EXHIBIT 4.B
U.S. $500,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 15, 1993
Among
THE DIAL CORP
as Borrower
and
THE BANKS NAMED HEREIN
as Lenders
and
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
and
CITIBANK, N.A.
as Agents
and
CITIBANK, N.A.
as Funding Agent
and
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
as Reporting Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . 2
SECTION 1.01. Certain Defined Terms. . . . . . . . . . . . 2
SECTION 1.02. Computation of Time Periods. . . . . . . . . 14
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . . 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES. . . . . . . . 14
SECTION 2.01. The Advances . . . . . . . . . . . . . . . . 14
SECTION 2.02. Making the Advances. . . . . . . . . . . . . 14
SECTION 2.03. Fees . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.04. Termination and Reduction of the
Commitments . . . . . . . . . . . . . . . . . 18
SECTION 2.05. Repayment and Prepayment of
Advances. . . . . . . . . . . . . . . . . . . 19
SECTION 2.06. Interest on Advances . . . . . . . . . . . . 20
SECTION 2.07. Interest Rate Determination. . . . . . . . . 21
SECTION 2.08. Voluntary Conversion or
Continuation of Advances. . . . . . . . . . . 21
SECTION 2.09. Increased Costs. . . . . . . . . . . . . . . 22
SECTION 2.10. Payments and Computations. . . . . . . . . . 23
SECTION 2.11. Taxes. . . . . . . . . . . . . . . . . . . . 24
SECTION 2.12. Sharing of Payments, Etc . . . . . . . . . . 26
SECTION 2.13. Evidence of Debt . . . . . . . . . . . . . . 27
SECTION 2.14. Use of Proceeds. . . . . . . . . . . . . . . 27
SECTION 2.15. Extension of the Commitment
Termination Date. . . . . . . . . . . . . . . 28
SECTION 2.16. Substitution of Lenders. . . . . . . . . . . 29
ARTICLE III
CONDITIONS OF LENDING. . . . . . . . . . . 29
SECTION 3.01. Condition Precedent to Effective
Date. . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.02. Conditions Precedent to Each
Borrowing . . . . . . . . . . . . . . . . . . 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . 31
SECTION 4.01. Representations and Warranties of
the Borrower. . . . . . . . . . . . . . . . . 31
ARTICLE V
COVENANTS OF THE BORROWER. . . . . . . . . . 35
SECTION 5.01. Affirmative Covenants. . . . . . . . . . . . 35
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . 39
ARTICLE VI
EVENTS OF DEFAULT. . . . . . . . . . . . 42
SECTION 6.01. Events of Default. . . . . . . . . . . . . . 42
ARTICLE VII
THE FUNDING AGENT AND THE AGENTS. . . . . . . . 45
SECTION 7.01. Authorization and Action . . . . . . . . . . 45
SECTION 7.02. Agents' Reliance, Etc. . . . . . . . . . . . 45
SECTION 7.03. Citibank, B of A and Affiliates. . . . . . . 46
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . 46
SECTION 7.05. Indemnification. . . . . . . . . . . . . . . 47
SECTION 7.06. Successor Agent. . . . . . . . . . . . . . . 47
ARTICLE VIII
MISCELLANEOUS. . . . . . . . . . . . . 48
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . . 48
SECTION 8.02. Notices, Etc . . . . . . . . . . . . . . . . 48
SECTION 8.03. No Waiver; Remedies. . . . . . . . . . . . . 49
SECTION 8.04. Costs, Expenses and
Indemnification . . . . . . . . . . . . . . . 49
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . . 50
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . . 51
SECTION 8.07. Assignments and Participations . . . . . . . 51
SECTION 8.08. Confidentiality. . . . . . . . . . . . . . . 54
SECTION 8.09. Governing Law. . . . . . . . . . . . . . . . 54
SECTION 8.10. Execution in Counterparts. . . . . . . . . . 54
SECTION 8.11. Consent to Jurisdiction; Waiver of
Immunities. . . . . . . . . . . . . . . . . . 55
SECTION 8.12. Waiver of Trial by Jury. . . . . . . . . . . 55
Schedule I - List of Applicable Lending Offices
Exhibit A - Notice of Borrowing
Exhibit B - Assignment and Acceptance
Exhibit C - Form of Opinion of Counsel for the Borrower
Exhibit D - Form of Opinion of Counsel to the Agents
Exhibit E - Form of Extension Request
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Note
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 15, 1993
This Amended and Restated Credit Agreement is
among The Dial Corp, a Delaware corporation (the
"Borrower"), the banks (the "Banks") listed on the signature
pages hereof, Bank of America National Trust and Savings
Association ("B of A") and Citibank, N.A. ("Citibank") as
agents for the Lenders hereunder (individually referred to
herein as an "Agent" and collectively as the "Agents" which
term shall also include Citibank in its capacity as the
Funding Agent), Citibank as funding agent for the Lenders
hereunder (in such capacity, the "Funding Agent"), and Bank
of America National Trust and Savings Association as
reporting agent for the Lenders hereunder (in such capacity,
the "Reporting Agent").
PRELIMINARY STATEMENT
The Borrower, certain of the Banks, certain of the
Exiting Banks (as defined below), and Citibank, as Agent,
are parties to that certain Credit Agreement dated as of
October 31, 1987, as such agreement has been amended from
time to time (the "Citibank Existing Agreement") and the
Borrower, certain of the Banks, certain of the Exiting Banks
and B of A, as Agent, are parties to that certain amended
and restated credit agreement, dated October 1, 1987, as
such agreement has been amended from time to time (the "B of
A Existing Agreement", and together with the Citibank
Existing Agreement, the "Existing Agreements").
The Borrower, the Banks, and the Agents desire to
amend and restate the Existing Agreements in their entirety
and to combine the Existing Agreements into one agreement.
Each bank that is a party to an Existing Agreement
that is not a party to this Agreement (an "Exiting Bank")
and the Borrower have agreed, pursuant to those certain
letter agreements dated as of December 15, 1993, that all
funding obligations and other obligations of the Exiting
Banks under the Existing Agreements have been terminated
and, except as set forth in such letter agreements, all
payment obligations and other obligations of the Borrower
with respect to the Exiting Banks under the Existing
Agreements have been satisfied.
NOW, THEREFORE, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in
this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Additions to Capital" means the sum of (i) the
aggregate net proceeds, including cash and the fair
market value of property other than cash (as determined
in good faith by the Board of Directors of the Borrower
as evidenced by a Board resolution), received by the
Borrower from the issue or sale (other than to a
Subsidiary) of capital stock of the Borrower and
(ii) the aggregate of 25% of the after tax gain
realized from unusual, extraordinary, and major
nonrecurring items including, but not limited to, the
sale, transfer, or other disposition of (x) any of the
stock of any of the Borrower's Subsidiaries or
(y) substantially all of the assets of any geographic
or other division or line of business of the Borrower
or any of its Subsidiaries (but excluding any after tax
loss realized on any such unusual, extraordinary, and
major nonrecurring items to the extent they exceed any
after tax gains on such items).
"Adjusted Eurodollar Rate" means, for any Interest
Period for each Eurodollar Rate Advance comprising part
of the same Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the
average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in
U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of
such Interest Period in an amount substantially equal
to the respective Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing and for a
period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage. The Adjusted Eurodollar Rate for
any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be
determined by the Funding Agent on the basis of
applicable rates furnished to and received by the
Funding Agent from the Reference Banks two Business
Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.07.
"Advance" means an advance by a Lender to the
Borrower as part of a Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance, each of
which shall be a "Type" of Advance.
"Affiliate" means, as to any Person, any other
Person that, directly or indirectly, controls, is
controlled by or is under common control with such
Person.
"Agent" or "Agents" has the meaning specified in
the introductory paragraph of this Agreement; provided,
that, for purposes of Sections 7.02, 7.04, 7.05, 8.04,
8.07(b)(iv) and 8.12 of this Agreement the term "Agent"
or "Agents", as the case may be, shall include BA
Securities, Inc., Citicorp Securities, Inc., and the
Reporting Agent.
"Agreement" means this Amended and Restated Credit
Agreement as it may be amended, supplemented or
otherwise modified from time to time.
"Applicable Lending Office" means, with respect to
each Lender, such Lender's Domestic Lending Office in
the case of a Base Rate Advance, and such Lender's
Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means, for any period for
which any interest payment is to be made with respect
to any Advance, the interest rate per annum derived by
dividing (i) the sum of the Daily Margins for each of
the days included in such period by (ii) the number of
days included in such period.
"Assignment and Acceptance" means an assignment
and acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Funding Agent, in
substantially the form of Exhibit B hereto.
"Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time
to time which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly
by Citibank in New York, New York, from time to
time, as Citibank's base rate (which is a rate set
by Citibank based upon various factors including
Citibank's costs and desired return, general
economic conditions and other factors, and is used
as a reference point for pricing some loans, which
may be priced at, above, or below such announced
rate);
(b) the sum of (A) 1/2 of one percent per
annum plus (B) the rate obtained by dividing
(x) the latest three-week moving average of
secondary market morning offering rates in the
United States for three-month certificates of
deposit of major United States money market banks
(such three-week moving average being determined
weekly by Citibank on the basis of such rates
reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or
terminated, on the basis of quotations for such
rates received by Citibank, in either case
adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the
next higher 1/4 of one percent), by (y) a
percentage equal to 100% minus the average of the
daily percentages specified during such three-week
period by the Board of Governors of the Federal
Reserve System for determining the maximum reserve
requirement (including, but not limited to, any
marginal reserve requirements for Citibank in
respect of liabilities consisting of or including
(among other liabilities) three-month nonpersonal
time deposits of at least $100,000), plus (C) the
average during such three-week period of the daily
net annual assessment rates estimated by Citibank
for determining the current annual assessment
payable by Citibank to the Federal Deposit
Insurance Corporation for insuring three-month
deposits in the United States; or
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means an Advance which bears
interest as provided in Section 2.06(a).
"Borrowing" means a borrowing consisting of
Advances of the same Type made on the same day pursuant
to the same Notice of Borrowing by each of the Lenders
pursuant to Section 2.01.
"Business Day" means a day of the year on which
banks are not required or authorized to close in New
York City or Los Angeles and, if the applicable
Business Day relates to any Eurodollar Rate Advances,
on which dealings are carried on in the London
interbank market.
"Capital Lease" means, with respect to any Person,
any lease of any property by that Person as lessee
which would, in conformity with GAAP, be required to be
accounted for as a capital lease on the balance sheet
of that Person.
"Cash" means money, currency or a credit balance
in a deposit account.
"Cash Equivalents" means (a) marketable direct
obligations issued or unconditionally guaranteed by the
United States government or issued by any agency
thereof and backed by the full faith and credit of the
United States, in each case maturing within one year
from the date of acquisition thereof, (b) marketable
direct obligations issued by any state of the United
States of America or any political subdivision of any
such state or any public instrumentality thereof
maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the
highest rating generally obtainable from either S&P or
Moody's, (c) commercial paper maturing no more than one
year from the date of creation thereof and, at the time
of acquisition, having a rating of A-1 or higher from
S&P or P-1 or higher from Moody's, and (d) certificates
of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any
lender.
"Cash Flow Coverage" means a ratio of
(a) consolidated net income plus provision for taxes of
the Borrower and its Subsidiaries (excluding
extraordinary, unusual, or nonrecurring gains or
losses), plus interest expense of the Borrower and its
Subsidiaries, plus net operating lease expense (net of
operating sublease income) of the Borrower and its
Subsidiaries, plus depreciation and amortization of
intangibles of the Borrower and its Subsidiaries, less
capital expenditures (excluding the cost of
acquisitions and the purchase of the partnership
interest in Dial Tower) of the Borrower and its
Subsidiaries, divided by (b) net operating lease
expense (net of operating sublease income) of the
Borrower and its Subsidiaries plus interest expense of
the Borrower and its Subsidiaries, as determined on a
consolidated basis in conformity with GAAP.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" has the meaning specified in
Section 2.01.
"Commitment Termination Date" means, with respect
to any Lender, June 30, 1997, or such later date to
which the Commitment Termination Date of such Lender
may be extended from time to time pursuant to Section
2.15 (or if any such date is not a Business Day, the
next preceding Business Day).
"Compliance Certificate" means a certificate
substantially in the form of Exhibit F hereto,
delivered to the Lenders by the Borrower pursuant to
Section 5.10(b)(iii).
"Convert," "Conversion" and "Converted" each
refers to a conversion of Advances of one Type into
Advances of another Type pursuant to Section 2.08.
"Daily Margin" means, for any date of
determination, for the designated Level, Utilization
Ratio applicable to such date of determination and Type
of Advance, the following interest rates per annum:
Daily Margin when
Daily Margin when Utilization Ratio
Utilization Ratio is greater than or
is less than 0.50:1.00 equal to 0.50:1.00
TYPE OF ADVANCE TYPE OF ADVANCE
Base Rate Eurodollar Base Rate Eurodollar
Advance Rate Advance Advance Rate Advance
Level 1 0% 0.4375% 0% 0.5000%
Level 2 0% 0.5000% 0% 0.5625%
Level 3 0% 0.6250% 0% 0.6875%
Level 4 0.25% 1.0000% 0.25% 1.1250%
For purposes of this definition, (a) "Utilization
Ratio" means, as of any date of determination, the
ratio of (1) the aggregate outstanding principal amount
of all Advances as of such date to (2) the aggregate
amount of all Commitments in effect as of such date
(whether used or unused), (b) if any change in the
rating established by S&P, Moody's or Duff & Phelps
with respect to Long-Term Debt shall result in a change
in the Level, the change in the Daily Margin shall be
effective as of the date on which such rating change is
publicly announced, and (c) if the ratings established
by any two of S&P, Moody's or Duff & Phelps with
respect to Long-Term Debt are unavailable for any
reason for any day, then the applicable level for such
day shall be deemed to be Level 4 (or, if the Requisite
Lenders consent in writing, such other Level as may be
reasonably determined by the Requisite Lenders from a
rating with respect to Long-Term Debt for such day
established by another rating agency reasonably
acceptable to the Requisite Lenders).
