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CREDIT AGREEMENT
by and among
AMERICAN MAIZE-PRODUCTS COMPANY,
THE SIGNATORY LENDERS HERETO,
AND
THE BANK OF NEW YORK,
AS AGENT
________________
$125,000,000
________________
Dated as of March 31, 1994
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TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions. . . . . . . . . . . . 16
2. AMOUNT AND TERMS OF LOANS . . . . . . . . . . . . . . . . 17
2.1 A Loans. . . . . . . . . . . . . . . . . . . . . . . 17
2.2 Procedure for A Borrowings. . . . . . . . . . . . . 17
2.3 B Loans and Procedure for B Borrowings. . . . . . . 18
2.4 Notes. . . . . . . . . . . . . . . . . . . . . . . . 23
2.5 Swing Line Loans. . . . . . . . . . . . . . . . . . 23
2.6 Swing Line Note. . . . . . . . . . . . . . . . . . . 24
2.7 Procedure for Borrowing Swing Line Loans. . . . . . 25
2.8 Reduction of Commitments. . . . . . . . . . . . . . 26
2.9 Prepayments of the Loans. . . . . . . . . . . . . . 27
2.10 Conversions. . . . . . . . . . . . . . . . . . . . 28
2.11 Interest Rate and Payment Dates. . . . . . . . . . 30
2.12 Substituted Interest Rate. . . . . . . . . . . . . 32
2.13 Taxes; Net Payments. . . . . . . . . . . . . . . . 32
2.14 Illegality. . . . . . . . . . . . . . . . . . . . . 33
2.15 Increased Costs. . . . . . . . . . . . . . . . . . 33
2.16 Indemnification for Loss. . . . . . . . . . . . . . 34
2.17 Option to Fund. . . . . . . . . . . . . . . . . . . 35
2.18 Use of Proceeds. . . . . . . . . . . . . . . . . . 36
2.19 Capital Adequacy. . . . . . . . . . . . . . . . . . 36
2.20 Transaction Record. . . . . . . . . . . . . . . . . 37
3. FEES; PAYMENTS . . . . . . . . . . . . . . . . . . . . . . 37
3.1 Commitment Fee. . . . . . . . . . . . . . . . . . . 37
3.2 Pro Rata Treatment and Application of Principal
Payments. . . . . . . . . . . . . . . . . . . . . . 37
4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 39
4.1 Subsidiaries. . . . . . . . . . . . . . . . . . . . 39
4.2 Corporate Existence and Power. . . . . . . . . . . . 39
4.3 Corporate Authority. . . . . . . . . . . . . . . . . 39
4.4 Governmental Body Approvals. . . . . . . . . . . . . 39
4.5 Binding Agreement. . . . . . . . . . . . . . . . . . 40
4.6 Litigation. . . . . . . . . . . . . . . . . . . . . 40
4.7 No Conflicting Agreements. . . . . . . . . . . . . . 40
4.8 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 41
4.9 Compliance with Applicable Laws. . . . . . . . . . . 41
4.10 Governmental Regulations. . . . . . . . . . . . . . 41
4.11 Property. . . . . . . . . . . . . . . . . . . . . . 42
4.12 Federal Reserve Regulations; Use of Loan
Proceeds. . . . . . . . . . . . . . . . . . . . . . 42
4.13 No Misrepresentation. . . . . . . . . . . . . . . . 42
4.14 Burdensome Obligations. . . . . . . . . . . . . . . 42
4.15 Plans. . . . . . . . . . . . . . . . . . . . . . . 43
4.16 Financial Statements and Projections. . . . . . . . 43
4.17 Environmental Matters. . . . . . . . . . . . . . . 44
5. CONDITIONS TO LENDING - FIRST LOANS . . . . . . . . . . . 44
5.1 Evidence of Corporate Action. . . . . . . . . . . . 45
5.2 Notes. . . . . . . . . . . . . . . . . . . . . . . . 45
5.3 Fees. . . . . . . . . . . . . . . . . . . . . . . . 45
5.4 No Material Adverse Change. . . . . . . . . . . . . 45
5.5 Repayment of Existing Indebtedness. . . . . . . . . 45
5.6 Opinion of Counsel to the Company. . . . . . . . . . 45
5.7 Opinion of Special Counsel. . . . . . . . . . . . . 46
5.8 Fees of Counsel. . . . . . . . . . . . . . . . . . . 46
5.9 Other Documents. . . . . . . . . . . . . . . . . . . 46
6. CONDITIONS OF LENDING - ALL LOANS. . . . . . . . . . . . . 46
6.1 Compliance. . . . . . . . . . . . . . . . . . . . . 46
6.2 Borrowing Request. . . . . . . . . . . . . . . . . . 46
6.3 Loan Closings. . . . . . . . . . . . . . . . . . . . 47
7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . 47
7.1 Financial Statements. . . . . . . . . . . . . . . . 47
7.2 Certificates; Other Information. . . . . . . . . . . 49
7.3 Legal Existence. . . . . . . . . . . . . . . . . . . 50
7.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 50
7.5 Insurance. . . . . . . . . . . . . . . . . . . . . . 51
7.6 Payment of Indebtedness and Performance of
Obligations. . . . . . . . . . . . . . . . . . . . . 51
7.7 Condition of Property. . . . . . . . . . . . . . . . 51
7.8 Observance of Legal Requirements; ERISA. . . . . . . 51
7.9 Inspection of Property; Books and Records;
Discussions. . . . . . . . . . . . . . . . . . . . . 52
7.10 Licenses, Etc. . . . . . . . . . . . . . . . . . . 52
7.11 Tangible Net Worth. . . . . . . . . . . . . . . . . 52
7.12 Interest Coverage Ratio. . . . . . . . . . . . . . 52
7.13 Maintenance of Business. . . . . . . . . . . . . . 53
7.14 Leverage Ratio. . . . . . . . . . . . . . . . . . . 53
8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . 54
8.1 Borrowing. . . . . . . . . . . . . . . . . . . . . . 54
8.2 Liens. . . . . . . . . . . . . . . . . . . . . . . . 54
8.3 Merger and Acquisition. . . . . . . . . . . . . . . 54
8.4 Sale of Property; Issuance of Stock. . . . . . . . . 55
8.5 Compliance with ERISA. . . . . . . . . . . . . . . . 55
8.6 Transactions with Affiliates. . . . . . . . . . . . 56
8.7 Certificate of Incorporation and By-laws; Fiscal
Year. . . . . . . . . . . . . . . . . . . . . . . . 56
8.8 Amendment of Note Agreement. . . . . . . . . . . . . 56
8.9 Contingent Obligations. . . . . . . . . . . . . . . 56
8.10 Investments, Loans, Etc. . . . . . . . . . . . . . 57
8.11 Dividends and Purchase of Stock. . . . . . . . . . 58
8.12 Subsidiaries. . . . . . . . . . . . . . . . . . . . 58
8.13 Prepayments of Indebtedness. . . . . . . . . . . . 58
8.14 Capital Expenditures. . . . . . . . . . . . . . . . 59
9. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 59
9.1 Events of Default. . . . . . . . . . . . . . . . . . 59
10. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . 63
10.1 Appointment. . . . . . . . . . . . . . . . . . . . 63
10.2 Delegation of Duties. . . . . . . . . . . . . . . . 63
10.3 Exculpatory Provisions. . . . . . . . . . . . . . . 63
10.4 Reliance by Agent. . . . . . . . . . . . . . . . . 64
10.5 Notice of Default. . . . . . . . . . . . . . . . . 65
10.6 Non-Reliance on Agent and Other Lenders. . . . . . 65
10.7 Indemnification. . . . . . . . . . . . . . . . . . 66
10.8 Agent in Its Individual Capacity. . . . . . . . . . 66
10.9 Successor Agent. . . . . . . . . . . . . . . . . . 67
11. OTHER PROVISIONS. . . . . . . . . . . . . . . . . . . . . 67
11.1 Amendments and Waivers. . . . . . . . . . . . . . . 67
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . 68
11.3 No Waiver; Cumulative Remedies. . . . . . . . . . . 69
11.4 Survival of Representations and Warranties. . . . . 70
11.5 Payment of Expenses and Taxes; Indemnified
Liabilities. . . . . . . . . . . . . . . . . . . . 70
11.6 Lending Offices. . . . . . . . . . . . . . . . . . 71
11.7 Successors and Assigns. . . . . . . . . . . . . . . 71
11.8 Counterparts. . . . . . . . . . . . . . . . . . . . 73
11.9 Governing Law. . . . . . . . . . . . . . . . . . . 73
11.10 Headings, Plurals. . . . . . . . . . . . . . . . . 73
11.11 Severability. . . . . . . . . . . . . . . . . . . 73
11.12 Integration. . . . . . . . . . . . . . . . . . . . 73
11.13 Consent to Jurisdiction. . . . . . . . . . . . . . 74
11.14 Service of Process. . . . . . . . . . . . . . . . 74
11.15 No Limitation on Service or Suit. . . . . . . . . 74
11.16 WAIVER OF TRIAL BY JURY. . . . . . . . . . . . . . 75
EXHIBITS
EXHIBIT A Commitments
EXHIBIT B List of Lending Offices
EXHIBIT C-1 Form of A Borrowing Request
EXHIBIT C-2 Form of B Borrowing Request
EXHIBIT D Form of Note
EXHIBIT E Form of Swing Line Note
EXHIBIT F Form of Opinion of General Counsel of the Company
EXHIBIT G Form of Opinion of Special Counsel
EXHIBIT H Form of Assignment and Acceptance Agreement
SCHEDULES
SCHEDULE 4.1 List of Subsidiaries
SCHEDULE 4.6 List of Litigation
SCHEDULE 4.17 List of Environmental Matters
SCHEDULE 8.1 List of Indebtedness
SCHEDULE 8.2 List of Permitted Liens
SCHEDULE 8.9 List of Contingent Obligations
SCHEDULE 8.10 List of Investments
SCHEDULE 9.1(l) Board of Directors Resolutions
CREDIT AGREEMENT, dated as of March 31, 1994, among AMERICAN
MAIZE-PRODUCTS COMPANY, a Maine corporation (the "Company"), the
Lenders party hereto or who become parties hereto pursuant to
paragraph 11.7 (each a "Lender" and, collectively, the "Lenders"),
and THE BANK OF NEW YORK, as agent for the Lenders hereunder (in
such capacity, the "Agent").
I. DEFINITIONS
A. Defined Terms.
As used in this Agreement, terms defined in the
preamble have the meanings therein indicated, and the following
terms have the following meanings:
"A Borrowing": a borrowing of principal amounts pursuant
to paragraph 2.2 consisting of simultaneous A Loans of the same
Type made by each Lender.
"A Borrowing Request": as defined in paragraph 2.2.
"A Loan": a Loan made pursuant to paragraph 2.1.
"Accountants": Coopers & Lybrand, or any successor
thereto, or such other firm of certified public accountants of
recognized national standing selected by the Company and
reasonably satisfactory to the Required Lenders.
"Affected Loan": as defined in paragraph 2.12.
"Affected Principal Amount": in the event that (i) the
Company shall not for any reason borrow or convert after it
shall have notified the Agent of its intent to do so and shall
have requested a LIBOR Loan pursuant to paragraph 2.2 or 2.10
or shall have accepted one or more offers of B Loans under
paragraph 2.3, an amount equal to the principal amount of such
requested LIBOR Loan or such B Loan, (ii) a LIBOR Loan or any
B Loan shall terminate for any reason prior to the last day of
the Interest Period applicable thereto, an amount equal to the
principal amount of such LIBOR Loan or such B Loan or (iii) the
Company shall prepay or repay all or any part of the principal
balance of a LIBOR Loan or any B Loan prior to the last day of
the Interest Period applicable thereto, an amount equal to the
principal balance of such LIBOR Loan or such B Loan so prepaid
or repaid.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person. For purposes of
this definition, control of a Person shall mean the power,
direct or indirect, (i) to vote 15% or more (determined in
accordance with the provisions for calculating the percentage
of voting securities set forth in 16 C.F.R. 801.12(b)) of the
voting securities issued and outstanding on any date of
determination having ordinary voting power for the election of
directors of such Person or (ii) to direct or cause direction
of the management and policies of such Person whether by
contract or otherwise.
"Aggregate Commitments": the sum of the Commitments set
forth in Exhibit A, as the same may be reduced pursuant to
paragraph 2.8.
"Agreement": this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest
per annum equal to the higher of (i) the Base Rate in effect on
such date or (ii) the Federal Funds Rate in effect on such date
plus 1/2 of 1%.
"Alternate Base Rate Loans": A Loans (or any portions
thereof) at such time as they (or such portions) are made or
are being maintained at a rate of interest based upon the
Alternate Base Rate.
"Applicable Margin": (i) subject to paragraphs (ii) and
(iii) below, at all times during the applicable periods set
forth below with respect to the unpaid principal balance of the
LIBOR Loans, the applicable percentage set forth below next to
such period:
Applicable
Period Margin
Level I:
when (a) the Interest Coverage Ratio
for the immediately preceding four
fiscal quarters of the Company (or,
during the first four fiscal quarters
immediately following the Effective
Date, for the immediately preceding
cumulative one, two, three or four
fiscal quarters, as applicable) is
greater than or equal to 6.5:1.0
and (b) the Leverage Ratio at such
date of determination is less than
or equal to .35:1.00 .375%
Level II
when (a) the Interest Coverage Ratio
for the immediately preceding four
fiscal quarters of the Company (or,
during the first four fiscal quarters
immediately following the Effective
Date, for the immediately preceding
cumulative one, two, three or four
fiscal quarters, as applicable) is
greater than or equal to 4.5:1.0
and (b) the Leverage Ratio at such
date of determination is less than
or equal to .45:1.00 and (c) Level I
is not applicable .500%
Level III
when (a) the Interest Coverage Ratio
for the immediately preceding four
fiscal quarters of the Company (or,
during the first four fiscal quarters
immediately following the Effective
Date, for the immediately preceding
cumulative one, two, three or four
fiscal quarters, as applicable) is less
than 4.5:1.0 or (b) the Leverage Ratio
at such date of determination is greater
than .45:1.00 .750%
(ii) Notwithstanding anything to the contrary set forth in
paragraph (i) above, the Applicable Margin during the period
from the Effective Date through the first full fiscal quarter
following Effective Date shall be equal to the Level II
Applicable Margin set forth in paragraph (i) above.
(iii) Changes in the Applicable Margin resulting from
changes in the Interest Coverage Ratio or the Leverage Ratio
shall become effective upon the delivery by the Company to the
Agent of a certificate pursuant to paragraph 7.1(b)(ii)(2) or
7.1(d), as the case may be, evidencing a change in the Interest
Coverage Ratio or Leverage Ratio. If the Company shall fail to
deliver such a certificate within 60 days after the end of each
fiscal quarter and within 90 days after the end of each fiscal
year as, required by paragraphs 7.1(b)(ii)(2) and 7.1(d)
respectively, the Applicable Margin shall equal the percentage
set forth next to Level III.
"Assignment Fee": as defined in paragraph 11.7(b).
"Authorized Signatory": in respect of a Person, the
president, any vice president, the assistant treasurer or any
other duly authorized officer (acceptable to the Agent) of such
Person.
"B Borrowing": a borrowing of principal amounts pursuant
to paragraph 2.3 consisting of simultaneous B Loans from each
Lender whose offer to make a B Loan as part of such borrowing
has been accepted by the Company under the auction bidding
procedure set forth in paragraph 2.3.
"B Borrowing Request": as defined in paragraph 2.3.
"B Loan": a Loan made pursuant to paragraph 2.3.
"Base Rate": a rate of interest per annum equal to the
rate of interest publicly announced by the Agent from time to
time as its prime commercial lending rate, such rate to be
adjusted automatically (without notice) on the effective date
of any change in such publicly announced rate.
"BNY": The Bank of New York.
"Borrowing Date": any date specified in an A Borrowing
Request delivered pursuant to paragraph 2.2 or a B Borrowing
Request delivered pursuant to paragraph 2.3, as a date on which
the Company requests the Lenders to make Loans comprising an A
Borrowing or a B Borrowing, respectively, hereunder.
"Business Day": for all purposes other than as set forth
in clause (ii) below, (i) any day other than a Saturday, Sunday
or other day on which commercial banks located in New York City
are authorized or required by law or other governmental action
to close and (ii) with respect to all notices and de-
terminations in connection with, and payments of principal and
interest on, LIBOR Loans, any day which is a Business Day
described in clause (i) above and which is also a day on which
dealings in foreign currency and exchange and LIBOR funding
between banks may be carried on in New York.
"CERCLA": as defined in paragraph 4.17.
"Code": the Internal Revenue Code of 1986, as the same
may be amended from time to time, or any successor thereto, and
the rules and regulations issued thereunder, as from time to
time in effect.
"Commitment": as to any Lender, the amount set forth next
to the name of such Lender in Exhibit A under the heading
"Commitment", as such Commitment may be reduced from time to
time pursuant to paragraph 2.8.
"Commitment Fee": as defined in paragraph 3.1.
"Commitment Percentage": as to any Lender, the percentage
set forth opposite the name of such Lender in Exhibit A under
the heading "Commitment Percentage".
"Commitment Period": the period from the Effective Date
to, but excluding, the Termination Date.
"Commonly Controlled Entity": a Person, whether or not
incorporated, which is under common control with the Company
within the meaning of Section 414(b) or 414(c) of the Code.
"Consolidated": the Company and the Subsidiaries which
are consolidated for financial reporting purposes in accordance
with GAAP.
"Contingent Obligation": as to any Person, any obligation
of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not con-
tingent, (i) to purchase any such primary obligation or any
Property constituting direct or indirect security therefor,
(ii) to advance or supply funds (a) for the purchase or payment
of any such primary obligation or (b) to maintain working
capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor,
(iii) to purchase Property, securities or services primarily
for the purpose of assuring the beneficiary of any such primary
obligation of the ability of the primary obligor to make pay-
ment of such primary obligation or (iv) otherwise to assure or
hold harmless the beneficiary of such primary obligation
against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include the indorsement of
instruments for deposit or collection in the ordinary course of
business. The term Contingent Obligation shall also include
the liability of a general partner in respect of the
liabilities of a partnership in which it is a general partner.
The amount of any Contingent Obligation of a Person shall be
deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determin-
able, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"Conversion Date": with respect to A Loans, the date on
which a LIBOR Loan is converted to an Alternate Base Rate Loan,
or the date on which an Alternate Base Rate Loan is converted
to a LIBOR Loan, or the date on which a LIBOR Loan is converted
to a new LIBOR Loan, all in accordance with paragraph 2.10.
"Default": any of the events specified in paragraph 9,
whether or not any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.
"Dollars" and "$": lawful currency of the United States
of America.
"Domestic Lending Office": in respect of any Lender, ini-
tially, the office of such Lender designated as such in
Exhibit B; thereafter, such other office or offices of such
Lender, if any, which shall be making or maintaining Alternate
Base Rate Loans or B Loans, as reported by such Lender to the
Agent.
"EBITDA": for any period, net earnings of the Company on
a Consolidated basis for such period, plus Interest Expense,
income taxes, depreciation and amortization, plus the one-time,
non-recurring charges and expenses, in an aggregate amount not
in excess of $7,000,000 from the Effective Date through any
date of determination, incurred by the Company in connection
with the consolidation, combination or other restructuring of
the businesses being conducted by Helme Tobacco Company and
Swisher International, Inc. as of the Effective Date, each to
the extent included in the determination of such net earnings,
all as determined in accordance with GAAP.
"Effective Date": the date on which executed counterparts
of this Agreement have been received by the Agent from the
Company and each Lender by telecopy or other delivery (if by
telecopy to be followed by delivery of original executed
counterparts).
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regula-
tions issued thereunder, as from time to time in effect.
"Existing Indebtedness": all Indebtedness of the Company
under the Credit Agreement, dated as of July 1, 1991, by and
among the Company, the signatory lenders thereto and The Bank
of New York, as agent, as amended.
"Existing Lines of Credit": unsecured lines of credit of
the Company existing on the Effective Date, and any unsecured
replacements, refinancings and substitutions therefor, in an
aggregate principal amount not in excess of $15,000,000.
"Event of Default": any of the events specified in
paragraph 9, provided that any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"FAS": a financial accounting statement as issued by the
Financial Accounting Standards Board.
"Federal Funds Rate": for any day, the rate per annum
equal to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as published on
the next succeeding Business Day and (ii) if such rate is not
so published for any day, the Federal Funds Rate for such day
shall be the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent on such
day on such transactions as determined by the Agent.
"Financial Statements": as defined in paragraph 4.16.
"GAAP": generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board, which are applicable to the
circumstances as of the date of determination, consistently
applied.
"Governmental Body": any nation or government, any state
or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of government and any court.
"Highest Lawful Rate": the maximum rate of interest, if
any, that at any time or from time to time may be contracted
for, taken, charged or received on the Notes or which may be
owing to any Lender pursuant to this Agreement under the laws
applicable to such Lender and this transaction.
"Indebtedness": without duplication, with respect to any
Person, (i) all obligations in respect of borrowed money or for
the deferred purchase or acquisition price of Property or
services (excluding trade accounts payable and accrued
liabilities which arise in the ordinary course of business and
which have not remained unpaid for more than six months after
the same became due and payable except such thereof as are
being contested in good faith and by appropriate proceedings
diligently conducted and for which adequate reserves have been
set aside in accordance with GAAP) which are, in accordance
with GAAP, includable as a liability on a Consolidated balance
sheet, (ii) indebtedness evidenced by notes, bonds, debentures
or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) all amounts
representing the capitalization of rentals in accordance with
GAAP, (v) indebtedness arising under acceptance facilities and
the amount of all unreimbursed drafts drawn under any letters
of credit, (vi) all liabilities secured by any Lien on Property
owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other
like non-consensual Liens arising in the ordinary course of
business), and (vii) all Contingent Obligations (other than the
Contingent Obligations set forth in Schedule 8.9).
"Indemnified Liabilities": as defined in paragraph 11.5.
"Interest Coverage Ratio": for any period, the ratio of
(i) EBITDA to (ii) Interest Expense, for such period.
"Interest Expense": for any period, the sum of all
interest (adjusted to give effect to all interest rate swap,
cap or other interest rate hedging arrangements and fees and
expenses in connection with the same, all as determined in
accordance with GAAP), paid or accrued in respect of all
Indebtedness for such period by the Company and the
Subsidiaries, on a Consolidated basis, as determined in ac-
cordance with GAAP, including, without limitation, interest
capitalized in accordance with FAS No. 34.
"Interest Payment Date": (i) as to any Alternate Base
Rate Loan, the last day of each March, June, September and
December commencing on the first of such days to occur after
such Alternate Base Rate Loan is made or any LIBOR Loan is
converted to an Alternate Base Rate Loan, (ii) as to any LIBOR
Loan or Swing Line Loan, the last day of the applicable In-
terest Period and, if such Interest Period is longer than three
months, the date which is three months after the first day of
such Interest Period, and (iii) with respect to any B
Loan, the maturity date for such B Loan established pursuant to
the B Borrowing Request with respect thereto delivered under
paragraph 2.3.
"Interest Period": (a) with respect to any LIBOR Loan
comprising the same A Borrowing requested by the Company:
(i) initially, the period commencing on the Borrow-
ing Date or Conversion Date with respect to such LIBOR
Loan and ending one, two, three or six months thereafter,
as selected by the Company in its irrevocable notice of
borrowing given pursuant to paragraph 2.2 or its ir-
revocable notice of conversion as given pursuant to
paragraph 2.10; and
(ii) thereafter, each period commencing on the last
day of the immediately preceding Interest Period ap-
plicable to such LIBOR Loan and ending one, two, three or
six months thereafter, as selected by the Company in its
irrevocable notice of conversion given pursuant to
paragraph 2.10; and
(b) with respect to any B Loan comprising the same
B Borrowing requested by the Company, the period commencing on
the Borrowing Date with respect to such B Loan and ending on
the maturity date thereof specified in the B Borrowing Request
with respect thereto given pursuant to paragraph 2.3, which
maturity date shall be no less than seven days and no more than
92 days after the Borrowing Date with respect to such B Loan;
provided, however, that all of the foregoing provisions relat-
ing to Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a LIBOR
Loan or a B Loan would otherwise end on a day which is not
a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into
another calendar month, in which event such Interest
Period shall end on the immediately preceding Business
Day;
(ii) if, with respect to any borrowing or the
conversion of any A Loan, the Company shall fail to give
due notice as provided in paragraph 2.2 or 2.10, as the
case may be, the Company shall be deemed to have selected
the Alternate Base Rate for such A Loan or such A Loan
shall be automatically converted to an Alternate Base Rate
Loan upon the expiration of the Interest Period with
respect thereto;
(iii) if any Interest Period pertaining to a LIBOR
Loan begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corre-
sponding day in the calendar month at the end of such
Interest Period), such Interest Period shall end on the
last Business Day of a calendar month;
(iv) no Interest Period selected in respect of any
Loan shall end after the Termination Date;
(v) the Company shall select Interest Periods so as
not to have more than six LIBOR and B Loans, in the
aggregate, consisting of no more than four LIBOR Loans or
four B Loans, outstanding at any one time.
