EXHIBIT 10.20
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NEWELL CO.
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364-DAY CREDIT AGREEMENT
Dated as of August 11, 1994
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$100,000,000
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THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
ROYAL BANK OF CANADA,
as Co-Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS . . . . . . . . . 132
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . 132
1.02 Accounting Terms and Determinations . . . . . . . . . 147
SECTION 2. COMMITMENTS . . . . . . . . . . . . . . . . . . . . . 148
2.01 Syndicated Loans . . . . . . . . . . . . . . . . . . . 148
2.02 Borrowings of Syndicated Loans . . . . . . . . . . . . 148
2.03 Money Market Loans . . . . . . . . . . . . . . . . . . 149
2.04 Acceptances . . . . . . . . . . . . . . . . . . . . . 154
2.05 Changes of Commitments . . . . . . . . . . . . . . . . 159
2.06 Fees . . . . . . . . . . . . . . . . . . . . . . . . . 160
2.07 Lending Offices . . . . . . . . . . . . . . . . . . . 161
2.08 Several Obligations; Remedies Independent . . . . . . 161
2.09 Notes . . . . . . . . . . . . . . . . . . . . . . . . 161
2.10 Prepayments . . . . . . . . . . . . . . . . . . . . . 162
2.11 Extension of Commitment Termination Date . . . . . . . 162
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST . . . . . . . . . 164
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . 164
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . 164
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC. . . 165
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . 165
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . 166
4.03 Computations . . . . . . . . . . . . . . . . . . . . . 167
4.04 Non-Receipt of Funds by the Agent . . . . . . . . . . 167
4.05 Set-off; Sharing of Payments . . . . . . . . . . . . . 168
SECTION 5. YIELD PROTECTION AND ILLEGALITY. . . . . . . . . . . 169
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . 169
5.02 Limitation on Types of Loans . . . . . . . . . . . . . 171
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . 172
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03 . . 172
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . 173
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 174
6.01 Initial Credit Extension . . . . . . . . . . . . . . . 174
6.02 Initial and Subsequent Credit Extensions . . . . . . . 175
SECTION 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 176
7.01 Corporate Existence . . . . . . . . . . . . . . . . . 176
7.02 Financial Condition . . . . . . . . . . . . . . . . . 176
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . 177
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . 177
(129)
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7.05 Corporate Action . . . . . . . . . . . . . . . . . . . 177
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . 177
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . 178
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 178
7.09 Credit Agreements . . . . . . . . . . . . . . . . . . 178
7.10 Hazardous Materials . . . . . . . . . . . . . . . . . 178
7.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 179
7.12 True and Complete Disclosure. . . . . . . . . . . . . 179
7.13 Subsidiaries. . . . . . . . . . . . . . . . . . . . . 180
7.14 Compliance with Law . . . . . . . . . . . . . . . . . 180
SECTION 8. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . 180
8.01 Financial Statements . . . . . . . . . . . . . . . . . 180
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . 183
8.03 Corporate Existence, Etc. . . . . . . . . . . . . . . 183
8.04 Insurance . . . . . . . . . . . . . . . . . . . . . . 184
8.05 Use of Proceeds . . . . . . . . . . . . . . . . . . . 184
8.06 Indebtedness . . . . . . . . . . . . . . . . . . . . . 184
8.07 Fundamental Changes. . . . . . . . . . . . . . . . . . 185
8.08 Liens . . . . . . . . . . . . . . . . . . . . . . . . 186
8.09 Lines of Businesses . . . . . . . . . . . . . . . . . 188
8.10 Interest Coverage Ratio . . . . . . . . . . . . . . . 188
8.11 Total Indebtedness to Total Capital . . . . . . . . . 188
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 188
SECTION 10. THE AGENT; THE CO-AGENT . . . . . . . . . . . . . . 191
10.01 Appointment, Powers and Immunities . . . . . . . . . 191
10.02 Reliance by Agent . . . . . . . . . . . . . . . . . . 192
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . 192
10.04 Rights as a Bank . . . . . . . . . . . . . . . . . . 193
10.05 Indemnification . . . . . . . . . . . . . . . . . . . 193
10.06 Non-Reliance on Agent and Other Banks . . . . . . . . 193
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . 194
10.08 Resignation or Removal of Agent . . . . . . . . . . . 194
10.09 The Co-Agent . . . . . . . . . . . . . . . . . . . . 195
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 195
11.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . 195
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . 195
11.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . 195
11.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . 196
11.05 Assignments and Participations . . . . . . . . . . . 197
11.06 Survival . . . . . . . . . . . . . . . . . . . . . . 199
11.07 Captions . . . . . . . . . . . . . . . . . . . . . . 199
11.08 Counterparts . . . . . . . . . . . . . . . . . . . . 199
11.09 Governing Law; Jurisdiction; Service of Process;
Waiver of Jury Trial; Etc. . . . . . . . . . . . . . . 199
(130)
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11.10 Successors and Assigns . . . . . . . . . . . . . . . 200
Schedule I - List of Indebtedness
Schedule II - List of Liens
