. 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 6.4 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 an
aggregate amount at least equal to the amount of the proceeds
received by the Company from the sale of such assets.
SECTION 6.5. 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 that (a) any Subsidiary may declare
and pay dividends or make other distributions to the Company, and
(b) if at the time of and after giving effect thereto 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 $48,000,000 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 5.4.
SECTION 6.6. 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 6.7. Consolidated Stockholders' Equity. Permit
Consolidated Stockholders' Equity of the Company to be less than
$100,000,000 at any time.
SECTION 6.8. 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 Section 5.1(a) or 5.5 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 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 allega-
tions 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 Agent or after the receipt
by the Agent of the statement required pursuant to Section
5.6, the 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 aggregated
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
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 paragraph (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 AGENT
In order to expedite the transactions contemplated by
this Agreement, LTCB Trust is hereby appointed to act as 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 Agent to take such actions on behalf of such Bank
or holder and to exercise such powers as are specifically
delegated to the Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably
incidental thereto. The 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 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 Agent.
Neither the Agent nor any of its directors, officers,
employees or 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 responsible 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
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
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 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 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 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 Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice
of legal counsel selected by it with respect to all matters aris-
ing 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 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
Agent as provided below, the Agent may resign at any time by
notifying the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor.
If no successor shall have been so appointed by the Required
Banks and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Banks, appoint a
successor Agent which shall be a bank with an office in New York,
New York, and which bank shall have 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 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 Agent and the retiring Agent shall be discharged from
its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section
9.5 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
Agent.
With respect to the Loan made by it hereunder and the
Note issued to it, the Agent in its individual capacity and not
as Agent shall have the same rights and powers as any other Bank
and may exercise the same as though it were not the Agent, and
the 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 Agent.
Each Bank agrees (i) to reimburse the Agent, on demand,
in the amount of its pro rata share (based on its Commitment or,
after the Borrowing, its Loan hereunder) of any expenses incurred
for the benefit of the Banks by the Agent, including counsel fees
and compensation of 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 Agent and any of its directors, officers, employees or
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 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 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 Agent or any of its directors, officers,
employees or agents.
Each Bank acknowledges that it has, independently and
without reliance upon the Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other
Bank and based on such documents and information as it shall 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.
The Agent acts initially through the New York office of
LTCB Trust, but may hereafter change the office at which it
performs its functions as Agent to any other office of itself or
any of its Affiliates (including, without limitation, to any
office of LTCB or LTCB Trust) by giving prompt subsequent notice
to the Company and the Banks.
IX. MISCELLANEOUS
SECTION 9.1. 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 Agent, to it at 165 Broadway, New York,
New York 10006, Attention: John A. Krob (Telecopy No. (212)
608-2371) with a copy to: The Long-Term Credit Bank of Japan,
Limited, Atlanta Representative Office, Suite 2801, Marquis
One Tower, 245 Peachtree Center Avenue, N.E., Atlanta, Georgia
30303, Attention: Philip A. Marsden (Telecopy No. (404) 658-
9751) and
(c) if to a Bank, to it at its address (or telecopy
number) set forth in Schedule 2.1.
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
9.1 or in accordance with the latest unrevoked direction from
such party given in accordance with this Section 9.1.
SECTION 9.2. 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 9.3. Binding Effect. This Agreement shall
become effective when it shall have been executed by the Company
and the Agent and when the 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 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 9.4. 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 this Section 9.4) assigns of such party; and
all covenants, promises and agreements by or on behalf of the
Company, the 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 Note held by it); provided
that (i) except in the case of an assignment by a Bank to an
Affiliate of such Bank, the Company and the 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 and Loans 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 Agent), if less than the full remaining amount of such Bank's
Commitment and Loans, shall not be less than $10,000,000, (iv)
the parties to each such assignment shall execute and deliver to
the Agent an Assignment and Acceptance, together with the Note or
Notes subject to such assignment and a processing and recordation
fee of $2,000 for the account of the Agent, (v) each assignee
shall deliver to the Agent a completed Administrative
Questionnaire and (vi) in the case of an assignment by LTCB Trust
other than to LTCB or another Affiliate of LTCB Trust, LTCB Trust
shall continue to hold a Commitment or Loans in a principal
amount of not less than $15,000,000; provided that if prior to
such assignment there has been any reduction of the Commitments
(other than by reason of Borrowings) or any repayment or
prepayment of the Loans, the minimum amount of the Commitment or
the minimum principal amount of the Loans (as the case may be)
that LTCB Trust shall be required to retain shall be the
percentage of the aggregate amount of the Commitments or the
aggregate principal amount of the Loans (as the case may be) then
outstanding that $15,000,000 bears to the aggregate amount of
the original Commitments. Upon acceptance and recording pursuant
to paragraph (e) of this Section 9.4, 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 5.4 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 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 Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the 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 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 Loan 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 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 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 Agent shall (subject to the consent of the 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 Agent, in
exchange for the surrendered Note (x) a new Note to the order of
such assignee in an amount equal to the portion of the Commitment
and Loan assumed by it pursuant to such Assignment and Acceptance
and, (y) if the assigning Bank has retained a Commitment or Loan
or a portion thereof, a new Note to the order of such assigning
Bank in a principal amount equal to the applicable Commitment and
Loan retained by it. Such new Note(s) shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note or 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, as appropriate.