"Debt" means (i) indebtedness for borrowed money
or for the deferred purchase price of property or
services, (ii) obligations as lessee under Capital
Leases, (iii) obligations under guarantees in respect
of indebtedness or obligations of others of the kinds
referred to in clause (i) or (ii) above, (iv)
liabilities in respect of unfunded vested benefits
under Single Employer Plans, and (v) Withdrawal
Liability incurred under ERISA by the Borrower or any
of its ERISA Affiliates to any Multi-employer Plans;
provided that "Debt" shall not include payment
obligations in the ordinary course of the business of
Travelers Express Company, Inc. ("Travelers Express")
arising from (x) payments made by banks on checks or
money orders issued by Travelers Express and presented
to such banks and (y) contingent obligations of
Travelers Express to banks which have issued official
checks drawn on Travelers Express and have paid to
Travelers Express the amounts of such official checks,
to repay to such banks such amounts if such official
checks are not negotiated.
"Domestic Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to
time specify to the Borrower and the Agents.
"Duff & Phelps" means Duff & Phelps Inc.
"Effective Date" means the date, on or before
December 21, 1993, on which the conditions precedent
set forth in Section 3.01 have been satisfied.
"Eligible Assignee" means (i) a commercial bank
organized under the laws of the United States, or any
state thereof, and having a combined capital and
surplus of at least $100,000,000; (ii) a commercial
bank organized under the laws of any other country
which is a member of the Organization for Economical
Cooperation and Development (the "OECD"), or a
political subdivision of any such country and having a
combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or
agency located in the country in which it is organized
or another country which is also a member of the OECD;
and (iii) any Person engaged primarily in the business
of commercial banking and that is a Subsidiary of a
Lender or of a Person of which a Lender is
a Subsidiary.
"Environmental Law" means any and all statutes,
laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions of any federal, state or local
governmental authority within the United States or any
State or territory thereof and which relate to the
environment or the release of any materials into the
environment.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time,
and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person who for
purposes of Title IV of ERISA is a member of the
Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of
the Code and the regulations promulgated and rulings
issued thereunder.
"ERISA Event" means (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Pension Plan of a
notice of intent to terminate such Pension Plan
pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (iii) the cessation of
operations at a facility in the circumstances described
in Section 4062(e) of ERISA; (iv) the withdrawal by the
Borrower or an ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA;
(v) the failure by the Borrower or any ERISA Affiliate
to make a payment to a Pension Plan required under
Section 302(f)(1) of ERISA, which Section imposes a
lien for failure to make required payments; (vi) the
adoption of an amendment to a Pension Plan requiring
the provision of security to such Pension Plan,
pursuant to Section 307 of ERISA; or (vii) the institu-
tion by the PBGC of proceedings to terminate a Pension
Plan, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition which, in the
reasonable judgment of the Borrower, might constitute
grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, a
Pension Plan.
"Eurocurrency Liabilities" has the meaning
assigned to that term in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may
from time to time specify to the Borrower and the
Funding Agent.
"Eurodollar Rate Advance" means an Advance which
bears interest as provided in Section 2.06(b).
"Eurodollar Rate Reserve Percentage" for any
Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for
those days in such Interest Period during which any
such percentage shall be so applicable) under
regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirements (including, without limitation, any
emergency, supplemental or other marginal reserve
requirement) for member banks in the Federal Reserve
System with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to 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 for such day (or, if such day is
not a Business Day, for the next preceding 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 such
day on such transactions received by the Funding Agent
from three Federal funds brokers of recognized standing
selected by it.
"Funded Debt" means outstanding Debt of the
Borrower and its Subsidiaries of the kind described in
clauses (i), (ii) and (iii) of the definition of Debt.
"Funding Agent" means Citibank, or any Person
serving as its successor agent.
"GAAP" means generally accepted accounting
principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American
Institute of Certified Public Accountants and
statements and pronouncements of the Financial
Accounting Standards Board or in such other statements
by such other entity as may be approved by a
significant segment of the accounting profession, which
are applicable to the circumstances as of the date of
determination.
"Insufficiency" means, with respect to any Pension
Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, the
period commencing on the date of such Eurodollar Rate
Advance, or on the date of continuation of such Advance
as a Eurodollar Rate Advance upon expiration of
successive Interest Periods applicable thereto, or on
the date of Conversion of a Base Rate Advance into a
Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the
Borrower may select in the Notice of Borrowing or the
Notice of Conversion/Continuation for such Advance;
provided, however, that:
(i) the Borrower may not select any Interest
Period which ends after the earliest Commitment
Termination Date of any Lender then in effect;
(ii) Interest Periods commencing on the same
date for Advances comprising part of the same
Borrowing shall be of the same duration; and
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, that if such extension
would cause the last day of such Interest Period
to occur in the next following calendar month, the
last day of such Interest Period shall occur on
the next preceding Business Day.
"Lenders" means the Banks listed on the signature
pages hereof and each Eligible Assignee that shall
become a party hereto pursuant to Section 8.07.
"Level" means Level 1, Level 2, Level 3 or Level
4, as the case may be.
"Level 1" means that, as of any date of
determination, the Borrower's Long-term Debt rating is
equal to or higher than at least two of the following:
BBB+ from S&P, Baa1 from Moody's and/or BBB+ from Duff
& Phelps.
"Level 2" means that, as of any date of
determination, the Borrower's Long-term Debt rating is
equal to at least two of the following: BBB from S&P,
Baa2 from Moody's and/or BBB from Duff & Phelps.
"Level 3" means that, as of any date of
determination, the Borrower's Long-term Debt rating is
equal to at least two of the following: BBB- from S&P,
Baa3 from Moody's and/or BBB- from Duff & Phelps.
"Level 4" means that, as of any date of
determination, the Borrower's Long-term Debt rating is
lower than at least two of the following: BBB- from
S&P, Baa3 from Moody's and/or BBB- from Duff & Phelps.
"Leverage" means (i)(a) Funded Debt minus (b)
Cash and Cash Equivalents; divided by (ii) (x) Funded
Debt minus (y) Cash and Cash Equivalents plus (z)
Shareholders Equity.
"Lien" means any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement
and any lease in the nature thereof).
"Loan Documents" means this Agreement and the
related documents.
"Long-Term Debt" means senior, unsecured, long
term debt securities of the Borrower.
"Margin Stock" has the meaning assigned to that
term in Regulation U promulgated by the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Material Subsidiary" means any Subsidiary of the
Borrower having total assets in excess of $10,000,000.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which the
Borrower or any ERISA Affiliate of the Borrower is
making, or is obligated to make, contributions or has
within any of the preceding six plan years been
obligated to make or accrue contributions.
"Multiple Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, which
(i) is maintained for employees of the Borrower or an
ERISA Affiliate and at least one Person other than the
Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an
ERISA Affiliate could have liability under Section
4063, 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Net Income" means net income in accordance with
GAAP.
"Net Worth" means minority interests, preferred
stock and common stock and other equity, as shown on
the consolidated balance sheet of the Borrower and its
Subsidiaries.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Conversion/Continuation" has the
meaning specified in Section 2.08.
"PBGC" means the U.S. Pension Benefit Guaranty
Corporation.
"Pension Plan" means a Single Employer Plan or a
Multiple Employer Plan or both.
"Person" means an individual, partnership,
corporation, business trust, joint stock company,
trust, unincorporated association, joint venture or
other entity, or a government or any political
subdivision or agency thereof.
"Potential Event of Default" means a condition or
event which, after notice or lapse of time or both,
would constitute an Event of Default if that condition
or event were not cured or removed within any
applicable grace or cure period.
"Reference Banks" means, B of A, Citibank,
Chemical Bank and Bank of Montreal.
"Reporting Agent" means B of A, or any Person
serving as its successor agent.
"Register" has the meaning specified in
Section 8.07(c).
"Requisite Lenders" means at any time Lenders
holding at least 66-2/3% of the then aggregate unpaid
principal amount of the Advances held by Lenders, or,
if no such principal amount is then outstanding,
Lenders having at least 66-2/3% of the Commitments
(provided that, for purposes hereof, neither the
Borrower, nor any of its Affiliates, if a Lender, shall
be included in (i) the Lenders holding such amount of
the Advances or having such amount of the Commitments
or (ii) determining the aggregate unpaid principal
amount of the Advances or the total Commitments).
"S&P" means Standard & Poor's Corporation.
"SEC" means the Securities and Exchange Commission
and any successor agency.
"Shareholders Equity" means Net Worth plus the
"Employee Equity Trust" contra account and "Guaranty of
ESOP Debt" contra account as set forth on the
consolidated balance sheet of the Borrower and its
Subsidiaries.
"Single Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, which
(i) is maintained for employees of the Borrower or any
ERISA Affiliate and no Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and
in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4062 or 4069 of
ERISA in the event such plan has been or were to be
terminated.
"Subsidiary" of any Person means any corporation,
association, partnership or other business entity of
which at least 50% of the total voting power of shares
of stock or other securities entitled to vote in the
election of directors, managers or trustees thereof is
at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Termination Date" means, with respect to any
Lender, the earlier of (i) the Commitment Termination
Date of such Lender and (ii) the date of termination in
whole of the Commitments of all Lenders pursuant to
Section 2.04 or 6.01.
"Type" means, with reference to an Advance, a Base
Rate Advance or a Eurodollar Rate Advance.
"Withdrawal Liability" has the meaning given such
term under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In
this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting
terms not specifically defined herein shall be construed
in accordance with GAAP. All computations determining
compliance with financial covenants or terms, including
definitions used therein, shall be prepared in accordance
with generally accepted accounting principles in effect at
the time of the preparation of, and in conformity with those
used to prepare, the historical financial statements
delivered to the Lenders pursuant to Section 4.01(e). If at
any time the computations for determining compliance with
financial covenants or provisions relating thereto utilize
generally accepted accounting principles different than
those then being utilized in the financial statements being
delivered to the Lenders, such financial statements shall be
accompanied by a reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender
severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Borrower from time to
time on any Business Day during the period from the
Effective Date until the Termination Date of such Lender in
an aggregate amount not to exceed at any time outstanding
the amount set opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the
Register maintained by the Funding Agent pursuant to Section
8.07(c), as such amount may be reduced pursuant to Section
2.04 (such Lender's "Commitment"). Each Borrowing shall be
in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by
the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment,
the Borrower may from time to time borrow, prepay pursuant
to Section 2.05(c) and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each
Borrowing shall be made on notice, given not later than
(x) 11:00 A.M. (New York City time) on the date of a
proposed Borrowing consisting of Base Rate Advances and
(y) 11:00 A.M. (New York City time) on the third Business
Day prior to the date of a proposed Borrowing consisting of
Eurodollar Rate Advances, by the Borrower to the Funding
Agent, which shall give to each Lender prompt notice thereof
by telecopier, telex or cable. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telecopier,
telex or cable, confirmed immediately in writing, in
substantially the form of Exhibit A hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the initial
Interest Period for each such Advance. The Borrower may,
subject to the conditions herein provided, borrow more than
one Borrowing on any Business Day. Each Lender shall,
before 2:00 P.M. (New York City time) in the case of a
Borrowing consisting of Base Rate Advances and before 11:00
A.M. (New York City time) in the case of a Borrowing
consisting of Eurodollar Rate Advances, in each case on the
date of such Borrowing, make available for the account of
its Applicable Lending Office to the Funding Agent at its
address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such Borrowing. After the
Funding Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the
Funding Agent will make such funds available to the Borrower
at the Funding Agent's aforesaid address.
(b) Anything in subsection (a) above to the
contrary notwithstanding,
(i) the Borrower may not select Eurodollar
Rate Advances for any Borrowing or with respect to
the Conversion or continuance of any Borrowing if the
aggregate amount of such Borrowing or such Conversion
or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest
Periods relating to Eurodollar Rate Advances
outstanding at any time;
(iii) if any Lender shall, at least one Business
Day before the date of any requested Borrowing, notify
the Funding Agent that the introduction of or any
change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank
or other governmental authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, the Commitment of
such Lender to make Eurodollar Rate Advances or to
Convert all or any portion of Base Rate Advances shall
forthwith be suspended until the Funding Agent shall
notify the Borrower that such Lender has determined
that the circumstances causing such suspension no
longer exist and such Lender's then outstanding
Eurodollar Rate Advances, if any, shall be Base Rate
Advances; to the extent that such affected Eurodollar
Rate Advances become Base Rate Advances, all payments
of principal that would have been otherwise applied to
such Eurodollar Rate Advances shall be applied instead
to such Lender's Base Rate Advances; provided that if
Requisite Lenders are subject to the same illegality or
assertion of illegality, then the right of the Borrower
to select Eurodollar Rate Advances for such Borrowing
or any subsequent Borrowing or to Convert all or any
portion of Base Rate Advances shall forthwith be
suspended until the Funding Agent shall notify the
Borrower that the circumstances causing such suspension
no longer exist, and each Advance comprising such
Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish
timely information to the Funding Agent for determining
the Adjusted Eurodollar Rate for any Eurodollar Rate
Advances comprising any requested Borrowing, the right
of the Borrower to select Eurodollar Rate Advances for
such Borrowing or any subsequent Borrowing shall be
suspended until the Funding Agent shall notify the
Borrower and the Lenders that the circumstances causing
such suspension no longer exist, and each Advance
comprising such Borrowing shall be made as a Base Rate
Advance; and
(v) if the Requisite Lenders shall, at least one
Business Day before the date of any requested
Borrowing, notify the Funding Agent that the Adjusted
Eurodollar Rate for Eurodollar Rate Advances comprising
such Borrowing will not adequately reflect the cost to
such Requisite Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances
for such Borrowing, the right of the Borrower to select
Eurodollar Rate Advances for such Borrowing or any
subsequent Borrowing shall be suspended until the
Funding Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no
longer exist, and each Advance comprising such
Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Borrowing
which the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense
incurred by such Lender by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part
of such Borrowing or by reason of the termination of hedging
or other similar arrangements, in each case when such
Advance is not made on such date (other than by reason of a
breach of a Lender's obligations hereunder), including
without limitation, as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for
such Borrowing the applicable conditions set forth in
Article III.
(d) Unless the Funding Agent shall have received
notice from a Lender prior to the date of any Borrowing that
such Lender will not make available to the Funding Agent
such Lender's ratable portion of such Borrowing, the Funding
Agent may assume that such Lender has made such portion
available to the Funding Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 2.02 and
the Funding Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Funding
Agent, such Lender and the Borrower severally agree to repay
to the Funding Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the
date such amount is repaid to the Funding Agent, at (i) in
the case of the Borrower, the interest rate applicable at
the time to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Funding Agent such corresponding
amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance
to be made by it as part of any Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to
make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender
on the date of any Borrowing.