"Investments": as defined in paragraph 8.10.
"Leverage Ratio": the ratio of Indebtedness of the
Company on a Consolidated basis to Total Capitalization.
"LIBOR Lending Office": in respect of any Lender, in-
itially, the office of such Lender designated as such in
Exhibit B (or, if no such office is specified, its Domestic
Lending Office); thereafter, such other office, if any, of such
Lender which shall be making or maintaining LIBOR Loans, as re-
ported by such Lender to the Agent.
"LIBOR Loans": collectively, Loans hereunder (or any por-
tions thereof) at such time as they (or such portions) are made
or being maintained at a rate of interest based upon the LIBOR
Rate.
"LIBOR Rate": with respect to any Interest Period ap-
plicable to any LIBOR Loan, the rate equal to the rate of
interest per annum, as determined by the Agent, obtained by
dividing (and then rounding to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, then to the next higher 1/16 of
1%):
(a) the rate quoted by the Agent to leading banks in the
interbank market for eurodollars as the rate at which the Agent
is offering Dollar deposits in an amount equal approximately to
the LIBOR Loan of the Agent, in its capacity as a Lender, to
which such Interest Period shall apply for a period equal to
such Interest Period, as quoted at approximately 11:00 a.m.,
New York City time, two Business Days prior to the first day of
such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the
then stated maximum rates during such Interest Period of all
reserve requirements (including, without limitation, marginal,
emergency, supplemental and special reserves), expressed as a
decimal, established by the Board of Governors of the Federal
Reserve System and any other banking authority to which the
Agent and other major United States banks or money center banks
are subject, in respect of eurocurrency funding (currently re-
ferred to as "Eurocurrency liabilities" in Regulation D of the
Board of Governors of the Federal Reserve System). Such re-
serve requirements shall include, without limitation, those
imposed under such Regulation D. LIBOR Loans shall be deemed
to constitute Eurocurrency liabilities and as such shall be
deemed to be subject to such reserve requirements without
benefit of credits for proration, exceptions or offsets which
may be available from time to time to any Lender under such
Regulation D. The LIBOR Rate shall be adjusted automatically on
and as of the effective date of any change in any such reserve
requirement.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or
nature whatsoever, including, without limitation, any condi-
tional sale or other title retention agreement and any
financing lease having substantially the same economic effect
as any of the foregoing.
"Loan": an A Loan, a B Loan or a Swing Line Loan, as the
case may be.
"Loan Documents": collectively, this Agreement, the Notes
and the Swing Line Note.
"Loans": A Loans, B Loans and Swing Line Loans,
collectively.
"Margin Stock": any "margin stock" as such term is de-
fined in Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from
time to time.
"Material Adverse Change": a material adverse change in
(i) the operations, business, prospects, Property or condition
(financial or otherwise) of (a) the Company or (b) the Company
and the Subsidiaries taken as a whole, (ii) the ability of the
Company to perform its obligations under this Agreement or the
Notes (iii) the ability of the Agent or any of the Lenders to
enforce any of the Loan Documents.
"Material Adverse Effect": a material adverse effect on
(i) the operations, business, prospects, Property or condition
(financial or otherwise) of (a) the Company or (b) the Company
and the Subsidiaries taken as a whole, (ii) the ability of the
Company to perform its obligations under this Agreement or the
Notes (iii) the ability of the Agent or any of the Lenders to
enforce any of the Loan Documents.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Note" and "Notes": as defined in paragraph 2.4.
"Note Agreement": the Note Agreement, dated March 3,
1993, by and among the Company and the purchasers party thereto
in the original principal amount of $125,000,000, in connection
with the issuance by the Company of its 7.875% senior notes due
March 3, 2003.
"Participating Lender": as defined in paragraph 2.3(a)(v).
"PBGC": the Pension Benefit Guaranty Corporation estab-
lished pursuant to Subtitle A of Title IV of ERISA, or any
Governmental Body succeeding to the functions thereof.
"Permitted Liens":
(i) Liens on Property of the Company and the
Subsidiaries existing on the date hereof as set forth in
Schedule 8.2;
(ii) Liens for Taxes, assessments or similar charges
incurred in the ordinary course of business which are not
delinquent or which are being contested in good faith in
accordance with paragraph 7.4;
(iii) statutory Liens of landlords and Liens
securing claims of contractors, subcontractors, suppliers
of goods, materials, equipment or services, or laborers
or other like Liens arising in the ordinary course of
business for amounts not yet due or which are being
contested in good faith in accordance with paragraph 7.6;
(iv) Liens (other than any Lien imposed by ERISA)
incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance and
other types of social security;
(v) deposits or pledges to secure tenders,
statutory obligations, surety bonds, appeal and release
bonds, bids, leases, contracts, performance and return-
of-money bonds and other similar obligations arising in
the ordinary course of business (in all cases exclusive
of obligations for the payment of Indebtedness);
(vi) easements, rights-of-way, restrictions and
other similar charges or encumbrances affecting real
Property which do not materially adversely affect the
value of such real Property or the financial condition of
the Company or any Subsidiary or interfere with the
ordinary conduct of the business of the Company or any
Subsidiary;
(vii) Liens on any Property hereafter acquired to
secure the payment of the purchase price thereof,
provided that such Liens are created contemporaneously
with the purchase thereof and attach only to the Property
so purchased and provided further that the Indebtedness
secured by such Liens is permitted under paragraph 8.1;
and
(viii) extensions, renewals or replacements of any
Lien referred to in clauses (i) through (vii) above, but
only to the extent that (a) the principal amount of the
Indebtedness or obligation secured thereby is not
increased and (b) any such extension, renewal or
replacement is limited to the Property originally
encumbered thereby.
"Person": an individual, a partnership, a corporation, a
business trust, a joint stock company, a trust, an unincorpor-
ated association, a joint venture, a Governmental Body or any
other entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of
ERISA and which is maintained by or to which contributions are
made by the Company, a Subsidiary or a Commonly Controlled
Entity or in respect of which the Company, a Subsidiary or a
Commonly Controlled Entity has or may have any liability.
"Projections": as defined in paragraph 4.16(b).
"Property": all types of real, personal, tangible, intan-
gible or mixed property including, without limitation, Stock.
"Proposed Bid Rate": as applied to any Remaining Interest
Period with respect to a Lender's B Loan, the rate per annum
that such Lender in good faith would have quoted to the Company
had the Company requested that such Lender offer to make a B
Loan on the first day of such Remaining Interest Period,
assuming no Default or Event of Default existed on such day and
that the Company had the right to borrow hereunder on such day,
such rate to be determined by such Lender in its sole
discretion.
"Remaining Interest Period": (i) in the event that the
Company shall not for any reason borrow or convert after it
shall have notified the Agent of its intent to do so and shall
have requested a LIBOR Loan pursuant to paragraph 2.2 or 2.10
or accepted one or more offers of B Loans under paragraph 2.3,
a period equal to the Interest Period that the Company elected
in respect of such LIBOR Loan or B Loans; (ii) in the event
that a LIBOR Loan or B Loan shall terminate for any reason
prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such
Interest Period if such Interest Period had not been so
terminated; or (iii) in the event that the Company shall prepay
or repay all or any part of the principal amount of a LIBOR
Loan or B Loan prior to the last day of the Interest Period
applicable thereto, a period equal to the period from and
including the date of such prepayment or repayment to but
excluding the last day of such Interest Period.
"Reportable Event": any event described in Section
4043(b) of ERISA, other than an event (excluding an event
described in Section 4043(b)(1) relating to tax disqualifica-
tion) with respect to which the 30-day notice requirement has
been waived.
"Required Lenders": at any time, Lenders having
Commitments (excluding the Swing Line Commitment) equal to more
than 66 2/3% of the Aggregate Commitments (excluding the Swing
Line Commitments).
"Results of Operations Report": the report of the Company
and the Subsidiaries, taken separately, entitled "Results of
Operations", prepared for distribution to the board of
directors of the Company.
"SEC": the Securities and Exchange Commission, or any
other Governmental Body succeeding to the functions thereof.
"Securities Exchange Act": the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
"Single Employer Plan": any Plan which is not a Multi-
employer Plan.
"Special Counsel": Emmet, Marvin & Martin.
"Stock": any and all shares, interests, participations,
warrants or other equivalents (however designated) of corporate
stock.
"Subsidiary": as to the Company, any corporation, as-
sociation, partnership, joint venture or other business entity
of which the Company, directly or indirectly, either (i) in
respect of a corporation, owns or controls more than 50%
(determined in accordance with the provisions for calculating
the percentage of voting securities set forth in 16 C.F.R.
801.12(b)) of the voting securities having ordinary voting
power to elect a majority of the board of directors or similar
managing body, irrespective of whether or not a class or
classes shall or might have voting power by reason of the hap-
pening of any contingency or (ii) in respect of an association,
partnership, joint venture or other business entity, is
entitled to share in more than 50% of the profits and losses,
however determined, excluding any limited partnership over
which the Company has no control and the obligations of which
are not recourse to the Company.
"Swing Line Borrowing Date": any date upon which BNY
shall make Swing Line Loans to the Company, which date shall
not be later than the Swing Line Termination Date.
"Swing Line Commitment": as to BNY, the amount set forth
on Exhibit A under the heading "Swing Line Commitment", as the
same may be reduced from time to time pursuant to paragraph
2.8.
"Swing Line Commitment Period": the period from the
Effective Date to, but excluding, the Swing Line Termination
Date.
"Swing Line Loan" and "Swing Line Loans": as defined in
paragraph 2.5.
"Swing Line Note": as defined in paragraph 2.6.
"Swing Line Termination Date": the date which is two
Business Days prior to the Termination Date.
"Tangible Net Worth": at any date, the sum of the Stock
and paid in surplus, plus retained earnings (or minus ac-
cumulated deficit) of the Company on a Consolidated basis
(minus intangible assets, including, without limitation,
franchises, patents and patent applications, trademarks, brand
names and goodwill), each as determined in accordance with
GAAP.
"Taxes": any present or future income, stamp or other
taxes, levies, imposts, duties, fees, assessments, deductions,
withholding, or other charges of whatever nature, now or
hereafter imposed, levied, collected, withheld, or assessed by
any Governmental Body.
"Termination Date": December 31, 1998.
"Total Capitalization": as of any date of determination,
the sum of (i) Indebtedness of the Company on a Consolidated
basis (less the aggregate amount of Contingent Obligations
included in such Indebtedness the primary obligor of which is
a Person other than the Company or a Subsidiary), (ii)
Consolidated net worth (determined in accordance with GAAP),
and (iii) non-current deferred taxes properly recorded on the
books of the Company and the Subsidiaries, each as of such date
of determination.
"Type": A Loans made hereunder as Base Rate Loans or
LIBOR Loans, as the case may be.
B. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have
the meanings given such terms herein when used in the Loan
Documents or any certificate or other document made or
delivered pursuant hereto or thereto, unless otherwise defined
therein.
(b) As used herein, in the other Loan Documents and
in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Company not
defined in paragraph 1.1 shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and
"hereunder" and similar words when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement, and paragraph and exhibit
references contained herein shall refer to paragraphs hereof or
exhibits hereto unless otherwise expressly provided herein.
(d) The word "or" shall not be exclusive; "may not"
is prohibitive and not permissive; and the singular includes
the plural.
II. AMOUNT AND TERMS OF LOANS
A. A Loans.
Subject to the terms and conditions of this Agree-
ment, each Lender severally agrees to make A Loans to the
Company from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding not to
exceed such Lender's Commitment, provided that the aggregate
unpaid principal balance of all A Loans, B Loans and Swing Line
Loans at any one time outstanding shall not exceed the
Aggregate Commitments. During such period, the Company may
borrow, prepay in whole or in part and reborrow under the Com-
mitments, all in accordance with the terms and conditions
hereof. Subject to the provisions of paragraphs 2.2 and 2.11,
A Loans may be (i) Alternate Base Rate Loans, (ii) LIBOR Loans
or (iii) any combination thereof.
B. Procedure for A Borrowings.
(a) The Company may borrow A Loans hereunder on any
Business Day from and after the Effective Date to and including
the day immediately preceding the Termination Date, by giving
the Agent irrevocable notice (by telephone (to be promptly
confirmed in writing), telecopy or other writing) (each an
"A Borrowing Request") substantially in the form of Exhibit C-1
(i) no later than 11:00 a.m., New York City time, three
Business Days prior to each requested Borrowing Date in the
case of LIBOR Loans, and (ii) no later than 10:00 a.m., New
York City time, on the requested Borrowing Date (which shall be
a Business day) in the case of Alternate Base Rate Loans, in
each case specifying (1) the aggregate amount to be borrowed
under the Commitments, (2) the requested Borrowing Date, (3)
whether the borrowing is to be of LIBOR Loans, Alternate Base
Rate Loans or a combination thereof and (4) if the borrowing is
to be of LIBOR Loans, the amount thereof and the length of the
initial Interest Period for such Loans. Each borrowing of
A Loans (other than A Loans made pursuant to paragraph 2.7(b))
shall be in an aggregate principal amount equal to $5,000,000
or such amount plus a whole multiple of $1,000,000 or, if less,
with respect to Alternate Base Rate Loans only, the unused
amount of the Commitments. Upon receipt of each notice of bor-
rowing from the Company, the Agent shall promptly notify each
Lender thereof. Subject to its receipt of the notice referred
to in the preceding sentence, each Lender will make the amount
of its Commitment Percentage of each borrowing available to the
Agent for the account of the Company at the office of the Agent
set forth in paragraph 11.2 not later than 12:00 noon, New York
City time, on the A Borrowing Date requested by the Company, in
funds immediately available to the Agent at such office. The amounts
so made available to the Agent on a Borrowing Date will then,
subject to the satisfaction of the terms and conditions of this
Agreement as determined by the Agent, be made available on such
date to the Company by the Agent at the office of the Agent
specified in paragraph 11.2 by crediting the account of the
Company on the books of such office with the aggregate of said
amounts received by the Agent, except as otherwise set forth in
paragraph 2.7.
(b) Unless the Agent shall have received prior
notice from a Lender (by telephone or otherwise, such notice to
be confirmed by telecopy or other writing) that such Lender
will not make available to the Agent such Lender's pro rata
share of the A Loans requested by the Company, the Agent may
assume that such Lender has made such share available to the
Agent on such Borrowing Date in accordance with this paragraph,
provided that such Lender received notice of the proposed
A Borrowing from the Agent, and the Agent may, in reliance upon
such assumption, make available to the Company on such Bor-
rowing Date a corresponding amount. If and to the extent such
Lender shall not have so made such pro rata share available to
the Agent and the Agent shall have made available a
corresponding amount, such Lender and the Company severally
agree to pay to the Agent forthwith on demand such correspond-
ing amount (to the extent not previously paid by the other),
together with interest thereon for each day from the date such
amount is made available to the Company until the date such
amount is paid to the Agent, at a rate per annum equal to, in
the case of the Company, the applicable interest rate set forth
in paragraph 2.11, and, in the case of such Lender, the Federal
Funds Rate in effect on each such day (as determined by the
Agent). Such payment by the Company, however, shall be without
prejudice to its rights against such Lender. If such Lender
shall pay to the Agent such corresponding amount, such amount
so paid shall constitute such Lender's A Loan as part of such
A Loans for purposes of this Agreement, which A Loan shall be
deemed to have been made by such Lender on the Borrowing Date
applicable to such A Loans.
C. B Loans and Procedure for B Borrowings.
(a) Subject to the terms and conditions of this
Agreement, each Lender severally agrees that the Company may
effect B Borrowings under this paragraph 2.3 from time to time
on any Business Day during the period from the Effective Date
until the date occurring 7 days prior to the Termination Date
in the manner set forth below, provided, however, that at no
time shall the aggregate outstanding principal balance of all
B Loans outstanding hereunder exceed the Aggregate Commitments
less the aggregate outstanding principal balance of all A Loans
and Swing Line Loans, if any, then outstanding:
(i) The Company may request a B Borrowing under
this paragraph 2.3 by giving to the Agent, not later than
11:00 a.m., New York City time, at least three Business
Days prior to the date of the proposed B Borrowing, a
notice (each, a "B Borrowing Request"), substantially in
the form of Exhibit C-2, specifying the proposed date and
aggregate principal amount (which shall be equal to
$5,000,000 or such amount plus a whole multiple of
$1,000,000, or, if less, the undrawn balance of the Ag-
gregate Commitments) of the proposed B Borrowing, the
proposed Interest Period for each B Loan to be made as
part of such B Borrowing (which Interest Period shall not
be later than the Termination Date and shall otherwise
comply with the applicable provisions of the definition of
"Interest Period"), the Interest Payment Date or Dates
relating thereto, the maturity date of such B Borrowing
(which maturity date shall be no less than seven and no
more than 92 days after the Borrowing Date of such B
Borrowing) and such other terms to be applicable to such
B Borrowing as the Company may specify. The Agent shall
promptly notify (by telephone or otherwise, such notice to
be promptly confirmed by telecopy or other writing) each
Lender of each B Borrowing Request received by it and the
terms contained in such Request.
(ii) Each Lender may, if, in its sole discre-
tion, it elects so to do, irrevocably offer to make one or
more B Loans to the Company as part of such proposed B
Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, which rate or rates shall
be calculated on the basis of a 360 day year for the
actual number of days elapsed, by notifying (by telephone
or otherwise, such notice to be promptly confirmed by
telecopy or other writing) the Agent, before 11:00 a.m.,
New York City time, two Business Days before the Borrowing
Date of such proposed B Borrowing, of the minimum amount
and maximum amount of each B Loan which such Lender would
be willing to make as part of such proposed B Borrowing
(which amounts may, subject to the proviso to the first
sentence of paragraph 2.3(a), exceed such Lender's Com-
mitment), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such B Loan.
The Agent shall notify the Company of all such offers before
11:30 a.m., New York City time, provided that if BNY in its
capacity as a Lender shall in its sole discretion elect to
make any such offer, it shall notify the Company of such offer
before 10:30 a.m., New York City time, two Business Days before
such proposed Borrowing Date. If any Lender other than BNY shall
fail to notify the Agent before 11:00 a.m., New York City time,
and BNY in its capacity as Lender shall fail to notify the Company
before 10:30 a.m., New York City time, two Business Days before
the proposed Borrowing Date, that it elects to make such an offer,
such Lender shall be deemed to have elected not to make such an
offer and such Lender shall not, and shall not be obligated to,
make any B Loan as part of such B Borrowing. Any offer submitted
after the times required above shall be disregarded by the Agent
unless such offer is submitted to correct a manifest error in
a prior offer.
(iii) The Company shall, before 12:00 noon, New
York City time, two Business Days before the date of such
proposed B Borrowing, either
(A) cancel such B Borrowing Request by
notifying the Agent in writing to that effect, or
(B) in its sole discretion, irrevocably
accept one or more of the offers made by any Lender
or Lenders pursuant to (ii) above by giving notice
to the Agent of the amount of each B Loan (which
amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum
amount, notified to the Company by the Agent on
behalf of such Lender for such B Loan pursuant to
(ii) above) to be made by each Lender as part of
such B Borrowing, and reject any remaining offers
made by Lenders pursuant to (ii) above, by giving
the Agent notice to that effect, provided, however,
that the aggregate principal amount of such offers
accepted by the Company shall be equal to at least
$5,000,000. No such Lender shall be obligated to
make such B Loan in a principal amount less than the
minimum amount offered by such Lender without
consenting to such lesser amount. If any Lender
declines to make a B Loan at such lesser amount, the
Company shall be entitled in its sole discretion to
determine which of such offers at the same interest
rate it shall accept.
(iv) If the Company notifies the Agent that a
B Borrowing Request is cancelled pursuant to (iii)(A)
above, the Agent shall give prompt notice (by telephone or
otherwise, such notice to be promptly confirmed by
telecopy or other writing) thereof to the Lenders and such
B Borrowing shall not be made.
(v) If the Company accepts one or more of the
offers made by any Lender or Lenders pursuant to clause
(iii)(B) above, the Agent shall, as promptly as
practicable on the second Business Day before such
proposed Borrowing Date, notify (1) each Lender that has
made an offer as described in clause (ii) above, of the
date and aggregate amount of such B Borrowing and whether
any offer or offers made by such Lender pursuant to clause
(ii) above has been accepted by the Company and (2) each
Lender that is to make a B Loan as part of such B
Borrowing (a "Participating Lender" with respect to such
B Borrowing), of the amount of each B Loan to be made by
such Lender as part of such B Borrowing, together with a
specification of the interest rate and Interest Payment
Date or Dates in respect of each such B Loan. Each such
Participating Lender shall, before 12:00 noon, New York
City time, on the date of such B Borrowing, make available
to the Agent at its address specified in paragraph 11.2,
for the account of such Participating Lender's Applicable
Lending Office, such Participating Lender's portion of
such B Borrowing, in same day funds. Upon satisfaction of
the applicable terms and conditions of this Agreement and
after receipt by the Agent of such amount from each such
Participating Lender, the Agent will make such amount
available on such date to the Company at the office of the
Agent specified in paragraph 11.2 by crediting the account
of the Company on the books of such office with the
aggregate of such amount, in like funds as received by the
Agent, and the Agent will notify each Lender of the amount
of such B Borrowing, such Lender's B Loan thereunder, if
applicable, and the date upon which such B Loan commenced
and is to terminate. After each B Borrowing, if requested
by any Lender, the Agent shall within a reasonable time
furnish to such Lender such information in respect of such
B Borrowing as such Lender shall reasonably request.
Unless the Agent shall have received prior notice
from a Participating Lender (by telephone or otherwise,
such notice to be promptly confirmed by telephone,
telecopy or other writing) that such Participating Lender
will not make available such Participating Lender's B Loan,
the Agent may assume that such Participating Lender has
made such Participating Lender's portion of such B Borrowing
available to the Agent on such Borrowing Date in accordance
with this paragraph, and the Agent may, in reliance upon such
assumption, make available to the Company on such Borrowing
Date a corresponding amount. If and to the extent such
Participating Lender shall not have made such portion available
to the Agent, such Participating Lender and the Company sever-
ally agree to pay to the Agent forthwith on demand (but without
duplication) such corresponding amount with interest thereon
for each day from the date such amount is made available to the
Company until the date such amount is paid to the Agent at a
rate per annum equal to, in the case of the Company, the rate
of interest for such B Loan accepted by the Company in its
notice to the Agent under paragraph 2.3(a)(iii)(B), and, in the
case of such Participating Lender, the Federal Funds Rate in
effect on such day (as determined by the Agent). Such payment
by the Company, however, shall be without prejudice to its
rights against such Participating Lender. If such
Participating Lender shall pay to the Agent such corresponding
amount, such amount so paid shall constitute such Participating
Lender's B Loan as a part of such B Loans for purposes of this
Agreement, which B Loan shall be deemed to have been made by
such Participating Lender on the Borrowing Date applicable
thereto, but without prejudice to the Company's rights against
such Participating Lender.
(b) Within the limits and on the conditions set
forth in this paragraph 2.3, the Company may from time to time
borrow under this paragraph 2.3, repay pursuant to clause (c)
below, and reborrow under this paragraph 2.3.
(c) The Company shall repay to the Agent for the
account of each Participating Lender which has made a B Loan on
the maturity date of such B Loan (such maturity date being that
specified by the Company for repayment of such B Loan in the
related B Borrowing Request delivered pursuant to 2.3(a)(i))
the then unpaid principal amount of such B Loan.