Canceled Notes shall be returned to the Company.
(f) Each Bank may, without the consent of the Company or
the 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 Loan owing to it and the Note held by it); provided 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 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 9.4, 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.
(i) Any other provision of this Agreement to the
contrary notwithstanding, any Bank may assign and pledge all or
any portion of its Loan or Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board (or any
successor regulation) and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the
assigning Bank from its obligations under this Agreement.
SECTION 9.5. Expenses; Indemnity. (a) The Company
agrees to pay all out-of-pocket expenses incurred by the Agent in
connection with the negotiation, preparation, execution and
delivery of this Agreement and the other Loan Documents and the
consummation of the transactions contemplated hereby 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
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 Christy & Viener, special New York counsel for the 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 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 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, (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 9.5 shall remain
operative and in full force and effect regardless of the expi-
ration 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 pro-
vision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Agent or any Bank. All
amounts due under this Section 9.5 shall be payable on written
demand therefor.
SECTION 9.6. Right of Setoff. If an Event of Default
shall have occurred and be continuing and any Bank shall have
requested the Agent to declare the Loans immediately 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 9.7. 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 9.8. Waivers; Amendment. (a) No failure or
delay of the 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 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 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 Fees (if any) of any Bank without the
prior written consent of such Bank, or (iii) amend or modify the
provisions of Section 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 (including,
without limitation, rights to receive fees) or duties of the
Agent hereunder without the prior written consent of the 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 9.9. 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 2.5 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, agent or attorney of any other party has rep-
resented, 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 en-
forceability 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 9.3.
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 Agent or any of the Banks from the Company shall not be
disclosed by the 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, 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 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 9.4(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
9.1. 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 Agent 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
Norman A. Scher
Executive Vice President,
Chief Financial Officer
and Treasurer
LTCB TRUST COMPANY, as Agent,
By /s/ John A. Krob
John A. Krob
Senior Vice President
The Banks:
LTCB TRUST COMPANY
By /s/ John A. Krob
John A. Krob
Senior Vice President
SOCIETE GENERALE
By /s/ Brian J. Campbell
Brian J. Campbell
Vice President
THE YASUDA TRUST AND
BANKING CO., LTD.
New York Branch
By /s/ Neil T. Chau
Neil T. Chau
First Vice President
SCHEDULE 2.1
COMMITMENTS
Percentage
of Total
Name and Address of Bank Commitment Commitment
LTCB Trust Company $ 15,000,000 42.8571428%
165 Broadway
New York, New York 10006
Address for Notices
For Credit Matters:
LTCB Trust Company
165 Broadway
New York, New York 10006
Attn: Mr. John A. Krob
Telephone: (212) 335-4575
Telecopy: (212) 608-2371
with a copy to:
The Long-Term Credit Bank
of Japan, Limited
Atlanta Representative Office
245 Peachtree Center Avenue, N.E.
Suite 2801
Atlanta, Georgia 30303
Attn: Mr. Philip A. Marsden,
Telephone: (404) 659-7210
Telecopy: (404) 658-9751
For Operations Matters:
LTCB Trust Company
165 Broadway
New York, New York 10006
Attn: Ms. Susan Feng,
Loan Operations
Telephone: (212) 335-4808
Telecopy: (212) 608-3081
Societe Generale $ 10,000,000 28.5714286%
Southwest Agency
2001 Ross Avenue
Suite 4800
Dallas, Texas 75201
Address for Notices
For Credit Matters:
Southwest Agency
2001 Ross Avenue
Suite 4800
Dallas, Texas 75201
Attn: Ms. Paige Leuschner
Telephone: (214) 979-2758
Telecopy: (212) 754-0171
with a copy to:
Atlanta Representative Office
303 Peachtree Street, N.E.
Suite 3840
Atlanta, Georgia 30308
Attn: Mr. Brian J. Campbell,
Vice President
Telephone: (404) 865-7400
Telecopy: (404) 865-7419
For Operations Matters:
Southwest Agency
2001 Ross Avenue
Suite 4800
Dallas, Texas 75201
Attn: Ms. Paige Leuschner
Telephone: (214) 979-2758
Telecopy: (212) 754-0171
The Yasuda Trust and Banking
Company, Limited $ 10,000,000 28.5714286%
New York Branch
666 Fifth Avenue
Eighth Floor
New York, New York 10103
Address for Notices
For Credit Matters:
Atlanta Representative Office
285 Peachtree Center Avenue, N.E.
Suite 2104
Atlanta, Georgia 30303
Attn: Mr. Sanjay Sinha
Telephone: (404) 584-7807
Telecopy: (404) 584-7816
with a copy to:
New York Branch
666 Fifth Avenue
Eighth Floor
New York, New York 10103
Attn: Mr. Neil T. Chau,
First Vice President
Telephone: (212) 373-5711
Telecopy: (212) 373-5799
For Operations Matters:
New York Branch
666 Fifth Avenue
Eighth Floor
New York, New York 10103
Attn: Mr. Richard Ortiz,
Vice President
Telephone: (212) 373-5700
Telecopy: (212) 373-5797
SCHEDULE 3.7
Part 1
Part 1
UNITED STATES SUBSIDIARIES
Percentage of
Common Stock
Owned Directly
or Indirectly
by the Company
APPX Software 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 3.7
Part 2
Part 2
NON-UNITED STATES SUBSIDIARIES
Percentage of
Common Stock
Owned Directly
or Indirectly
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 3.8
LITIGATION
None.
SCHEDULE 6.1
LIENS
None.
EXHIBIT A
FORM OF BORROWING REQUEST
LTCB Trust Company, as
Agent for the Banks
referred to below,
165 Broadway
New York, New York 10006
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, TREDEGAR INDUSTRIES, INC. (the
"Company"), refers to the Credit Agreement dated as of August 19,
1994 (the "Credit Agreement"), among the Company, the Banks named
therein and LTCB Trust Company, as Agent. 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 2.3 of the Credit
Agreement that it requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on
which such Borrowing is requested to be made:
(A) Type of Borrowing:
(Eurodollar Borrowing or Base Rate Borrowing)
(B) Date of Borrowing: ___________, 19__.
(which is a Business Day)
(C) Principal Amount of Borrowing1:
(D) Interest Period:
(If such Borrowing is to be a Base Rate Borrowing, insert
"90 days"; if such Borrowing is to be a Eurodollar
Borrowing, designate the Interest Period and the last day
thereof2)
1 Not less than $5,000,000 and in integral multiples of
$1,000,000.
2 Which shall be either 1, 2, 3 or 6 months and subject to the
other requirements of the definition of "Interest Period" in
the Loan Agreement.
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 4.1(b) and (c) of the Credit Agreement have
been satisfied.
Very truly yours,
TREDEGAR INDUSTRIES, INC.,
By
Title: [Responsible Officer]
EXHIBIT B
FORM OF NOTE
$ New York, New York
August 19, 1994
FOR VALUE RECEIVED, the undersigned, TREDEGAR INDUSTRIES,
INC., a Virginia corporation (the "Company"), hereby promises to
pay to the order of ___________________
___________________________________ (the "Bank"), at account no.
04203606 of LTCB Trust Company, as agent (in such capacity, the
"Agent") at Bankers Trust Company, New York, New York, ABA #
021001033, attention: Loan Operations, reference: Tredegar
Industries, Inc., in lawful money of the United States of America
in immediately available funds (or at such other account or place
or in such other manner as the Agent may notify the Company from
time to time), without set-off, counterclaim or deduction of any
kind, the principal sum of ______________________ Dollars
($__________) on August 19, 1999 (or if such day is not a
Business Day, as hereinafter defined, on the next preceding
Business Day)(the "Maturity Date") or such lesser amount as shall
equal the aggregate principal amount of all Loans (as defined in
the Credit Agreement (as defined below)) on the Maturity Date and
to pay interest on such principal amount from time to time
outstanding, from the date hereof until the date on which such
principal shall be paid in full, 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 dated as of August
19, 1994, among the Company, the Banks named therein and LTCB
Trust Company, as Agent, (as the same may be amended, modified,
extended or restated from time to time, 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 payments and prepayments of the principal of this
Note 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 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 Note and the Credit Agreement.
"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
that, when used in connection with a Eurodollar Loan (as defined
in the Credit Agreement), 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.
This Note is one of the 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 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:
Loans and Payments
Payments Unpaid Name of
Principal Person
Amount Maturity Balance Making
of Loan Date Principal Interest of Note Notation
EXHIBIT C
Administrative Questionnaire
TREDEGAR INDUSTRIES, INC.