Schedule III - Subsidiaries
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B-1 - Form of Opinion of Special Illinois Counsel
EXHIBIT B-2 - Form of Opinion of Dale L. Matschullat, Esq.,
general counsel to the Company and its
Subsidiaries
EXHIBIT C - Form of Opinion of Special New York Counsel to the
Banks and the Agent
EXHIBIT D - Form of Money Market Quote Request
EXHIBIT E - Form of Money Market Quote
EXHIBIT F - Form of Acceptance Quote Request
EXHIBIT G - Form of Acceptance Quote
(131)
364-DAY CREDIT AGREEMENT dated as of August 11, 1994 among:
NEWELL CO., a corporation duly organized and validly existing under
the laws of the State of Delaware (formerly named "New Newell Co.",
together with its successors, the "Company"); ANCHOR HOCKING
CORPORATION, a corporation duly organized and validly existing under
the laws of the State of Delaware (together with its successors,
"Anchor"); NEWELL OPERATING COMPANY, a corporation duly organized and
validly existing under the laws of the State of Delaware (formerly
named "Newell Co.", together with its successors, "Newell"; each of
Anchor and Newell, individually, a "Drawer" and, collectively, the
"Drawers"); each of the banks which is a signatory hereto (together
with its successors and permitted assigns, individually, a "Bank" and,
collectively, the "Banks"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
The Company and the Drawers have requested that the Banks
extend credit to the Company and the Drawers (by making loans to the
Company and creating and discounting bankers acceptances for account
of the Drawers) in an aggregate principal or face amount not exceeding
$100,000,000 at any one time outstanding, and the Banks are prepared
to extend such credit upon the terms hereof. Accordingly, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.
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1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this
Section 1 or in other provisions of this Agreement in the singular to
have the same meanings when used in the plural and vice versa):
"Acceptance" shall mean a draft drawn by a Drawer on a Bank
payable to the order of such Bank in Dollars, conforming with the
requirements of Section 2.04 hereof and accepted by such Bank in
accordance with Section 2.04(f) hereof.
"Acceptance Account Party" shall mean, with respect to any
Acceptance, the Drawer of such Acceptance.
"Acceptance Documents" shall mean, with respect to any
Acceptance, the draft drawn by a Drawer in connection with the
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creation and discount of such Acceptance and all other documents
evidencing or otherwise relating to such Acceptance.
"Acceptance Liability" shall mean, with respect to any
Acceptance, the joint and several obligation of the Company and the
Acceptance Account Party to pay to the Agent at the Principal Office,
for account of the Applicable Lending Office of the Accepting Bank,
the face amount thereof as required by Section 2.04(h) hereof.
"Acceptance Quote" shall have the meaning assigned to such
term in Section 2.04(c) hereof.
"Acceptance Quote Request" shall have the meaning assigned
to such term in Section 2.04(b) hereof.
"Accepting Bank" shall mean, with respect to any Acceptance,
the Bank that created and discounted such Acceptance.
"Adjusted Operating Income" shall mean, for any period, for
the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) the sum of (i) operating
income for such period plus (ii) net income (or minus in the case of
any net loss) from discontinued operations for such period plus
(iii) interest and dividends received in cash during such period;
provided that there shall be excluded from Adjusted Operating Income
any income of any Person that accrued prior to the date it becomes a
Subsidiary of the Company or is merged into or consolidated with the
Company or any Subsidiary of the Company.
"All-In Rate" shall mean, with respect to any Acceptance,
the rate at which any Bank offers to accept and discount such
Acceptance as provided in Section 2.04(f) hereof.
"Applicable Lending Office" shall mean, for each Bank and
for each type of Credit, the lending office of such Bank (or of an
affiliate of such Bank) designated for such type of Credit on the
signature pages hereof or such other office of such Bank (or of an
affiliate of such Bank) as such Bank may from time to time specify to
the Agent and the Company as the office by which its Credits of such
type are (in the case of Loans) to be made and maintained or (in the
case of Acceptances) to be accepted and discounted.
"Applicable Margin" shall mean:
(a) with respect to Base Rate Loans, 0%; and
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(b) with respect to Eurodollar Loans, 1/4 of 1%;
provided that if the financial statements most recently delivered to
the Agent under Section 8.01(a) hereof shall demonstrate that the
Interest Coverage Ratio for the fiscal quarter of the Company to which
such financial statements relate shall be less than 5.5 to 1, then the
term "Applicable Margin" shall, with respect to each Eurodollar Loan,
be increased to 5/16 of 1% during the fiscal quarter commencing
immediately following the day on which such financial statements were
delivered to the Agent under Section 8.01(a) hereof; provided that,
for any day on which any Specified Default shall have occurred and be
continuing, the Applicable Margin with respect to Eurodollar Loans
shall be 5/16 of 1%. Notwithstanding the foregoing for any day on
which more than 50% of the aggregate amount of the Commitments is
utilized, the Applicable Margin with respect to each Eurodollar Loan
shall be increased by 1/16 of 1% over what it otherwise would have
been under the foregoing provisions of this definition.