(d) The Company shall pay interest on the unpaid
principal balance of each B Loan from the date of such B Loan
to the date the principal amount of such B Loan is repaid in
full, at the rate of interest for such B Loan specified by the
Participating Lender making such B Loan in its notice with respect
thereto delivered pursuant to 2.3(a)(ii) payable on the Interest
Payment Date or Dates specified by the Company for such B Loan
in the related B Borrowing Request delivered pursuant to 2.3(a)(i).
(e) Promptly following its receipt of notification
from the Agent of offers to make B Loans, and regardless of
whether the Company elects to accept one or more of such
offers, the Company shall pay to the Agent for its account the
fee previously agreed to between the Company and the Agent.
D. Notes.
The A Loans and B Loans made by each Lender shall be
evidenced by a promissory note of the Company, substantially in
the form of Exhibit D, with appropriate insertions therein as
to date and principal amount (each as indorsed or modified from
time to time, including all replacements thereof and
substitutions therefor, a "Note" and, collectively with the
Notes of all other Lenders and the Swing Line Note, the
"Notes"), payable to the order of such Lender and representing
the obligation of the Company to pay the lesser of (i) the
amount of the Aggregate Commitments and (ii) the aggregate
unpaid principal balance of all A Loans and B Loans made by
such Lender, with interest thereon as prescribed in paragraph
2.11. Each Lender is hereby authorized to record (a) the date
and amount of each A Loan and B Loan made by such Lender, (b)
its character (in the case of A Loans) as an Alternate Base
Rate Loan, a LIBOR Loan, or combination thereof, (c) the
Interest Period and interest rate applicable to LIBOR Loans and
B Loans and (d) the date and amount of each conversion of, and
each payment or prepayment of principal of, its A Loans and B
Loans, on the schedule (and any continuations thereof) annexed
to and constituting a part of its Note. Any failure to so
record and any error in so recording shall not affect the
obligation of the Company to repay the A Loans and B Loans,
with interest thereon, as herein provided. Each such Note
shall (1) be dated the first Borrowing Date, (2) be stated to
mature on the Termination Date and (3) bear interest for the
period from and including the date thereof on the unpaid
principal balance thereof from time to time outstanding at the
applicable interest rate or rates per annum determined as pro-
vided in paragraph 2.11. Interest on each such Note shall be
payable as specified in paragraph 2.11.
E. Swing Line Loans.
Subject to the terms and conditions of this
Agreement, BNY, shall make loans (each a "Swing Line Loan" and,
collectively, the "Swing Line Loans") to the Company from time
to time during the Swing Line Commitment Period up to an
aggregate principal amount at any one time outstanding which
shall not exceed BNY's Swing Line Commitment. At no time shall
the aggregate principal balance of the Swing Line Loans
outstanding hereunder exceed the lesser of (a) the Aggregate
Commitments less the aggregate principal amount of A Loans and
B Loans outstanding at such time, or (b) the Swing Line
Commitment. During such period, the Company may borrow, prepay
in whole or in part and reborrow under the Swing Line
Commitment, all in accordance with the terms and conditions
hereof, subject, however, to paragraph 2.7. Each Swing Line
Loan shall mature on the Business Day immediately following the
Swing Line Borrowing Date with respect thereto. All Swing Line
Loans shall incur interest at the rate set forth in paragraph
2.11 and shall otherwise be subject to all the terms and
conditions applicable to A Loans and B Loans, except that the
principal balance thereof shall be payable as set forth in
paragraph 2.7 with accrued interest thereon, and all interest
thereon prior to the maturity thereof shall be payable to BNY
solely for its own account in accordance with paragraph
2.11(c). BNY shall not make any Swing Line Loan at any time
if BNY shall have received written notice from any Lender on or
before the Business Day immediately preceding the date of the
proposed Swing Line Loan that one or more of the conditions
precedent contained in paragraphs 5 and 6 will not on such date
be satisfied, and BNY shall not otherwise be required to
determine that, or take notice whether, the conditions
precedent set forth in paragraphs 5 and 6 hereof have been
satisfied.
F. Swing Line Note.
The Swing Line Loans made by BNY shall be evidenced
by a promissory note of the Company, substantially in the form
of Exhibit E, with appropriate insertions therein as to date
and principal amount (as indorsed or modified from time to
time, including all replacements thereof and substitutions
therefor, the "Swing Line Note"), payable to the order of BNY
and representing the obligation of the Company to pay the
lesser of (a) the amount of the Swing Line Commitment or (b)
the aggregate unpaid principal balance of all Swing Line Loans
with interest thereon as set forth in paragraph 2.11. BNY is
hereby authorized to record (i) the date and amount of each
Swing Line Loan and (ii) the date and amount of each payment or
prepayment of principal of any Swing Line Loans on the schedule
(and any continuations thereof) annexed to and constituting a
part of its Swing Line Note. No failure to so record or any
error in so recording shall affect the obligations of the
Company to repay the Swing Line Loans as herein provided. The
Swing Line Note shall (a) be stated to mature on the
Termination Date, and (b) bear interest for the period from and
including the date thereof on the unpaid principal
balance thereof from time to time outstanding at the applicable
interest rate or rates per annum determined as provided in
paragraph 2.11(c).
G. Procedure for Borrowing Swing Line Loans.
(a) The Company may borrow Swing Line Loans hereunder
on any Business Day to but excluding the Swing Line Termination
Date by notifying the Agent and BNY (by telephone or telecopy)
no later than 12:00 noon, New York City time on the requested
Swing Line Borrowing Date, specifying the amount to be borrowed
under the Swing Line Commitment and the requested Swing Line
Borrowing Date. Each borrowing of Swing Line Loans shall be
in an aggregate principal amount equal to $100,000 or such
amount plus an integral multiple thereof or, if less, the
unused amount of the Swing Line Commitment. BNY will then,
subject to its determination that the terms and conditions of
this Agreement have been satisfied, make the requested amount
available not later than 3:00 p.m. (New York City time) on that
same day to the Agent, who thereupon will promptly make such
amount available to the Company at the office of the Agent
specified in paragraph 11.2 by crediting the account of the
Company on the books of such office of the Agent.
(b) Notwithstanding anything to the contrary
contained in paragraph 2.2, BNY, at any time in its sole and
absolute discretion may, and upon the request of the Required
Lenders shall, on behalf of the Company (which, along with each
of the Lenders, hereby irrevocably directs BNY to act on its
behalf), request each Lender, including BNY, by giving such
Lender telephone (to be confirmed in writing), telecopy or
other written notice, to make an A Loan, at the Alternate Base
Rate, to the Company in an amount equal to such Lender's
Commitment Percentage of the aggregate amount of Swing Line
Loans outstanding on the date of such notice. Unless a Default
or Event of Default shall have occurred or be continuing on the
date of such notice, each Lender irrevocably agrees that it
shall promptly pay to the Agent for distribution to BNY, in
immediately available funds, its Commitment Percentage of such
Alternate Base Rate Loan, by no later than 12:00 noon (New York
City time) on the date of such notice. BNY shall apply the
proceeds of such Alternate Base Rate Loans to the immediate
repayment of the outstanding Swing Line Loans and, to the
extent the aggregate amount of such Alternate Base Rate Loans
are in excess of the outstanding Swing Line Loans on such day,
BNY shall deliver such excess amount to the Agent and the Agent
shall make such excess amount available on such date to the
Company at the office of the Agent specified in paragraph 11.2
by crediting the account of the Company on the books of such
office in the amount of such excess, in like funds as received
by the Agent. The Agent shall notify the Company of the making
of any Alternate Base Rate Loan pursuant to this paragraph 2.7(b).
(c) If, prior to the making of any Alternate Base
Rate Loans to the Company pursuant to paragraph 2.7(b), a
Default or Event of Default shall have occurred or be
continuing, each Lender irrevocably agrees that it will, on the
date such Alternate Base Rate Loan was to have been made,
unconditionally purchase from BNY, without recourse or war-
ranty, an undivided participation interest in each outstanding
Swing Line Loan made by BNY in an amount equal to such
Lender's Commitment Percentage thereof, whereupon such Lender
shall promptly pay to the Agent for the account of BNY an equal
amount in immediately available funds. If any amount required
from any Lender pursuant to this paragraph 2.7(c) is not in
fact made available to BNY by such Lender, BNY shall be
entitled to recover such amount on demand from such Lender
together with accrued interest thereon, for each day from the
date of demand therefor, to but excluding the date such amount
is paid to BNY by such Lender, at the Alternate Base Rate. If
such Lender does not pay such amount forthwith upon BNY's
demand therefor, and until such time as such Lender makes the
required payment, BNY shall be deemed to continue to have
outstanding a Swing Line Loan in the amount of such unpaid
participation obligation for all purposes of this Agreement
other than those provisions requiring the other Lenders to
purchase a participation therein. If at any time after BNY has
received from any Lender such Lender's participation in a Swing
Line Loan, BNY receives any payment on account thereof, BNY
will distribute to such Lender its participating interest in
such payment (appropriately adjusted, with respect to interest
payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded),
provided, however, that if any payment received by BNY is
required to be returned for any reason, such Lender will return
to BNY the portion thereof previously distributed by BNY to it.
H. Reduction of Commitments.
(a) Voluntary Reductions. The Company shall have
the right, upon at least five Business Days' prior written
notice to the Agent, to reduce permanently the Commitments in
whole at any time, or in part from time to time, to an amount
not less than the aggregate principal balance of the Loans then
outstanding (after giving effect to any contemporaneous
prepayment thereof), without premium or penalty, provided that
each partial reduction of the Commitments shall be in an
amount equal to $10,000,000 or such amount plus a whole
multiple of $1,000,000.
(b) Mandatory Reductions. On each date that a
prepayment of the Loans is made pursuant to paragraph 2.9(b) or
8.13(iv), and upon the date that any voluntary prepayment of
the Loans is made in connection with a repurchase of the notes
under the Note Agreement pursuant to paragraph 6I therein, the
Aggregate Commitments shall be automatically and permanently
reduced by an amount equal to the amount of each such
prepayment of the Loans.
(c) In General. Reductions of the Commitments shall
be applied pro rata according to the Commitment Percentage of
each Lender. Simultaneously with each reduction of the
Commitments under this paragraph 2.8, the Company shall pay the
Commitment Fees accrued on the amount by which the Commitments
have been reduced. If any prepayment is made under this
paragraph 2.8 with respect to any LIBOR or B Loans, in whole or
in part, prior to the last day of the applicable Interest
Period, the Company agrees that it shall indemnify the Lenders
in accordance with paragraph 2.16. After giving effect to any
partial prepayment with respect to LIBOR or B Loans which were
made (whether as the result of a borrowing or a conversion) on
the same date and which had the same Interest Period, the
outstanding principal balance of such LIBOR or B Loans shall
not be less than (subject to paragraph 2.10) $5,000,000 or such
amount plus a whole multiple of $1,000,000.
I. Prepayments of the Loans.
(a) Voluntary Prepayments. The Company may, at its
option, prepay (i) A Loans consisting of Alternate Base Rate
Loans, in whole or in part, without premium or penalty, at any
time or from time to time, and (ii) A Loans consisting of
LIBOR Loans or B Loans, in whole or in part, without premium or
penalty, at the end of any Interest Period with respect to such
Loan, in either case by notifying the Agent at least three
Business Days prior to the proposed prepayment date. Each such
notice shall be in writing and shall specify the Loans to be
prepaid, the amount to be prepaid, and the date of prepayment.
Upon receipt of such notice, the Agent shall promptly notify
each Lender thereof. If any such notice of the Company is
given pursuant to this paragraph 2.9, such notice shall be ir-
revocable and payment of the amount specified in such notice
shall be due and payable on the date specified, together with
accrued interest to the date of such payment on the amount
prepaid. Partial prepayments shall be in an aggregate
principal amount of $1,000,000 or such amount plus a whole
multiple of $1,000,000 or, if less, the outstanding principal
balance of the A Loans or B Loans being prepaid, as the case may be.
After giving effect to any partial prepayment with respect to LIBOR
Loans which was made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest Period,
the outstanding principal amount of such LIBOR Loans made (whether
as the result of a borrowing or a conversion) shall not be less
than (subject to paragraph 2.10) $5,000,000 or such amount plus a
whole multiple of $1,000,000.
(b) Mandatory Prepayments of Loans. The Company
shall prepay the Loans in an aggregate amount equal to the sum
of (i) the aggregate amount of all repurchases of the notes
under the Note Agreement made pursuant to the occurrence of a
Purchase Event under and as defined in the Note Agreement, less
the amount of any voluntary prepayments of the Loans made in
connection with a repurchase of the notes under the Note
Agreement pursuant to paragraph 6I therein, and (ii) the
aggregate amount of the Loans required to be prepaid pursuant
to paragraphs 8.4(b) and 8.13(iv). Prepayments of Loans made
pursuant to this paragraph 2.9(b) shall be applied first to the
outstanding principal amount of Swing Line Loans, and second to
the aggregate outstanding principal amount of A and B Loans,
pro rata according to each Lender's outstanding principal
amount of such Loans.
(c) Mandatory Prepayments of Swing Line Loans. The
Company shall prepay the aggregate outstanding principal amount
of all Swing Line Loans, if any, together with interest thereon
through the date of such prepayment, at least once during each
30 day period, and such amounts shall remain undrawn for a
period equal to at least one Business Day.
(d) In General. If any prepayment is made under this
paragraph 2.9 with respect to any LIBOR Loans, B Loans or Swing
Line Loans, in whole or in part, prior to the last day of the
applicable Interest Period, the Company agrees to indemnify the
Lenders in accordance with paragraph 2.16.
J. Conversions.
(a) With respect to A Loans, the Company may elect
from time to time to convert LIBOR Loans to Alternate Base Rate
Loans by giving the Agent at least two Business Days' prior ir-
revocable notice of such election, specifying the amount to be
so converted, provided that any such conversion of LIBOR Loans
shall only be made on the last day of the Interest Period ap-
plicable thereto. In addition, the Company may elect from time
to time to convert Alternate Base Rate Loans to LIBOR Loans or
to convert LIBOR Loans to new LIBOR Loans by giving the Agent at
least three Business Days' prior irrevocable notice of such
election, specifying the amount to be so converted and the initial
Interest Period relating thereto, provided that any such conversion
of Alternate Base Rate Loans to LIBOR Loans shall only be made on
a Business Day and any such conversion of LIBOR Loans to new LIBOR
Loans shall only be made on the last day of the Interest Period
applicable to the LIBOR Loans which are to be converted to such
new LIBOR Loans. The Agent shall promptly provide the Lenders with
notice of any such election. Loans may be converted pursuant to
this paragraph 2.10(a) in whole or in part, provided that
conversions of Alternate Base Rate Loans to LIBOR Loans or
LIBOR Loans to new LIBOR Loans shall be in an aggregate
principal amount of (subject to this paragraph 2.10) $5,000,000
or such amount plus a whole multiple of $1,000,000.
(b) Notwithstanding anything in this paragraph 2.10
to the contrary, no Alternate Base Rate Loan may be converted
to a LIBOR Loan, and no LIBOR Loan may be converted to a new
LIBOR Loan, if the Company or the Agent has knowledge that a
Default or an Event of Default has occurred and is continuing
at the time the Company shall notify the Agent of its election
to convert any such Alternate Base Rate Loan to a LIBOR Loan or
to convert any LIBOR Loan to a new LIBOR Loan, or at the time
such Alternate Base Rate Loan is to be converted to a LIBOR
Loan or such LIBOR Loan is to be converted to a new LIBOR Loan.
In such event, such Alternate Base Rate Loan shall be auto-
matically continued as an Alternate Base Rate Loan or such
LIBOR Loan shall be automatically converted to an Alternate
Base Rate Loan on the last day of the Interest Period ap-
plicable to such LIBOR Loan. If a Default or an Event of
Default shall have occurred and be continuing, the Agent shall,
at the request of the Required Lenders, notify the Company (by
telephone or otherwise) that all, or such lesser amount as the
Agent and the Required Lenders shall designate, of the
outstanding LIBOR Loans shall be automatically converted to
Alternate Base Rate Loans, in which event such LIBOR Loans
shall be automatically converted to Alternate Base Rate Loans
on the date such notice is given. If any LIBOR Loan shall be
terminated prior to the last day of the Interest Period
applicable thereto pursuant to this paragraph 2.10(b), the
Company agrees that it shall indemnify the Lenders in
accordance with paragraph 2.16.
(c) Each conversion shall be effected by each Lender
applying the proceeds of the new Alternate Base Rate Loan or
LIBOR Loan, as the case may be, to the Loan (or portion
thereof) being converted (it being understood that such
conversion shall not constitute a borrowing for purposes of
paragraphs 4, 5 or 6). Accrued interest on the Loan (or por-
tion thereof) being converted shall be paid by the Company at
the time of conversion.
K. Interest Rate and Payment Dates.
(a) A Loans Prior to Maturity. Prior to maturity,
the outstanding principal balance of the A Loans (i) consisting
of Alternate Base Rate Loans shall bear interest on the unpaid
principal balance thereof at the Alternate Base Rate and (ii)
consisting of LIBOR Loans shall bear interest on the unpaid
principal balance thereof at the LIBOR Rate for the applicable
Interest Period plus the Applicable Margin.
(b) B Loans Prior to Maturity. Prior to maturity,
the outstanding principal balance of the B Loans shall bear
interest on the unpaid principal balance thereof at the rate
therefor set forth in the applicable Lender's notice with
respect to the proposed B Borrowing in accordance with
paragraph 2.3(a)(ii).
(c) Swing Line Loans. (i) Prior to maturity and
prior to the acquisition of Swing Line Loans or participation
interests in Swing Line Loans by the Lenders pursuant to
paragraph 2.7(b) or 2.7(c), as the case may be, Swing Line
Loans shall bear interest on the unpaid principal balance
thereof at the rate therefor determined by BNY prior to the
making of each such Swing Line Loan and accepted by the
Company, such acceptance to be evidenced by the acceptance by
the Company of the proceeds of such Swing Line Loans, provided
that such rate shall not exceed the higher of the Alternate
Base Rate or the LIBOR Rate, for an Interest Period of one
month, plus the Applicable Margin, in each case in effect on
such date of determination, and (ii) prior to maturity and
after the acquisition of Swing Line Loans or participation
interests in Swing Line Loans by the Lenders pursuant to
paragraph 2.7(b) or 2.7(c), as the case may be, Swing Line
Loans shall bear interest on the unpaid principal balance
thereof at the Alternate Base Rate, provided that the Company
may thereafter convert such Swing Line Loans to LIBOR Loans in
accordance with paragraph 2.10 (and, in connection with any
such conversion of Swing Line Loans to LIBOR Loans pursuant to
paragraph 2.10, such Swing Line Loans shall be deemed to be A
Loans).
(d) Late Charges. If all or any portion of the
principal balance of or interest payable on any of the Loans or
any other amount payable under the Loan Documents shall not be
paid when due (whether at the stated maturity thereof, by
acceleration or otherwise), such overdue balance or amount
shall bear interest at a rate per annum equal to the Alternate
Base Rate plus 2% from the date of such nonpayment until paid
in full (whether before or after the entry of any judgment
thereon).
(e) General. Interest on Alternate Base Rate Loans,
to the extent the Alternate Base Rate is based on the Base
Rate, shall be calculated on the basis of a 365/366 day year,
and interest on all LIBOR Loans, B Loans, Swing Line Loans and
Alternate Base Rate Loans (to the extent the Alternate Base
Rate is based on the Federal Funds Rate plus 1/2 of 1%) shall be
calculated on the basis of a 360 day year, in each case for the
actual number of days elapsed. Interest on all Loans shall be
payable in arrears on each Interest Payment Date and, without
duplication, upon payment (including prepayment) of the Loans.
Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate shall become effective as of
the opening of business on the day on which such change in the
Alternate Base Rate shall become effective. The Agent shall,
as soon as practicable, notify the Company and the Lenders of
the effective date and the amount of each such change in the
Alternate Base Rate, but failure to so notify shall not in any
manner affect the obligation of the Company to pay interest on
the Loans in the amounts and on the dates required. Each
determination of the Alternate Base Rate or LIBOR Rate by the
Agent pursuant to this Agreement shall be conclusive and
binding absent manifest error. At no time shall the interest
rate payable on the Loans, together with the Commitment Fee and
all other fees and other amounts payable hereunder, to the
extent the same are construed to constitute interest, exceed
the Highest Lawful Rate. If interest payable to a Lender on
any date would exceed the maximum amount permitted by the
Highest Lawful Rate, such interest payment shall automatically
be reduced to such maximum permitted amount, and interest for
any subsequent period, to the extent less than the maximum
amount permitted for such period by the Highest Lawful Rate,
shall be increased by the unpaid amount of such reduction. Any
interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to
have been applied as a prepayment of the Loans. The Company
acknowledges that to the extent interest payable on the
Alternate Base Rate Loans is based on the Base Rate, the Base
Rate is only one of the bases for computing interest on loans
made by the Lenders, and by basing interest payable on the
Alternate Base Rate Loans on the Base Rate, the Lenders have
not committed to charge, and the Company has not in any way
bargained for, interest based on a lower or the lowest rate at
which any Lender may now or in the future make loans to other
borrowers.
L. Substituted Interest Rate.
In the event that (i) the Agent shall have reasonably
determined (which determination shall be conclusive and binding
upon the Company) that by reason of circumstances affecting the
interbank eurodollar market adequate and reasonable means do
not exist for ascertaining the LIBOR Rate applicable pursuant
to paragraph 2.11 or (ii) any Lender shall have notified the
Agent that it has determined (which determination shall be
conclusive and binding on the Company) that the applicable
LIBOR Rate will not adequately and fairly reflect the cost to
such Lender of maintaining or funding loans bearing interest
based on such LIBOR Rate, in either case with respect to
proposed Loans that the Company has requested be made as LIBOR
Loans, or LIBOR Loans that will result from the requested
conversion of any Loans to LIBOR Loans (any such Loan being
herein called an "Affected Loan"), the Agent shall promptly
notify the Company and the Lenders (by telephone or otherwise,
to be promptly confirmed in writing) of such determination on
or prior to the requested Borrowing Date for such Affected Loan
or the requested Conversion Date of such Loan. If the Agent
shall give such notice, (a) any requested Affected Loan shall
be made as an Alternate Base Rate Loan, (b) any Loan that was
to have been converted to an Affected Loan shall be converted
to or continued as an Alternate Base Rate Loan and (c) any out-
standing Affected Loan shall be converted, on the last day of
the then current Interest Period with respect thereto, to an
Alternate Base Rate Loan. Until any such notice under clause
(i) of this paragraph 2.12 has been withdrawn by the Agent (by
notice to the Company promptly upon the Agent having determined
that such circumstances affecting the interbank eurodollar
market no longer exist and that adequate and reasonable means
do exist for determining the LIBOR Rate pursuant to paragraph
2.11), no further LIBOR Loans shall be made, nor shall the
Company have the right to convert any Loans to LIBOR Loans.
Until any such notice under clause (ii) of this paragraph 2.12
has been withdrawn by the Agent (by notice to the Company
promptly upon the Agent's having been notified by such Lender
that circumstances no longer render any Loan an Affected Loan),
no further LIBOR Loans shall be required to be made by the
Lenders nor shall the Company have the right to convert any
Loan to a LIBOR Loan.
M. Taxes; Net Payments.
(a) All payments made by the Company under the Loan
Documents shall be made without reduction for or on account of
any Taxes required by law to be withheld from any amounts pay-
able under the Loan Documents. A statement setting forth the
calculations of any amounts payable pursuant to this paragraph
submitted by a Lender to the Company shall be conclusive
absent manifest error.
(b) Each Lender shall deliver to the Company such
certificates, documents or other evidence as the Company may
reasonably require from time to time as are necessary to
establish that such Lender is not subject to withholding under
Section 1441 or 1442 of the Code or as may be necessary to
establish, under any law imposing upon the Company, hereafter,
an obligation to withhold any portion of the payments made by
the Company under the Loan Documents, that payments to the
Agent on behalf of such Lender are not subject to withholding.
Notwithstanding any provision herein to the contrary, the
Company shall have no obligation to pay to any Lender any
amount which the Company is liable by law to withhold due to
the failure of such Lender to deliver to the Company such
certificates, documents or other evidence as the Company may
reasonably require.