Credit Agreement
NOTE TO PARTICIPANTS: PLEASE FORWARD THIS COMPLETED FORM AS SOON
AS POSSIBLE TO [NAME OF OFFICER]
____________ DEPT., LTCB TRUST COMPANY,
165 BROADWAY, 49TH FLOOR, NEW YORK, NEW
YORK 10006. PLEASE TYPE ALL INFORMATION.
AGENT: LTCB Trust Company
165 Broadway
New York, N.Y. 10006
TELEX: NY: Answerback:
TELECOPIER: (212) 608-2371 (212) -
CONTACTS: (212) -
(212) -
Full Legal Name of your Bank:
Exact name of signing officer:
Title of signing officer:
Business address for delivery of
execution copies of credit
agreement (Please do not use
P.O. Box address; hand
deliveries cannot be made.):
Signing officer's phone no.:
Alternate officer contact:
Alternate officer's phone no.:
PRIMARY CONTACT INFORMATION
We will send all telexes to a single number (the Primary or
Alternate Contact numbers listed below) at the banking
location you designate. These contacts are those you desig-
nate for critical telexes (rates, loan amounts, paydowns,
etc.).
1. Your bank's primary contacts for telexes:
Primary Primary Alternate Alternate
Primary Name/ Telecopier Telex No. & TelecopierTelex No. &
Phone Number Department Number Answerback Number Answerback
Alternate Primary Primary Alternate Alternate
Name/ Telecopier Telex No. & TelecopierTelex No. &
Phone Number Department Number Answerback Number Answerback
2. While we will send all telexes to a single telex
number, we can also indicate that up to two
additional individuals should be carbon-copied when
the telex arrives at your bank. Please designate
the individuals and departments you would like such
copies to be sent to (Note: they must be at the same
location):
Name Department
(1)
(2)
(If at any time any of the above information
changes, please advise at (212) -
and at (212) - .
Hard-copy documents and notices should be sent to the following
account officer designated by your bank:
Officer's Name:
Title:
Street Address (No
P.O. Boxes please):
City, State, Zip:
GENERAL OPERATIONAL INFORMATION
Operating Contacts: Name Phone No.
Loan Department:
Loan Administrator:
Telex Operator:
Other:
Movement of funds: to us: Wire Fed Funds to:
[Name of Clearing Bank]
_______________________ Department
_____________________
New York, New York _____
Attention: _____________
Reference: TREDEGAR INDUSTRIES, INC.
to you:
Publicity: How would you like your bank's name to appear in any
tombstone advertisements?
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________, 19__
Reference is made to the Credit Agreement dated as of
August 19, 1994 (as amended and in effect from time to time, the
"Credit Agreement"), among Tredegar Industries, Inc., a Virginia
corporation (the "Company"), the Banks (as defined in the Credit
Agreement) and LTCB Trust Company, as agent for the Banks (in
such capacity, the "Agent"). 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 Loans owing
to the Assignor outstanding on the Assignment Date together with
such percentage interest in all unpaid interest with respect to
such Loans and such percentage interest in the 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 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 Loan Documents 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 Note held by it and requests that the Agent
exchange such Note for a new Note payable to the Assignee in a
principal amount equal to
, and a new Note
payable to the Assignor in a principal amount equal to
.
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 3.4 or 5.4 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 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 Agent to take such
action as agent on its behalf and to exercise such powers under
the Credit Agreement as are delegated to the 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 Agent for acceptance and
recording by the Agent pursuant to Section 9.4(e) of the Credit
Agreement.
________________
1 If the Assignee is organized under the laws of a jurisdiction
outside the United States.
2 See Section 9.4. Such date shall be at least five Business
Days after the execution of this Assignment and Acceptance and
delivery thereof to the Agent.
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 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 Agent or with
respect to the making of this assignment directly between
themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED 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
LTCB TRUST COMPANY, as Agent
By________________________
Title:
EXHIBIT E
Form of Opinion of Corporate Counsel to the Company
[Closing Date]
To the Agent and Banks listed in Schedule 2.1
of the Credit Agreement referred to below
In care of LTCB Trust Company, as Agent
165 Broadway
New York, New York 10006
Ladies and Gentlemen:
I am Corporate Counsel to 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 _________, 1994, among the
Company and the Banks named in the Credit Agreement and LTCB Tust
Company, as Agent, providing for loans to be made to the Company
in an aggregate principal amount up to but not exceeding
$35,000,000. 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 forms of the Notes. 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 3.7 (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 6.1 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 (or that of my successor as Corporate Counsel).
Very truly yours,
Nancy M. Taylor