SECTION 2.03. Fees. (a) Commitment Fees. The
Borrower agrees to pay to the Funding Agent for the account
of each Lender a commitment fee on the average daily unused
portion of such Lender's Commitment, from the Effective Date
in the case of each Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until
the Termination Date of such Lender, payable in arrears on
the last day of each March, June, September and December
during the term of such Lender's Commitment, commencing
December 31, 1993, and on the Termination Date of such
Lender, in an amount equal to the product of (i) the average
daily unused portion of such Lender's Commitment in effect
during the period for which such payment that is to be made
times (ii) the weighted average rate per annum that is
derived from the following rates: (a) a rate of 0.175% per
annum with respect to each day during such period that the
ratings with respect to Long-Term Debt were at Level 1,
(b) a rate of 0.200% per annum with respect to each day
during such period that such ratings were at Level 2, (c) a
rate of 0.250% per annum with respect to each day during
such period that such ratings were at Level 3, and (d) a
rate of 0.375% per annum with respect to each day during
such period that such ratings were at Level 4. If any
change in the rating established by S&P, Moody's or Duff &
Phelps with respect to Long-Term Debt shall result in a
change in the Level, the change in the commitment fee shall
be effective as of the date on which such rating change is
publicly announced. If the ratings established by any two
of S&P, Moody's or Duff & Phelps with respect to Long-Term
Debt are unavailable for any reason for any day, then the
applicable level for purposes of calculating the commitment
fee for such day shall be deemed to be Level 4 (or, if the
Requisite Lenders consent in writing, such other Level as
may be reasonably determined by the Requisite Lenders from a
rating with respect to Long-Term Debt for such day
established by another rating agency reasonably acceptable
to the Requisite Lenders). For purposes of this Section
2.03, the Commitments shall be deemed to be used only to the
extent of Advances actually made.
(b) Closing Fee. The Borrower agrees to pay to
each Bank on the Effective Date the fees payable to each
Bank pursuant to that certain fee letter dated December 15,
1993 among the Borrower and the Agents on behalf of the
Banks.
(c) Agents' Fees. The Borrower agrees to pay to
the Agents the fees payable to the Agents pursuant to that
certain fee letter dated as of December 9, 1993 among the
Borrower and the Agents, in the amounts and at the times
specified in such letter.
SECTION 2.04. Termination and Reduction of the
Commitments.
(a) Mandatory Termination. In the event that a
mandatory prepayment in full of the Advances is required by
the Requisite Lenders pursuant to Section 2.05(b) (whether
or not there are Advances outstanding), the Commitments of
the Lenders shall immediately terminate.
(b) Optional Reductions. The Borrower shall have
the right, upon at least four Business Days' notice to the
Funding Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of
the Lenders, provided that each partial reduction shall be
in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
SECTION 2.05. Repayment and Prepayment of
Advances.
(a) Mandatory Repayment on Termination Date. The
Borrower shall repay the outstanding principal amount of
each Advance made by each Lender on the Termination Date of
such Lender.
(b) Mandatory Prepayment in Certain Events. If
any one of the following events shall occur:
(i) any Person or Persons acting in concert
shall acquire beneficial ownership of more than 40% of
the Borrower's voting stock; or
(ii) during any period of up to 12 months,
individuals who at the beginning of such period were
directors of the Borrower shall cease to constitute a
majority of the Borrower's board of directors; or
(iii) any Debt which is outstanding in a
principal amount of at least $15,000,000 in the
aggregate (but excluding Debt arising under this
Agreement) of the Borrower or any of its Subsidiaries
(as the case may be) shall be required to be prepaid
(other than by a regularly scheduled required
prepayment or by a required prepayment of insurance
proceeds or by a required prepayment as a result of
formulas based on asset sales or excess cash flow),
redeemed, purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity
thereof (other than as set forth in Section 6.01(d));
then, and in any such event, if the Funding Agent shall have
received notice from the Requisite Lenders that they elect
to have the Advances prepaid in full and the Funding Agent
shall have provided notice to the Borrower that the Advances
are to be prepaid in full, the Borrower shall immediately
prepay in full the Advances, together with interest accrued
to the date of prepayment and will reimburse the Lenders in
respect thereof pursuant to Section 8.04(b).
(c) Voluntary Prepayments of Borrowings. The
Borrower shall have no right to prepay any principal amount
of any Advances other than as provided in this subsection
(c). The Borrower may, upon notice to the Funding Agent on
the day the Borrower proposes to prepay Advances in the case
of Base Rate Advances and at least three Business Days'
notice to the Funding Agent in the case of Eurodollar Rate
Advances stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amounts of
the Advances comprising part of the same Borrowing in whole
or ratably in part; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount not
less than $5,000,000 and integral multiples of $1,000,000 in
excess thereof and (y) in the case of any such prepayment
of any Eurodollar Rate Advance, the Borrower shall pay all
accrued interest to the date of such prepayment on the
portion of such Eurodollar Rate Advance being prepaid and
shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(b).
SECTION 2.06. Interest on Advances. The Borrower
shall pay interest accrued on the principal amount of each
Advance outstanding from time to time from the date of such
Advance until such principal amount shall be paid in full,
at the following rates per annum:
(a) Base Rate Advances. If such Advance is a
Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time plus the
Applicable Margin, if any, payable in arrears on the last
day of each March, June, September and December during the
term of this Agreement, commencing December 31, 1993, and on
the Termination Date of the applicable Lender; provided that
any amount of principal, interest, fees and other amounts
payable under this Agreement (including, without limitation,
the principal amount of Base Rate Advances, but excluding
the principal amount of Eurodollar Rate Advances) which is
not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest from the date
on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal at all
times to 2% per annum above the Base Rate in effect from
time to time.
(b) Eurodollar Rate Advances. If such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all
times during the Interest Period for such Advance to the sum
of the Adjusted Eurodollar Rate for such Interest Period
plus the Applicable Margin, payable in arrears on the last
day of such Interest Period and, if such Interest Period has
a duration of more than three months, on the day which
occurs during such Interest Period three months from the
first day of such Interest Period; provided that any
principal amount of any Eurodollar Rate Advance which is not
paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest from the date on which
such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to
(A) during the Interest Period applicable to such Eurodollar
Rate Advance, the greater of (x) 2% per annum above the Base
Rate in effect from time to time and (y) 2% per annum above
the rate per annum required to be paid on such amount
immediately prior to the date on which such amount became
due and (B) after the expiration of such Interest Period, 2%
per annum above the Base Rate in effect from time to time.
SECTION 2.07. Interest Rate Determination.
(a) Each Reference Bank agrees to furnish to the Funding
Agent timely information for the purpose of determining
each Adjusted Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such timely information to
the Funding Agent for the purpose of determining any such
interest rate, the Funding Agent shall determine such
interest rate on the basis of timely information furnished
by the remaining Reference Banks, subject to Section
2.02(b)(iv).
(b) The Funding Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate
determined by the Funding Agent for purposes of Section
2.06(a) or 2.06(b), and the applicable rate, if any,
furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section
2.06(b).
SECTION 2.08. Voluntary Conversion or
Continuation of Advances.
(a) The Borrower may on any Business Day, upon
notice given to the Funding Agent not later than 12:00 noon
(New York City time) on the third Business Day prior to the
date of the proposed Conversion or continuance (a "Notice of
Conversion/Continuation") and subject to the provisions of
Section 2.02(b), (1) Convert all Advances of one Type
comprising the same Borrowing into Advances of another Type
and (2) upon the expiration of any Interest Period
applicable to Advances which are Eurodollar Rate Advances,
continue all (or, subject to Section 2.02(b), any portion
of) such Advances as Eurodollar Rate Advances and the
succeeding Interest Period(s) of such continued Advances
shall commence on the last day of the Interest Period of the
Advances to be continued; provided, however, that any
Conversion of any Eurodollar Rate Advances into Advances of
another Type shall be made on, and only on, the last day of
an Interest Period for such Eurodollar Rate Advances. Each
such Notice of Conversion/Continuation shall, within the
restrictions specified above, specify (i) the date of such
continuation or Conversion, (ii) the Advances (or, subject
to Section 2.02(b), any portion thereof) to be continued or
Converted, (iii) if such continuation is of, or such
Conversion is into, Eurodollar Rate Advances, the duration
of the Interest Period for each such Advance and (iv) in the
case of a continuation of or a Conversion into a Eurodollar
Rate Advance, that no Potential Event of Default or Event of
Default has occurred and is continuing.
(b) If upon the expiration of the then
existing Interest Period applicable to any Advance which
is a Eurodollar Rate Advance, the Borrower shall not have
delivered a Notice of Conversion/Continuation in accordance
with this Section 2.08, then such Advance shall upon such
expiration automatically be Converted to a Base Rate
Advance.
(c) After the occurrence of and during the
continuance of a Potential Event of Default or an Event of
Default, the Borrower may not elect to have an Advance be
made or continued as, or Converted into, a Eurodollar Rate
Advance after the expiration of any Interest Rate then in
effect for that Advance.
SECTION 2.09. Increased Costs. (a) If, due
to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve
requirements in the case of Eurodollar Rate Advances
included in the Eurodollar Rate Reserve Percentage) in or in
the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central
bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost
to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances, then the Borrower
shall from time to time, upon demand by such Lender (with a
copy of such demand to the Funding Agent), pay to the
Funding Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such
increased cost. A reasonably detailed certificate as to the
amount and manner of calculation of such increased cost,
submitted to the Borrower and the Funding Agent by such
Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that compliance with
any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount
of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and
other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Funding Agent),
the Borrower shall immediately pay to the Funding Agent for
the account of such Lender, from time to time as specified
by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
reasonably detailed certificate as to such amounts and the
manner of calculation thereof submitted to the Borrower and
the Funding Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) If a Lender shall change its Applicable
Lending Office, such Lender shall not be entitled to receive
any greater payment under Sections 2.09 and 2.11 than the
amount such Lender would have been entitled to receive if it
had not changed its Applicable Lending Office, unless such
change was made at the request of the Borrower or at a time
when the circumstances giving rise to such greater payment
did not exist.
SECTION 2.10. Payments and Computations. (a) The
Borrower shall make each payment hereunder not later than
1:00 P.M. (New York City time) on the day when due in U.S.
dollars to the Funding Agent at its address referred to in
Section 8.02 in same day funds. Subject to the immediately
succeeding sentence, the Funding Agent will promptly
thereafter cause to be distributed like funds relating to
the payment of principal or interest or commitment fees
ratably (other than amounts payable pursuant to Section 2.09
or 2.11 or, to the extent the Termination Date is not the
same for all Lenders, pursuant to Section 2.05(a)) to the
Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for
the account of its Applicable Lending Office, in each case
to be applied in accordance with the terms of this
Agreement. Upon receipt of principal or interest paid after
an Event of Default and an acceleration or a deemed
acceleration of amounts due hereunder, the Funding Agent
will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest ratably in
accordance with each Lender's outstanding Advances (other
than amounts payable pursuant to Section 2.09 or 2.11) to
the Lenders for the account of their respective Applicable
Lending Offices. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(d), from
and after the effective date specified in such Assignment
and Acceptance, the Funding Agent shall make all payments
hereunder in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the
Base Rate shall be made by the Funding Agent on the basis
of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Adjusted Eurodollar
Rate or the Federal Funds Rate and of commitment fees shall
be made by the Funding Agent on the basis of a year of 360
days, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the
period for which such interest or such fees are payable.
Each determination by the Funding Agent of an interest rate
hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in
the computation of payment of interest or commitment fee, as
the case may be; provided, however, if such extension would
cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business
Day.
(d) Unless the Funding Agent shall have received
notice from the Borrower prior to the date on which any
payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Funding Agent may
assume that the Borrower has made such payment in full to
the Funding Agent on such date and the Funding Agent may, in
reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent that the
Borrower shall not have so made such payment in full to the
Funding Agent, each Lender shall repay to the Funding Agent
forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date
such Lender repays such amount to the Funding Agent, at the
Federal Funds Rate.
SECTION 2.11. Taxes. (a) Any and all payments
by the Borrower hereunder shall be made, in accordance with
Section 2.10, 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 (i) in the case of each
Lender and each Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the
laws of which such Lender or such Agent (as the case may be)
is organized or any political subdivision thereof or in
which its principal office is located, (ii) in the case of
each Lender taxes imposed on its net income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision
thereof and (iii) in the case of each Lender and each Agent,
taxes imposed by the United States by means of withholding
at the source if and to the extent that such taxes shall be
in effect and shall be applicable on the date hereof in the
case of each Bank and on the effective date of the
Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender, on payments to be
made to the Agents or such Lender's Applicable Lending
Office (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Lender or either Agent,
(i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.11) such Lender or such Agent (as the case may be)
receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(b) In addition, the Borrower 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 the execution, delivery or registration of, or
otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender
and each Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 2.11) paid by such Lender or such 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. This indemnification shall be made within 30 days
from the date such Lender or such Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment
of Taxes, the Borrower will furnish to the Funding Agent, at
its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which
the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying
that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or
business in the United States. If the form provided by a
Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall
be considered excluded from "Taxes" as defined in Section
2.11(a).
(f) For any period with respect to which a Lender
has failed to provide the Borrower with the appropriate form
described in Section 2.11(e) (other than if such failure is
due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if
such form otherwise is not required under the first sentence
of subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.11(a) with respect to
Taxes imposed by the United States; provided, however, that
should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower
shall, at the expense of such Lender, take such steps as the
Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Without prejudice to the survival of any
other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section
2.11 shall survive the payment in full of principal and
interest hereunder.
SECTION 2.12. Sharing of Payments, Etc. If
any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Advances made by it (other
than pursuant to Section 2.09 or 2.11 or, to the extent the
Termination Date is not the same for all Lenders, pursuant
to Section 2.05(a)) in excess of its ratable share of
payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Advances made by them as
shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them, provided,
however, that if all or any portion of such excess payment
is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender
shall repay to the purchasing Lender the purchase price to
the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to
(ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to
this Section 2.12 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in
the amount of such participation.
SECTION 2.13. Evidence of Debt.
(a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting
from each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Register maintained by the Funding Agent
pursuant to Section 8.07(c) shall include a control account,
and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date, amount and
tenor, as applicable, of each Borrowing, the Type of
Advances comprising such Borrowing and the Interest Period
applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder,
and (iv) the amount of any sum received by the Funding Agent
from the Borrower hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be
conclusive and binding for all purposes, absent manifest
error.