N. Illegality.
Notwithstanding any other provisions herein, if any
Lender determines that any law, regulation, treaty or
directive, or any change therein or in the interpretation or
application thereof (whether or not having the force of law),
shall make it unlawful for any Lender to make or maintain its
LIBOR Loans as contemplated by this Agreement, (i) the
commitment of such Lender hereunder to make LIBOR Loans or
convert Alternate Base Rate Loans to LIBOR Loans shall
forthwith be suspended and (ii) such Lender's Loans then out-
standing as LIBOR Loans affected hereby, if any, shall be con-
verted automatically to Alternate Base Rate Loans on the last
day of the then current Interest Period applicable thereto or
earlier if required by law. If the commitment of any Lender
with respect to LIBOR Loans is suspended pursuant to this
paragraph and such Lender shall notify the Agent and the
Company that it is once again legal for such Lender to make or
maintain LIBOR Loans, such Lender's commitment to make or
maintain such LIBOR Loans shall be reinstated.
O. Increased Costs.
In the event that any law, regulation, treaty or
directive hereafter enacted, promulgated, approved or issued or
any change in any presently existing law, regulation, treaty or
directive therein or in the interpretation or application
thereof by any Governmental Body charged with the
administration thereof or compliance by any Lender (or any
corporation directly or indirectly owning or controlling such
Lender) with any request or directive hereafter received from
any central bank or other Governmental Body:
(i) does or shall subject any Lender to any tax
of any kind whatsoever with respect to any LIBOR Loans or its
obligations under this Agreement to make LIBOR Loans, or change
the basis of taxation of payments to any Lender of principal,
interest or any other amount payable hereunder in respect of
its LIBOR Loans (except for the imposition of, or change in the
rate of, a tax on the overall net income of such Lender); or
(ii) does or shall impose, modify or make ap-
plicable any reserve, special deposit, compulsory loan, assess-
ment, increased cost or similar requirement against assets held
by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office
of such Lender in respect of its LIBOR Loans which is not
otherwise included in the determination of the LIBOR Rate;
and the result of any of the foregoing is to increase the cost
to such Lender of making, renewing, converting or maintaining
its LIBOR Loans or its commitment to make such Loans hereunder,
or to reduce any amount receivable hereunder in respect of its
LIBOR Loans, then, in any such case, the Company shall promptly
pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or
reduction in such amount receivable which such Lender deems to
be material as determined by such Lender. No failure by any
Lender to demand compensation for any increased cost shall
constitute a waiver of such Lender's right to demand such
compensation at any time. Each Lender shall deliver to the
Company a statement setting forth in reasonable detail the
calculations of any additional amounts payable to such Lender
pursuant to the foregoing and such statement shall be
conclusive absent manifest error.
P. Indemnification for Loss.
Notwithstanding anything contained herein to the
contrary, if the Company shall fail to borrow or convert on a
Borrowing Date after it shall have given notice to do so and
shall have requested a LIBOR Loan pursuant to paragraph 2.2 or
2.10, as the case may be, or shall have accepted one or more
offers of B Loans under paragraph 2.3, or if a LIBOR Loan or a
B Loan shall be terminated for any reason prior to the last day
of the Interest Period applicable thereto, or if, while a LIBOR
Loan or a B Loan is outstanding, any repayment or prepayment of
such LIBOR Loan or such B Loan is made for any reason (including,
without limitation, as a result of acceleration or illegality)
on a date which is prior to the last day of the Interest Period
applicable thereto, the Company agrees to indemnify each Lender
against, and to pay on demand directly to such Lender, an amount,
if greater than zero, equal to:
A x (B-C) x D
-----
360
where:
"A" equals such Lender's pro rata share of the Affected Princi-
pal Amount;
"B" equals the LIBOR Rate or rate which such B Loan bears (in
each case, expressed as a decimal) applicable to such Loan;
"C" equals the applicable LIBOR Rate or Proposed Bid Rate (in
each case, expressed as a decimal) in effect on or about the
first day of the applicable Remaining Interest Period, based on
the applicable rates offered on or about such date, for
deposits (or, in the case of a Proposed Bid Rate, based on the
rate such Lender would have quoted) in an amount equal
approximately to such Lender's pro rata share of the Affected
Principal Amount with an Interest Period equal approximately to
the applicable Remaining Interest Period, as determined by
such Lender;
"D" equals the number of days from and including the first day
of the applicable Remaining Interest Period to but excluding
the last day of such Remaining Interest Period;
and any other out-of-pocket loss or expense (including any
internal processing charge customarily charged by such Lender)
suffered by such Lender in connection with such Lender's pro
rata share of such proposed borrowing, terminated LIBOR Loan,
B Loan or repayment. With respect to Swing Line Loans, the
Company agrees to indemnify BNY for all losses and expenses
suffered by BNY, as determined by BNY in its sole discretion,
in connection with any prepayment or termination of any Swing
Line Loan.
Q. Option to Fund.
Each Lender has indicated that, if the Company elects
to borrow or convert to a LIBOR Loan or to borrow a B Loan,
such Lender may wish to purchase one or more deposits in order
to fund or maintain its funding of such Loan during the
Interest Period in question; it being understood that the
provisions of this Agreement relating to such funding are in-
cluded only for the purpose of determining the rate of interest
to be paid on such LIBOR Loan or B Loan and any amounts owing
under paragraphs 2.12, 2.13, 2.14, 2.15 and 2.16. Each Lender
shall be entitled to fund and maintain its funding of all or
any part of each LIBOR Loan or B Loan made by it in any manner
it sees fit, but all determinations under paragraphs 2.12,
2.13, 2.14, 2.15 and 2.16 shall be made as if such Lender had
actually funded and maintained such LIBOR Loan or B Loan during
the applicable Interest Period through the purchase of deposits
in an amount equal to such LIBOR Loan and having a maturity
corresponding to such Interest Period. The obligations of the
Company under paragraphs 2.12, 2.13, 2.14, 2.15 and 2.16 shall
survive the termination of the Commitments, the payment of the
Notes and the payment of any other amounts due under the Loan
Documents.
R. Use of Proceeds.
The proceeds of the Loans shall be used first to
repay the Existing Indebtedness and, thereafter, for working
capital and general corporate purposes of the Company and shall
conform with the provisions of paragraph 4.12. Notwithstanding
the foregoing, no proceeds of the Loans shall be used to make
any payment or prepayment of Indebtedness outstanding under the
Note Agreement or to repurchase or redeem the notes under the
Note Agreement.
S. Capital Adequacy.
If either (i) the introduction of or any change in or
phasing in of, any law or regulation or in the interpretation
thereof by any Governmental Body charged with the administra-
tion thereof, (ii) compliance with any directive, guideline or
request from any central bank or Governmental Body (whether or
not having the force of law) promulgated or made after the date
hereof, or (iii) compliance with the Risk-Based Capital
Guidelines of the Federal Reserve System as set forth in 12
C.F.R. Parts 208 and 225, or of the Comptroller of the
Currency, Department of the Treasury, as set forth in 12 C.F.R.
Part 3 or other comparable law, rule or regulation, affects or
would affect the amount of capital required to be maintained by
a Lender (or any lending office of such Lender), or any
corporation directly or indirectly controlling any Lender, as
a result of its Commitment to make and maintain the funding of
Loans hereunder, and such Lender shall have determined that
such introduction, change or compliance has or would have the
effect of reducing the rate of return on such Lender's capital
or the asset value to such Lender of any Loan made by such
Lender as a result, direct or indirect, of such Lender having
committed to make Loans hereunder or having made Loans
hereunder at a level below that which such Lender could
have achieved but for such introduction, change or compliance
(after taking into account such Lender's policies regarding
capital adequacy) by an amount deemed by such Lender to be
material, then, upon demand by such Lender, the Company shall
promptly pay to such Lender such additional amount or amounts
as shall be sufficient to compensate such Lender for such
reduction in such rate of return or asset value. Each Lender
shall deliver to the Company a statement setting forth in
reasonable detail, to the extent possible, the calculations of
the amount that will compensate such Lender for such
reductions, and such statement shall be conclusive absent
manifest error.
T. Transaction Record.
The Agent's records regarding the amount of each
Loan, each payment by the Company of principal and interest on
the Loans other information relating to the Loans shall be
presumptively correct absent manifest error.
III. FEES; PAYMENTS
A. Commitment Fee.
The Company agrees to pay to the Agent for the ac-
count of the Lenders in accordance with each Lender's Commit-
ment Percentage, a fee (the "Commitment Fee"), for the period
from and including the Effective Date to but excluding the date
of the expiration or other termination of the Commitments,
equal to the sum of (i) .125% per annum on the average daily
unused portion of the Aggregate Commitments (after giving
effect to all B Loans outstanding during the period for which
the calculation is being made, but without giving effect to any
Swing Line Loans made during such period), and (ii) .125% per
annum on the Aggregate Commitments, regardless of usage, pay-
able quarterly in arrears on the last day of each March, June,
September and December of each year and on the date of the
expiration or other termination of the Commitments, such
payments commencing on the first such date immediately
following the Effective Date. The Commitment Fee shall be
calculated on the basis of a 360 day year for the actual number
of days elapsed.
B. Pro Rata Treatment and Application of Principal Pay-
ments.
With respect to the A Loans, each borrowing by the
Company from the Lenders, any conversion of A Loans from one
Type to another, and any reduction of the Commitments, shall be
made pro rata according to the Commitment Percentage of each
Lender. All payments (including prepayments) made by the
Company to the Agent on account of principal of or interest on
the A Loans shall be made pro rata according to the outstanding
principal amount of each Lender's A Loans, and all payments
(including prepayments) made by the Company on account of
principal of or interest on the B Loans comprising the same
B Borrowing shall be made as specified in paragraphs 2.3(c) and
2.3(d). Any payments received by any Lender in respect of such
Lender's A Loans, by way of set-off, counterclaim or otherwise,
shall be shared with the other Lenders pro rata in accordance
with such Lenders' A Loans. All payments by the Company in
respect of the Swing Line Loans shall be made to the Agent for
the account of BNY, and, upon receipt of any such payment of a
Swing Line Loan (by set-off or otherwise), BNY shall, to the
extent that any Lender has purchased an undivided participation
interest in such Swing Line Loan pursuant to paragraph 2.7, pay
to such Lender its pro rata share of such payment. All
payments by the Company shall be made without set-off or coun-
terclaim and shall be made prior to 12:00 noon, New York City
time, on the date such payment is due, to the Agent for the
account of the Lenders at the Agent's office specified in
paragraph 11.2, in each case in lawful money of the United
States of America and in immediately available funds, and, as
between the Company and the Lenders, any payment by the Company
to the Agent for the account of the Lenders shall be deemed to
be payment by the Company to the Lenders. The failure of the
Company to make any such payment by 12:00 noon, New York City
time, on such due date shall not constitute a Default or Event
of Default hereunder, provided that such payment is made on
such due date, but any such payment received by the Agent on
any Business Day after 12:00 noon New York City time, shall be
deemed to have been received on the immediately succeeding
Business Day for the purpose of calculating any interest
payable in respect thereof. The Agent agrees promptly to
notify the Company if it shall not receive any such payment
after 12:00 noon, New York City time, on the due date thereof,
provided that the failure of the Agent to give such prompt
notice shall in no way affect the Company's obligation to make
any payment hereunder on the date such payment is due. The
Agent shall distribute such payments to the Lenders promptly
upon receipt thereof in like funds as received. If any payment
hereunder or on any Note becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day (unless, in the case of LIBOR
Loans, the result of such extension would be to extend such
payment into another calendar month, in which event such pay-
ment shall be made on the immediately preceding Business Day)
and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate or rates during
such extension.
IV. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into
this Agreement and to make the Loans, the Company hereby makes
the following representations and warranties to the Agent and
to each Lender:
A. Subsidiaries.
The Company has only the Subsidiaries set forth in
Schedule 4.1. The shares of each Subsidiary are duly
authorized, validly issued, fully paid and nonassessable and
are owned free and clear of any Liens, except Permitted Liens.
B. Corporate Existence and Power.
The Company and each of the Subsidiaries is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or formation, has all
requisite corporate power and authority to own its Property and
to carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction in
which the failure to be so authorized could reasonably be
expected to have a Material Adverse Effect.
C. Corporate Authority.
The Company has full corporate power and authority
to enter into, execute, deliver and carry out the terms of this
Agreement, to make the borrowings contemplated hereby, to
execute, deliver and carry out the terms of the Notes and to
incur the obligations provided for herein and therein, all of
which have been duly authorized by all proper and necessary
corporate action and are not in violation of its Certificate of
Incorporation and By-Laws.
D. Governmental Body Approvals.
No consent, authorization or approval of, filing
with, notice to, or exemption by, stockholders, any
Governmental Body or any other Person (except for those which
have been obtained, made or given) is required to authorize, or
is required in connection with, the execution, delivery and
performance of the Loan Documents or is required as a condition
to the validity or enforceability of the Loan Documents.
No provision of any applicable statute, law (including, without
limitation, any applicable usury or similar law), rule or
regulation of any Governmental Body will prevent the execution,
delivery or performance of, or affect the validity of, the Loan
Documents.
E. Binding Agreement.
This Agreement constitutes, and the Notes, when is-
sued and delivered pursuant hereto for value received will
constitute, the valid and legally binding obligations of the
Company enforceable in accordance with their respective terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally.
F. Litigation.
Except as set forth in Schedule 4.6, there are no
actions, suits, arbitration proceedings or claims pending or,
to the knowledge of the Company, threatened against the Company
or any Subsidiary, including any officers and directors thereof
in their capacities as such, or maintained by the Company or
any Subsidiary, including any officers and directors thereof in
their capacities as such, at law or in equity, before any
Governmental Body or arbitrator which, if determined adversely
to the Company or such Subsidiary, could reasonably be expected
to have a Material Adverse Effect. There are no proceedings
pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary which call into question the
validity or enforceability of any of the Loan Documents.
G. No Conflicting Agreements.
Neither the Company nor any Subsidiary is in default
under any mortgage, indenture, contract, agreement, judgment,
decree or order to which it is a party or by which it or any of
its Property is bound, which defaults, taken as a whole, could
reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan
Documents will not constitute a default under, conflict with,
require any consent under (other than consents which have been
obtained), or result in the creation or imposition of, or
obligation to create, any Lien upon the Property of the Company
or any Subsidiary pursuant to the terms of any such mortgage,
indenture, contract, agreement, judgment, decree or order,
which defaults, conflicts and consents, if not obtained, could
reasonably be expected to have a Material Adverse Effect.
H. Taxes.
The Company and each of the Subsidiaries has filed
or caused to be filed all material tax returns required to be
filed and has paid, or has made adequate provision for the
payment of, all Taxes shown to be due and payable on said
returns or in any assessments (except such thereof as are being
contested in good faith and by appropriate proceedings
diligently conducted, and for which adequate reserves have been
set aside in accordance with GAAP) made against it which would
be material to the Company or any Subsidiary, and no tax Liens
that are not Permitted Liens have been filed. The charges,
accruals and reserves on the books of the Company and each of
the Subsidiaries with respect to all federal, state, local and
other Taxes are, to the best knowledge of the Company,
adequate, and the Company knows of no unpaid assessment which
is due and payable against it or any Subsidiary or any claims
being asserted which could reasonably be expected to have a
Material Adverse Effect, except such thereof as are being
contested in good faith and by appropriate proceedings
diligently conducted, and for which adequate reserves have been
set aside in accordance with GAAP.
I. Compliance with Applicable Laws.
Neither the Company nor any Subsidiary is in default
with respect to any judgment, order, writ, injunction, decree
or decision of any Governmental Body which default could
reasonably be expected to have a Material Adverse Effect. The
Company and each of the Subsidiaries is complying in all
material respects with all applicable statutes and regulations,
including ERISA, of all Governmental Bodies, a violation of
which could reasonably be expected to have a Material Adverse
Effect.
J. Governmental Regulations.
Neither the Company nor any Subsidiary is subject to
(i) regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act or the Investment Company Act of
1940 or (ii) any statute or regulation which prohibits or
restricts the incurrence of Indebtedness under the Loan
Documents, including, without limitation, statutes or
regulations relative to common or contract carriers or to the
sale of electricity, gas, steam, water, telephone, telegraph or
other public utility services.
K. Property.
The Company and each of the Subsidiaries has good
and marketable title to all of its Property, title to which is
material to the Company and the Subsidiaries taken as a whole,
subject to no Liens, except Permitted Liens.
L. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Company nor any Subsidiary is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying any Margin Stock. No part of the proceeds of the
Loans will be used, directly or indirectly, to purchase or
carry any Margin Stock or for a purpose which violates any law,
rule or regulation of any Governmental Body, including, without
limitation, the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended.
M. No Misrepresentation.
No representation or warranty contained herein, and
no certificate or report furnished or to be furnished in con-
nection with the transactions contemplated hereby (except with
respect to the non-financial information contained in the
Results of Operations Report) contains or will contain a mis-
statement of material fact, or, to the best knowledge of the
Company, omits or will omit to state a material fact required
to be stated in order to make the statements herein or therein
contained not misleading in the light of the circumstances
under which made.
N. Burdensome Obligations.
Neither the Company nor any Subsidiary is a party to
or bound by any franchise, agreement, deed, lease or other
instrument, or is subject to any corporate restriction which,
in the opinion of the management of the Company, is so unusual
or burdensome, in the context of the Company's or such Sub-
sidiary's business, as in the foreseeable future might materi-
ally and adversely affect or impair the Company or such Subsid-
iary or the ability of the Company to perform its obligations
under the Loan Documents. The Company does not presently
anticipate that future expenditures needed to meet the
provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to have a Material Adverse
Effect.
O. Plans.
The Company and each of the Subsidiaries has no
Multiemployer Plans. Each Single Employer Plan is in
compliance with the material applicable provisions of ERISA and
the Code, and the Company and each of the Subsidiaries have
filed all material reports required to be filed by them under
ERISA and the Code with respect to each such Plan. The Company
and each of the Subsidiaries have met all material requirements
imposed by ERISA and the Code with respect to the funding of
all Plans. Since the effective date of ERISA, there have not
been, nor are there now existing, any events or conditions
which would permit any Single Employer Plan to be terminated
under circumstances which would cause the lien provided under
Section 4068 of ERISA to attach to the Property of the Company
or any Subsidiary. No Reportable Event currently exists which
may constitute grounds for the termination of any Single
Employer Plan under Title IV of ERISA and no Single Employer
Plan has been terminated in whole or in part (unless a Notice
of Sufficiency has been issued by the PBGC with respect
thereto).
P. Financial Statements and Projections.
(a) The Company has heretofore delivered to the
Lenders copies of its audited Consolidated Balance Sheet as of
December 31, 1993, and the related Consolidated Statements of
Income, Cash Flows and Shareholders' Equity for the fiscal year
then ended (with the related notes and schedules, the
"Financial Statements"). The Financial Statements fairly pre-
sent the Consolidated financial condition and results of the
operations of the Company as of the dates and for the periods
indicated therein, disclose all obligations and liabilities of
any kind (whether fixed, accrued, contingent, unmatured or
otherwise) which should be disclosed in such Financial
Statements or in the footnotes (if any) thereto, and the
Financial Statements and the footnotes (if any) thereto have
been prepared in conformity with GAAP. Since December 31,
1993, the Company and the Subsidiaries have conducted their
businesses only in the ordinary course and there has been no
Material Adverse Change.
(b) The balance sheet, cash flow and income
projections, dated February 7, 1994, for the Company on a
Consolidated basis for each fiscal year ending December 31,
1993 through December 31, 1998 (the "Projections") and
furnished to each Lender, were prepared in good faith on the
basis of the assumptions stated therein, which assumptions were
fair in the light of conditions existing at the time of
delivery of such Projections and represented, at the time of
delivery, a reasonable estimate by the Company of its future
Consolidated financial performance taken as a whole.
Q. Environmental Matters.
Except as set forth in Schedule 4.17, neither the
Company nor any Subsidiary (i) has received written notice or
otherwise learned of any claim, demand, action, event,
condition, report or investigation indicating or concerning any
potential or actual liability which individually or in the
aggregate could reasonably be expected to have a Material
Adverse Effect, arising in connection with (a) any non-
compliance with or violation of the requirements of any
applicable federal, state or local environmental health and
safety statutes and regulations or (b) the release or
threatened release of any toxic or hazardous waste, substance
or constituent, or other substance, into the environment, (ii)
to the best knowledge of the Company, has any liability in con-
nection with the release or threatened release of any toxic or
hazardous waste, substance or constituent, or other substance,
into the environment which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect,
(iii) has received notice of any federal or state investigation
evaluating whether any remedial action is needed to respond to
a release or threatened release of any toxic or hazardous
waste, substance or constituent, or other substance, into the
environment for which the Company or any Subsidiary is or may
be liable which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect or
(iv) has received notice that the Company or any Subsidiary is
or may be liable to any Person under the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. Section 9601 et seq. ("CERCLA") or any
analogous state law which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
The Company and each of the Subsidiaries is in compliance in
all material respects with the financial responsibility
requirements of federal and state environmental laws to the
extent applicable, including, without limitation, those
contained in 40 C.F.R., parts 264 and 265, subpart H, and any
analogous state law.
V. CONDITIONS TO LENDING - FIRST LOANS
In addition to the conditions precedent set forth in
paragraph 6, the obligation of each Lender to make its first
Loan on the first Borrowing Date shall be subject to the
fulfillment of the following conditions precedent:
A. Evidence of Corporate Action.
The Agent shall have received a certificate, dated
the first Borrowing Date, of the Secretary or an Assistant
Secretary of the Company (i) attaching a true and complete
copy of the resolutions of its Board of Directors and of all
documents evidencing other necessary corporate action (in form
and substance satisfactory to the Agent and to Special Counsel)
taken by it to authorize the Loan Documents and the
transactions contemplated thereby, (ii) attaching a true and
complete copy of its Certificate of Incorporation and By-Laws,
(iii) setting forth the incumbency of its officer or officers
who may sign the Loan Documents, including therein a signature
specimen of such officer or officers and (iv) attaching a
certificate of good standing of the Secretary of State of the
State of Maine and of each other state in which it is qualified
to do business, together with such other documents as the Agent
or Special Counsel shall reasonably require.
B. Notes.
The Agent shall have received the Notes duly
executed by an Authorized Signatory of the Company.
C. Fees.
The Company shall have paid all fees of the Agent
and the Lenders payable on the Effective Date.
D. No Material Adverse Change.
There shall have occurred no Material Adverse Change
since December 31, 1993, and the Agent shall have received a
certificate of an Authorized Signatory of the Company to such
effect.
E. Repayment of Existing Indebtedness.
Simultaneously with the making of the first Loans
hereunder, the Company shall have repaid the Existing
Indebtedness and terminated the facility evidencing the same.
F. Opinion of Counsel to the Company.
The Agent shall have received an opinion of Robert
M. Stephen, Esq., General Counsel of the Company, addressed to
the Agent and the Lenders, dated the first Borrowing Date,
substantially in the form of Exhibit F.
G. Opinion of Special Counsel.
The Agent shall have received an opinion of Special
Counsel, dated the first Borrowing Date, substantially in the
form of Exhibit G.
H. Fees of Counsel.
The reasonable fees and expenses of Special Counsel
as set forth in bills submitted to the Company prior to the
closing date shall have been paid.
I. Other Documents.
The Agent shall have received such other documents
and assurances as the Agent or Special Counsel shall reasonably
require.
VI. CONDITIONS OF LENDING - ALL LOANS.
The obligation of each Lender to make any Loan on a Bor-
rowing Date is subject to the satisfaction of the following
conditions precedent as of the date of such Loan:
A. Compliance.
On each Borrowing Date and each Swing Line Borrowing
Date and after giving effect to the Loans to be made thereon,
(i) there shall exist no Default or Event of Default, (ii) the
representations and warranties contained in the Loan Documents
shall be true and correct with the same effect as though such
representations and warranties had been made on such Borrowing
Date or Swing Line Borrowing Date, except as the context
otherwise requires and except such matters relating thereto as
are indicated in each A Borrowing Request, B Borrowing Request
or notice of a Swing Line Loan borrowing pursuant to paragraph
2.7(a), as the case may be, (which shall be satisfactory to the
Agent and the Lenders in their sole discretion) and (iii) there
shall have occurred no Material Adverse Change since the first
Borrowing Date. Each borrowing by the Company shall constitute
a certification by the Company as of the date of such borrowing
that each of the foregoing matters is true and correct in all
respects.