"ASC Receivables Sale Agreement" shall mean the receivables
sale agreement dated December 3, 1991 among the Company as seller and
collection agent, Asset Securitization Cooperative Corporation as
purchaser and Canadian Imperial Bank of Commerce as administrative
agent, as amended, supplemented and otherwise modified and in effect
from time to time.
"Base Rate" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (a) the Federal Funds Rate for such day
plus 1/2 of 1% and (b) the Prime Rate for such day.
"Base Rate Loans" shall mean Loans which bear interest based
upon the Base Rate.
"Basel Accord" shall mean the proposals for risk-based
capital framework described by the Basel Committee on Banking
Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, supplemented and otherwise
modified and in effect from time to time, or any replacement thereof.
"Basic Documents" shall mean this Agreement and the Notes.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in New York City and, where
such term is used in the definition of "Quarterly Date" in this
Section 1.01 or if such day relates to the determination of rates of
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interest or the giving of notices or quotes in connection with a LIBOR
Auction or to a borrowing of, a payment or prepayment of principal of
or interest on, or the Interest Period for, a Eurodollar Loan or a
LIBOR Market Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment or Interest Period, which is also a day
on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Assets" shall mean all property, plant or equipment
which has been reflected in property, plant or equipment in any
consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP.
"Capital Lease Obligations" shall mean, as to any Person,
the obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or
personal property which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person
under GAAP (including Statement of Financial Accounting Standards No.
13 of the Financial Accounting Standards Board) and, for purposes of
this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans in an aggregate amount at any one
time outstanding equal to the amount set opposite such Bank's name on
the signature pages hereof under the caption "Commitment" (as the same
may be reduced pursuant to Section 2.05 hereof). The original
aggregate principal amount of the Commitments is $100,000,000.
"Commitment Termination Date" shall mean the date 364 days
after the date hereof, as the same may be extended pursuant to Section
2.11 hereof; provided that, if such date is not a Business Day, the
Commitment Termination Date shall be the next preceding Business Day.
"Credit Extension" shall mean (i) the making of any Loan
hereunder and (ii) the creation and discount of any Acceptance
hereunder.
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"Credits" shall mean Loans (which may be Base Rate Loans,
Eurodollar Loans or Money Market Loans) and Acceptance Liabilities.
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Determination Date" shall mean, for any Disposition, the
last day of the fiscal quarter ending on or immediately preceding the
date of such Disposition.
"Disposition" shall have the meaning assigned to that term
in Section 8.07 hereof.
"Disposition Period" shall mean, for any Disposition, a
period of twelve months ending on the date of such Disposition.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Domestic Shipment" shall mean the sale and shipment by a
Drawer to another Person from a location in the United States of
America to another location in the United States of America of a
specified type of goods.
"Environmental Affiliate" shall mean, as to any Person, any
other Person whose liability (contingent or otherwise) for any
Environmental Claim such Person may have retained, assumed or
otherwise become liable (contingently or otherwise), whether by
contract, operation of law or otherwise; provided that each Subsidiary
of such Person, and each former Subsidiary or division of such Person
transferred to another Person, shall in any event be an "Environmental
Affiliate" of such Person.
"Environmental Claim" shall mean, with respect to any
Person, any notice, claim, demand or other communication (whether
written or oral) by any other Person alleging or asserting liability
of such Person for investigatory costs, cleanup costs, governmental
response costs, damages to natural resources or other Property,
personal injuries, fines or penalties arising out of, based on or
resulting from (a) the presence, or release into the environment, of
any hazardous material at any location, whether or not owned by such
Person, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
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"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to
the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, toxic
or hazardous substances or wastes into the environment, including,
without limitation, ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as the
Company or is under common control (within the meaning of
Section 414(c) of the Code) with the Company.
"Eurodollar Loans" shall mean Syndicated Loans the interest
rates on which are determined on the basis of the LIBO Base Rate.
"Event of Default" shall have the meaning assigned to that
term in Section 9 hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day as published by the Federal Reserve
Bank of New York on the 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
so 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 rate charged to Chase on such day on such
transactions as determined by the Agent.
"Final Risk-Based Capital Guidelines" shall mean (i) the
Final Risk-Based Capital Guidelines of the Board of Governors of the
Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R.
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Part 225, Appendix A) and (ii) and the Final Risk-Based Capital
Guidelines of the Office of the Comptroller of the Currency, and any
successor or supplemental regulations (12 C.F.R. Part 3, Appendix A),
and any successor regulations, in each case, as amended, supplemented
and otherwise modified and in effect from time to time.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with the
last sentence of Section 1.02(a) hereof, are to be used in making the
calculations for purposes of determining compliance with the
provisions of this Agreement.