(d) Any Lender may at any time request that the
Borrower execute and deliver to such Lender a Note,
substantially in the form of Exhibit G annexed hereto, to
evidence such Lender's Advances hereunder. The Borrower
agrees promptly upon its receipt of any such request from a
Lender to execute and deliver a Note to such Lender.
SECTION 2.14. Use of Proceeds.
(a) Advances shall be used by the Borrower for
commercial paper backup and for general corporate purposes.
(b) No portion of the proceeds of any Advances
under this Agreement shall be used by the Borrower or any of
its Subsidiaries in any manner which might cause the
Advances or the application of such proceeds to violate, or
require any Lender to make any filing or take any other
action under, Regulation G, Regulation U, Regulation T, or
Regulation X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board or to
violate the Securities Exchange Act of 1934, in each case as
in effect on the date or dates of such Advances and such use
of proceeds.
SECTION 2.15. Extension of the Commitment
Termination Date. The Borrower may not more than once in
any calendar year and not later than 13 months prior to the
then existing Commitment Termination Date of the Eligible
Lenders (as defined below), request that the Commitment
Termination Date of all Eligible Lenders be extended for a
period of one year by delivering to the Agents a signed copy
of an extension request (an "Extension Request") in
substantially the form of Exhibit E hereto; provided, that,
if such request is made no earlier than 15 months prior to
(and no later than 13 months prior to) the then existing
Commitment Termination Date of the Eligible Lenders, the
Borrower may request that the Commitment Termination Date of
all Eligible Lenders be extended for a period of two years.
The Reporting Agent on behalf of the Agents shall promptly
notify each Eligible Lender of its receipt of such Extension
Request. On or prior to June 20 of each calendar year in
which there has been an Extension Request (the
"Determination Date"), each Eligible Lender shall notify
each Agent and the Borrower of its willingness or
unwillingness to extend its Commitment Termination Date
hereunder. Any Eligible Lender that shall fail to so notify
each Agent and the Borrower on or prior to the Determination
Date shall be deemed to have declined to so extend. In the
event that, on or prior to the Determination Date, Eligible
Lenders representing 66-2/3% or more of the aggregate amount
of the Commitments of all Eligible Lenders then in effect
shall consent to such extension, upon confirmation by the
Agents of such consent, the Reporting Agent on behalf of the
Agents shall so advise the Lenders and the Borrower, and,
subject to execution of documentation evidencing such
extension and consents, the Commitment Termination Date of
each Eligible Lender (each a "Consenting Lender") that has
consented on or prior to the Determination Date to so extend
shall be extended to the date one year or two years, as
applicable, after the Commitment Termination Date of such
Eligible Lender in existence on the date of the related
Extension Request. Thereafter, (i) for each Consenting
Lender, the term "Commitment Termination Date" shall at
all times refer to such date, unless it is later extended
pursuant to this Section 2.15, and (ii) for each Lender that
is not an Eligible Lender and for each Eligible Lender that
either has declined on or prior to the Determination Date
to so extend or is deemed to have so declined, the term
"Commitment Termination Date" shall at all times refer to
the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agents of
such Extension Request. In the event that, as of the
Determination Date, the Consenting Lenders represent less
than 66-2/3% of the aggregate amount of the Commitments of
all Eligible Lenders then in effect, and the Agents confirm
the same, the Reporting Agent on behalf of the Agents shall
so advise the Lenders and the Borrower, and none of the
Lenders' Commitment Termination Dates shall be extended to
the date indicated in the Extension Request and each
Lender's Commitment Termination Date shall continue to be
the date which was the Commitment Termination Date of such
Lender immediately prior to the delivery to the Agents of
such Extension Request. For purposes of this Section 2.15,
the term "Eligible Lenders" means, with respect to any
Extension Request, (i) all Lenders if no Lender's Commitment
Termination Date had been extended pursuant to this Section
2.15 prior to the delivery to the Agents of such Extension
Request, and (ii) in all other cases, those Lenders which
had extended their Commitment Termination Date in the most
recent extension of any Commitment Termination Date effected
pursuant to this Section 2.15.
SECTION 2.16. Substitution of Lenders. If any
Lender requests compensation from the Borrower under Section
2.09(a) or (b) or Section 2.11 or if any Lender declines to
extend its Commitment Termination Date pursuant to Section
2.15, the Borrower shall have the right, with the assistance
of the Agents, to seek one or more Eligible Assignees (which
may be one or more of the Lenders) reasonably satisfactory
to the Agents and the Borrower to purchase the Advances and
assume the Commitments of such Lender, and the Borrower, the
Agents, such Lender, and such Eligible Assignees shall
execute and deliver an appropriately completed Assignment
and Acceptance pursuant to Section 8.07(a) hereof to effect
the assignment of rights to and the assumption of
obligations by such Eligible Assignees; provided that such
requesting Lender shall be entitled to compensation under
Section 2.09 and 2.11 for any costs incurred by it prior to
its replacement.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effective
Date. The obligation of each Lender to make its initial
Advance is subject to the condition precedent that (a) the
Agents shall have received on or before the Effective Date
the following, each dated the Effective Date unless
otherwise indicated, and each in form and substance
satisfactory to the Agents and in sufficient copies for each
Lender:
(i) Copies of resolutions of the Board of
Directors of the Borrower (or its Executive Committee,
together with evidence of the authority of the
Executive Committee) approving this Agreement, and of
all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect
to this Agreement, certified as of a recent date prior
to the Effective Date.
(ii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the
other documents to be delivered by the Borrower
hereunder.
(iii) Certified copies of the Borrower's
Certificate of Incorporation, together with good
standing certificates from the state of Delaware and
the jurisdiction of the Borrower's principal place of
business, each to be dated a recent date prior to the
Effective Date;
(iv) Copies of the Borrower's Bylaws, certified
as of the Effective Date by their respective Secretary
or an Assistant Secretary;
(v) Executed originals of this Agreement and
the other documents to be delivered by the Borrower
hereunder;
(vi) A favorable opinion of the General Counsel
of the Borrower, substantially in the form of Exhibit C
hereto;
(vii) A favorable opinion of O'Melveny & Myers,
counsel for the Agents, substantially in the form of
Exhibit D hereto;
(viii) The Borrower's form 8-K dated October 1,
1993, which includes restated audited financial
statements as of December 31, 1992 to present the
Borrower's transportation manufacturing and service
parts group as a discontinued operation, in the form
sent to the Securities and Exchange Commission; and
(ix) A certificate of an authorized officer of
the Company to the effect that since December 31, 1992,
there has been no material adverse change in the
operations, business or financial or other condition or
properties of the Borrower and its Subsidiaries, taken
as a whole; and
(b) the Agents shall have received the fees set
forth in Section 2.03 (b) and (c) if such fees are payable
to the Agents and the Banks on the Effective Date.
SECTION 3.02. Conditions Precedent to Each
Borrowing. The obligation of each Lender to make an Advance
on the occasion of each Borrowing (including the initial
Borrowing) shall be subject to the further conditions
precedent that (x) the Funding Agent shall have received a
Notice of Borrowing with respect thereto in accordance with
Section 2.02 and (y) on the date of such Borrowing (a) the
following statements shall be true (and each of the giving
of the applicable Notice of Borrowing and the acceptance by
the Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by the Borrower
that on the date of such Borrowing such statements are
true):
(i) The representations and warranties of the
Borrower contained in Section 4.01 are correct on and
as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application
of the proceeds therefrom, as though made on and as of
such date, except to the extent that any such
representation or warranty expressly relates only to an
earlier date, in which case they were correct as of
such earlier date; and
(ii) No event has occurred and is continuing, or
would result from such Borrowing or from the
application of the proceeds therefrom, which
constitutes an Event of Default, or a Potential Event
of Default;
and (b) the Agents shall have received such other approvals,
opinions or documents as the Requisite Lenders through the
Agents may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of
the Borrower. The Borrower represents and warrants as
follows:
(a) Due Organization, etc. The Borrower and each
Material Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of
the jurisdiction of its incorporation. The Borrower
and each of its Material Subsidiaries are qualified to
do business in and are in good standing under the laws
of each jurisdiction in which failure to be so
qualified would have a material adverse effect on the
Borrower and its Subsidiaries, taken as a whole.
(b) Due Authorization, etc. The execution,
delivery and performance by the Borrower of this
Agreement and the other Loan Documents are within the
Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not
contravene (i) the Borrower's Certificate of
Incorporation or (ii) applicable law or any material
contractual restriction binding on or affecting the
Borrower.
(c) Governmental Consent. No authorization or
approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is
required for the due execution, delivery and
performance by the Borrower of this Agreement and the
other Loan Documents.
(d) Validity. This Agreement is the legal,
valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its
terms subject to the effect of applicable bankruptcy,
insolvency, arrangement, moratorium and other similar
laws affecting creditors' rights generally and to the
application of general principles of equity.
(e) Condition of the Borrower. The balance sheet
of the Borrower and its Subsidiaries as at December 31,
1992, and the related statements of income and retained
earnings of the Borrower and its Subsidiaries for the
fiscal year then ended, copies of which have been
furnished to each Bank pursuant to Section
3.01(a)(viii), fairly present the financial condition
of the Borrower and its Subsidiaries as at such date
and the results of the operations of the Borrower and
its Subsidiaries for the period ended on such date, all
in accordance with GAAP consistently applied, and as of
the Effective Date, there has been no material adverse
change in the business, condition (financial or
otherwise), operations or properties of the Borrower
and its Subsidiaries, taken as a whole, since
December 31, 1992.
(f) Litigation. (i) There is no pending
action or proceeding against the Borrower or any of its
Subsidiaries before any court, governmental agency or
arbitrator, and (ii) to the knowledge of the Borrower,
there is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries
before any court, governmental agency or arbitrator,
which in either case, in the reasonable judgement of
the Borrower could reasonably be expected to materially
adversely affect the financial condition or operations
of the Borrower and its Subsidiaries, taken as a whole,
or with respect to actions of third parties which
purports to affect the legality, validity or
enforceability of this Agreement.
(g) Margin Regulations. The Borrower is not
engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no
proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others
for the purpose of purchasing or carrying any margin
stock in any manner that violates, or would cause a
violation of, Regulation G, Regulation T, Regulation U
or Regulation X. Less than 25 percent of the fair
market value of the assets of (i) the Borrower or
(ii) the Borrower and its Subsidiaries consists of
Margin Stock.
(h) Payment of Taxes. The Borrower and each of
its Subsidiaries have filed or caused to be filed all
material tax returns (federal, state, local and
foreign) required to be filed and paid all material
amounts of taxes shown thereon to be due, including
interest and penalties, except for such taxes as are
being contested in good faith and by proper proceedings
and with respect to which appropriate reserves are
being maintained by the Borrower or any such
Subsidiary, as the case may be.
(i) Governmental Regulation. The Borrower
is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act
of 1940, each as amended, or to any Federal or state
statute or regulation limiting its ability to incur
indebtedness for money borrowed. No Subsidiary of the
Borrower is subject to any regulation that would limit
the ability of the Borrower to enter into or perform
its obligations under this Agreement.
(j) ERISA.
(i) No ERISA Event which might result in
liability of the Borrower or any of its ERISA
Affiliates in excess of $10,000,000 (or, in the
case of an event described in clause (v) of the
definition of ERISA Event, $750,000) (other than
for premiums payable under Title IV of ERISA) has
occurred or is reasonably expected to occur with
respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to
the most recently completed annual report prior to
the Effective Date (Form 5500 Series) for each
Pension Plan, copies of which have been filed with
the Internal Revenue Service and furnished to the
Agents, is complete and, to the best knowledge of
the Borrower, accurate, and since the date of such
Schedule B there has been no material adverse
change in the funding status of any such Pension
Plan.
(iii) Neither the Borrower nor any ERISA
Affiliate has incurred, or, to the best knowledge
of the Borrower, is reasonably expected to incur,
any Withdrawal Liability to any Multiemployer Plan
which has not been satisfied or which is or might
be in excess of $10,000,000.
(iv) Neither the Borrower nor any ERISA
Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and, to the best
knowledge of the Borrower, no Multiemployer Plan
is reasonably expected to be in reorganization or
to be terminated within the meaning of Title IV of
ERISA.