B. Borrowing Request.
With respect to any request for A Loans, B Loans or
Swing Line Loans, the Agent shall have received an A Borrowing
Request, B Borrowing Request or notice of a Swing Line Loan
borrowing pursuant to paragraph 2.7(a), as applicable, duly
executed by an Authorized Signatory of the Company.
C. Loan Closings.
All documents required by the provisions of this
Agreement to be executed or delivered to the Agent on or before
the applicable Borrowing Date or Swing Line Borrowing Date
shall have been executed and shall have been delivered at the
office of the Agent set forth in paragraph 11.2 on or before
such Borrowing Date or Swing Line Borrowing Date.
VII. AFFIRMATIVE COVENANTS
The Company hereby agrees that so long as this Agreement
is in effect, any Commitment shall exist, any Loan remains
outstanding and unpaid, or any other amount is owing under any
of the Loan Documents to any Lender or the Agent, the Company
shall:
A. Financial Statements.
Maintain, and cause each of the Subsidiaries to
maintain, a system of accounting in accordance with GAAP, and
furnish or cause to be furnished to the Agent and each Lender:
(a) As soon as available, but in any event within
90 days after the end of each fiscal year of the Company, a
copy of its Consolidated Balance Sheet as at the end of such
fiscal year, together with the related Consolidated Statements
of Income, Cash Flows and Shareholders' Equity as of and
through the end of such fiscal year, in each case setting forth
in comparative form the figures for the preceding fiscal year.
The Consolidated Balance Sheet and Statements of Income, Cash
Flows and Shareholders' Equity shall be certified without
qualification by the Accountants, which certification shall (i)
state that the examination by such Accountants in connection
with such Consolidated financial statements has been made in
accordance with generally accepted auditing standards and,
accordingly, included such tests of the accounting records and
such other auditing procedures as were considered necessary in
the circumstances and (ii) include the opinion of such
Accountants that such Consolidated financial statements have
been prepared in accordance with GAAP in a manner consistent
with prior fiscal periods, except as otherwise specified in
such opinion. Notwithstanding any of the foregoing, the
Company may satisfy its obligation to deliver a Consolidated
Balance Sheet and related Consolidated Statements of Income,
Cash Flows and Shareholders' Equity for any fiscal year by
furnishing copies of the Company's annual report on Form 10-K
in respect of such fiscal year together with the financial
statements required to be attached thereto, provided the
Company is required to file such annual report on Form 10-K
with the SEC, and such filing is actually made.
(b) As soon as available, but in any event not
later than 60 days after the end of each of the first three
quarterly accounting periods in each fiscal year of the
Company, (i) a copy of the Consolidated Balance Sheet as at the
end of each such quarterly period, and the Consolidated State-
ments of Income, Cash Flows and Shareholders' Equity, for such
period (provided, however, that certain financial information
not required by the SEC for interim financial statements will
be omitted) and for the elapsed portion of the fiscal year
through such date, setting forth in each case in comparative
form the figures for the corresponding periods of the preceding
fiscal year, which balance sheets and statements and footnotes
(if any) thereto in all cases shall be certified by the Chief
Financial Officer of the Company (or such other officer ac-
ceptable to the Agent) (A) as presenting fairly the
Consolidated financial condition and results of operations of
the Company and the Subsidiaries and (B) as having been
prepared in accordance with GAAP (provided, however, that
certain financial information not required by the SEC for
interim financial statements will be omitted), and (ii) a
certificate of the Chief Financial Officer of the Company (or
such other officer as shall be acceptable to the Agent) in
detail reasonably satisfactory to the Agent (1) stating that
there exists no violation of any of the terms or provisions of
the Loan Documents, or the occurrence of any condition or event
which would constitute a Default or Event of Default, and, if
so, specifying in such certificate all such violations,
conditions and events, and the nature and status thereof and
(2) containing computations showing compliance with the
provisions of paragraphs 7.11, 7.12, 7.14 and 8.14.
Notwithstanding any of the foregoing, the Company may satisfy
its obligation to deliver quarterly Consolidated Balance Sheets
and related Consolidated Statements of Income, Cash Flows and
Shareholders' Equity by furnishing copies of the Company's
quarterly report on Form 10-Q in respect of such fiscal quarter
together with the financial statements required to be attached
thereto, provided the Company is required to file such
quarterly report on Form 10-Q with the SEC, and such filing is
actually made.
(c) As soon as available, but in any event not
later than 60 days after the end of each of the first three
quarterly accounting periods in each fiscal year of the
Company, the Results of Operations Report for the elapsed
portion of the fiscal year through such date, and the
financial information contained therein shall be certified by
the Chief Financial Officer of the Company (or such other
officer acceptable to the Agent) as presenting fairly the
Consolidated financial condition and results of operations of
the Company and the Subsidiaries.
(d) As soon as available, but in any event not
later than 90 days after the end of the last quarterly ac-
counting period in each fiscal year of the Company, the same
certificate as is required by clause (b) (ii) above.
B. Certificates; Other Information.
Furnish to the Agent and each Lender:
(a) Prompt written notice if (i) any Indebtedness
or Contingent Obligation of the Company or any Subsidiary in
excess of $1,000,000 is declared or shall become due and pay-
able prior to its stated maturity, or is called and not paid
when due, (ii) a default shall have occurred under any note or
notes in an aggregate principal amount equal to at least
$1,000,000 (other than the Notes) or the holder of any such
note, or other evidence of Indebtedness, certificate or
security evidencing any such Indebtedness or any obligee with
respect to any other Indebtedness of the Company or any
Subsidiary, in any case in a aggregate principal amount equal
to at least $1,000,000, has the right to declare any such
Indebtedness due and payable prior to its stated maturity as a
result of such default or (iii) there shall have occurred and
be continuing a Default or an Event of Default;
(b) Prompt written notice of (i) any citation,
summons, subpoena, order to show cause or other order naming
the Company or any Subsidiary a party to any proceeding before
any Governmental Body (including, without limitation,
proceedings relating to any alleged non-compliance with or
alleged violation of the requirements of any federal, state or
local environmental health and safety statutes and regulations
or the release or the threatened release of any toxic or
hazardous waste, substance or other constituent, or other
substance, into the environment) which could reasonably be
expected to have a Material Adverse Effect or which calls into
question the validity or enforceability of any of the Loan
Documents, and include with such notice a copy of such cita-
tion, summons, subpoena, order to show cause or other order,
(ii) any lapse or other termination of any material license,
permit, franchise or other authorization issued to the Company
or any Subsidiary by any Governmental Body, (iii) any refusal
by any Governmental Body or any other Person to renew or extend
any such material license, permit, franchise or other
authorization and (iv) any dispute between the Company or any
Subsidiary and any Person, which lapse, termination, refusal or
dispute might have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all
(i) financial statements, reports and proxy statements which
the Company may have sent to its stockholders generally and
copies of all registration statements and regular, periodic or
special reports, schedules and other material which the Company
may now or hereafter be required to file with or deliver to any
securities exchange or the SEC and (ii) material news releases
and annual reports relating to the Company or any Subsidiary;
and
(d) With reasonable promptness, such other
information and financial data as the Agent or the Lenders may
reasonably request.
C. Legal Existence.
Except as permitted by paragraph 8.3, maintain, and
cause each of the Subsidiaries to maintain, its corporate
existence in good standing in the jurisdiction of its incor-
poration or formation and in each other jurisdiction in which
the failure so to do could reasonably be expected to have a
Material Adverse Effect.
D. Taxes.
Pay and discharge when due, and cause each of the
Subsidiaries so to do, all Taxes, assessments and governmental
charges, license fees and levies upon or with respect to the
Company or such Subsidiary and upon the income, profits and
Property of the Company and the Subsidiaries, which, if unpaid,
could reasonably be expected to have a Material Adverse Effect
or become a Lien on the Property of the Company or such
Subsidiary not permitted under paragraph 8.2, unless and to the
extent only that such Taxes, assessments, charges, license fees
and levies shall be contested in good faith and by appropriate
proceedings diligently conducted by the Company or such
Subsidiary and provided that any such contested Taxes, assess-
ments, charges, licenses, fees or levies shall not constitute,
or create, a Lien on any Property of the Company or such Sub-
sidiary other than a Permitted Lien, and provided further that
the Company shall give the Agent prompt notice of such contest
and such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have
been made therefor.
E. Insurance.
Maintain, and cause each of the Subsidiaries to
maintain, insurance on its Property against such risks and in
such amounts as is customarily maintained by Persons engaged in
similar businesses, including, without limitation, products
liability, public liability and workers' compensation insur-
ance. The Company shall promptly file with the Agent such
information concerning its insurance program and that of the
Subsidiaries as the Agent may reasonably request.
F. Payment of Indebtedness and Performance of Obliga-
tions.
Pay and discharge, and cause each of the
Subsidiaries to pay and discharge, when due all lawful
Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, might (i) have a
Material Adverse Effect or (ii) become a Lien upon Property of
the Company or such Subsidiary other than a Permitted Lien,
unless and to the extent only that the validity of such
Indebtedness, obligation or claim shall be contested in good
faith and by appropriate proceedings diligently conducted by
the Company or such Subsidiary, and provided further that the
Company shall give the Agent and the Lenders prompt notice of
any such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance
with GAAP shall have been made therefor.
G. Condition of Property.
At all times, maintain, protect and keep in good
repair, working order and condition (ordinary wear and tear
excepted), and cause each of the Subsidiaries so to do, all
Property necessary to the operation of the business of the
Company and the Subsidiaries, the failure of which to so
maintain, protect and keep could reasonably be expected to have
a Material Adverse Effect.
H. Observance of Legal Requirements; ERISA.
Observe and comply in all material respects, and
cause each of the Subsidiaries so to do, with all laws
(including ERISA), ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses,
directions and requirements of all Governmental Bodies, which
now or at any time hereafter may be applicable to the Company
and the Subsidiaries, a violation of which could reasonably be
expected to have a Material Adverse Effect, except such thereof
as shall be contested in good faith and by appropriate
proceedings diligently conducted by the Company or such
Subsidiary, provided that the Company shall give the Agent and
the Lenders prompt notice of such contest and that such reserve
or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made
therefor.
I. Inspection of Property; Books and Records; Discus-
sions.
Keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transac-
tions in relation to its business and activities; and upon
reasonable notice, permit representatives of the Agent and each
Lender to visit the offices of the Company and the
Subsidiaries, to inspect any of its Property and examine or
make copies or abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired,
and to discuss the business, operations, prospects, licenses,
Property and financial condition of the Company and the
Subsidiaries with the officers thereof and with the Ac-
countants.
J. Licenses, Etc.
Maintain and cause each of the Subsidiaries to
maintain, in full force and effect, all material licenses,
copyrights, patents, permits, applications, reports,
authorizations and other rights as are necessary for the
conduct of its business.
K. Tangible Net Worth.
Maintain at all times a Tangible Net Worth in an
amount equal to not less than the sum of (i) $178,000,000 and
(ii) 50% of Consolidated net income (determined in accordance
with GAAP) for each fiscal quarter, during the period from
January 1, 1994 through any date of determination thereof, in
which Consolidated net income is a positive number.
L. Interest Coverage Ratio.
Maintain a minimum Interest Coverage Ratio at all
times during (i) the first four full fiscal quarters of the
Company occurring after the Effective Date for the cumulative
one, two, three or four fiscal quarter period, as applicable,
then ended, of not less than 4.0:1.0, and (ii) the periods set
forth below for the fiscal quarter then ended and the
immediately preceding three fiscal quarters or for the
immediately preceding four fiscal quarters, as applicable, of
not less than the ratio set forth below next to such period:
Period Ratio
April 1, 1995 through and
including December 31, 1995 4.00:1.00
January 1, 1996 through and
including December 31, 1996 4.50:1.00
January 1, 1997 through and
including December 31, 1997 5.25:1.00
January 1, 1998 and thereafter 6.00:1.00
M. Maintenance of Business.
Continue at all times to engage only in its present
or substantially related business, and shall cause the
Subsidiaries so to do.
N. Leverage Ratio.
Maintain at all times during the periods set forth
below a Leverage Ratio not greater than the ratio set forth
below next to such period:
Period Ratio
Effective Date through and
including December 31, 1994 .50:1.00
January 1, 1995 through and
including December 31, 1995 .50:1.00
January 1, 1996 through and
including December 31, 1996 .475:1.00
January 1, 1997 through and
including December 31, 1997 .45:1.00
January 1, 1998
and thereafter .45:1.00
VIII. NEGATIVE COVENANTS
The Company hereby agrees that, so long as this
Agreement is in effect, any Commitment exists, any Loan remains
outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Agent, the Company shall
not, directly or indirectly:
A. Borrowing.
Create, incur, assume or suffer to exist any li-
ability for Indebtedness, or permit any Subsidiary so to do,
except (i) Indebtedness under the Notes and the other Loan
Documents, (ii) Existing Lines of Credit, (iii) Indebtedness
existing as of the Effective Date as set forth in Schedule
8.1, and (iv) other Indebtedness of the Company provided that,
immediately before and after giving effect to the incurrence of
such Indebtedness, no Default or Event of Default would exist,
and provided further that such Indebtedness shall rank no
higher in priority than the Indebtedness hereunder and is on
terms no more restrictive to the Company or such Subsidiary,
as the case may be, than the restrictions set forth herein and
in the Note Agreement.
B. Liens.
Create, incur, assume or suffer to exist any Lien
upon any of its Property or assets, whether now owned or here-
after acquired, or covenant or agree in favor of any Person not
to grant a Lien in favor of any other Person, or permit any
Subsidiary so to do (with respect to such Subsidiary's Property
or assets), except Permitted Liens.
C. Merger and Acquisition.
Merge or consolidate with any Person, or acquire by
purchase or otherwise all or substantially all of the assets of
any Person, or permit any Subsidiary so to do, except that, so
long as immediately before and after giving effect thereto no
Default or Event of Default shall exist, (i) any Subsidiary may
be merged into or consolidated with any other Subsidiary or,
provided that such Subsidiary is the surviving corporation
thereof, any other Person, and (ii) any Subsidiary or any other
Person may be merged into or consolidated with the Company
provided that the Company is the surviving corporation of such
merger or consolidation.
D. Sale of Property; Issuance of Stock.
(a) Except as set forth in paragraph 8.4(b) below,
sell, assign, exchange, lease, transfer or otherwise dispose of
any of its Property, or permit any Subsidiary so to do, in an
aggregate amount which, when added to the aggregate amount of
Property sold or otherwise disposed of from the Effective Date
through the date of such sale or other disposition, is in
excess of 10% of Consolidated Tangible Net Worth at the time
of such sale or other disposition, such Property to be valued
at the higher of book value or fair market value as determined
in good faith by the Board of Directors of the Company, except
(i) sales of inventory in the ordinary course of business, (ii)
sales or other dispositions of Property no longer useful or in
excess of the needs of the Company or such Subsidiary and (iii)
sales, assignments, leases or other dispositions of assets of
any Subsidiary to the Company or any other Subsidiary in the
ordinary course of business.
(b) Unless the aggregate outstanding principal
amount of all Loans shall be equal to or less than $70,000,000
for the 30 consecutive days immediately preceding the date of
such issuance, issue, directly or indirectly, any additional
Stock of the Company, or permit any Subsidiary to issue any
additional Stock of such Subsidiary, except that the Company
may from time to time, provided that immediately before and
after giving effect thereto no Default or Event of Default
shall exist, (i) issue shares of its common stock, provided
that (A) such common stock is perpetual and non-redeemable and
no mandatory dividends are payable with respect thereto and (B)
simultaneously with the issuance thereof, the Company shall
reduce the Aggregate Commitments by an amount equal to 50% of
the aggregate proceeds from such issuance, and shall prepay the
Loans, in accordance with section 2.9(b), in an amount equal to
the amount by which the aggregate outstanding principal amount
of the Loans exceeds the Aggregate Commitments as reduced
pursuant to this section 8.4(b) and (ii) issue shares of its
common stock to employees of the Company in connection with the
exercise by such employees of stock options.
E. Compliance with ERISA.
Adopt any Multiemployer Plan, or permit any
Subsidiary so to do, or engage in any "prohibited transaction",
as such term is defined in Section 4975 of the Code or Section
406 of ERISA (unless exempted from such engagement pursuant to
Section 4975 of the Code or Section 408 of ERISA), with respect
to any Plan, or incur any "accumulated funding deficiency", as
such term is defined in Section 412 of the Code or Section 302
of ERISA, or terminate, or permit any Subsidiary or any member
of a Commonly Controlled Entity to terminate, any Plan which
would result in any liability of the Company, any Subsidiary or
any member of a Commonly Controlled Entity to the PBGC, or permit
the occurrence of any Reportable Event or any other event or
condition which presents a risk of such a termination by the
PBGC of any Plan, or withdraw or effect a partial withdrawal
from a Multiemployer Plan, or permit any Subsidiary or any member
of a Commonly Controlled Entity which is an employer under such
a Multiemployer Plan so to do, unless all such withdrawals,
terminations and partial withdrawals of the Company and the
Subsidiaries from time to time, taken as a whole, could not
reasonably be expected to result in liabilities of the Company
and the Subsidiaries in an aggregate amount in excess of $1,000,000.
F. Transactions with Affiliates.
Become, or permit any Subsidiary to become, a party
to any transaction with an Affiliate of the Company or any
Subsidiary unless the terms and conditions relating to such
transaction are as favorable to the Company or such Subsidiary
as those which would be obtainable at that time in a comparable
arms-length transaction with a Person other than an Affiliate.
G. Certificate of Incorporation and By-laws; Fiscal
Year.
Amend or otherwise modify its certificate of
incorporation or by-laws, or change its fiscal year for
financial reporting purposes, or permit any Subsidiary to do
any of the foregoing, in any way which could reasonably be
expected to adversely affect the interests of the Lenders or
the obligations of the Company under any of the Loan Documents.
H. Amendment of Note Agreement.
Amend or otherwise modify the Note Agreement in any
way which could adversely affect the interests of the Lenders
under the Loan Documents without the prior written consent of
the Required Lenders.
I. Contingent Obligations.
Assume, guarantee, indorse, contingently agree to
purchase or perform, or otherwise become liable upon any
Contingent Obligation, or permit any Subsidiary so to do, if
immediately before and after giving effect thereto, a Default
or Event of Default shall exist, except the Contingent
Obligations set forth in Schedule 8.9.
J. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or
invest in the Stock of, or any other interest in, any Person,
or make any loan or advance to, or enter into any arrangement
for the purpose of providing funds or credit to, or make any
other investment, whether by way of capital contribution or
otherwise, in or with any Subsidiary or any Person (all of
which are sometimes referred to herein as "Investments"), or
permit any Subsidiary so to do, except:
(a) Investments in short-term certificates of de-
posit and bankers' acceptances issued by any Lender, or any
other commercial bank, trust company or national banking
association incorporated under the laws of the United States or
any State thereof and having undivided capital surplus and
retained earnings exceeding $500,000,000;
(b) Investments in short-term direct obligations of
the United States of America or agencies thereof which obliga-
tions are guaranteed by the United States of America;
(c) Investments in commercial paper rated A-1 by
Standard & Poor's Corporation or P-1 or MIG-1 by Moody's
Investors Service, Inc. or any other equivalent recognized
agency acceptable to the Agent;
(d) Investments existing on the date hereof as set
forth in Schedule 8.10; and
(e) Subject to paragraph 8.12, acquisition of the
Stock or assets of any other Person provided that (i) such
Person is engaged in a substantially related field of business
as the acquiring entity, (ii) such acquisition has been duly
approved by a majority of the board of directors of such other
Person, (iii) such Stock is not Margin Stock, (iv) the
aggregate cumulative purchase price of such Stock or assets,
plus all liabilities with respect to such Stock or assets,
determined in accordance with GAAP, incurred by the Company or
a Subsidiary as a result of such acquisition, since the
Effective Date is not in excess of $15,000,000, (v) such
acquisition is not part of an "unfriendly" transaction (as
determined by the Required Lenders) or a tender offer and (vi)
immediately before and after giving effect thereto, all
representations and warranties shall be true and correct and no
Default or Event of Default shall exist.
K. Dividends and Purchase of Stock.
Declare or pay any dividends payable in cash or
otherwise or apply any of its Property to the purchase,
redemption or other retirement of, or set apart any sum for the
payment of any dividends on, or make any other distribution by
reduction of capital or otherwise in respect of, any shares of
its capital Stock or other similar equity interest or warrants
or other rights issued in respect thereof, or permit any
Subsidiary so to do, if immediately before and after giving
effect thereto a Default or Event of Default shall exist, other
than dividends declared or paid by a wholly owned Subsidiary to
the Company.
L. Subsidiaries.
Except for the transactions contemplated by
paragraphs 8.3 and 8.10(e), create or acquire any other Subsid-
iary, or permit any Subsidiary so to do, if (i) the aggregate
amount of total assets of all such other Subsidiaries created
or acquired after the Effective Date exceeds, at any time,
$7,500,000 or (ii) the aggregate amount of cash or cash
equivalents of all such other Subsidiaries created or acquired
after the Effective Date exceeds, at any time, $1,000,000,
provided that, in connection with the creation or acquisition
of any Subsidiary, the Company shall have delivered prior
written notice thereof to the Agent and the Lenders.
M. Prepayments of Indebtedness.
Prepay, purchase or redeem, or obligate itself to
prepay, purchase or redeem, in whole or in part, prior to the
due date thereof, any Indebtedness, or permit any Subsidiary so
to do, except (i) the Existing Indebtedness which shall be
prepaid on the first Borrowing Date in accordance with
paragraph 5.5, (ii) the Existing Lines of Credit, (iii) the
Notes, (iv) capitalized lease obligations in existence on the
Effective Date provided that such prepayments, purchases,
redemptions and obligations are in an aggregate amount not in
excess of $1,000,000, and (v) scheduled prepayments of
Indebtedness outstanding under the Note Agreement as provided
in paragraph 4A thereof, and optional prepayments, repurchases
or redemptions of Indebtedness outstanding under the Note
Agreement, provided that, with respect to any such scheduled or
optional prepayment, the Loans shall be prepaid and the
Aggregate Commitments permanently reduced in an amount equal to
the amount of the Aggregate Commitments multiplied by a
percentage equal to the ratio (expressed as a percentage) of
the aggregate principal amount of the notes under the Note
Agreement being prepaid, repurchased or redeemed to the
aggregate principal amount of the notes outstanding under the
Note Agreement immediately prior to such prepayment, repurchase
or redemption, and provided further that, in the case of any
such optional prepayment, repurchase or redemption, immediately
before and after giving effect thereto, no Default or Event of
Default shall exist.
N. Capital Expenditures.
During any fiscal year of the Company, make any
capital expenditures (excluding interest capitalized in
accordance with FAS No. 34) or fixed asset acquisitions, or
permit any Subsidiary so to do, in an aggregate Consolidated
amount in excess of the amount set forth below next to such
fiscal year:
Fiscal Year Amount
1994 $96,000,000
1995 $91,000,000
1996 $52,000,000
1997 $40,000,000
1998 $40,000,000
During the fiscal years 1994, 1995 and 1996, capital
expenditures (excluding interest capitalized in accordance with
FAS No. 34) and fixed asset acquisitions under this paragraph
8.14 shall be calculated on a partial cumulative basis, so that
up to 50% of the amount set forth above with respect to such
fiscal year which is not expended during such fiscal year may
be carried over and expended during the immediately succeeding
fiscal year, provided that any such amount which is carried
forward may only be used after the amount set forth above with
respect to such subsequent fiscal year has already been
expended.