"Guarantee" of any Person shall mean any guarantee,
endorsement, contingent agreement to purchase or to furnish funds for
the payment or maintenance of, or any other contingent liability on or
with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any other Person (including, without
limitation, the liability of such Person in respect of the
Indebtedness of any partnership of which such Person is a general
partner), or the guarantee by such Person of the payment of dividends
or other distributions upon the stock of any other Person, or the
agreement by such Person to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily
for the purpose of enabling any other Person to make payment of its
obligations or to assure a creditor against loss, and the verb
"Guarantee" shall have a correlative meaning, provided that the term
"Guarantee" shall not include endorsements for collection or deposits
in the ordinary course of business.
"Indebtedness" shall mean, as to any Person at any date
(without duplication): (i) indebtedness created, issued, incurred or
assumed by such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments; (ii) all obligations of such
Person to pay the deferred purchase price of property or services,
excluding, however, trade accounts payable (other than for borrowed
money) arising in, and accrued expenses incurred in, the ordinary
course of business of such Person so long as such trade accounts
payable are paid within 120 days of the date the respective goods are
delivered or the services are rendered; (iii) all Indebtedness of
others secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; (iv) all Indebtedness of
others Guaranteed by such Person; (v) all Capital Lease Obligations;
(vi) the Investment Amount (if any); (vii) reimbursement obligations
of such Person (whether contingent or otherwise) in respect of bankers
acceptances, surety or other bonds and similar instruments (other than
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commercial, standby or performance letters of credit); and
(viii) unpaid reimbursement obligations of such Person (other than
contingent obligations) in respect of commercial, standby or
performance letters of credit.
"Indenture" shall mean the Indenture dated as of April 15,
1992 between the Company and Chase, as trustee, as amended and in
effect from time to time.
"Interest Coverage Ratio" shall mean, for any period, the
ratio of (i) the Adjusted Operating Income for such period to
(ii) Interest Expense for such period.
"Interest Expense" shall mean, for any period, the sum, for
the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of (a) all interest paid
during such period in cash, or accrued during such period as an
expense, in respect of Indebtedness (including, without limitation,
imputed interest on Capital Lease Obligations and amortization of
original issue discount) plus (b) all fees or commissions and net
losses payable during such period in respect of any bankers
acceptances, surety bonds, letters of credit or similar instruments
plus (c) the aggregate amount of fees and expenses paid by the Company
during such period pursuant to Article V of the ASC Receivables Sale
Agreement (other than legal fees and expenses paid pursuant to Section
5.2 thereof and the amount of any Collection Agent Fee (as such term
is defined therein) retained by the Company in its capacity as
Collection Agent (as such term is defined therein) pursuant to Section
5.1.4 thereof) plus (d) comparable fees and expenses paid by the
Company during such period under any other Receivables Sales
Agreement.
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loan, the period
commencing on the date such Eurodollar Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company may select as provided in
Section 2.02 hereof, except that each Interest Period which commences
on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
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(b) With respect to any Base Rate Loan, the period
commencing on the date such Base Rate Loan is made and ending on the
date 30 days thereafter.
(c) With respect to any Set Rate Loan, the period
commencing on the date such Set Rate Loan is made and ending on any
Business Day up to 180 days thereafter, as the Company may select as
provided in Section 2.03(b) hereof.
(d) With respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and ending on
the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company may select as provided in
Section 2.03(b) hereof, except that each Interest Period which
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise commence before and end after the Commitment Termination
Date, such Interest Period shall end on the Commitment Termination
Date; (ii) each Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business
Day (or, in the case of an Interest Period for any LIBO Rate Loans, if
such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); and
(iii) notwithstanding clause (i) above, no Interest Period for any
LIBO Rate Loans shall have a duration of less than one month and, if
the Interest Period for any such Loans would otherwise be a shorter
period, such Loans shall not be available hereunder.
"Investment Amount" shall mean the amount described in (i)
clause (1) of the definition of "Investment" in the ASC Receivables
Sale Agreement or (ii) any comparable provision in any other
Receivables Sales Agreement.