(k) Environmental Matters. (i) The Borrower
and each of its Subsidiaries is in compliance in all
material respects with all Environmental Laws the non-
compliance with which could reasonably be expected to
have a material adverse effect on the financial
condition or operations of the Borrower and its
Subsidiaries, taken as a whole, and (ii) there has
been no "release or threatened release of a hazardous
substance" (as defined by the Comprehensive
Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.) or any other release, emission or discharge into
the environment of any hazardous or toxic substance,
pollutant or other materials from the Borrower's or its
Subsidiaries' property other than as permitted under
applicable Environmental Law and other than those
which would not have a material adverse effect on the
financial condition or operations of the Borrower and
its Subsidiaries, taken as a whole. Other than
disposals for which the Borrower has been indemnified
in full, all "hazardous waste" (as defined by the
Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. (1976) and the regulations
thereunder, 40 CFR Part 261 ("RCRA")) generated at the
Borrower's or any Subsidiaries' properties have in the
past been and shall continue to be disposed of at sites
which maintain valid permits under RCRA and any
applicable state or local Environmental Law.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as
any Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, unless the
Requisite Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause
each of its Subsidiaries to comply, with all applicable
laws, rules, regulations and orders, such compliance to
include, without limitation, (i) complying with all
Environmental Laws and (ii) paying before the same
become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its
property except to the extent contested in good faith,
except where failure to so comply would not have a
material adverse effect on the business, condition
(financial or otherwise), operations or properties of
the Borrower and its Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the
Reporting Agent (in sufficient quantity for delivery to
each Lender) for prompt distribution by the Reporting
Agent to the Lenders and furnish to Citibank (and in
the case of clause (xii), to the Funding Agent):
(i) as soon as available and in any event
within 60 days after the end of each of the first
three quarters of each fiscal year of the
Borrower, consolidated balance sheets as of the
end of such quarter and consolidated statements of
source and application of funds of the Borrower
and its Subsidiaries and consolidated statements
of income and retained earnings of the Borrower
and its Subsidiaries for such quarter and the
period commencing at the end of the previous
fiscal year and ending with the end of such
quarter and certified by the chief financial
officer or chief accounting officer of the
Borrower;
(ii) as soon as available and in any event
within 120 days after the end of each fiscal year
of the Borrower, a copy of the annual audit
report for such year for the Borrower and its
Subsidiaries, containing financial statements
(including a consolidated balance sheet and
consolidated statement of income and cash flows of
the Borrower and its Subsidiaries) for such year,
certified by and accompanied by an opinion of
Deloitte & Touche or other nationally recognized
independent public accountants. The opinion shall
be unqualified (as to going concern, scope of
audit and disagreements over the accounting or
other treatment of offsets) and shall state that
such consolidated financial statements present
fairly in all material respects the financial
position of the Borrower and its Subsidiaries as
at the dates indicated and the results of their
operations and cash flow for the periods indicated
in conformity with GAAP and that the examination
by such accountants in connection with such
consolidated financial statements has been made in
accordance with generally accepted auditing
standards;
(iii) together with each delivery of the
report of the Borrower and its Subsidiaries
pursuant to subsections (i) and (ii) above, a
Compliance Certificate for the year executed by
the chief financial officer or treasurer of the
Borrower demonstrating in reasonable detail
compliance during and at the end of such
accounting periods with the restrictions contained
in Section 5.02(e), (f) and (g) (and setting forth
the arithmetical computation required to show such
compliance) and stating that the signer has
reviewed the terms of this Agreement and has made,
or caused to be made under his or her supervision,
a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries
during the accounting period covered by such
financial statements and that such review has not
disclosed the existence during or at the end of
such accounting period, and that the signer does
not have knowledge of the existence as at the date
of the compliance certificate, of any condition
or event that constitutes an Event of Default or
Potential Event of Default or, if any such
condition or event existed or exists, specifying
the nature and period of existence thereof and
what action the Borrower has taken, is taking and
proposes to take with respect thereto;
(iv) as soon as possible and in any event
within five days after the occurrence of each
Event of Default and each Potential Event of
Default, continuing on the date of such statement,
a statement of an authorized financial officer of
the Borrower setting forth details of such Event
of Default or event and the action which the
Borrower has taken and proposes to take with
respect thereto;
(v) promptly after any material change in
accounting policies or reporting practices, notice
and a description in reasonable detail of such
change;
(vi) promptly and in any event within 30 days
after the Borrower or any ERISA Affiliate knows or
has reason to know that any ERISA Event referred
to in clause (i) of the definition of ERISA Event
with respect to any Pension Plan has occurred
which might result in liability to the PBGC a
statement of the chief accounting officer of the
Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA
Affiliate has taken or proposes to take with
respect thereto;
(vii) promptly and in any event within 15 days
after the Borrower or any ERISA Affiliate knows or
has reason to know that any ERISA Event (other
than an ERISA Event referred to in (vi) above)
with respect to any Pension Plan has occurred
which might result in liability to the PBGC in
excess of $100,000, a statement of the chief
accounting officer of the Borrower describing such
ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate has taken or
proposes to take with respect thereto;
(viii) promptly and in any event within five
Business Days after receipt thereof by the
Borrower or any ERISA Affiliate from the PBGC,
copies of each notice from the PBGC of its
intention to terminate any Pension Plan or to have
a trustee appointed to administer any Pension
Plan;
(ix) promptly and in any event within 15 days
after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer
Plan, a copy of each notice received by the
Borrower or any ERISA Affiliate concerning (w) the
imposition of Withdrawal Liability by a
Multiemployer Plan in excess of $100,000, (x) the
determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the
meaning of Title IV of ERISA, (y) the termination
of a Multiemployer Plan within the meaning of
Title IV of ERISA or (z) the amount of liability
incurred, or expected to be incurred, by the
Borrower or any ERISA Affiliate in connection with
any event described in clause (w), (x) or (y)
above;
(x) promptly after the commencement
thereof, notice of all material actions, suits
and proceedings before any court or government
department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting
the Borrower or any of its Subsidiaries, of the
type described in Section 4.01(f);
(xi) promptly after the occurrence thereof,
notice of (A) any event which makes any of the
representations contained in Section 4.01(k)
inaccurate in any material respect or (B) the
receipt by the Borrower of any notice, order,
directive or other communication from a
governmental authority alleging violations of or
noncompliance with any Environmental Law which
could reasonably be expected to have a material
adverse effect on the financial condition of the
Borrowers and its Subsidiaries, taken as a whole;
(xii) promptly after any change in the rating
established by S&P, Moody's or Duff & Phelps, as
applicable, with respect to Long-Term Debt, a
notice of such change, which notice shall specify
the new rating, the date on which such change was
publicly announced, and such other information
with respect to such change as any Lender through
either Agent may reasonably request;
(xiii) promptly after the sending or filing
thereof, copies of all reports which the Borrower
sends to any of its public security holders, and
copies of all reports and registration statements
which the Borrower files with the SEC or any
national security exchange;
(xiv) promptly after the Borrower or any ERISA
Affiliate creates any employee benefit plan to
provide health or welfare benefits (through the
purchase of insurance or otherwise) for any
retired or former employee of the Borrower or any
of its ERISA Affiliates (except as provided in
Section 4980B of the Code and except as provided
under the terms of any employee welfare benefit
plans provided pursuant to the terms of collective
bargaining agreements) under the terms of which
the Borrower and/or any of its ERISA Affiliates
are not permitted to terminate such benefits, a
notice detailing such plan; and
(xv) such other information respecting the
condition or operations, financial or otherwise,
of the Borrower or any of its Subsidiaries as any
Lender through either Agent may from time to time
reasonably request.
(c) Corporate Existence, Etc. The Borrower will,
and will cause each of its Subsidiaries to, at all
times preserve and maintain its fundamental business
and preserve and keep in full force and effect its
corporate existence (except as permitted under Section
5.02(b) hereof) and all rights, franchises and licenses
necessary or desirable in the normal conduct of its
business; provided, however, that this paragraph (c)
shall not apply in any case when, in the good faith
business judgment of the Borrower, such preservation or
maintenance is neither necessary nor appropriate for
the prudent management of the business of the Borrower.
(d) Inspection. The Borrower will permit and
will cause each of its Subsidiaries to permit any
authorized representative designated by either Agent or
any Lender at the expense of such Agent or such Lender,
to visit and inspect any of the properties of the
Lender or any of its Subsidiaries, including its and
their financial and accounting records, and to take
copies and to take extracts therefrom, and discuss its
and their affairs, finances and accounts with its and
their officers and independent public accountants, all
during normal hours, upon reasonable notice and as
often as may be reasonably requested.
(e) Insurance. The Borrower will maintain and
will cause each of its Subsidiaries to maintain
insurance to such extent and covering such risks as is
usual for companies engaged in the same or similar
business and on request will advise the Lenders of all
insurance so carried.
SECTION 5.02. Negative Covenants. So long as
any Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, without the written consent of the
Requisite Lenders:
(a) Liens, Etc. The Borrower will not create
or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien, upon or with
respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its
Subsidiaries to assign, any right to receive income, in
each case to secure or provide for the payment of any
Debt of any Person, unless the Borrower's obligations
hereunder shall be secured equally and ratably with,
or prior to, any such Debt; provided however that the
foregoing restriction shall not apply to the following
Liens which are permitted:
(i) Liens on assets of any Subsidiary of the
Borrower existing at the time such Person becomes
a Subsidiary (other than any such Lien created in
contemplation of becoming a Subsidiary);
(ii) Liens on accounts receivable resulting
from the sale of such accounts receivable, so long
as, at any time, the aggregate outstanding amount
of cash advanced to the Borrower and attributable
to the sale of such accounts receivable does not
exceed $200,000,000;
(iii) purchase money Liens upon or in any
property acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to
secure the purchase price of such property or to
secure Debt incurred solely for the purpose of
financing the acquisition of such property
(provided that the amount of Debt secured by such
Lien does not exceed 100% of the purchase price of
such property and transaction costs relating to
such acquisition) and Liens existing on such
property at the time of its acquisition (other
than any such Lien created in contemplation of
such acquisition); and the interest of the lessor
thereof in any property that is subject to a
Capital Lease;
(iv) any Lien securing Debt that was incurred
prior to or during construction or improvement of
property for the purpose of financing all or part
of the cost of such construction or improvement,
provided that the amount of Debt secured by such
Lien does not exceed 100% of the fair market value
of such property after giving effect to such
construction or improvement;
(v) any Lien securing Debt of a Subsidiary
owing to the Borrower;
(vi) Liens resulting from any extension,
renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of
any Debt secured by any Lien referred to in
clauses (i), (iii) and (iv) above so long as (x)
the aggregate principal amount of such Debt shall
not increase as a result of such extension,
renewal or replacement and (y) Liens resulting
from any such extension, renewal or replacement
shall cover only such property which secured the
Debt that is being extended, renewed or replaced;
and
(vii) Liens other than Liens described in
clauses (i) through (vi) hereof, whether now
existing or hereafter arising, securing Debt in an
aggregate amount not exceeding $50,000,000.
(b) Restrictions on Fundamental Changes. The
Borrower will not, and will not permit any of its
Material Subsidiaries to, merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose
of (whether in one transaction or in a series of
transactions) all or a substantial portion of its
assets (whether now owned or hereafter acquired) to any
Person, or enter into any partnership, joint venture,
syndicate, pool or other combination, unless no Event
of Default or Potential Event of Default has occurred
and is continuing or would result therefrom and, in the
case of a merger or consolidation of the Borrower,
(i) the Borrower is the surviving entity or (ii) the
surviving entity assumes all of the Borrower's
obligations under this Agreement in a manner
satisfactory to the Requisite Lenders.
(c) Plan Terminations. The Borrower will not,
and will not permit any ERISA Affiliate to, terminate
any Pension Plan so as to result in liability of the
Borrower or any ERISA Affiliate to the PBGC in excess
of $15,000,000, or permit to exist any occurrence of an
event or condition which reasonably presents a material
risk of a termination by the PBGC of any Pension Plan
with respect to which the Borrower or any ERISA
Affiliate would, in the event of such termination,
incur liability to the PBGC in excess of $15,000,000.
(d) Margin Stock. The Borrower will not permit
25% or more of the fair market value of the assets of
(i) the Borrower or (ii) the Borrower and its
Subsidiaries to consist of Margin Stock.
(e) Minimum Cash Flow Coverage. The Borrower
will not permit Cash Flow Coverage for the twelve-month
period ending on the last day of each fiscal quarter to
be less than 1.25 to 1.00.
(f) Maximum Leverage. The Borrower will not
permit at any time Leverage to be greater than 0.55 to
1.00.
(g) Minimum Net Worth. The Borrower will not
permit at any time Net Worth to be less than the sum
of (i) $410 million and (ii) 25% of Net Income
(excluding losses) from October 1, 1993 to the then
most recent June 30 or December 31 and (iii) all
Additions to Capital from October 1, 1993 to the then
most recent June 30 or December 31.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of
the following events ("Events of Default") shall occur and
be continuing:
(a) The Borrower shall fail to pay any principal
of any Advance when the same becomes due and payable or
the Borrower shall fail to pay any interest on any
Advance or any fees or other amounts payable hereunder
within five days of the date due; or
(b) Any representation or warranty made or deemed
made by the Borrower herein or by the Borrower pursuant
to this Agreement (including any notice, certificate or
other document delivered hereunder) shall prove to have
been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe
(i) any term, covenant or agreement contained in this
Agreement (other than any term, covenant or agreement
contained in Section 5.01(b)(iv), 5.01(c) or 5.02) on
its part to be performed or observed and the failure to
perform or observe such other term, covenant or
agreement shall remain unremedied for 30 days after the
Borrower obtains knowledge of such breach or (ii) any
term, covenant or agreement contained in Section 5.02
and either of the Agents or the Requisite Lenders shall
have notified the Borrower that an Event of Default has
occurred, or (iii) any term, covenant or agreement
contained in Section 5.01(b)(iv) or 5.01(c); or
(d) The Borrower or any of its Subsidiaries shall
fail to pay any principal of or premium or interest on
any Debt which is outstanding in a principal amount of
at least $15,000,000 in the aggregate (but excluding
Debt arising under this Agreement) of the Borrower or
such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or other-
wise), and such failure shall continue after the
applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or the
Borrower or any of its Subsidiaries shall fail to
perform or observe any other agreement, term or
condition contained in any agreement or instrument
relating to any such Debt (or if any other event or
condition of default under any such agreement or
instrument shall exist) and such failure, event or
condition shall continue after the applicable grace
period, if any, specified in such agreement or
instrument, if the effect of such failure, event or
condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such
Debt shall be declared to be due and payable as a
result of such failure, event or condition; or
(e) The Borrower or any of its Material
Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the
Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for a substantial part of
its property and, in the case of any such proceeding
instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without
limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial
part of its property) shall occur; or the Borrower or
any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of
money in excess of $25,000,000 shall be rendered
against the Borrower or any of its Material
Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon a final
or nonappealable judgment or order or (ii) there shall
be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be
in effect;
(g) (i) Any ERISA Event with respect to a
Pension Plan shall have occurred and, 30 days
after notice thereof shall have been given to the
Borrower by either of the Agents, (x) such ERISA
Event shall still exist and (y) the sum
(determined as of the date of occurrence of such
ERISA Event) of the Insufficiency of such Pension
Plan and the Insufficiency of any and all other
Pension Plans with respect to which an ERISA Event
shall have occurred and then exist (or in the case
of a Pension Plan with respect to which an ERISA
Event described in clause (iii) through (vi) of
the definition of ERISA Event shall have occurred
and then exist, the liability related thereto) is
equal to or greater than $25,000,000; or
(ii) The Borrower or any ERISA Affiliate
shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred an
aggregate Withdrawal Liability for all years to
such Multiemployer Plan in an amount that, when
aggregated with all other amounts then required to
be paid to Multiemployer Plans by the Borrower and
its ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification),
exceeds $25,000,000 and it is reasonably likely
that all amounts then required to be paid to
Multiemployer Plans by the Borrower and its ERISA
Affiliates as Withdrawal Liability will exceed
$25,000,000; or
(iii) The Borrower 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 or ERISA, and it is
reasonably likely that as a result of such
reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans that are
then in reorganization or being terminated have
been or will be increased over the amounts
contributed to such Multiemployer Plans for the
plan year of such Multiemployer Plan immediately
preceding the plan year in which the
reorganization or termination occurs by an amount
exceeding $25,000,000;
then, and in any such event, either of the Agents (i) shall
at the request, or may with the consent, of the Requisite
Lenders, by notice to the Borrower, declare the obligation
of each Lender to make Advances to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Requisite Lenders,
by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall
become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower or
any of its Subsidiaries under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE VII
THE FUNDING AGENT AND THE AGENTS
SECTION 7.01. Authorization and Action. Each
Lender hereby appoints and authorizes Citibank and B of A to
act as Agents under this Agreement, Citibank to act as
Funding Agent under this Agreement and B of A to act as
Reporting Agent under this Agreement and authorizes each
Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated
to each Agent by the terms hereof, together with such powers
as are reasonably incidental thereto. As to any matters not
expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the
Advances and other amounts owing hereunder), no Agent shall
be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from
acting) upon the instructions of the Requisite Lenders, and
such instructions shall be binding upon all Lenders;
provided, however, that no Agent shall be required to take
any action which exposes such Agent to personal liability or
which is contrary to any of the Loan Documents or applicable
law. Each Agent agrees to give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the
terms of the Loan Documents.