IX. DEFAULT
A. Events of Default.
The following shall each constitute an "Event of
Default" hereunder:
(a) the failure of the Company to make any payment
of principal on any Note on the date when due and payable; or
(b) the failure of the Company to make any payment
of interest or any other fees or expenses payable hereunder or
under any other Loan Document for three Business Days after the
same shall be due and payable; or
(c) the use by the Company of the proceeds of any
Loan in a manner inconsistent with or in violation of paragraph
2.18; or
(d) the failure of the Company to observe or per-
form any covenant or agreement contained in paragraphs 7.11,
7.12, 7.13, 7.14 or Paragraph 8; or
(e) the failure of the Company to observe or per-
form any other term, covenant, or agreement contained in this
Agreement and such failure shall have continued unremedied for
a period of 30 days after the Company shall have obtained know-
ledge thereof; or
(f) any representation or warranty of the Company
(or of any officer of the Company on its behalf) made in this
Agreement or any other Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant to this Agree-
ment or any other Loan Document, shall prove to have been
incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(g) any obligation of the Company or any
Subsidiary, whether as principal, guarantor, surety or other
obligor, for the payment of Indebtedness or Contingent Obliga-
tions, in an aggregate amount in excess of $1,000,000, shall
become or shall be declared to be due and payable prior to the
expressed maturity or expiration thereof, or shall not be paid
when due or within any grace period for the payment thereof, or
the holder thereof shall have the right to declare such
obligation due and payable prior to the expressed maturity
thereof; or
(h) the Company or any Subsidiary shall (i) suspend
or discontinue its business (except, with respect to any
Subsidiary, as permitted by paragraph 8.3), or (ii) make an
assignment for the benefit of creditors, or (iii) generally not
be paying its debts as such debts become due, or (iv) admit in
writing its inability to pay its debts as they become due, or
(v) file a voluntary petition in bankruptcy, or (vi) become
insolvent (however such insolvency shall be evidenced), or
(vii) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present
or future statute, law or regulation of any jurisdiction, or
(viii) petition or apply to any tribunal for any receiver,
custodian or any trustee for any substantial part of its Property,
or (ix) be the subject of any such proceeding filed against it
which remains undismissed for a period of 60 days, or (x) file
any answer admitting or not contesting the material allegations
of any such petition filed against it or any order, judgment or
decree approving such petition in any such proceeding, or (xi) seek,
approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator, or fiscal
agent for it, or any substantial part of its Property, or an order
is entered appointing any such trustee, receiver, custodian,
liquidator or fiscal agent and such order remains in effect for
60 days, or (xii) take any formal action for the purpose of effecting
any of the foregoing or looking to the liquidation or dissolution
of the Company or such Subsidiary; or
(i) an order for relief is entered under the United
States bankruptcy laws or any other decree or order is entered
by a court having jurisdiction (i) adjudging the Company or any
Subsidiary a bankrupt or insolvent, or (ii) approving as
properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of the
Company or any Subsidiary under the United States bankruptcy
laws or any other applicable Federal or state law, or (iii)
appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator, fiscal agent (or other similar
official) of the Company or any Subsidiary or of any
substantial part of the Property thereof, or (iv) ordering the
winding up or liquidation of the affairs of the Company or any
Subsidiary, and any such decree or order continues unstayed and
in effect for a period of 60 days; or
(j) any judgment or decree against the Company or
any Subsidiary aggregating in excess of $1,000,000 shall remain
unpaid, unstayed on appeal, undischarged, unbonded or
undismissed for a period of 60 days; or
(k) any of the Loan Documents shall cease, for any
reason, to be in full force and effect, or the Company shall so
assert in writing; or
(l) any payments shall be made by the Company in
violation of the resolutions passed by the Board of Directors
of the Company on April 24, 1992 and April 28, 1993, copies of
which are attached as Schedule 9.1(l).
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (1) if such event is
an Event of Default specified in clauses (h) or (i) above, the
Commitments shall immediately and automatically terminate and
the Loans and all accrued and unpaid interest on any thereof
and all other amounts owing under the Loan Documents shall im-
mediately become due and payable, and the Agent may, and upon
the direction of the Required Lenders shall, exercise any and
all remedies and other rights provided pursuant to the Loan
Documents, and (2) if such event is any other Event of Default,
any or all of the following actions may be taken: (x) with the
consent of the Required Lenders, the Agent may, and upon the
direction of the Required Lenders shall, by notice to the
Company, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate and (y)
with the consent of the Required Lenders, the Agent may, and
upon the direction of the Required Lenders shall, by notice of
default to the Company, declare the Loans, all accrued and
unpaid interest thereon and all other amounts owing under the
Loan Documents to be due and payable forthwith, whereupon the
same shall immediately become due and payable, and in all cases
the Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided
pursuant to the Loan Documents or by law. Except as otherwise
provided in this paragraph 9.1, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
The Company hereby further expressly waives and covenants not
to assert any appraisement, valuation, stay, extension, redemp-
tion or similar laws, now or at any time hereafter in force,
which might delay, prevent or otherwise impede the performance
or enforcement of any of the Loan Documents.
In the event that the Commitments shall have been termi-
nated or the Notes shall have been declared due and payable
pursuant to the provisions of this paragraph 9.1, any funds
received by the Agent and the Lenders from or on behalf of the
Company shall be applied by the Agent and the Lenders in liqui-
dation of the Loans and the obligations of the Company here-
under and under the Notes in the following manner and order, in
each case pro rata among the Agent and the Lenders in
accordance with the actual amounts outstanding or due and
payable, as the case may be, to the Agent and such Lenders:
(i) first, to reimburse the Agent and the Lenders for any
expenses due pursuant to the provisions of paragraph 11.5; (ii)
second, to the payment of accrued and unpaid Commitment Fees
and all other fees, expenses and amounts due hereunder (other
than principal and interest on the Notes); (iii) third, to the
payment of interest due on the Notes; (iv) fourth, to the pay-
ment of principal outstanding on the Notes (first to the
outstanding principal amount of all Swing Line Loans and
second to the outstanding principal amount of all A and B
Loans, pro rata according to each Lender's aggregate
outstanding principal amount of such Loans); and (v) fifth, to
the payment of any other amounts owing to the Agent and the
Lenders under any of the Loan Documents. Any funds remaining
after the foregoing applications shall be paid over to the
Company or as a court may otherwise direct.
X. THE AGENT
A. Appointment.
Subject to paragraph 10.9, each Lender hereby ir-
revocably designates and appoints BNY as the Agent of such
Lender under the Loan Documents and each such Lender hereby ir-
revocably authorizes BNY, as the Agent for such Lender, to take
such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties
as are expressly delegated to the Agent by the terms of the
Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement or any of the other
Loan Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein or
therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan
Documents or otherwise exist against the Agent.
B. Delegation of Duties.
The Agent may execute any of its duties under the
Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to rely upon the advice of counsel concerning
all matters pertaining to such duties.
C. Exculpatory Provisions.
Neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with the Loan
Documents (except the Agent for its own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained
in the Loan Documents or in any certificate, report, statement
or other document referred to or provided for in, or received
by the Agent under or in connection with, the Loan Documents
or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any of the Loan Documents
or for any failure of any party thereto, or any other Person
to perform its obligations hereunder or thereunder. The
Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, the Loan
Documents, or to inspect the properties, books or records of
the Company or any of it Subsidiaries. The Agent shall not be
under any liability or responsibility whatsoever, as Agent, to
the Company or any other Person as a consequence of any failure
or delay in performance, or any breach, by any Lender of any of
its obligations under any of the Loan Documents.
D. Reliance by Agent.
The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, opinion, letter,
telegram, telecopy, telex or teletype message, statement, order
or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by
the Agent. The Agent may treat each Lender, or the Person
designated in the last notice filed with it under this
paragraph, as the holder of all of the interests of such Lender
in its Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last
notice filed with the Agent) and by the Person designated in
such written notice of transfer, in form and substance
satisfactory to the Agent, shall have been filed with the
Agent. The Agent shall not be under any duty to examine or
pass upon the validity, effectiveness or genuineness of the
Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the
Agent shall be entitled to assume that the same are valid, ef-
fective and genuine, have been signed or sent by the proper
parties and are what they purport to be. The Agent shall be
fully justified in failing or refusing to take any action under
the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate.
The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under the Loan Documents in
accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of
the Notes.
E. Notice of Default.
The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice thereof
from a Lender or the Company. In the event that the Agent
receives such a notice, the Agent shall promptly give notice
thereof to the Lenders. The Agent shall take such action with
respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided, however,
that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in
the best interests of the Lenders.
F. Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the
Agent hereinafter, including any review of the affairs of the
Company or any Subsidiaries thereof, shall be deemed to
constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has, in-
dependently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it has
deemed appropriate, made its own evaluation of and investiga-
tion into the business, operations, Property, financial and
other condition and creditworthiness of the Company and the
Subsidiaries and made its own decision to enter into this
Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
analysis, evaluations and decisions in taking or not taking
action under this Agreement or any of the Loan Documents, and
to make such investigation as it deems necessary to inform
itself as to the business, operations, Property, financial and
other condition and creditworthiness of the Company and the
Subsidiaries. Each Lender acknowledges that a copy of this
Agreement and all exhibits and schedules hereto has been made
available to it and its individual legal counsel for review,
and each Lender acknowledges that it is satisfied with the form
and substance of this Agreement and the exhibits and schedules
hereto. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and
other condition or creditworthiness of the Company or the
Subsidiaries which may come into the possession of the Agent
or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
G. Indemnification.
Each Lender agrees to indemnify the Agent in its
capacity as such (to the extent not promptly reimbursed by the
Company and without limiting the obligation of the Company to
do so), ratably according to its Commitment Percentage from and
against any and all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind whatsoever, including, without
limitation, any amounts paid to the Lenders (through the Agent)
by the Company pursuant to the terms hereof, that are
subsequently rescinded or avoided, or must otherwise be
restored or returned which may at any time (including, without
limitation, at any time following the payment of the Notes) be
imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of this Agreement, the other
Loan Documents or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or
any action taken or omitted to be taken by the Agent under or
in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to
the extent resulting from the gross negligence or willful
misconduct of the Agent. The agreements in this paragraph
shall survive the payment of the Notes and all other amounts
payable hereunder.
H. Agent in Its Individual Capacity.
BNY and its respective affiliates may make loans to,
accept deposits from, issue letters of credit for the account
of and generally engage in any kind of business with, the
Company and the Subsidiaries as though BNY was not Agent
hereunder. With respect to the Commitment made or renewed by
BNY and any Note issued to BNY, BNY shall have the same rights
and powers under this Agreement as any Lender and may exercise
the same as though it was not the Agent, and the terms "Lender"
and "Lenders" shall in each case include BNY.
I. Successor Agent.
If at any time the Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written
notification of its resignation as Agent under the Loan
Documents, such resignation to be effective on the thirtieth
day after the date of such notice. Upon any such resignation,
the Required Lenders shall have the right, with the prior writ-
ten consent of the Company (which consent shall not be
unreasonably withheld and shall not be required during the
continuance of a Default or Event of Default), to appoint from
among the Lenders a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and
accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring
Agent may with the consent of the Company (which consent shall
not be unreasonably withheld and shall not be required during
the continuance of a Default or Event of Default), if at such
time no Default or Event of Default exists, on behalf of the
Lenders, appoint a successor Agent, which successor Agent shall
be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and having
a combined capital and surplus of at least $100,000,000. Upon
the acceptance of any appointment as Agent hereunder by a suc-
cessor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent's rights,
powers, privileges and duties as Agent under the Loan Documents
shall be terminated. The Company and the Lenders shall execute
such documents as shall be necessary to effect such appoint-
ment. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this paragraph 10.9 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under the Loan Documents. If at
any time hereunder there shall not be a duly appointed and
acting Agent, the Company agrees to make each payment due under
the Loan Documents directly to the Lenders entitled thereto
during such time.
XI. OTHER PROVISIONS.
A. Amendments and Waivers.
With the written consent of the Required Lenders, the
Agent and the Company may from time to time enter into written
amendments, supplements or modifications hereof and, with the
consent of the Required Lenders, the Agent on behalf of the
Lenders may execute and deliver to any such parties a
written instrument waiving or consenting to the departure from,
on such terms and conditions as the Agent may specify in such
instrument, any of the requirements of the Loan Documents or
any Default or Event of Default and its consequences, or
releasing or discharging any guarantor from its obligations
under a guarantee; provided, however, that no such amendment,
supplement, modification, waiver or consent shall (i) increase
the Commitment of any Lender or subject any Lender to
additional obligations hereunder, (ii) extend the maturity date
of any Note or the Termination Date, (iii) extend the date or
decrease the amount of any mandatory reduction of the Aggregate
Commitments pursuant to paragraph 2.8(b), (iv) reduce the rate
of interest of, extend the time or manner of payment (including
mandatory prepayments) of, or increase or forgive the principal
amount of any Note, (iv) decrease the Commitment Fee or extend
the time of payment thereof, (v) change the provisions of this
paragraph 11.1, (vi) change the definition of Required Lenders
or (vii) change the pro rata method of payment of principal,
interest or fees set forth herein without the consent of all of
the Lenders; and provided further that (a) no such amendment,
supplement, modification, waiver or consent shall amend, modify
or waive any provision of paragraph 10 or otherwise change any
of the rights or obligations of the Agent under the Loan
Documents without the written consent of the Agent and (b) no
such amendment, supplement, modification, waiver or consent
shall amend, modify or waive any provision contained in the
Swing Line Note or otherwise change any of the rights or
obligations of the Company or BNY thereunder without the writ-
ten consent of the Company and BNY. Any such amendment,
supplement, modification, waiver or consent shall apply
equally to each of the Lenders and shall be binding upon the
Company, the Lenders, the Agent and all future holders of the
Notes. In the case of any waiver, the Company, the Lenders and
the Agent shall be restored to their former position and rights
hereunder and under the Notes and the other Loan Documents, and
any Default or Event of Default waived shall not extend to any
subsequent or other Default or Event of Default, or impair any
right consequent thereon.
B. Notices.
All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing
and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand,
or when deposited in the mail, first-class postage prepaid, or,
in the case of telecopier notice, when sent, addressed as
follows in the case of the Company and the Agent, and as set
forth in Exhibit B in the case of each of the Lenders, or to
such other addresses as to which the Agent may be hereafter
notified by the respective parties hereto or any future holders
of the Notes:
The Company:
AMERICAN MAIZE-PRODUCTS COMPANY
250 Harbor Drive
P.O. Box 10128
Stamford, CT 06904-2128
Attention: Treasurer,
Telephone: (203) 356-9000
Telecopy: (203) 359-1020
The Agent:
THE BANK OF NEW YORK
One Wall Street
New York, New York, 10286
Attention: David C. Judge,
Vice President
Telephone: (212) 635-6861
Telecopy: (212) 635-6999,
with a copy to:
THE BANK OF NEW YORK
Agency Function Administration
One Wall Street
New York, New York, 10286
Attention: Kalyani Bose,
Telephone: (212) 635-4693
Telecopy: (212) 635-8852,
except that any notice, request or demand by the Company to or
upon the Agent or the Lenders pursuant to paragraphs 2.2, 2.3,
2.7, 2.8 or 2.9 or 2.10 shall not be effective until received.
C. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on
the part of the Agent or any Lender, any right, remedy, power
or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege under any Loan Document preclude any
other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies,
powers and privileges under the Loan Documents are cumulative
and not exclusive of any rights, remedies, powers and
privileges provided by law.
D. Survival of Representations and Warranties.
All representations and warranties made hereunder and
in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Notes and any other Loan
Document.
E. Payment of Expenses and Taxes; Indemnified Liabil-
ities.
The Company agrees, promptly upon presentation of a
statement or invoice therefor, and whether or not any Loan is
made, (i) to pay or reimburse the Agent for all reasonable out-
of-pocket costs and expenses incurred in connection with the
development, preparation, execution and syndication of, and any
amendment, supplement or modification to, or waiver or consent
under, the Loan Documents, any documents prepared in connection
therewith and the consummation of the transactions contemplated
thereby, including, without limitation, the reasonable fees and
disbursements of counsel, (ii) to pay or reimburse the Agent
and each Lender for its costs and expenses incurred in connec-
tion with the enforcement of any rights under the Agreement,
the Notes and any such other documents, including, without
limitation, reasonable fees and disbursements of their respec-
tive counsel, (iii) to pay, indemnify, and hold each Lender
and the Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting
from any delay in paying, stamp, excise and other Taxes, if
any, which may be payable or determined to be payable in con-
nection with the execution and delivery of, or consummation of
any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under
or in respect of, the Loan Documents and any such other
documents, and (iv) to pay, indemnify and hold each Lender and
the Agent and each of their respective officers, directors and
employees harmless from and against any and all other li-
abilities, obligations, claims, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be or becomes payable to
any third party (including, without limitation, reasonable
counsel fees and disbursements) with respect to the execution,
delivery, enforcement and performance of the Loan Documents or
the use of the proceeds of the Loans (all the foregoing, col-
lectively, the "Indemnified Liabilities") and, if and to the
extent that the foregoing indemnity may be unenforceable for
any reason, the Company agrees to make the maximum payment per-
mitted under applicable law; provided, however, that the Company
shall have no obligation hereunder to pay Indemnified Liabilities
to the Agent or any Lender arising from the gross negligence or
willful misconduct of the Agent or such Lender. The agreements
in this paragraph shall survive the termination of the
Commitments and the payment of the Notes, and all other
amounts payable hereunder.
F. Lending Offices.
Each Lender shall have the right at any time and from
time to time to transfer any Loan to a different office,
provided that such Lender shall promptly notify the Agent and
the Company of any such change of office. Such office shall
thereon become such Lender's Domestic Lending Office or LIBOR
Lending Office, as the case may be.
G. Successors and Assigns.
(a) This Agreement and the Notes shall be binding
upon and inure to the benefit of the Company, the Lenders, the
Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign,
delegate or transfer any of its rights or obligations under the
Loan Documents without the prior written consent of the Agent
and each Lender.
(b) Each Lender shall have the right at any time to
sell, assign, transfer or negotiate all or any part of such
Lender's rights and obligations with respect to its Loans, its
Commitment and its Note to one or more of the other Lenders (or
to affiliates of such Lender or such other Lenders) or, with
the prior written consent of the Company (which consent shall
not be unreasonably withheld and shall not be required during
the continuance of a Default or Event of Default) and the Agent
(which consent shall not be unreasonably withheld), to any
other bank, insurance company or financial institution provided
that (i) each such sale, assignment, transfer or negotiation
shall be in a minimum amount of $5,000,000 and (ii) there shall
be paid to the Agent by the parties to the assignment (which
shall not in any event include the Company) an assignment fee
(the "Assignment Fee") of $2,500. For each assignment, the
parties to such assignment shall execute and deliver to the
Agent for its acceptance and recording an Assignment and
Acceptance Agreement in the form of Exhibit H. Upon such
execution, delivery, acceptance and recording by the Agent,
from and after the effective date specified in such Assignment
and Acceptance Agreement, the assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and
Acceptance Agreement, the assignor Lender thereunder shall be
released from its obligations under this Agreement. The Company
agrees upon written request of the Agent to execute and deliver
to such assignee and assignor Notes, dated the effective date of
such Assignment and Acceptance Agreement, substantially in the
form of Exhibit D. Upon any such sale, assignment or transfer,
the Commitments and Commitment Percentages set forth in Exhibit A
shall be adjusted accordingly.
(c) Notwithstanding anything to the contrary
contained in paragraph 11.7(b), any sale, assignment, transfer
or negotiation by BNY of all or any part of its Loans, its
Commitment or its Note shall not constitute a sale, assignment,
transfer or negotiation by BNY of its Swing Line Commitment
unless, after giving effect to such sale, assignment, transfer
or negotiation, the Commitment of BNY would be less than the
Swing Line Commitment of BNY (in which event that portion of
the Swing Line Commitment which exceeds BNY's Commitment shall
be assignable pursuant to paragraph 11.7(b).
(d) Each Lender may grant participations in all or
any part of its Loans, its Note or its Commitment to the par-
ent, any affiliate, Subsidiary or branch of such Lender or to
one or more banks, insurance companies, financial institutions,
pension funds, mutual funds or any other Person, provided that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such
obligations, (iii) the Company, the Agent and the other Lenders
shall continue to deal directly with such Lender in connection
with such Lender's rights and obligations under this Agreement
and (iv) no such participant shall have any right to require
such Lender to take or omit to take any action under any Loan
Document except any action which would require the consent of
all Lenders pursuant to paragraph 11.1. The Company hereby ac-
knowledges and agrees that any such participant shall for pur-
poses of paragraphs 2.14, 2.15, 2.16, 2.19 and 11.5, be deemed
to be a "Lender".
(e) No Lender shall, as between and among the
Company, the Agent and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment,
transfer or negotiation of, or granting of participations in,
all or any part of its Loans, its Commitment or its Note,
except that a Lender shall be relieved of its obligations to
the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its Loans, its Commitment or
its Note pursuant to paragraph (b) above.
(f) Notwithstanding anything to the contrary
contained in this paragraph 11.7, any Lender may at any time or
from time to time assign all or any portion of its rights under
this Agreement with respect to its Loans, its Commitment and
its Note to a Federal Reserve Bank. No such assignment shall
release the assignor Lender from its obligations hereunder.
H. Counterparts.
This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counter-
parts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. It shall not
be necessary in making proof of this Agreement to produce or
account for more than one counterpart signed by the party to be
charged.
I. Governing Law.
This Agreement and the Notes and the rights and
obligations of the parties hereunder and thereunder shall be
governed by, and construed and interpreted in accordance with,
the internal laws of the State of New York, without regard to
principles of conflict of laws.
J. Headings, Plurals.
Paragraph headings have been inserted herein for
convenience only and shall not be construed to be a part hereof
or thereof. Unless the context otherwise requires, words in
the singular number include the plural, and words in the plural
include the singular.
K. Severability.
Every provision of the Loan Documents is intended
to be severable, and if any term or provision thereof shall be
invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions thereof
shall not be affected or impaired thereby, and any invalidity,
illegality or unenforceability in any jurisdiction shall not
affect the validity, legality or enforceability of any such
term or provision in any other jurisdiction.
L. Integration.
This Agreement and the Notes embody the entire
agreement and understanding among the Company, the Agent and
the Lenders with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings
among the Company, the Agent and the Lenders with respect to
the subject matter hereof and thereof.
M. Consent to Jurisdiction.
The Company hereby irrevocably submits to the
jurisdiction of any New York State or Federal Court sitting in
the City of New York over any suit, action or proceeding aris-
ing out of or relating to the Loan Documents. The Company
hereby irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding
brought in such a court and any claim that any such suit, ac-
tion or proceeding brought in such a court has been brought in
an inconvenient forum. The Company hereby agrees that a final
judgment in any such suit, action or proceeding brought in such
a court, after all appropriate appeals, shall be conclusive and
binding upon it.
N. Service of Process.
The Company hereby waives personal service upon it
of any process, irrevocably appoints CT Corporation as its
agent for the purpose of accepting service of process and
agrees to deliver to the Agent evidence of such irrevocable
appointment. In the event that the Company irrevocably appoints
a new agent for the purpose of accepting service of process,
such new agent must be acceptable to the Agent and no such
appointment of a new agent shall be effective until the Agent
shall have received evidence of such irrevocable appointment.
Process may be served in any suit, action, counterclaim or
proceeding of the nature referred to in paragraph 11.14 by
mailing copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to the addresses of the
Company set forth in paragraph 11.2 or to any other address of
which the Company shall have given written notice to the Agent.
The Company hereby agrees that such service (i) shall be deemed
in every respect effective service of process upon it in any
such suit, action, counterclaim or proceeding and (ii) shall to
the fullest extent enforceable by law, be taken and held to be
valid personal service upon and personal delivery to it.
O. No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification,
waiver, consent or amendment thereto shall affect the right of
the Agent or any Lender to serve process in any manner permit-
ted by law or limit the right of the Agent or any Lender to
bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions.
P. WAIVER OF TRIAL BY JURY.
THE AGENT, THE LENDERS AND THE COMPANY HEREBY KNOW-
INGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING
OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE COMPANY HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE AGENT OR THE
LENDERS, OR COUNSEL TO THE AGENT OR THE LENDERS, HAS REPRE-
SENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE LENDERS
WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE COMPANY
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF
THIS PARAGRAPH.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By: /s/ Robert A. Britton
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By:
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By:
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By:
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By:
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By:
---------------------------
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By: /s/ David C. Judge
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By:
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By:
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By:
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By:
---------------------------
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By:
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By: /s/ Robert M. Surdam, Jr.
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By:
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By:
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By:
---------------------------
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By:
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By:
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By: /s/ R. Mark Graf
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By:
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By:
---------------------------
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By:
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By:
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By:
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By: /s/ Richard Bochicchio
---------------------------
Title: Vice President
BANK OF MONTREAL
By:
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By:
---------------------------
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By:
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By:
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By:
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Ernest Cachetto
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By:
---------------------------
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:
---------------------------
Title: Vice President
THE BANK OF NEW YORK,
Individually and as Agent
By:
---------------------------
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By:
---------------------------
Title: Vice President
AMSOUTH BANK N.A.