"LIBO Base Rate" shall mean, with respect to any LIBO Rate
Loan:
(a) the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) appearing on the Dow Jones Telerate
Service Page 3750 (British Bankers Association Settlement Rate)
(or such other page as may replace that page in that service) as
the London Interbank Offered Rate for Dollar deposits at
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approximately 11:00 a.m. London time (or as soon thereafter as
practicable) two Business Days prior to the first day of the
Interest Period for such Loan, having a term comparable to such
Interest Period and in an amount of $1,000,000 or more; or
(b) if such rate does not appear on the Dow Jones Telerate
Service Page 3750 (or, if said page shall cease to be publicly
available or if the information contained on said page, in the
Agent's reasonable judgment, shall cease accurately to reflect
such London Interbank Offered Rate, as reported by any publicly
available source of similar market data selected by the Agent
that, in the Agent's reasonable judgment, accurately reflects
such London Interbank Offered Rate), the LIBO Base Rate shall
mean, with respect to any LIBO Rate Loan for any Interest Period,
the arithmetic mean, as determined by the Agent, of the rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
quoted by each Reference Bank at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) two Business Days
prior to the first day of the Interest Period for such Loan for
the offering by such Reference Bank to leading banks in the
London interbank market of Dollar deposits having a term
comparable to such Interest Period and in an amount comparable to
the principal amount of the LIBO Rate Loan to be made by such
Reference Bank (or its Applicable Lending Office, as the case may
be) for such Interest Period; provided that (i) if any Reference
Bank is not participating in any Eurodollar Loan, the LIBO Base
Rate for such Loan shall be determined by reference to the amount
of the Loan which such Reference Bank would have made had it been
participating in such Loans, (ii) in determining the LIBO Base
Rate with respect to any LIBOR Market Loan, each Reference Bank
shall be deemed to have made a LIBOR Market Loan in an amount
equal to $1,000,000, (iii) each Reference Bank agrees to use its
best efforts to furnish timely information to the Agent for
purposes of determining the LIBO Base Rate and (iv) if any
Reference Bank does not furnish such timely information for
determination of the LIBO Base Rate, the Agent shall determine
such interest rate on the basis of timely information furnished
by the remaining Reference Banks.
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Margins based on the LIBO Rate
pursuant to Section 2.03 hereof.
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"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of LIBO Rates
pursuant to a LIBOR Auction.
"LIBO Rate" shall mean, for any LIBO Rate Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be equal to the LIBO Base Rate for the
Interest Period for such Loan divided by 1 minus the Reserve
Requirement for such Loan for such Interest Period.
"LIBO Rate Loans" shall mean Eurodollar Loans and
LIBOR Market Loans.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loans" shall mean Money Market Loans and Syndicated Loans.
"Majority Banks" shall mean Banks having at least 66-2/3% of
(i) the aggregate amount of the Commitments and (ii) if the
Commitments shall have been terminated, the aggregate outstanding
principal amount of all Loans and the aggregate outstanding amount of
all Acceptance Liabilities.
"Major Subsidiary" shall mean, at any time, any Subsidiary
of the Company if the revenues of such Subsidiary and its Subsidiaries
for the four consecutive fiscal quarters of such Subsidiary most
recently ended (determined on a consolidated basis without duplication
in accordance with GAAP and whether or not such Person was a
Subsidiary of the Company during all or any part of the fiscal period
of the Company referred to below) exceed an amount equal to 7-1/2% of
the revenues of the Company and its Subsidiaries for the four
consecutive fiscal quarters of the Company most recently ended
(determined on a consolidated basis without duplication in accordance
with GAAP and including such Subsidiary and its Subsidiaries on a pro
forma basis if such Subsidiary was not a Subsidiary of the Company).
"Material Adverse Effect" shall mean a material adverse
effect on (i) the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole), (ii) the ability of the Company or any of its Subsidiaries to
perform its obligations under any of the Basic Documents to which it
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is a party or (iii) the validity or enforceability of any of the Basic
Documents.
"Maturity Date" shall mean, with respect to any Acceptance,
the maturity date of the draft whose acceptance by the Accepting Bank
created such Acceptance.
"Money Market Borrowing" shall have the meaning assigned to
that term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning assigned to
that term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 2.03 hereof.
"Money Market Margin" shall have the meaning assigned to
that term in Section 2.03(c)(ii)(C) hereof.
"Money Market Quote" shall have the meaning assigned to that
term in Section 2.03(c) hereof.
"Money Market Quote Request" shall have the meaning assigned
to that term in Section 2.03(b) hereof.
"Money Market Rate" shall have the meaning assigned to that
term in Section 2.03(c)(ii)(D) hereof.
"Multiemployer Plan" shall mean a Plan defined as such in
Section 3(37) of ERISA to which contributions are being made, or have
been made since January 1, 1980 by the Company or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Net Worth" shall mean, at any time, the consolidated
stockholders' equity of the Company and its Subsidiaries determined on
a consolidated basis without duplication in accordance with GAAP.
"Non-Strategic Property" shall mean Property acquired as
part of the acquisition of a business made after the date hereof that
is designated by resolution of the Board of Directors of the Company
adopted no later than six months after such acquisition as non-
strategic Property.
"Notes" shall mean the promissory notes provided for by
Section 2.09 hereof.
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"Obligor" shall mean the Company and each Drawer.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all its functions under ERISA.
"Person" shall mean an individual, a corporation, a company,
a voluntary association, a partnership, a trust, an unincorporated
organization or a government or any agency, instrumentality or
political subdivision thereof.
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and
which is covered by Title IV of ERISA, other than a Multiemployer
Plan.