SECTION 7.02. Agents' Reliance, Etc. Neither the
Agents nor any of their respective directors, officers,
agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection
with any of the Loan Documents, except for its or their own
gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agents: (i) may
treat the payee of any Advance as the holder thereof until
the Funding Agent receives and accepts an Assignment and
Acceptance entered into by the Lender which is the payee of
such Advance, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) make
no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in
connection with any of the Loan Documents; (iv) shall not
have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any of the Loan Documents on the part of the
Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to
any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of
the Loan Documents or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability
under or in respect of any of the Loan Documents by acting
upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 7.03. Citibank, B of A and Affiliates.
With respect to its respective Commitment and the respective
Advances made by it, Citibank and B of A shall each have the
same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not an
Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include B of A and Citibank
respectively in its individual capacity. B of A or Citibank
and their respective affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrower,
any of its subsidiaries and any Person who may do business
with or own securities of the Borrower or any such
subsidiary, all as if B of A or Citibank, as the case may be
was not Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each
Lender acknowledges that it has, independently and without
reliance upon either the Agents or any other Lender and
based on the financial statements referred to in Section
4.01 and such other documents and information as it has
deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on
such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree
to indemnify each Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal
amounts of the Advances then held by each of them (or if no
Advances are at the time outstanding or if any Advances are
held by Persons which are not Lenders, ratably according to
the respective amounts of their Commitments), 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
such Agent in any way relating to or arising out of any of
the Loan Documents or any action taken or omitted by such
Agent under any of the Loan Documents, provided that no
Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from any
Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse
each Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by
such Agent in connection with the preparation, execution,
delivery, administration, syndication, modification,
amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, the Loan
Documents, to the extent that such Agent is not reimbursed
for such expenses by the Borrower.
SECTION 7.06. Successor Agent. Each Agent may
resign at any time by giving written notice thereof to the
Lenders and the Borrower and may be removed at any time with
or without cause by the Requisite Lenders. Upon any such
resignation or removal, the Requisite Lenders shall have the
right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Requisite Lenders, and
shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the
Requisite Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a commercial bank organized
under the laws of the United States of America or of any
State thereof or any Bank and, in each case having a
combined capital and surplus of at least $50,000,000. Upon
the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring
Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as
to any actions taken or omitted to be taken by it while it
was Agent under the Loan Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or
waiver of any provision of this Agreement, nor consent to
any departure by the Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed
by the Requisite Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01,
(b) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, (d) postpone any date fixed
for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable hereunder,
(e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances, or the
number of Lenders, which shall be required for the Lenders
or any of them to take any action hereunder or (f) amend
Section 2.15 or this Section 8.01; and provided, further,
that no amendment, waiver or consent shall, unless in
writing and signed by an Agent in addition to the Lenders
required above to take such action, affect the rights or
duties of such Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and
other communications provided for hereunder shall be in
writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at
Dial Tower, Phoenix, Arizona 85077-2343, Attn: Treasurer; if
to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a
Lender; if to the Funding Agent at its address at Citicorp
Bank Loan Syndications Operations, 1 Court Square, Long
Island City, New York 11120; if to Citibank as Agent c/o
Citicorp North America, Inc., One Sansome Street, San
Francisco, California 94104, Attn: Rosanna Bartolazo and if
to B of A as either Agent or Reporting Agent at its address
at 1455 Market Street, San Francisco, California 94103,
Global Agency, No. 5596; or, as to the Borrower or either
Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to
each other party, at such other address as shall be
designated by such party in a written notice to the Borrower
and the Agents. All such notices and communications shall,
when personally delivered, mailed, telecopied, telegraphed,
telexed or cabled, be effective when personally delivered,
after five (5) days after being deposited in the mails, when
confirmed by telecopy response, when delivered to the
telegraph company, when confirmed by telex answerback or
when delivered to the cable company, respectively, except
that notices and communications to any Agent pursuant to
Article II or VII shall not be effective until received by
such Agent.
SECTION 8.03. No Waiver; Remedies. No failure on
the part of any Lender or either Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs, Expenses and
Indemnification. (a) The Borrower agrees to pay promptly on
demand all reasonable costs and out-of-pocket expenses of
the Agents in connection with the preparation, execution,
delivery, administration, syndication, modification and
amendment of this Agreement, and the other documents to be
delivered hereunder or thereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Agents (including the allocated time
charges of each Agent's legal departments, as their
respective internal counsel) with respect thereto and with
respect to advising the Agents as to their rights and
responsibilities under this Agreement. The Borrower further
agrees to pay promptly on demand all costs and expenses of
the Agents and of each Lender, if any (including, without
limitation, reasonable counsel fees and out-of-pocket
expenses), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of
this Agreement and the other documents to be delivered
hereunder or thereunder, including, without limitation,
reasonable counsel fees and out-of-pocket expenses in
connection with the enforcement of rights under this
Section 8.04(a).
(b) If any payment of principal of any Eurodollar
Rate Advance is made other than on the last day of the
interest period for such Advance, as a result of a payment
pursuant to Section 2.05 or acceleration of the maturity of
the Advances pursuant to Section 6.01 or for any other
reason, the Borrower shall, upon demand by any Lender (with
a copy of such demand to the Funding Agent), pay to the
Funding Agent for the account of such Lender any amounts
required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold
harmless each Agent, each Lender and each director, officer,
employee, agent, attorney and affiliate of each Agent and
each Lender (each an "indemnified person") in connection
with any expenses, losses, claims, damages or liabilities to
which an Agent, a Lender or such indemnified persons may
become subject, insofar as such expenses, losses, claims,
damages or liabilities (or actions or other proceedings
commenced or threatened in respect thereof) arise out of the
transactions referred to in this Agreement or arise from any
use or intended use of the proceeds of the Advances, or in
any way arise out of activities of the Borrower that violate
Environmental Laws, and to reimburse each Agent, each Lender
and each indemnified person, upon their demand, for any
reasonable legal or other out-of-pocket expenses incurred in
connection with investigating, defending or participating in
any such loss, claim, damage, liability, or action or other
proceeding, whether commenced or threatened (whether or not
such Agent, such Lender or any such person is a party to any
action or proceeding out of which any such expense arises).
Notwithstanding the foregoing, the Borrower shall have no
obligation hereunder to an indemnified person with respect
to indemnified liabilities which have resulted from the
gross negligence, bad faith or willful misconduct of such
indemnified person.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting
of the consent specified by Section 6.01 to authorize the
Agents to declare the Advances due and payable pursuant to
the provisions of Section 6.01, each Lender 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 (time or demand, provisional or final, or general,
but not special) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the
account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under
this Agreement that are then due and payable, whether or not
such Lender shall have made any demand under this Agreement.
Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of
each Lender under this Section are in addition to other
rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement
shall be deemed to have been executed and delivered when it
shall have been executed by the Borrower and the Agents and
when the Agents shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, each Agent
and each Lender and their respective successors and
permitted assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest
herein without the prior written consent of all Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion
of its Commitment and the Advances owing to it); provided,
however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and
obligations under this Agreement, (ii) after giving effect
to any such assignment, (1) the assigning Lender shall no
longer have any Commitment or (2) the amount of the
Commitment of both the assigning Lender and the Eligible
Assignee party to such assignment (in each case determined
as of the date of the Assignment and Acceptance with respect
to such assignment) shall not be less than the lesser of (A)
$10,000,000 and (B) the quotient derived from dividing the
product of (x) $10,000,000 times (y) the aggregate amount of
all Commitments (determined as of the date of the Assignment
and Acceptance with respect to such assignment) by
$500,000,000, (iii) each such assignment shall be to an
Eligible Assignee, (iv) the parties to each such assignment
shall execute and deliver to the Funding Agent and the
Reporting Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, and a processing and
recordation fee of $1,250 to the Funding Agent and $1,250 to
the Reporting Agent, and (v) the Borrower and the Agents
shall have consented to such assignment, which consent shall
not be unreasonably withheld. Upon such execution,
delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and
(y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its
rights and 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
Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto). Any Lender may at
any time pledge or assign all or any portion of its rights
hereunder to a Federal Reserve Bank; provided, that no such
pledge or assignment shall release such Lender from any of
its obligations hereunder.
(b) By executing and delivering an Assignment
and Acceptance, the Lender assignor thereunder and the
assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any of the
Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of
the Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
the Borrower or the performance or observance by the
Borrower of any of its obligations under any of the Loan
Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee confirms
that it has received a copy of the Loan Documents, together
with copies of the financial statements referred to in
Section 4.01 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 Agents, such assigning Lender or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan
Documents; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are
delegated to such Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed
by it as a Lender.
(c) The Funding Agent shall maintain at its
address referred to in Section 8.02 a copy of each
Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, the
Commitment Termination Date of, and principal amount of the
Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agents and the Lenders may
treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of the Loan Documents.
The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(d) Within five days of its receipt of an
Assignment and Acceptance executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee
(together with a processing and recordation fee of $2,500
with respect thereto) and upon evidence of consent of the
Borrower and the Agents thereto, which consent shall not be
unreasonably withheld, the Funding Agent shall, if such
Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (1) accept such
Assignment and Acceptance and (2) record the information
contained therein in the Register. All communications with
the Borrower with respect to such consent of the Borrower
shall be either sent pursuant to Section 8.02.
(e) Each Lender may sell participations to one
or more banks or other entities in or to all or a portion of
its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and
the Advances owing to it; provided, however, that (i) such
Lender's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall
remain the holder of any such Advance for all purposes of
this Agreement, (iv) the Borrower, the Agents and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under the Loan Documents, (v) no Lender shall
grant any participation under which the participant shall
have rights to require such Lender to take or omit to take
any action hereunder or under the other Loan Documents or
approve any amendment to or waiver of this Agreement or the
other Loan Documents, except to the extent such amendment or
waiver would: (A) extend the Termination Date of such
Lender; or (B) reduce the interest rate or the amount of
principal or fees applicable to Advances or the Commitment
in which such participant is participating or change the
date on which interest, principal or fees applicable to
Advances or the Commitment in which such participant is
participating are payable, (vi) such Lender shall notify the
Borrower of the sale of the participation, and (vii) the
Person purchasing such participation shall agree to
customary provisions relating to the confidentiality of non-
public information received by such Person in connection
with its purchase of the participation.
(f) Any Lender may, in connection with any
assignment or participation or proposed assignment or
participation pursuant to this Section 8.07, disclose to the
assignee or participant or proposed assignee or participant,
any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or Participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to
the Borrower received by it from such Lender.
SECTION 8.08. Confidentiality. Each Lender
agrees, insofar as is legally possible, to use its best
efforts to keep in confidence all financial data and other
information relative to the affairs of the Borrower
heretofore furnished or which may hereafter be furnished to
it pursuant to the provisions of this Agreement; provided,
however, that this Section 8.08 shall not be applicable to
information otherwise disseminated to the public by the
Borrower; and provided further that such obligation of each
Bank shall be subject to each Bank's (a) obligation to
disclose such information pursuant to a request or order
under applicable laws and regulations or pursuant to a
subpoena or other legal process, (b) right to disclose any
such information to bank examiners, its affiliates
(including, without limitation, in the case of B of A, BA
Securities, Inc. and in the case of Citibank, Citicorp
Securities, Inc.), bank, auditors, accountants and its
counsel and other Banks, and (c) right to disclose any such
information, (i) in connection with the transactions set
forth herein including assignments and sales of
participation interests pursuant to Section 8.07 hereof or
(ii) in or in connection with any litigation or dispute
involving the Banks and the Borrower or any transfer or
other disposition by such Bank of any of its Advances or
other extensions of credit by such Bank to the Borrower or
any of its Subsidiaries, provided that information disclosed
pursuant to this proviso shall be so disclosed subject to
such procedures as are reasonably calculated to maintain the
confidentiality thereof.
SECTION 8.09. Governing Law. This Agreement
shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
SECTION 8.11. Consent to Jurisdiction; Waiver of
Immunities. The Borrower hereby irrevocably submits to the
jurisdiction of any New York state or Federal court sitting
in New York, New York in any action or proceeding arising
out of or relating to this Agreement, and the Borrower
hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New
York state or Federal court. The Borrower hereby
irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Borrower
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 Section 8.11 shall affect
the right of any Lender or Agent to serve legal process in
any other manner permitted by law or affect the right of any
Lender or Agent to bring any action or proceeding against
the Borrower or its property in the courts of any other
jurisdiction.
SECTION 8.12. Waiver of Trial by Jury. THE
BORROWER, THE BANKS, THE AGENTS AND, BY ITS ACCEPTANCE OF
THE BENEFITS HEREOF, OTHER LENDERS EACH HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.
The scope of this waiver is intended to be all-encompassing
of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims,
breach of duty claims and all other common law and statutory
claims. The Borrower, the Banks, the Agents and, by its
acceptance of the benefits hereof, other Lenders each
(i) acknowledges that this waiver is a material inducement
for the Borrower, the Lenders and the Agents to enter into a
business relationship, that the Borrower, the Lenders and
the Agents have already relied on this waiver in entering
into this Agreement or accepting the benefits thereof, as
the case may be, and that each will continue to rely on this
waiver in their related future dealings and (ii) further
warrants and represents that each has reviewed this waiver
with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of
litigation, this Agreement may be filed as a written consent
to a trial by the court.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
THE DIAL CORP, a Delaware
corporation
By: /s/ R.G. Nelson
Title: Vice President-
Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent and Reporting Agent
By: /s/ Kay S. Warren
Title: Vice President
CITIBANK, N.A., as Agent and
Funding Agent
By: /s/ Barbara A. Cohen
Title: Vice President
$36,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Robert Troutman
Title: Vice President
$36,000,000 CITIBANK, N.A.