By:
---------------------------
Title: Vice President
BANK OF BOSTON CONNECTICUT
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By:
---------------------------
Title: Managing Director
THE NORTHERN TRUST COMPANY
By: /s/ Gregory Werd
---------------------------
Title: Vice President
EXHIBIT A
COMMITMENTS
COMMITMENT SWING LINE
LENDER COMMITMENT PERCENTAGE COMMITMENT
The Bank of New York $ 35,000,000 28% $10,000,000
Shawmut Bank Connecticut, N.A. 30,000,000 24%
AmSouth Bank N.A. 20,000,000 16%
Bank of Boston Connecticut 15,000,000 12%
Bank of Montreal 15,000,000 12%
The Northern Trust Company 10,000,000 8%
____________ ________
AGGREGATE COMMITMENTS $125,000,000 100%
EXHIBIT B
LIST OF LENDING OFFICES
DOMESTIC LENDING OFFICES LIBOR LENDING OFFICES
I. The Bank of New York The Bank of New York
One Wall Street One Wall Street
New York, New York 10286 New York, New York 10286
Attention: Agency Function Attention: Agency Function
Administration, Administration,
Kalyani Bose Kalyani Bose
Telephone: (212) 635-4693 Telephone: (212) 635-4693
Telecopy: (212) 635-6365 Telecopy: (212) 635-6365
II. Shawmut Bank Connecticut, N.A. Shawmut Bank Connecticut, N.A.
One Landmark Square, 12th Floor One Landmark Square, 12th Floor
Stamford, CT 06904 Stamford, CT 06904
Attention: Robert M. Surdam, Jr. Attention: Robert M. Surdam, Jr.
Vice President Vice President
Telephone: (203) 358-6174 Telephone: (203) 358-6174
Telecopy: (203) 358-6111 Telecopy: (203) 358-6111
III.AmSouth Bank N.A. AmSouth Bank N.A.
National Banking Department National Banking Department
1900 5th Avenue North 1900 5th Avenue North
Birmingham, AL 35203 Birmingham, AL 35203
Attention: R. Mark Graf, Attention: R. Mark Graf,
Vice President Vice President
Telephone: (205) 326-4534 Telephone: (205) 326-4534
Telecopy: (205) 326-5601 Telecopy: (205) 326-5601
IV. Bank of Boston Connecticut Bank of Boston Connecticut
One Landmark Square, Suite 2002 One Landmark Square, Suite 2002
Stamford, CT 06901 Stamford, CT 06901
Attention: Richard Bochicchio Attention: Richard Bochicchio
Vice President Vice President
Telephone: (203) 967-3888 Telephone: (203) 967-3888
Telecopy: (203) 967-8169 Telecopy: (203) 967-8169
V. Bank of Montreal Bank of Montreal
430 Park Avenue 430 Park Avenue
New York, NY 10022 New York, NY 10022
Attention: Bruce Thorsen, Attention: Bruce Thorsen,
Director Director
Telephone: (212) 702-1102 Telephone: (212) 702-1102
Telecopy: (212) 605-1454/1455 Telecopy: (212) 605-1454/1455
VI. The Northern Trust Company The Northern Trust Company
50 South LaSalle St., Floor B-11 50 South LaSalle St., Floor B-11
Chicago, IL 60675 Chicago, IL 60675
Attention: Gregory Werd, Attention: Gregory Werd,
Vice President Vice President
Telephone: (312) 444-3504 Telephone: (312) 444-3504
Telecopy: (312) 444-3508 Telecopy: (312) 444-3508
EXHIBIT C-1
FORM OF A BORROWING REQUEST
_____________, 19__
The Bank of New York, as Agent
One Wall Street
New York, NY 10286
Attention: __________________
Re: Credit Agreement, dated as of March 31, 1994, by and
among AMERICAN MAIZE-PRODUCTS COMPANY, the signatory
LENDERS thereto and THE BANK OF NEW YORK, as Agent
(the "Agreement").
----------------------------------------------------
Capitalized terms used herein which are defined in the
Agreement shall have the meanings therein defined.
Pursuant to paragraph 2.2 of the Agreement, the Company
hereby gives notice of its intention to borrow $____________
on ________________, 19__, which borrowing shall consist of
the following A Loans:
Type of Loan
(LIBOR or Alternate Interest Period for
Base Rate) Amount LIBOR Loans
-------------------- -------- ----------------
1.
2.
3.
The Company hereby certifies that on the date hereof and
on the Borrowing Date set forth above, and after giving effect
to the A Loans requested hereby:
(a) There exists and there shall exist no Default
or Event of Default under the Agreement.
(b) The proceeds of such A Loans will be used in
accordance with paragraph 2.18 of the Agreement.
(c) Each of the representations and warranties
contained in the Agreement which is required to be made on
such Borrowing Date is and shall be true and correct.
(d) A Material Adverse Change has not occurred.
(e) The aggregate principal amount of all Loans
outstanding as of the date hereof is $_______________.
IN WITNESS WHEREOF, the Company has caused this certifi-
cate to be executed by its duly authorized officer as of the
date and year first written above.
AMERICAN MAIZE-PRODUCTS COMPANY
By: ___________________________
Title: ________________________
EXHIBIT C-2
FORM OF B BORROWING REQUEST
_____________, 19__
The Bank of New York, as Agent
One Wall Street
New York, NY 10286
Attention: __________________
Re: Credit Agreement, dated as of March 31, 1994, by and
among AMERICAN MAIZE-PRODUCTS COMPANY, the signatory
LENDERS thereto and THE BANK OF NEW YORK, as Agent
(the "Agreement").
Capitalized terms used herein which are defined in the
Agreement shall have the meanings therein defined.
Pursuant to paragraph 2.3 of the Agreement, the Company
hereby gives notice of its desire to effect a B Borrowing
under the Agreement in the amount of $_______________ on
______________, 19__, which borrowing shall consist of B Loans
having an Interest Period of ______ during which the Interest
Payment Dates would be ______________.
The Company hereby certifies that on the date hereof and
on the Borrowing Date set forth above, and after giving effect
to the B Loans requested hereby:
(a) There exists and there shall exist no Default
or Event of Default under the Agreement.
(b) The proceeds of such B Loans will be used in
accordance with paragraph 2.18 of the Agreement.
(c) Each of the representations and warranties
contained in the Agreement which is required to be made on
such Borrowing Date is and shall be true and correct.
(d) A Material Adverse Change has not occurred.
(e) The aggregate principal amount of all Loans
outstanding as of the date hereof is $_______________.
IN WITNESS WHEREOF, the Company has caused this certifi-
cate to be executed by its duly authorized officer as of the
date and year first written above.
AMERICAN MAIZE-PRODUCTS COMPANY
By: ___________________________
Title: ________________________
EXHIBIT D
FORM OF NOTE
$125,000,000.(1) March 31,1994
New York, New York
FOR VALUE RECEIVED, AMERICAN MAIZE-PRODUCTS COMPANY,
a Maine corporation (the "Company"), hereby promises to pay to
the order of ________________ (the "Lender"), at the office of
The Bank of New York, as Agent (the "Agent"), located at One
Wall Street, New York, New York, or at such other place as the
Agent may specify from time to time, in lawful money of the
United States of America, the lesser of the principal sum of
ONE HUNDRED TWENTY FIVE MILLION DOLLARS ($125,000,000) or the
unpaid principal balance as shall be outstanding hereunder,
together with interest from the date hereof on the unpaid
principal balance, payable on the dates and at the rate or
rates provided for in the Credit Agreement, dated as of March
31, 1994, by and among the Company, the signatory Lenders
thereto, and the Agent (as the same may be amended, modified or
otherwise supplemented from time to time, the "Agreement").
Capitalized terms used herein which are defined in the
Agreement shall have the meanings therein defined. In no event
shall the interest rate payable in respect hereof exceed the
Highest Lawful Rate.
This Note is one of the Notes referred to in the
Agreement, and is subject to the terms and is entitled to the
benefits set forth therein. This Note shall mature on the
Termination Date, and the principal of this Note is payable in
the amounts and under the circumstances, and its maturity is
subject to acceleration upon the terms, set forth in the
Agreement. Except as otherwise provided in the Agreement, if
any payment on this Note becomes due and payable on a day which
is not a Business Day, the maturity thereof shall be extended
to the next Business Day and interest shall be payable at the
applicable rate or rates specified in the Agreement during such
extension period.
The Lender is hereby authorized to record (i) the
date and amount of each A Loan and B Loan made by it, (ii) its
character (in the case of A Loans) as an Alternate Base Rate
Loan, a LIBOR Loan, or a combination thereof, (iii) the
Interest Period and interest rate applicable to LIBOR Loans and
B Loans and (iv) the date and amount of each conversion of, and
each payment or prepayment of principal of any A Loans and B
Loans, on the schedule annexed hereto. The Lender may attach
one or more continuation sheets to such schedule as and when
required. Any failure to so record or any error in so
recording shall not affect the obligation of the Company to
repay the Lender's A Loans and B Loans, together with interest
thereon, as provided in the Agreement.
Presentment for payment, demand, notice of dishonor,
protest, notice of protest and all other demands and notices in
connection with the delivery, performance and enforcement of
this Note are hereby waived, except as specifically otherwise
provided in the Agreement.
This Note is being delivered in, is intended to be
performed in, shall be construed and interpreted in accordance
with, and be governed by the internal laws of, the State of New
York without regard to principles of conflict of laws.
This Note may only be amended by an instrument in
writing executed pursuant to the provisions of paragraph 11.1
of the Agreement.
AMERICAN MAIZE-PRODUCTS COMPANY
By: ___________________________
Title: ________________________
- - ---------------------
(1) Maximum A and B Loans of the Lender, provided that such
A and B Loans, when added to the principal amount of A and B Loans
of all other Lenders under the Agreement, shall not exceed
$125,000,000.
EXHIBIT E
FORM OF SWING LINE NOTE
$10,000,000. March 31, 1991
New York, New York
FOR VALUE RECEIVED, AMERICAN MAIZE-PRODUCTS COMPANY,
a Maine corporation (the "Company"), hereby promises to pay to
the order of THE BANK OF NEW YORK (the "Bank"), at the office
of The Bank of New York, as Agent (the "Agent"), located at One
Wall Street, New York, New York, or at such other place as the
Agent may specify from time to time, in lawful money of the
United States of America, the principal sum of TEN MILLION
DOLLARS ($10,000,000) or such lesser unpaid principal balance
as shall be outstanding hereunder, together with interest from
the date hereof, on the unpaid principal balance hereof, pay-
able on the dates and at the rate or rates provided for in the
Credit Agreement, dated as of March 31, 1994, among the
Company, the signatory Lenders thereto, and the Agent (as the
same may be amended, modified or otherwise supplemented from
time to time, the "Agreement"). Capitalized terms used herein
which are defined in the Agreement shall have the meanings
therein defined. In no event shall the interest rate payable
in respect hereof exceed the Highest Lawful Rate.
This Note is the Swing Line Note referred to in the
Agreement, is subject to the terms set forth therein and is
entitled to the benefits set forth in the Loan Documents. The
principal of this Note is payable in the amounts and under the
circumstances, and its maturity is subject to acceleration upon
the terms, set forth in the Agreement. Except as otherwise
provided in the Agreement, if any payment on this Note becomes
due and payable on a day which is not a Business Day, the
maturity thereof shall be extended to the next Business Day and
interest shall be payable at the applicable rate or rates
specified in the Agreement during such extension period.
The Bank is hereby authorized to record (i) the date
and amount of each Swing Line Loan made by it and (ii) the date
and amount of each payment or prepayment of principal of any
Swing Line Loans, on the schedule annexed hereto. The Bank may
attach one or more continuation sheets to such schedule as and
when required. No failure to so record or any error in so
recording shall affect the obligation of the Company to repay
the Bank's Swing Line Loans, together with interest thereon, as
provided in the Agreement.
Presentment for payment, demand, notice of dishonor,
protest, notice of protest and all other demands and notices in
connection with the delivery, performance and enforcement of
this Note are hereby waived, except as specifically otherwise
provided in the Agreement.
This Note is being delivered in, is intended to be
performed in, shall be construed and interpreted in accordance
with, and be governed by the internal laws of, the State of New
York without regard to principles of conflict of laws.
This Note may only be amended by an instrument in
writing executed pursuant to the provisions of paragraph 11.1
of the Agreement.
AMERICAN MAIZE-PRODUCTS COMPANY
By:____________________________
Title:_________________________
SCHEDULE TO
SWING LINE NOTE
Amount of Principal
Date Amount of Swing Line Loan paid or prepaid
EXHIBIT F
FORM OF OPINION OF COUNSEL
TO THE COMPANY
March 31, 1994
TO THE PARTIES LISTED ON
SCHEDULE A ATTACHED HERETO
I am General Counsel of American Maize-Products Company,
a Maine corporation (the "Company") and, as such, am familiar
with the Credit Agreement (the "Agreement"), dated as of March
31, 1994, by and among the Company, the signatory Lenders (the
"Lenders") thereto, and The Bank of New York, as Agent (the
"Agent"). Capitalized terms used herein which are defined in
the Agreement shall have the meanings therein defined.
In furnishing this letter, I have examined and relied
upon originals or copies, certified or otherwise identified to
my satisfaction as being true copies, of such instruments,
documents and certificates of officers of the Company or of
government officials, and have conducted such investigations
of fact and law, as I have deemed necessary or appropriate as
the basis for the opinions hereinafter expressed, including,
without limitation, (i) the Certificate of Incorporation and
By-Laws of the Company, (ii) the Agreement and (iii) the
Notes.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents
submitted to me as copies. As to various questions of fact
material to the opinions hereinafter expressed, I have relied,
except as to matters within my actual knowledge, solely upon
representations of public officials and other officers of the
Company.
I express no opinion as to any question of law other than
with respect to the laws of the State of Connecticut and the
United States of America, and, insofar as the opinions in
paragraphs 1, 2 and 3 relate to Maine law, I have relied
solely on my review of, and my opinions in said paragraphs are
limited to, the Maine Business Corporation Act.
The opinions set forth herein are subject to the
following additional limitations, qualifications, assumptions
and exceptions:
(a) I have assumed that each party to the Agreement
other than the Company has the corporate and all other power
and authority to enter into and perform the Agreement and that
the Agreement has been duly authorized, executed and delivered
by all parties thereto other than the Company;
(b) the validity, binding effect and enforceability
against the Company of the Agreement and the Notes may be
limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws now or hereafter in
effect affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or in
law).
Based upon and subject to the foregoing, I am of the
opinion that:
1. The Company has only the Subsidiaries set forth in
Schedule 4.1 to the Agreement, and the shares of each
Subsidiary are duly authorized, validly issued, fully paid and
nonassessable and are owned by the Company free and clear of
any Liens, except Permitted Liens.
2. The Company and each of the Subsidiaries is duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation,
has all requisite corporate power and authority to own its
Property and to carry on its business as now conducted, and is
in good standing and authorized to do business in each
jurisdiction in which the failure to be so authorized could
reasonably be expected to have a Material Adverse Effect.
3. The Company has full corporate power and authority to
enter into, execute, deliver and carry out the terms of the
Agreement, and to make the borrowings contemplated thereby, to
execute, deliver and carry out the terms of the Notes and to
incur the obligations provided for therein, all of which have
been duly authorized by all proper and necessary corporate
action and are not in violation of its Certificate of
Incorporation or its By-Laws.
4. No consent, authorization or approval of, filing
with, notice to, or exemption by, stockholders, any
Governmental Body or any other Person (except for those which
have been obtained, made or given) is required to authorize,
or is required in connection with the execution, delivery and
performance of the Loan Documents or is required as a
condition to the validity or enforceability of the Loan
Documents. No provision of any applicable statute, law
(including, without limitation, to the best of my knowledge,
any applicable usury or similar law), rule or regulation of
any Governmental Body will prevent the execution, delivery or
performance of, or affect the validity of, the Loan Documents.
5. The Agreement constitutes, and the Notes, when issued
and delivered for value received, will constitute, the valid
and legally binding obligations of the Company, enforceable
against the Company in accordance with their respective terms.
6. Except as set forth in Schedule 4.6 to the Agreement,
there are no actions, suits, arbitration proceedings or claims
pending or, to the best of my knowledge, threatened against
the Company or any of the Subsidiaries including any officers
and directors thereof in their capacities as such, or
maintained by the Company or any of the Subsidiaries including
any officers and directors thereof in their capacities as
such, at law or in equity, before any Governmental Body or
arbitrator which, if determined adversely to the Company or
such Subsidiary, could reasonably be expected to have a
Material Adverse Effect. There are no proceedings pending or,
to the best of my knowledge, threatened against the Company or
any of the Subsidiaries which call into question the validity
or enforceability of any of the Loan Documents.
7. Neither the Company nor any of the Subsidiaries is in
default under any mortgage, indenture, contract, agreement,
judgment, decree or order to which it is a party or by which
it or any of its Property is bound, which default or defaults,
taken as a whole, could reasonably be expected to have a
Material Adverse Effect. The execution, delivery or carrying
out of the terms of the Loan Documents will not constitute a
default under, conflict with, require any consent under (other
than consents which have been obtained), or result in the
creation or imposition of, or obligation to create, any Lien
upon the Property of the Company or any of the Subsidiaries
pursuant to the terms of any such mortgage, indenture,
contract, agreement, judgment, decree or order, which
defaults, conflicts and consents, if not obtained, could
reasonably be expected to have a Material Adverse Effect.
8. Neither the Company nor any of the Subsidiaries is in
material default with respect to any judgment, order, writ,
injunction, decree or decision of any Governmental Body, which
default could reasonably be expected to have a Material
Adverse Effect. Except as to matters set forth in Schedules
4.6 and 4.17, the Company and each of the Subsidiaries is
complying in all material respects with all applicable
statutes and regulations, including ERISA, of all Governmental
Bodies, a violation of which could reasonably be expected to
have a Material Adverse Effect.
9. Neither the Company nor any of the Subsidiaries is
subject to (i) regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940 or (ii) any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under
the Loan Documents, including, without limitation, statutes or
regulations relative to common or contract carriers or to the
sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
10. Neither the Company nor any of the Subsidiaries is
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing
or carrying Margin Stock. If used in accordance with the
terms of the Agreement, no part of the proceeds of the Loans
will be used, directly or indirectly, for a purpose which
violates any law, rule or regulation of any Governmental Body,
including without limitation the provisions of Regulations G,
T, U or X of the Board of Governors of the Federal Reserve
System, as amended.
11. To the best of my knowledge, after due inquiry, the
Company and each of the Subsidiaries has no Multiemployer
Plans, and each Single Employer Plan is in compliance with the
material applicable provisions of ERISA and the Code, and the
Company and each of the Subsidiaries have filed all material
reports required to be filed by them under ERISA and the Code
with respect to each such Plan. To the best of my knowledge,
after due inquiry, the Company and each of the Subsidiaries
have met all material requirements imposed by ERISA and the
Code with respect to the funding of all Plans. To the best of
my knowledge, after due inquiry, since the effective date of
ERISA, there have not been, nor are there now existing, any
events or conditions which would permit any Single Employer
Plan to be terminated under circumstances which would cause
the lien provided under Section 4068 of ERISA to attach to the
Property of the Company or any of the Subsidiaries. To the
best of my knowledge, after due inquiry, no Reportable Event
currently exists which would constitute grounds for the
termination of any Single Employer Plan under Title IV of
ERISA, and no Single Employer Plan has been terminated in
whole or in part (unless a Notice of Sufficiency has been
issued by the PBGC with respect thereto).
12. Except as set forth in Schedule 4.17 to the
Agreement, neither the Company nor any of the Subsidiaries (i)
has received written notice or otherwise learned of any claim,
demand, action at law or in equity, report or investigation,
or, to the best of my knowledge, event or condition,
indicating or concerning any potential or actual liability
which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, arising in
connection with (a) any non-compliance with or violation of
the requirements of any applicable federal, state or local
environmental health and safety statutes and regulations or
(b) the release or threatened release of any toxic or
hazardous waste, substance or constituent, or other substance
into the environment (ii) to the best of my knowledge, after
due inquiry, has any liability in connection with the the
release or threatened release of any toxic or hazardous waste,
substance or constituent, or other substance, into the
environment which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect,
(iii) has received notice of any federal or state
investigation evaluating whether any remedial action is needed
to respond to a release or threatened release of any toxic or
hazardous waste, substance or constituent or other substance
into the environment for which the Company or any of the
Subsidiaries is or may be liable, which individually or in the
aggregate could reasonably be expected to have a Material
Adverse Effect, or (iv) has received notice that the Company
or any of the Subsidiaries is or may be liable to any Person
under CERCLA or any analogous state law, which individually or
in the aggregate could reasonably be expected to have a
Material Adverse Effect. To the best of my knowledge, after
due inquiry, the Company and each of the Subsidiaries is in
compliance in all material respects with the financial
responsibility requirements of federal and state environmental
laws to the extent applicable, including, without limitation,
those contained in 40 C.F.R., parts 264 and 265, subpart H,
and any analogous state law.
This opinion is solely for your benefit and may not be
relied upon by any other entity or person in any manner or for
any purpose. The opinions expressed herein are as of the date
hereof, and I make no undertaking to supplement such opinion
as facts and circumstances come to my attention or changes in
law occur which could affect such opinion.
Very truly yours,
Robert M. Stephan
Vice President and
General Counsel
SCHEDULE A
THE BANK OF NEW YORK
SHAWMUT BANK CONNECTICUT, N.A.
AMSOUTH BANK N.A.
BANK OF BOSTON CONNECTICUT
BANK OF MONTREAL
THE NORTHERN TRUST COMPANY
EXHIBIT G
FORM OF OPINION OF SPECIAL COUNSEL
March 31, 1994
TO THE PARTIES
LISTED ON SCHEDULE A
ATTACHED HERETO
Re: Credit Agreement, dated as of March 31, 1994,
by and among American Maize-Products Company,
the signatory Lenders thereto, and The Bank of
New York, as Agent (the "Agreement")
---------------------------------------------
We have acted as Special Counsel to you in connection
with the Agreement. Capitalized terms used herein which are
defined in the Agreement shall have the same meanings as
therein defined, unless the context hereof otherwise
requires.
We have examined originals or copies certified to our
satisfaction of the documents required to be delivered
pursuant to the provisions of paragraphs 5 and 6 of the
Agreement. In conducting such examination, we have assumed
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity to
originals of all documents submitted to us as copies.
Based upon the foregoing examination, and relying with
your permission upon the opinion of Robert M. Stephan, Esq.,
general counsel of the Company, delivered pursuant to the
Agreement, and upon the representations and warranties of the
Company contained in the Loan Documents, we are of the
opinion that all legal preconditions to the making of the
first Loans under the Agreement as set forth therein have
been satisfactorily met.
We express no opinion as to the laws of any jurisdiction
other than the laws of the State of New York and the federal
laws of the United States of America. Without limiting the
generality of the foregoing, we express no opinion as to the
effect of the law of any jurisdiction other than the State of
New York wherein any Lender may be located or wherein
enforcement of the Loan Documents may be sought which limits
the rates of interest legally enforceable or collectible.
Very truly yours,
EMMET, MARVIN & MARTIN
SCHEDULE A
THE BANK OF NEW YORK
SHAWMUT BANK CONNECTICUT, N.A.
AMSOUTH BANK N.A.
BANK OF BOSTON CONNECTICUT
BANK OF MONTREAL
THE NORTHERN TRUST COMPANY
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Dated _______________, 19__
Reference is made to the Credit Agreement, dated as of
March 31, 1994 (the "Credit Agreement"), by and among
AMERICAN MAIZE-PRODUCTS COMPANY, a Maine corporation, the
signatory LENDERS thereto and THE BANK OF NEW YORK, as Agent
for the Lenders. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement.
____________________ (the "Assignor") and
_______________ (the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from
the Assignor, without recourse, a __% interest in and to all
the Assignor's rights and obligations under the Loan
Documents as of the Effective Date (as defined below)
including, without limitation, such percentage interest in
the Commitment of the Assignor on the Effective Date.
2. The Assignor represents and warrants that (i)
as of the date hereof, its Commitment (without giving effect
to assignments thereof which have not yet become effective)
is $____________ and the outstanding balance of its Loans
(unreduced by any assignments thereof which have not yet
become effective) is $________, and (ii) 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 created by the Assignor.