"Post-Default Rate" shall mean, in respect of any principal
of any Loan, the amount of any Acceptance Liability or any other
amount payable by the Company under this Agreement or any Note which
is not paid when due (whether at stated maturity, by acceleration or
otherwise), a rate per annum during the period commencing on the due
date until such amount is paid in full equal to the sum of 2% plus the
Base Rate as in effect from time to time plus the Applicable Margin
for Base Rate Loans (provided that, if such amount in default is
principal of a LIBO Rate Loan or a Set Rate Loan and the due date is a
day other than the last day of the Interest Period therefor, the
"Post-Default Rate" for such principal shall be, for the period
commencing on the due date and ending on the last day of the Interest
Period therefor, 2% above the interest rate for such Loan as provided
in Section 3.02 hereof and, thereafter, the rate provided for above in
this definition).
"Prime Rate" shall mean the rate of interest from time to
time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of the
Agent and Chase presently located at 1 Chase Manhattan Plaza, New
York, New York 10081.
"Property" shall mean any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible (including, without limitation, shares
of capital stock).
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"Quarterly Dates" shall mean the last Business Day of each
March, June, September and December, the first of which shall be the
first such day after the date of this Agreement.
"Receivables Sale Agreement" shall mean (i) the
ASC Receivables Sale Agreement and (ii) any other comparable agreement
providing for the periodic sales of accounts receivable.
"Reference Banks" shall mean Chase and Royal Bank of Canada.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as the
same may be amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Bank,
any change after the date of this Agreement in United States Federal,
state or foreign law or regulations (including Regulation D) or the
adoption or making after such date of any interpretations, directives
or requests applying to a class of banks including such Bank of or
under any United States Federal, state or foreign law or regulations
(whether or not having the force of law) by any court or governmental
or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" shall mean, for any Interest Period
for any LIBO Rate Loan, the effective maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation
D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO
Base Rate is to be determined or (ii) any category of extensions of
credit or other assets which includes LIBO Rate Loans.
"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Rates pursuant to Section 2.03
hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Money Market Rates
pursuant to a Set Rate Auction.
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"Significant Subsidiary" shall mean, at any time, any
Subsidiary of the Company if the revenues of such Subsidiary and its
Subsidiaries for the four consecutive fiscal quarters of such
Subsidiary most recently ended (determined on a consolidated basis
without duplication in accordance with GAAP and whether or not such
Person was a Subsidiary of the Company during all or any part of the
fiscal period of the Company referred to below) exceed an amount equal
to 5% of the revenues of the Company and its Subsidiaries for the four
consecutive fiscal quarters of the Company most recently ended
(determined on a consolidated basis without duplication in accordance
with GAAP and including such Subsidiary and its Subsidiaries on a pro
forma basis of such Subsidiary was not a Subsidiary of the Company).
"Specified Default" shall mean any Default under Sections
8.01(a) or 8.01(b) hereof.
"Subsidiary" of any Person shall mean any corporation of
which at least a majority of the outstanding shares of stock having by
the terms thereof ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether or not
at the time stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or
controlled by such Person and/or one or more of the Subsidiaries of
such Person. "Wholly-Owned Subsidiary" shall mean any such
corporation of which all such shares, other than directors' qualifying
shares, are so owned or controlled.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof.
"Syndicated Notes" shall mean the promissory notes provided
for by Section 2.09(a) hereof.
"Tenor" shall mean, with respect to any Acceptance, the
period from the date of such Acceptance to the Maturity Date of such
Acceptance.
"Total Capital" shall mean the sum of (i) Net Worth plus
(ii) Total Indebtedness.
"Total Consolidated Assets" shall mean, as at any time, the
total of all the assets appearing on the consolidated balance sheet of
the Company and its Subsidiaries determined in accordance with
generally accepted accounting principles applicable to the type of
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business in which the Company and such Subsidiaries are engaged, and
may be determined as of a date, selected by the Company, not more than
sixty days prior to the happening of the event for which such
determination is being made.
"Total Indebtedness" shall mean, as at any time, the total
Indebtedness of the Company and its Subsidiaries determined on a
consolidated basis without duplication.
1.02 Accounting Terms and Determinations.
(a) All accounting terms used herein shall be interpreted,
and, unless otherwise disclosed to the Banks in writing at the time of
delivery thereof in the manner described in subsection (b) below, all
financial statements and certificates and reports as to financial
matters required to be delivered to the Banks hereunder shall be
prepared, in accordance with generally accepted accounting principles
applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Banks hereunder after
the date hereof (or, until such financial statements are furnished,
consistent with those used in the preparation of the financial
statements referred to in Section 7.02(a) hereof). All calculations
made for the purposes of determining compliance with the terms of
Sections 8.07(a)(vii), 8.10 and 8.11 hereof shall, except as otherwise
expressly provided herein, be made by application of generally
accepted accounting principles applied on a basis consistent with
those used in the preparation of the annual or quarterly financial
statements furnished to the Banks pursuant to Section 8.01 hereof (or,
until such financial statements are furnished, consistent with those
used in the preparation of the financial statements referred to in
Section 7.02(a) hereof) unless (i) the Company shall have objected to
determining such compliance on such basis at the time of delivery of
such financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements
delivered under Section 8.01 hereof, shall mean the financial
statements referred to in Section 7.02(a) hereof).