By: /s/ Barbara A. Cohen
Title: Vice President
$24,000,000 BANK OF MONTREAL
By: /s/ J. Donald Higgins
Title: Managing Director
$24,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ Elyse O'Hora
Title: Managing Director
$24,000,000 CHEMICAL BANK
By: /s/ Jeffry Howe
Title: Vice President
$24,000,000 CIBC, INC.
By: /s/ R.A. Mendoza
Title: Vice President
$24,000,000 CONTINENTAL BANK, N.A.
By: /s/ Wyatt Ritchie
Title: Vice President
$24,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ Frank M. Johnson
Title: Vice President
$24,000,000 ROYAL BANK OF CANADA
By: /s/ Tom Oberaigner
Title: Manager
$20,000,000 BANK ONE, ARIZONA, N.A.
By: /s/ Clifford Payson
Title: Vice President
$20,000,000 CREDIT SUISSE
By: /s/ Steve Flynn
Title: MOSM (Member of
Senior Management)
By: /s/ Eric Noyes
Title: Assoc.
$20,000,000 FIRST INTERSTATE BANK OF
ARIZONA, N.A.
By: /s/ Gary Frandson
Title: Vice President
$20,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ L. Gene Beube
Title: Senior Vice President
$20,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ Steven Savoldelli
Title: Senior Vice President
Executed: December 30, 1993
$20,000,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES
AGENCY
By: /s/ Hiroshi Norizuki
Title: Deputy General Manager
By: /s/ T. Morgan Edwards
Title: Vice President
$20,000,000 MARINE MIDLAND BANK, N.A.
By: /s/ William M. Holland
Title: Vice President
$20,000,000 MELLON BANK, N.A.
By: /s/ V. Charles Jackson
Title: Senior Vice President
$20,000,000 THE MITSUI TRUST & BANKING
CO., LTD. LOS ANGELES AGENCY
By: /s/ Yusaku Otani
Title: General Manager &
Agent
$10,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Diana H. Imhof
Title: Associate
$10,000,000 J.P. MORGAN DELAWARE
By: /s/ Philip S. Detjens
Title: Vice President
$20,000,000 NBD BANK, N.A.
By: /s/ Jack J. Csernits
Title: Vice President
$20,000,000 THE NORTHERN TRUST COMPANY
By: /s/ Michelle D. Griffin
Title: Vice President
$20,000,000 UNION BANK
By: /s/ Ali Moghaddan
Title: Vice President
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
Name of Bank
Domestic Lending Office
Eurodollar Lending Office
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
1850 Gateway Blvd.
Concord, CA 94520
Attn: Barbara Garibaldi
1850 Gateway Blvd.
Concord, CA 94520
Attn: Barbara Garibaldi
CITIBANK, N.A.
c/o Citicorp Securities,
Inc.
One Court Square
Long Island City, NY 11120
Attn: Barbara Kobalt
c/0 Citicorp Securities,
Inc.
One Court Square
Long Island City, NY 11120
Attn: Barbara Kobalt
BANK OF MONTREAL
601 S. Figueroa Street
Suite 4900
Los Angeles, CA 90017
Attn: Alberta Rosby
601 S. Figueroa Street
Suite 4900
Los Angeles, CA 90017
Attn: Alberta Rosby
CIBC, INC.
Two Paces Pelling Road
#1200
Atlanta, Georgia 30331
Attn: Anita Williams
Two Paces Pelling Road
#1200
Atlanta, Georgia 30331
Attn: Anita Williams
THE CHASE MANHATTAN BANK,
N.A.
1 Chase Manhattan Plaza
5th Floor
New York, New York 10081
Attn: Stephen McArdle
1 Chase Manhattan Plaza
5th Floor
New York, New York 10081
Attn: Stephen McArdle
CHEMICAL BANK
270 Park Avenue
New York, New York 10017
Attn: Abigail Garcia
270 Park Avenue
New York, New York 10017
Attn: Abigail Garcia
CONTINENTAL BANK, N.A.
231 S. LaSalle Street
Chicago, IL 60697
Attn: Sandy Kramer
231 S. LaSalle Street
Chicago, IL 60697
Attn: Sandy Kramer
NATIONSBANK OF TEXAS, N.A.
c/o NationsBank
901 Main Street
67th Floor
Dallas, TX 75202
Attn: Karen Puente
c/o NationsBank
901 Main Street
67th Floor
Dallas, TX 75202
Attn: Karen Puente
ROYAL BANK OF CANADA
Pierrepont Plaza
300 Cadman Plaza West
14th Floor
Brooklyn, NY 11201-2701
Attn: Liz Gonzales
Pierrepont Plaza
300 Cadman Plaza West
14th Floor
Brooklyn, NY 11201-2701
Attn: Liz Gonzales
BANK ONE, ARIZONA, N.A.
P.O. Box 71
Phoenix, AZ 95001
241 N. Central Avenue
11th Floor
Phoenix, Arizona 95004
Attn: Lisa Martina
P.O. Box 71
Phoenix, AZ 95001
241 N. Central Avenue
11th Floor
Phoenix, Arizona 95004
Attn: Lisa Martina
CREDIT SUISSE
500 Wilshire Blvd.
Los Angeles, CA 90017
Attn: Rita Asa
500 Wilshire Blvd.
Los Angeles, CA 90017
Attn: Rita Asa
FIRST INTERSTATE BANK OF
ARIZONA, N.A.
P.O. Box 29742
Phoenix, AZ 85038-9742
Attn: Jacqueline Cox
P.O. Box 29742
Phoenix, AZ 85038-9742
Attn: Jacqueline Cox
THE INDUSTRIAL BANK OF
JAPAN, LIMITED, LOS ANGELES
AGENCY
350 S. Grand Ave., Suite
1500
Los Angeles, CA 90071
Attn: Jane Chang/Jeanie
Song
350 S. Grand Ave., Suite
1500
Los Angeles, CA 90071
Attn: Jane Chang/Jeanie
Song
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
444 S. Flower St., Suite
3700
Los Angeles, CA 90071
Attn: Diane Hoyen/Cindy Ly
444 S. Flower St., Suite
3700
Los Angeles, CA 90071
Attn: Diane Hoyen/Cindy Ly
MELLON BANK, N.A.
Three Mellon Bank Center
Room 2303
Pittsburgh, PA 15259
Attn: Janine Moriarity
Three Mellon Bank Center
Room 2303
Pittsburgh, PA 15259
Attn: Janine Moriarity
NBD BANK, N.A.
611 Woodward Avenue
Detroit, MI 48226
Attn: Kristi Williams
611 Woodward Avenue
Detroit, MI 48226
Attn: Kristi Williams
THE FIRST NATIONAL BANK OF
CHICAGO
One First National Plaza
0634/1-10
Chicago, Illinois 60670
Attn: Marilyn Fisher
One First National Plaza
0634/1-10
Chicago, Illinois 60670
Attn: Marilyn Fisher
MARINE MIDLAND BANK, N.A
140 Broadway, 6th Floor
New York, NY 10005-1180
Attn: Cornelia Hurt
140 Broadway, 6th Floor
New York, NY 10005-1180
Attn: Cornelia Hurt
THE MITSUI TRUST & BANKING
CO. LTD., LOS ANGELES AGENCY
611 W. Sixth St., Suite 3800
Los Angeles, CA 90017
Attn: Bonjai Kulapalanont
611 W. Sixth St., Suite 3800
Los Angeles, CA 90017
Attn: Bonjai Kulapalanont
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
60 Wall Street
New York, NY 10060-0060
Attn: Loan Department
Nassau, Bahamas Office
c/o J.P. Morgan Services,
Inc.
Loan Operations - 3rd Floor
500 Stanton - Christiana
Road
Newark, Delaware 19713
J.P. MORGAN DELAWARE
500 Stanton-Christiana Road
Newark, DE 19713-2107
Attn: Loan Department
500 Stanton-Christiana Road
Newark, DE 19713-2107
Attn: Loan Department
THE NORTHERN TRUST COMPANY
50 S. La Salle
Chicago, IL 60675
Attn: Linda Honda
50 S. La Salle
Chicago, IL 60675
Attn: Linda Honda
UNION BANK
445 S. Figueroa Street
15th Floor
Los Angeles, CA 90071
Attn: Wendy Frear
445 S. Figueroa Street
15th Floor
Los Angeles, CA 90071
Attn: Wendy Frear
EXHIBIT A
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Citibank, N.A., as Funding Agent
for the Lenders party
to the Credit Agreement
referred to below
c/o Citicorp Bank Loan
Syndications Operations
One Court Square
Long Island City, New York 11120
[Date]
Attention: [_________________________]
Gentlemen:
Each of the undersigned and The Dial Corp (the "Borrower")
refers to the Amended and Restated Credit Agreement dated as of
December 15, 1993 (as amended from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among
the Borrower, certain Lenders party thereto, Bank of America National
Trust and Savings Association and Citibank, N.A., as Agents for said
Lenders, Citibank, N.A., as Funding Agent for said Lenders and Bank of
America National Trust and Savings Association, as Reporting Agent for
said Lenders. The Borrower hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement, that the Borrower
hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is
___________, 19__.
(ii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$______________.
(iv) If the Type of Advances comprising the Proposed
Borrowing is Eurodollar Rate Advances, the Interest Period for
each Advance made as part of the Proposed Borrowing is _____
month[s].
Each of the undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of
the Proposed Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except
to the extent that any such representation or warranty expressly
relates only to an earlier date, in which case they were correct
as of such earlier date; and
(B) no event has occurred and is continuing, or will result
from such Proposed Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or a
Potential Event of Default.
Very truly yours,
THE DIAL CORP
By: _________________________
Title:
EXHIBIT B
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Dated ________, 19__
Reference is made to the Amended and Restated Credit
Agreement dated as of December 15, 1993 (as amended from time to time,
the "Credit Agreement") among The Dial Corp (the "Borrower"), the
Lenders (as defined in the Credit Agreement), Bank of America National
Trust and Savings Association and Citibank, N.A., as Agents for the
Lenders, Citibank, N.A., as Funding Agent for the Lenders and Bank of
America National Trust and Savings Association, as Reporting Agent for
the Lenders. Terms defined in the Credit Agreement and not defined
herein are used herein with the same meaning.
_________________ (the "Assignor") and ______________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns without recourse
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date which
represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement,
including, without limitation, such interest in the Assignor's
Commitment and the Advances owing to the Assignor. After giving effect
to such sale and assignment, the Assignee's Commitment, the amount of
the Advances owing to the Assignee, and the Commitment Termination Date
of the Assignee will be as set forth in Section 2 of Schedule 1. In
consideration of Assignor's assignment, Assignee hereby agrees to pay to
Assignor, on the Effective Date, the amount of $_________ in immediately
available funds by wire transfer to Assignor's office at
_______________.
2. The Assignor (i) represents and warrants 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;
(ii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or
in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower
or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 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; (ii) agrees
that it will, independently and without reliance upon the Agents, the
Assignor or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes each Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as are delegated to
such 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 of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender; and
(vi) specifies as its Domestic Lending Office (and address for notices)
and Eurodollar Lending Office the offices set forth beneath its name on
the signature pages hereof [and (vii) attaches the forms prescribed by
the Internal Revenue Service of the United States certifying as to the
Assignee's status for purposes of determining 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 rates
at a rate reduced by an applicable tax treaty].
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered to the
Funding Agent for acceptance and recording by the Funding Agent. The
effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Funding Agent, unless otherwise specified on
Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Funding Agent,
as of the Effective 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 Lender 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 by the Funding Agent,
from and after the Effective Date, the Funding Agent shall make all
payments under the Credit Agreement in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement for periods prior to the Effective Date 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such
execution being made on Schedule 1 hereto.
Schedule 1
to
Assignment and Acceptance
Dated _____, 19__
Section 1.
Percentage Interest: ______%
Section 2.
Assignee's Commitment: $______
Aggregate Outstanding Principal
Amount of Advances owing to the Assignee: $______
Advances payable to the Assignee
Principal amount: _______
Advances payable to the Assignor
Principal amount: _______
Assignee's Commitment Termination Date: _________, 199_
Section 3.
Effective Date*: ________, 199_
[NAME OF ASSIGNOR]
By:____________________________
Title:
[NAME OF ASSIGNEE]
By:____________________________
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of _____________, 199_
CITIBANK, N.A., as Funding Agent
By:___________________________
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Reporting Agent
By:__________________________
Title:
THE DIAL CORP
By:___________________________
Title:
* This date should be no earlier than the date of acceptance by the
Funding Agent.
EXHIBIT C
[FORM OF OPINION OF COUNSEL TO BORROWER]
[EFFECTIVE DATE]
Bank of America National Trust and
Savings Association, as Agent and
Reporting Agent and Citibank, N.A.,
as Agent and Funding Agent
under the Credit Agreement
(as hereinafter defined), and each
of the lending institutions party
to the Credit Agreement and listed
on Schedule I attached hereto
(collectively, the "Banks")
[Address]
Re: Amended and Restated Credit Agreement
dated as of December 15, 1993, among The
Dial Corp, the Banks, Bank of America
National Trust and Savings Association,
as Agent and Reporting Agent and Citibank,
N.A., as Agent and Funding Agent
Ladies and Gentlemen:
I am Vice President and General Counsel of The Dial Corp, a
Delaware corporation (the "Borrower") and as such have acted as counsel
to the Borrower in connection with the negotiation, execution and
delivery by the Borrower of the Amended and Restated Credit Agreement
dated as of December 15, 1993 (the "Credit Agreement") among the
Borrower, the Banks, Bank of America National Trust and Savings
Association and Citibank, N.A., as Agents, Citibank, N.A., as Funding
Agent and Bank of America National Trust and Savings Association, as
Reporting Agent. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
This opinion is delivered to you pursuant to Section
3.01(a)(vi) of the Credit Agreement. I have examined the Credit
Agreement and I have examined or am familiar with originals or copies,
the authenticity of which has been established to my satisfaction of
such other documents, corporate records, agreements and instruments, and
certificates of public officials and of officers of the Borrower as I
have deemed necessary or appropriate to enable me to express the
opinions set forth below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently
established, relied upon certification by officers of the Borrower,
which I believe to be reliable.