3. The Assignor and the Assignee agree that except
as provided in paragraph 2 hereof, the Assignor makes no
representation or warranty and assumes no responsibility with
respect to (i) any statements, warranties or representations
made in or in connection with the Loan Documents (ii) the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any other
instrument or document furnished pursuant thereto or (iii)
the financial condition of the Company or any Subsidiary or
the performance or observance by the Company or any
Subsidiary of any of its obligations under the Loan Documents
or any other instrument or document furnished pursuant
thereto.
A. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Ac-
ceptance Agreement (this "Agreement"); (ii) confirms that it
has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered
pursuant to paragraph 7.1 thereof and such other documents
and information, including, without limitation, the Loan
Documents, as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement;
(iii) agrees that it will, independently and without reliance
upon the Agent, 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; (iv)
confirms that it is a permissible assignee under paragraph
11.7(b) of the Credit Agreement; (v) appoints and authorizes
the Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are
delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (vi) agrees
that it will become a party to the Credit Agreement on the
Effective Date and will perform in accordance with their
terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and
(vii) agrees that it will keep confidential all information
with respect to the Company furnished to it by the Company or
the Assignor (other than information generally available to
the public or otherwise available to the Assignor on a
nonconfidential basis).
1. The Assignee specifies as its address for
notices and as its Domestic Lending Office and LIBOR Lending
Office, the offices set forth beneath its name on the
signature page hereof.
2. The effective date for this Agreement shall be
__________ __, 19__ (the "Effective Date"). Following the
execution of this Agreement, it will be delivered to the
Agent for acceptance and recording by it pursuant to
paragraph 11.7(b) of the Credit Agreement. The Agent, upon
its acceptance hereof, shall request the Company to issue a
Note payable to the Assignee.
3. Upon such acceptance and recording, from and
after the Effective Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this
Agreement, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent
provided in this Agreement, relinquish its right and be
released from its obligations under the Credit Agreement.
4. Upon such acceptance and recording, from and
after the Effective Date, the Agent shall make all payments
in respect of the interest assigned hereby (including
payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and Assignee shall make all
appropriate adjustment in payments under the Credit Agreement
for periods prior to the Effective Date directly between
themselves.
5. This Agreement may not be amended, changed,
waived or modified except by a writing executed by the
parties hereto.
6. This Agreement embodies the entire agreement
between the Assignor and the Assignee with respect to the
subject matter hereof and supersedes all other prior arrange-
ments and understandings relating to the subject matter
hereof.
7. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original
and all of which shall together constitute one agreement. It
shall not be necessary in making proof of this Agreement to
produce or account for more than one counterpart signed by
the party to be charged.
8. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal
laws of the State of New York, without regard to principles
of conflict of laws.
[NAME OF ASSIGNOR]
By: ______________________
Title: ___________________
[NAME OF ASSIGNEE]
By: ______________________
Title: ___________________
Notice Address:
______________________
______________________
______________________
Domestic Lending Office:
______________________
______________________
______________________
LIBOR Lending Office:
______________________
______________________
______________________
Accepted this __ day
of __________, 19__
THE BANK OF NEW YORK, AS AGENT
By: ___________________________
Title: ________________________
SCHEDULE 4.1
SUBSIDIARIES
(a) Swisher International, Inc., a Delaware corporation
which is wholly owned by the Company;
(b) Helme Tobacco Company, a Delaware corporation which is
wholly owned by Swisher International, Inc.;
(c) Martin Brothers International, Inc., a New York
corporation which is wholly owned by Swisher
International, Inc.;
(d) Swisher International, Ltd., a corporation formed under
the laws of the United Kingdom, which is wholly owned
by Martin Brothers International, Inc.;
(e) Lloyd Home & Building Centers, Inc., a Delaware
corporation which is wholly owned by Swisher
International, Inc.;
(f) AMPCO Holding Corporation, a Texas corporation which is
wholly owned by American Maize-Products Decatur Inc.;
(g) AFC International Exporting, Inc., a corporation formed
under the laws of Barbados, which is wholly owned by
American Maize-Products Decatur Inc.;
(h) American Maize Technology, Inc., a Texas corporation,
which is owned by the Company (17%), Swisher
International, Inc. (47%) and Helme Tobacco Company
(36%);
(i) American Maize-Products Decatur Inc., a Delaware
corporation which is wholly owned by the Company; and
(j) American Maize-Products Dimmitt Inc., a Delaware corporation
which is wholly owned by the Company.
Schedule 4.6 Litigation
Application of Helen Z. Steinkraus
In March 1991, an agreement was entered into settling
various lawsuits which concerned disputes between William
Ziegler, III, Helen Z. Steinkraus, GIH Corp. and United States
Trust Company of New York with respect to issues of corporate
governance and management succession of the Company (the
"Settlement Agreement"). Mr. Ziegler is a director and Chairman
of the Board and former Chief Executive Officer of the Company.
Mrs. Steinkraus, the sister of Mr. Ziegler, is the wife of
William C. Steinkraus, a director of the Company. GIH Corp. is a
Delaware corporation which owns a majority of the Class B Common
Stock of the Company and is thereby able to elect 70% of the
Board of Directors. GIH Corp., in turn, is wholly owned by a
group of trusts for the benefit of Mr. Ziegler, Mrs. Steinkraus
and their respective descendants and by Mr. Ziegler, Mrs.
Steinkraus and members of their respective families.
In December 1991, Mrs. Steinkraus commenced an action in the
Surrogate's Court for New York County, New York to enforce the
Settlement Agreement, alleging that the management succession and
other provisions of the Settlement Agreement had been breached by
Mr. Ziegler and by Donald E. McNicol, a former director of the
Company and a party to the Settlement Agreement. Mr. Ziegler and
Mr. McNicol have filed answers and counterclaims against Mrs.
Steinkraus. The court has held hearings from time to time but has
not reached a decision in the matter. During 1992 and 1993, the
Company paid approximately $676,204 to reimburse the
director/defendants for their legal expenses in this matter
pursuant to the Company's By-laws and indemnification agreements.
See discussion below under Eric M. Steinkraus v. William Ziegler,
III, et al. for description of settlement discussions.
Eric M. Steinkraus v. William Ziegler, III, et al.
On February 20, 1992, a lawsuit was filed in Superior Court
for the County of Cumberland, Maine naming as defendants five
then directors of the Company (William Ziegler, III, Leslie C.
Liabo, Charles B. Cook, Jr., Patric J. McLaughlin and Donald E.
McNicol) and naming the Company as a nominal defendant. The
complaint was filed by Eric M. Steinkraus (a son of William C.
Steinkraus and Helen Z. Steinkraus). The plaintiff filed the
action in the right of the Company, personally and on behalf of a
class of the Company's stockholders. The complaint alleges two
counts of breach of fiduciary duty and one count of common law
fraud, and includes derivative and class action allegations. The
charges are based on (a) allegations of deception and concealment
regarding the "forcible retirement" of two directors of the
Company and a proposal to sell the Company's Hammond, Indiana
plant to American Fructose Corporation ("AFC"), a former
subsidiary of the Company which was merged with and into the
Company on February 26, 1993, (b) allegations of actions taken to
prevent the election of a new president of the Company, (c)
allegations of scheming and misrepresentation to cause the
Company to pay fees on behalf of certain of the defendants and
salaries to certain other defendants, and (d) an alleged failure
to disclose what plaintiff characterizes as an unconditional
offer by Archer-Daniels-Midland Company ("ADM") to purchase all
of the Company's stock at a premium.
The lawsuit follows settlement of various litigations
brought against Mr. Ziegler and others in connection with
corporate governance issues relating to the Company and alleges
violations of the settlement agreement terminating those
litigations, which alleged violations are the subject of the
action entitled Application of Helen Z. Steinkraus described
above.
The lawsuit seeks damages in excess of $45,000,000 for the
plaintiff class and damages in excess of $2,000,000 for the
Company together with the return of various fees, salaries and
benefits paid by the Company to the defendant directors and their
affiliates as well as unspecified exemplary damages.
On December 3, 1992 the Court dismissed the action insofar
as it asserted claims in the right of the Company so that the
Company is no longer a defendant. The Court also dismissed a
portion of the complaint against the defendant directors and left
standing the class-action claim alleging breach of fiduciary duty
with respect to the alleged ADM offer. The plaintiff has filed a
motion with the Court seeking permission to appeal the partial
dismissal. During 1992 and 1993, the Company paid approximately
$283,654 to reimburse the director/defendants for their legal
expenses in this matter pursuant to the Company's By-laws and
indemnification agreements.
In April 1993, counsel for the parties have agreed in
principle to settle this case and the lawsuit entitled
Application of Helen Z. Steinkraus discussed above, subject to
agreement by the parties and the Company to the terms of a
definitive settlement agreement and court approvals. Under the
terms of the proposed settlement, which would result in the
dismissal of both cases, the parties would release each other and
the Company from any claims related to the Company and would
covenant not to sue each other or the Company for the next five
years on any claims related to the Company. In addition, the
shares of the Company held by GIH Corp., which control the
election of a majority of the Company's Board of Directors, would
be voted during the next five years in support of a Board having
a majority of Directors who are neither employees of the Company
nor members of the Steinkraus or Ziegler families. The agreement
in principle also provides that the Company would pay $600,000 to
reimburse plaintiffs for a portion of their legal fees. The
Board of Directors of the Company approved the agreement in
principle on April 28, 1993. Thus far the parties have been
unable to agree on the terms of a definitive settlement
agreement.
Grain Processing Corporation v. American Maize-Products Company
On May 12, 1981, Grain Processing Corporation ("GPC")
brought a lawsuit against the Company in the United States
District Court for the Northern District of Indiana alleging
infringement of a patent owned by GPC relating to certain kinds
of waxy starch maltodextrins. The trial court found infringement
as to one small-volume product, which had been discontinued by
the time of the decision. In an appeal by GPC, the Court of
Appeals found that another product also had infringed, in some
instances. The case was sent back to the trial court to
determine how much of the accused product was infringing, to
assess what damages should be paid to GPC, and to rule on GPC's
claims for increased damages and attorney fees.
The GPC patent expired in 1991 and has no present effect on
the Company's activities. The Company has filed a motion, not
yet decided, seeking a ruling that no damages should be paid for
the past because the patent is invalid.
GPC is contending that it should receive damages based on
its lost profits on products not covered by the patent. The
Company contends that if any damages are awarded, they should be
based on a reasonable royalty, because GPC never sold the
patented product. The law on that issue is in conflict at
present.
Because of the Company's undecided motion and the conflict
in the law on damages, no reasonable estimate can be given at
this time as to how much the Company may be required to pay when
this litigation is ultimately resolved, or when that is likely to
occur.
Lloyd T. Whitaker v. Swisher International, Inc.
On April 23, 1992, Lloyd T. Whitaker, the trustee in
bankruptcy for Olympia Holding Corporation a/k/a P-I-E
Nationwide, Inc. ("Olympia") commenced a lawsuit in United States
Bankruptcy Court for the Middle District of Florida against
Swisher seeking recovery of freight charges that allegedly should
have been paid under tariffs filed with the Interstate Commerce
Commission ("ICC"). Actual amounts paid were pursuant to a
separate lower tariff filed with the ICC which the trustee claims
is unlawful. The trustee seeks recovery of approximately
$973,000 plus interest on behalf of Olympia for past shipments.
In September, 1993, the court ruled in a similar case that the
trustee does not have standing to challenge the lower tariff.
Swisher believes that it has meritorious defenses to plaintiff's
claims, and is contesting this litigation vigorously.
U.S. v. The Sanitary District of Hammond, et al.
On August 2, 1993, the United States, on behalf of the U.S.
Environmental Protection Agency (EPA), filed a civil action
against the Company, four other industrial companies and four
municipalities for alleged violations of the Clean Water Act and
the Rivers and Harbors Act. The issue in the suit involves
discharges of industrial and municipal wastewater by the
defendants into the sewage treatment facilities of the City of
Hammond, Indiana and from there into the Grand Calumet River.
The Government is seeking civil penalties in an unspecified
amount for alleged violations of discharge permit limitations,
injunctive relief to require compliance with permit terms, and,
from the Company and the other industrial defendants and the City
of Hammond, additional injunctive relief requiring the
development and implementation of a plan to remediate allegedly
contaminated sediments in the Grand Calumet River.
The Company does not believe that its discharges have caused
or contributed to any sedimentation problem in the Grand Calumet
River, and it has already taken measures to ensure continued
compliance with the terms of its discharge permits. The Company
intends to contest the Government's allegations vigorously.
Internal Revenue Service Potential Tax Claim - American Maize-
Products Company.
In March 1991 American Maize paid approximately $4.2 million
in attorneys' fees for the Ziegler and Steinkraus families in
connection with their settlement of certain litigation between
them relating to the corporate governance and management of
American Maize. A tax deduction was taken by the Company on its
federal income tax return. The 1991 return is currently being
audited by the Internal Revenue Service. If the deduction is
disallowed, potential exposure to the Company is approximately
$1.6 million.
Pickettville Road Landfill Site Group
vs. Swisher International, Inc.
Swisher received a letter in 1991 from the Pickettville Road
Landfill Site Group (the "Group"), which alleged that Swisher was
one of several potentially responsible parties in a superfund
case with respect to the clean up of toxic waste at a landfill in
Jacksonville, Florida. The cost of the clean up was estimated at
$15 million. The Group describes itself as a group of companies
identified by the United States Environmental Protection Agency
("EPA") as being responsible for the clean up. Swisher was not
named by EPA as a potentially responsible party. On November 11,
1991 Swisher's counsel requested EPA to furnish them with any
information to help identify if Swisher had disposed of any toxic
waste. To date no evidence has been presented that would
indicate that the type of materials disposed of by Swisher at the
landfill site were toxic.
In March, 1993, the Group made a settlement proposal
requesting Swisher either to participate actively in the Group or
make a one-time settlement payment in the amount of $375,000 plus
$1,861 in charges and $30,081 in costs. Swisher responded in a
letter dated March 17, 1993 that no records had been submitted
which indicated that Swisher was responsible for disposing of any
toxic waste. The letter also requested that if the Group had
possession of any such records to send Swisher copies. Swisher
is waiting for a response from the Group. To date Swisher has
not been named as a party to the superfund proceeding.
Schedule 4.17 Environmental Matters
U.S. v. The Sanitary District of Hammond, et al.
On August 2, 1993, the United States, on behalf of the U.S.
Environmental Protection Agency (EPA), filed a civil action
against the Company, four other industrial companies and four
municipalities for alleged violations of the Clean Water Act and
the Rivers and Harbors Act. The issue in the suit involves
discharges of industrial and municipal wastewater by the
defendants into the sewage treatment facilities of the City of
Hammond, Indiana and from there into the Grand Calumet River.
The Government is seeking civil penalties in an unspecified
amount for alleged violations of discharge permit limitations,
injunctive relief to require compliance with permit terms, and,
from the Company and the other industrial defendants and the City
of Hammond, additional injunctive relief requiring the
development and implementation of a plan to remediate allegedly
contaminated sediments in the Grand Calumet River.
The Company does not believe that its discharges have caused
or contributed to any sedimentation problem in the Grand Calumet
River, and it has already taken measures to ensure continued
compliance with the terms of its discharge permits. The Company
intends to contest the Government's allegations vigorously.
Pickettville Road Landfill Site Group
vs. Swisher International, Inc.
Swisher received a letter in 1991 from the Pickettville Road
Landfill Site Group, which alleged that Swisher was one of
several potentially responsible parties in a superfund case with
respect to the clean up of toxic waste at a landfill in
Jacksonville, Florida. The cost of the clean up was estimated at
$15 million. The group describes itself as a group of companies
identified by the United States Environmental Protection Agency
as being responsible for the clean up. Swisher was not named by
EPA as a responsible party. On November 11, 1991 Swisher's
counsel requested U.S. EPA to furnish them with any information
to help identify if Swisher had disposed of any toxic waste.
Counsel found nothing that would indicate that the type of
materials disposed of by Swisher at the site were toxic.
March 5, 1993 settlement proposal from the Group requesting
Swisher either to participate actively in the Group or to make a
one-time settlement payment in the amount of $375,000 plus $1,861
in charges and $30,081 in costs. Swisher responded in a letter
dated March 17, 1993 that no records had been submitted which
indicated that Swisher was responsible for disposing of any toxic
waste. The letter also requested that if the Group had
possession of any such records to send Swisher copies. Swisher
is waiting for a response from the Group. To date Swisher has
not been served as a party to the superfund proceeding.
Dimmitt Wastewater Farm
Wastewater from the American Maize-Products Dimmit Inc.
plant is disposed of on a "farm" which is permitted by the Texas
Natural Resource Conservation Commission ("TNRCC"). The Company
has identified elevated levels of nitrates in samples taken from
one of the four monitoring wells located at the farm. Samples
from a second well have also been slightly elevated during some
recent sampling events. The Company has informed the TNRCC of
these results and is voluntarily planning an investigation, with
the knowledge and approval of the TNRCC, to gather additional
information about the source of the nitrates.
Hammond Air Emissions
Division environmental personnel at the Company's Hammond
Plant have been orally informed that the Hammond Environmental
Protection Department intends to issue a formal Notice of
Violation ("NOV") regarding alleged violations of air emission
limitations at the No. 4 starch dryer at the Hammond Plant.
These alleged violations reportedly span a period of time in
excess of one year. To date, no NOV or demand for penalties has
been received and no evaluation of potential exposure is
possible.
Credit Agreement by and among
American Maize-Products Company, the Signatory
Lenders hereto, and The Bank of New York, as Agent
dated as of March 31, 1994
Schedule 8.1
List of Indebtedness
as of the Effective Date
7.875% Senior Notes subject to a
Private Placement due March 3,2003
$125,000,000
Capitalized lease obligation subject to
a plant lease between Dimmitt Agri
Industries, Inc. and the Company
dated as of February 1, 1973,
as amended
$2,363,000
Line of Credit borrowing subject to
an agreement between the Company
and Union Trust Company
$5,000,000
This schedule does not include any
borrowings under the Agreement dated
this date.
Credit Agreement by and among
American Maize-Products Company, the Signatory
Lenders hereto, and The Bank of New York, as Agent
dated as of March 31, 1994
Schedule 8.2
List of Permitted Liens
as of the Effective Date
Certain property at the Dimmitt, Texas
facility covered by the capital lease
obligation noted on Schedule 8.1
$ 2,363,000
Credit Agreement by and among
American Maize-Products Company, the Signatory
Lenders hereto, and The Bank of New York, as Agent
dated as of March 31, 1994
Schedule 8.9
List of Contingent Obligations
as of the Effective Date
Undrawn Letters of Credit issued by the following banks on
behalf of American Maize-Products Company:
o AmSouth Bank N.A. $1,704,146.00
o The Bank of New York $1,509,554.45
o Fleet Bank $1,408,000.00
o Shawmut Bank of Connecticut, N.A. $673,108.72
Real Estate leases on property guaranteed by Swisher
International, Inc., a wholly owned subsidiary of the
Company:
o 246 Main Street
Monroe, CT
Landlord: DMG Enterprises
Expires December 31, 1997
Annual Rent: $438,652, NNN
Subtenant: Frank's Nursery & Crafts, Inc.
o Route 9 and Osborn Hill Road
Wappingers Falls, NY
Landlord: 22 Associates
Expires September 30, 1997
Annual Rent: $406,210, NNN
Subtenant: Frank's Nursery & Crafts, Inc.
o Tucker Drive
Poughkeepsie, NY
Landlord: Tom and Betty Espie
Expires January 14, 1996
Annual Rent: $286,549, NNN
Subtenant: Frank's Nursery & Crafts, Inc.
o 1074 Wolcott Road
Waterbury, CT
Landlord: Fred Dill, Sr., et al.
Expires July 31, 1994
Annual Rent: $59,837, NNN
o Route 22
Pawling, NY
Landlord: Putnam County National Bank
c/o Robert Lusardi, Esq.
Expires May 18, 1998
Annual Rent: $40,000, NNN
Subtenant: Fort Brewster Trading Post
o Route 9
Fishkill, NY
Landlord: Fred Dill, Sr., et. al.
Expires July 31, 1994
Annual Rent: $55,284, NNN
Subtenant: Noah's Ark Antiques
o Route 9
Fishkill, NY
Landlord: Paul Hunt
Expires July 31, 1994
Annual Rent: $39,600, NNN
Subtenant: Noah's Ark Antiques
Credit Agreement by and among
American Maize-Products Company, the Signatory
Lenders hereto, and The Bank of New York, as Agent
dated as of March 31, 1994
Schedule 8.10
List of Investments
as of the Effective Date
Description Rate Par Value Maturity Date
American Maize-Products Company
U.S. Treasury Bill 2.74 150,000 3/31/94
U.S. Treasury Bill 2.83 250,000 3/31/94
U.S. Treasury Bill 2.74 150,000 3/31/94
U.S. Treasury Bill 2.83 250,000 3/31/94
U.S. Treasury Bill 2.74 150,000 3/31/94
U.S. Treasury Bill 3.12 250,000 4/07/94
U.S. Treasury Bill 3.035 250,000 4/07/94
U.S. Treasury Bill 3.10 225,000 4/07/94
U.S. Treasury Bill 3.04 100,000 4/07/94
U.S. Treasury Bill 3.12 175,000 4/07/94
U.S. Treasury Bill 3.10 150,000 4/07/94
U.S. Treasury Bill 3.04 100,000 4/07/94
U.S. Treasury Bill 3.12 150,000 4/07/94
U.S. Treasury Bill 3.10 150,000 4/07/94
AMPCO Holding Corporation
Ford Motor Credit Corporation
Commercial Paper 3.006 1,200,000 4/04/94
General Electric Credit Corporation
Commercial Paper 3.116 850,000 5/05/94
SCHEDULE 9.1(l)
AMERICAN MAIZE-PRODUCTS COMPANY
BOARD OF DIRECTORS RESOLUTIONS
Resolutions adopted April 24, 1992:
RESOLVED: That the Corporation shall not pay any
attorneys' fees or litigation expenses in connection
with the following lawsuits or related future
litigation, unless (i) such fees or expenses are
incurred on behalf of the Corporation and approved by
the General Counsel or (ii) the Corporation is required
to pay such fees or expenses pursuant to binding
indemnification agreements with directors or officers
of the Corporation, the indemnification provisions in
the By-Laws of the Corporation or under applicable law:
- Helen Z. Steinkraus vs. William Ziegler, III,
et al., filed December 23, 1991 in New York
Surrogate's Court (File No. 876/58) (Petition
to enforce settlement agreement).
- Eric M. Stenkraus vs. William Ziegler, III,
et al., filed February 20, 1992 in Superior Court,
Portland, Maine (CV-92-207) (Shareholder
derivative action).
- Philip Steinkraus vs. American Maize, filed
March 16, 1992 in Superior Court, Portland, Maine
(CV-92-314) (Seeks access to shareholder list).
- In the matter of the judicial settlement of
the account of proceedings of the U.S. Trust
Company of New York, Helen M. Rivoire, as executors
of the last will and testament of William Ziegler,
Jr., pending in New York Surrogate's Court (The
"one-share proceeding").
Resolutions adopted April 28, 1993:
RESOLVED, that the terms of the agreement in principle
to settle the Steinkraus/Ziegler litigation pending in
Maine Superior Court (Eric M. Steinkraus v. William
Ziegler, III, et al., CV-92-207) and in New York
Surrogate's Court (Helen Z. Steinkraus v. William
Ziegler, III, et al., File No. 876-58) are hereby
approved in the form presented to this meeting of the
Board of Directors; and further
RESOLVED, that the resolution of the Board of Directors
adopted April 24, 1992, relating to the payment of
attorneys' fees in connection with the lawsuits
described above is hereby amended to permit the payment
by the Corporation of $600,000 to reimburse the
plaintiffs for a portion of their legal fees as part of
the settlement and dismissal of such lawsuits, and that
except to the extent so amended, the April 24, 1992
resolution shall remain in full force and effect; and
further
RESOLVED, that the proper officers of the Corporation
are hereby authorized and directed to obtain the
necessary consents and approvals, including the consent
of The Bank of New York, and prepare, execute, file and
deliver on behalf of the Corporation any notices,
consents, pleadings, agreements, certificates and
documents necessary to consummate the settlement and
dismissal of the lawsuits referred to above and to
perform such other acts as they, or any of them, shall
deem necessary or advisable in order to carry out the
intent of these resolutions.