(b) The Company shall deliver to the Banks at the same time
as the delivery of any annual or quarterly financial statement under
Section 8.01 hereof (i) a description in reasonable detail of any
material variation between the application of accounting principles
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employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next
preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference
between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, the
Company shall not change the last day of its fiscal year from
December 31, or the last days of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30,
respectively.
SECTION 2. COMMITMENTS.
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2.01 Syndicated Loans. Each Bank severally agrees, on the
terms of this Agreement, to make loans to the Company during the
period from and including the date hereof to and including the
Commitment Termination Date in an aggregate principal amount at any
one time outstanding up to but not exceeding the amount of such Bank's
Commitment as then in effect. Subject to the terms of this Agreement,
during such period the Company may borrow, repay and reborrow the
amount of the Commitments; provided that the aggregate outstanding
principal amount of all Syndicated Loans and all Money Market Loans,
together with the aggregate outstanding amount of Acceptance
Liabilities, at any one time shall not exceed the aggregate amount of
the Commitments at such time; and provided, further, that there may be
no more than fifteen (15) different Interest Periods for both
Syndicated Loans and Money Market Loans outstanding at the same time
(for which purpose Interest Periods described in different lettered
clauses of the definition of the term "Interest Period" shall be
deemed to be different Interest Periods even if they are coterminous).
The Syndicated Loans may be Base Rate Loans or Eurodollar Loans (each
a "type" of Syndicated Loan).
2.02 Borrowings of Syndicated Loans. The Company shall
give the Agent (which shall promptly notify the Banks) notice of each
borrowing hereunder of Syndicated Loans, which notice shall be
irrevocable and effective only upon receipt by the Agent, shall
specify with respect to the Syndicated Loans to be borrowed (i) the
aggregate amount (which shall be at least $1,000,000 in the case of
Base Rate Loans and $5,000,000 in the case of Eurodollar Loans and in
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an integral multiple of $1,000,000 in excess thereof), (ii) the type
and date (which shall be a Business Day) and (iii) (in the case of
Eurodollar Loans) the duration of the Interest Period therefor, and
each such notice shall be given not later than 11:00 a.m. New York
time on the day which is not less than the number of Business Days
prior to the date of such borrowing specified below opposite the type
of such Loans:
Type Number of Business Days
---------------- -----------------------
Base Rate Loans 0
Eurodollar Loans 3
Not later than 2:00 p.m. New York time on the date specified for each
Syndicated Loan borrowing hereunder, each Bank shall make available
the amount of the Syndicated Loan to be made by it on such date to the
Agent, at the Principal Office, in immediately available funds. The
amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, promptly be made available to the
Company by depositing the same, in immediately available funds, in an
account of the Company maintained with Chase at the Principal Office
designated by the Company.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the
Company may, as set forth in this Section 2.03, request the Banks to
make offers to make Money Market Loans to the Company. The Banks may,
but shall have no obligation to, make such offers and the Company may,
but shall have no obligation to, accept any such offers in the manner
set forth in this Section 2.03. Money Market Loans may be LIBOR
Market Loans or Set Rate Loans (each a "type" of Money Market Loan),
provided that:
(i) there may be no more than fifteen (15) different
Interest Periods for both Syndicated Loans and Money Market Loans
outstanding at the same time (for which purpose Interest Periods
described in different lettered clauses of the definition of the
term "Interest Period" shall be deemed to be different Interest
Periods even if they are coterminous); and
(ii) the aggregate outstanding principal amount of all Money
Market Loans and all Syndicated Loans, together with the
aggregate outstanding amount of all Acceptance Liabilities, at
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any one time shall not exceed the aggregate amount of the
Commitments at such time.
(b) When the Company wishes to request offers to make Money
Market Loans, it shall give the Agent (which shall promptly notify the
Banks) notice in the form of Exhibit E hereto (a "Money Market Quote
Request") so as to be received no later than 11:00 a.m. New York time
on (x) the fifth Business Day prior to the date of borrowing proposed
therein in the case of a LIBOR Auction or (y) the Business Day next
preceding the date of borrowing proposed therein, in the case of a Set
Rate Auction, specifying:
(i) the proposed date of such borrowing (a "Money Market
Borrowing"), which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $5,000,000 (or an integral multiple of
$1,000,000 in excess thereof) but shall not cause the limits
specified in Section 2.03(a) hereof to be violated;
(iii) the duration of the Interest Period applicable thereto;
and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Rate.
The Company may request offers to make Money Market Loans
for up to three different Interest Periods in a single Money Market
Quote Request; provided that the request for each separate Interest
Period shall be deemed to be a separate Money Market Quote Request for
a separate Money Market Borrowing. Except as otherwise provided in
the preceding sentence, no Money Market Quote Request shall be given
within five Business Days of any other Money Market Quote Request.