The opinions hereinafter expressed are subject to the fact
that I am a member of the State Bar of Arizona and do not hold myself
out as an expert on the laws of other states or jurisdictions except the
Federal Laws of the United States of America, the General Corporation
Law of the State of Delaware and to the extent necessary for the
opinions below, the laws of the State of New York.
Based upon the foregoing and having regard to legal
consideration which I have deemed relevant, it is my opinion that:
1. The Borrower is a corporation validly existing and in
good standing under the laws of the State of Delaware and is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions which require such qualification, except to the
extent that failure to so qualify would not have a material adverse
effect on the Borrower. The Borrower has all requisite corporate power
and authority to own and operate its properties, to conduct its business
as presently conducted, and to execute, deliver and perform its
obligations under the Credit Agreement.
2. The Credit Agreement has been duly authorized by all
necessary corporate action on the part of the Borrower and has been duly
executed and delivered by the Borrower. The Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as
such enforceability may be limited by Bankruptcy, insolvency and
reorganization laws and other similar laws governing the enforcement of
lessors' or creditors' rights and by the effects of specific
performance, injunctive relief and other equitable remedies.
3. Neither the execution and delivery by the Borrower of
the Credit Agreement, nor consummation of the transactions contemplated
thereby, nor compliance on or prior to the date hereof with the terms
and conditions thereof by the Borrower conflicts with or is a violation
of, its certificate of incorporation or by-laws, each as in effect on
the date hereof. Neither the execution and delivery by the Borrower of
the Credit Agreement, nor the consummation of the transactions
contemplated thereby, nor compliance on or prior to the date hereof with
the terms and conditions thereof by the Borrower will result in a
violation of any applicable federal or New York law, governmental rule
or regulation or of the Corporation Law of the State of Delaware or
conflicts with, will result in a breach of, or constitutes a default
under, any provision of any indenture, agreement or other instrument to
which the Borrower is a party or any of its properties may be bound
("Material Agreements"), or any order, judgment or decree to which the
Borrower or any of its assets are bound ("Judicial Orders"), or will
result in the creation or imposition of any lien upon any property or
assets of the Borrower pursuant to any Material Agreement or Judicial
Order.
4. Neither the making of the Advances on the Effective Date
pursuant to, nor application of the proceeds thereof in accordance with,
the Credit Agreement, will violate Regulations G, T, U or X promulgated
by the Board of Governors of the Federal Reserve System.
5. No consent, approval or authorization of, and no
registration, declaration or filing with, any administrative,
governmental or other public authority of the United States of America
or the State of New York or under the Corporation Law of the State of
Delaware is required by law to be obtained or made by the Borrower for
the execution, delivery and performance by the Borrower of the Credit
Agreement, except such filings as may be required in the ordinary course
to keep in full force and effect rights and franchises material to the
business of the Borrower and in connection with the payment of taxes.
6. The Borrower is not an "investment company" or a Person
directly or indirectly "controlled" by or "acting on behalf of" an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
This opinion is delivered to the Agents and the Banks as of
the date hereof in connection with the Credit Agreement, and may not be
relied upon by any person other than the Agents and the Banks and their
permitted assignees, or by them in any other context, and may not be
furnished to any other person or entity without my prior written
consent, provided that each Bank and its permitted assignees may provide
this opinion (i) to bank examiners and other regulatory authorities
should they so request or in connection with their normal examination,
(ii) to the independent auditors and attorneys of such Bank, (iii)
pursuant to order or legal process of any court or governmental agency,
(iv) in connection with any legal action to which the Bank is a party
arising out of the transactions contemplated by the Credit Agreement, or
(v) in connection with the assignment of or sale of participations in
the Advances.
Very truly yours,
SCHEDULE I
Bank of America National Trust
and Savings Association
Citibank, N.A.
Bank of Montreal
Bank One, Arizona, N.A.
The Chase Manhattan Bank, N.A.
Chemical Bank
CIBC, Inc.
Continental Bank, N.A.
Credit Suisse
First Interstate Bank of Arizona, N.A.
The First National Bank of Chicago
The Industrial Bank of Japan Limited,
Los Angeles Agency
J.P. Morgan Delaware NBD Bank, N.A.
The Long-Term Credit Bank of Japan Ltd.,
Los Angeles Agency
Marine Midland Bank, N.A.
Mellon Bank, N.A.
The Mitsui Trust & Banking Co., Ltd.
Los Angeles Agency
Morgan Guaranty Trust Company of New York
Nationsbank of Texas, N.A.
NBD Bank, N.A.
The Northern Trust Company
Royal Bank of Canada
Union Bank
EXHIBIT D
[FORM OF OPINION OF O'MELVENY & MYERS]
[EFFECTIVE DATE]
Bank of America National Trust
and Savings Association, as Agent
and Reporting Agent
1455 Market Street
San Francisco, California 94103
Citibank, N.A., as Agent and Funding Agent
One Sansome Street
San Francisco, California 94104
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Amended and Restated Credit Agreement dated as of
December 15, 1993 among The Dial Corp, the Banks named
therein, Bank of America National Trust and Savings
Association, as Agent and Reporting Agent and Citibank,
N.A., as Agent and Funding Agent
Gentlemen:
We have participated in the preparation of the Amended and
Restated Credit Agreement dated as of December 15, 1993 (the "Credit
Agreement"; capitalized terms defined therein and not otherwise defined
herein are used herein as therein defined) among The Dial Corp (the
"Borrower"), the Banks named therein (the "Banks"), Bank of America
National Trust and Savings Association, as Agent, Citibank, N.A., as
Agent, Citibank, N.A., as Funding Agent and Bank of America National
Trust and Savings Association, as Reporting Agent, and have acted as
special counsel for the Agents for the purpose of rendering this opinion
pursuant to Section 3.01(a)(vii) of the Credit Agreement.
We have participated in various conferences and telephone
conferences with representatives of the Borrower and the Agents and
conferences and telephone calls with counsel to the Borrower, and with
your representatives, during which the Credit Agreement and related
matters have been discussed, and we have also participated in the
meeting held on the date hereof (the "Closing") incident to the
effectiveness of the Credit Agreement. We have reviewed the forms of
the Credit Agreement and the exhibits thereto, and the opinion of L.
Gene Lemon, General Counsel of the Borrower (the "Opinion"), and
officers' certificates and other documents delivered at the Closing. We
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals or copies, the due authority of
all persons executing the same, and we have relied as to factual matters
on the documents which we have reviewed.
Although we have not independently considered all of the
matters covered by the Opinion to the extent necessary to enable us to
express the conclusions therein stated, we believe that the Credit
Agreement and the exhibits thereto are in substantially acceptable legal
form.
Respectfully submitted,
EXHIBIT E
[FORM OF EXTENSION REQUEST]
THE DIAL CORP
REQUEST FOR EXTENSION OF COMMITMENT
TERMINATION DATE
[Date]
[Name and Address of Eligible Lender]
Pursuant to that certain Amended and Restated Credit
Agreement dated as of December 15, 1993 (as amended from time to time,
the "Credit Agreement", the terms defined therein being used herein as
therein defined) among The Dial Corp (the "Borrower"), certain Lenders
party thereto, Bank of America National Trust and Savings Association
and Citibank, N.A., as Agent for said Lenders, Citibank, N.A., as
Funding Agent for said Lenders and Bank of America National Trust and
Savings Association, as Reporting Agent for said Lenders, this
represents the Borrower's request to extend the Commitment Termination
Date of each Eligible Lender to [1] pursuant to Section 2.15 of the
Credit Agreement.
The Borrower hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the
effectiveness of the extension requested hereby ("Proposed Extension"):
(a) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Extension;
(b) no event has occurred and is continuing, or would result
from the Proposed Extension, which constitutes an Event of Default
or a Potential Event of Default; and
(c) the balance sheet of the Borrower and its Subsidiaries
as at ___________, 199_[2], and the related statements of income
and retained earnings of the Borrower and its Subsidiaries for the
fiscal year then ended, copies of each of which have been
furnished to each Lender, fairly present the financial condition
of the Borrower and its Subsidiaries as at such applicable date
and the results of the operations of the Borrower and its
Subsidiaries for the fiscal year ended on such applicable date,
all in accordance with GAAP consistently applied, and since
_______________, 199_[2], there has been no material adverse
change in the business, condition (financial or otherwise),
operations or properties of the Borrower and its Subsidiaries,
taken as a whole.
Please indicate your consent to such extension of the
Commitment Termination Date by signing the attached copy of this request
in the space provided below and returning the same to the undersigned.
Very truly yours,
THE DIAL CORP
By _________________________
Title:
The undersigned Eligible Lender
hereby consents to the extension
of its Commitment Termination
Date as requested above. This
consent is subject to the terms
of Section 2.15 of the Credit
Agreement.
DATED: ___________________
[ELIGIBLE LENDER]
By: ______________________
Title:____________________
[1] Insert date which is one year or two years after the latest
Commitment Termination Date in effect.
[2] Insert date of the most recent audited balance sheet of the
Borrower and its Subsidiaries.
EXHIBIT F
[FORM OF COMPLIANCE CERTIFICATE]
The undersigned certifies that: (i) this Certificate is as of
__________ and pertains to the period from _________ to _________, (ii)
the undersigned has reviewed the terms of the Amended and Restated
Credit Agreement, dated as of December 15, 1993, among The Dial Corp,
the Banks named therein, Bank of America National Trust and Savings
Association and Citibank, N.A., as Agents, Citibank, N.A., as Funding
Agent, and Bank of America National Trust and Savings Association, as
Reporting Agent (as it may be amended from time to time, the "Credit
Agreement") and has made, or caused to be made under the undersigned's
supervision, a review in reasonable detail of the transactions and
condition of the Borrower and its Subsidiaries during the period set
forth above and (iii) such review has not disclosed the existence during
or at the end of such period, and the undersigned does not have
knowledge of the existences as of the date of this Certificate, of any
condition or event that constitutes an Event of Default or Potential
Event of Default.[1] Capitalized terms used herein shall have the
meanings set forth in the Credit Agreement.
A. Cash Flow Coverage.
For the Borrower and its Subsidiaries:
(i) consolidated net income plus $__________
provision for taxes (excluding)
extraordinary, unusual, or
nonrecurring gains or losses
(ii) interest expense $__________
(iii) net operating lease expense $__________
(net of operating sublease income)
(iv) depreciation and amortization of $__________
intangibles
(v) capital expenditures (excluding $__________
the cost of acquisitions
(vi) total of (i) plus (ii) plus (iii) $__________
plus (iv) minus (v)
(vii) net operating lease expense (net $__________
of operating sublease income)
(viii) interest expense $__________
(ix) total of (vii) plus (viii) $__________
(x) Cash Flow Coverage [(vi) divided $__________
by (ix)]
(xi) Minimum Cash Flow Coverage required $__________
under Credit Agreement
B. Leverage.
For the Borrower and its Subsidiaries:
(i) indebtedness for borrowed money $__________
or for the deferred purchase price
of property or services
(ii) obligations as lessee under leases $__________
which shall have been or should
be, in accordance with GAAP,
recorded as capital leases
(iii) obligations under guarantees in $__________
respect of indebtedness or
obligations of others of the kinds
referred to in clauses (i) and
(ii) of this Section B
(iv) Funded Debt [(i) plus (ii) $__________
plus (iii)]
(v) Cash $__________
(vi) Cash Equivalents $__________
(vii) Total of (iv) minus (v) minus (vi) $__________
(viii) Net Worth $__________
(ix) "Employee Equit Trust" contra $__________
account
(x) "Guaranty of ESOP Debt" contra $__________
account
(xi) Shareholders Equity [(viii) plus $__________
(ix) plus (x)]
(xii) Total of (iv) minus (v) minus (vi) $__________
plus (xi)
(xiii) Leverage [(vii) divided by (xii)] ___:1.00
(xiv) Maximum Leverage permitted under 0.55:1.00
Credit Agreement
C. Net Worth.
For the Borrower and its Subsidiaries:
(i) Net Income (excluding losses) from $__________
October 1, 1993 to most recent
June 30 or December 31
(ii) aggregate net proceeds, including $__________
cash and the fair market value
of property other than cash,
received by the Borrower from the
issue or sale of capital stock of
the Borrower from October 1, 1993
to the most recent June 30 or
December 31
(iii) aggregate of 25% of the after tax $__________
gains realized from unusual,
extraordinary, and major
nonrecurring items from October 1,
1993 to the most recent June 30
or December 31
(iv) Additions to Capital [(ii) plus $__________
(iii)]
(v) 25% multiplied (i) $__________
(vi) Minimum Net Worth permitted under $__________
Credit Agreement [$410 million
plus (iv) plus (v)]
(vii) Net Worth $__________
By:_____________________________
Title:__________________________
[1] If any event or condition that constitutes an Event of Default or
Potential Event of Default exists, the Certificate should include
the nature and period of existence of such event or condition and
what action the Borrower has taken, is taking and proposes to take
with respect thereto.
EXHIBIT G
[FORM OF NOTE]
THE DIAL CORP
PROMISSORY NOTE
New York, New York
________ __, 19__
For value received, The Dial Corp, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of
_____________________ (the "Lender"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Advance made by the
Lender to the Borrower pursuant to the Credit Agreement referred to
below on the Termination Date of the Lender. The Borrower promises to
pay interest on the unpaid principal amount of each such Advance on the
dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in United
States dollars in same day funds at the Funding Agent's office, as
specified in the Credit Agreement.
All Advances made by the Lender, the respective maturities
thereof and all repayments of principal thereof shall be recorded by the
Lender and, prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to each such Advance
then outstanding shall be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and
made a part hereof, or in the records of such Lender in accordance with
its usual practice; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This promissory note is one of the promissory notes referred
to in Section 2.13(d) of the Credit Agreement dated as of December 15,
1993, among the Borrower, the Lenders named therein, Bank of America
National Trust and Savings Association as Agent and Reporting Agent and
Citibank, N.A., as Agent and Funding Agent (said Credit Agreement, as
amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is hereby made to the Credit
Agreement for provisions relating to this promissory note, including,
without limitation, the mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
THE DIAL CORP
By____________________________
Title:
Schedule to Promissory Note
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Type of Principal Maturity Notation
Date Advance Advance Repaid Date By
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________