(c) (i) Any Bank may, by notice to the Agent in the form
of Exhibit F hereto (a "Money Market Quote"), submit an offer to make
a Money Market Loan in response to any Money Market Quote Request;
provided that, if the Company's request under Section 2.03(b) hereof
specified more than one Interest Period, such Bank may make a single
submission containing a separate offer for each such Interest Period
and each such separate offer shall be deemed to be a separate Money
Market Quote. Each Money Market Quote must be submitted to the Agent
not later than (x) 2:00 p.m. New York time on the fourth Business Day
prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 11:00 a.m. New York time on the proposed date of
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borrowing, in the case of a Set Rate Auction; provided that any Money
Market Quote submitted by Chase (or its Applicable Lending Office) may
be submitted, and may only be submitted, if Chase (or such Applicable
Lending Office) notifies the Company of the terms of the offer
contained therein not later than (x) 1:00 p.m. New York time on the
fourth Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) 10:45 a.m. New York time on the
proposed date of borrowing, in the case of a Set Rate Auction.
Subject to Sections 5.03, 6.02 and 9 hereof, any Money Market Quote so
made shall be irrevocable except with the written consent of the Agent
given on the instructions of the Company.
(ii) Each Money Market Quote shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
(x) may be greater than or less than the Commitment of the
quoting Bank, (y) must be in an integral multiple of
$1,000,000, and (z) may not exceed the principal amount of
the Money Market Borrowing for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed
as a percentage (rounded to the nearest 1/10,000th of 1%) to
be added to or subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded to the nearest 1/10,000th of 1%)
(the "Money Market Rate") offered for each such Money Market
Loan; and
(E) the identity of the quoting Bank.
No Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Money Market Quote Request and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Company
of all (or some specified minimum) of the principal amount of the
Money Market Loan for which such Money Market Quote is being made;
provided that the submission of any Bank containing more than one
Money Market Quote may be conditioned on the Company not accepting
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offers contained in such submission that would result in such Bank
making Money Market Loans pursuant thereto in excess of a specified
aggregate amount (the "Money Market Loan Limit").
(d) The Agent shall (x) in the case of a Set Rate Auction,
as promptly as practicable after the Money Market Quote is submitted
(but in any event not later than 11:15 a.m. New York time) or (y) in
the case of a LIBOR Auction, by 4:00 p.m. New York time on the day a
Money Market Quote is submitted, notify the Company of the terms
(i) of any Money Market Quote submitted by a Bank that is in
accordance with Section 2.03(c) hereof and (ii) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the
same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Company shall
specify (A) the aggregate principal amount of the Money Market
Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Margins or Money Market Rates, as
the case may be, so offered by each Bank (identifying the Bank that
made each Money Market Quote).
(e) Not later than (x) 11:00 a.m. New York time on the
third Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) noon New York time on the proposed date
of borrowing, in the case of a Set Rate Auction, the Company shall
notify the Agent of its acceptance or nonacceptance of the offers so
notified to it pursuant to Section 2.03(d) hereof (which notice shall
specify the aggregate principal amount of offers from each Bank for
each Interest Period that are accepted; and the failure of the Company
to give such notice by such time shall constitute non-acceptance) and
the Agent shall promptly notify each affected Bank of the acceptance
or non-acceptance of its offers. The notice by the Agent shall also
specify the aggregate principal amount of offers for each Interest
Period that were accepted. The Company may accept any Money Market
Quote in whole or in part (provided that any Money Market Quote
accepted in part from any Bank shall be in an integral multiple of
$1,000,000); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
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(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $5,000,000 (or an integral multiple
of $1,000,000 in excess thereof) but shall not cause the limits
specified in Section 2.03(a) hereof to be violated);
(iii) acceptance of offers may, subject to clause (v) below,
only be made in ascending order of Money Market Margins or Money
Market Rates, as the case may be;
(iv) the Company may not accept any offer where the Agent
has advised the Company that such offer fails to comply with
Section 2.03(c)(ii) hereof or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
Section 2.03(a) hereof); and
(v) the aggregate principal amount of each Money Market
Borrowing from any Bank may not exceed any applicable Money
Market Loan Limit of such Bank.
If offers are made by two or more Banks with the same Money Market
Margins or Money Market Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted shall
be allocated by the Company among such Banks as nearly as possible (in
an integral multiple of $1,000,000) in proportion to the aggregate
principal amount of such offers. Determinations by the Company of the
amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted in accordance with the terms and conditions of this
Section 2.03 shall, not later than 2:00 p.m. New York time on the date
specified for the making of such Loan, make the amount of such Loan
available to the Agent at the Principal Office in immediately
available funds. The amount so received by the Agent shall, subject
to the terms and conditions of this Agreement, promptly be made
available to the Company on such date by depositing the same, in
immediately available funds, in an account of the Company maintained
with Chase at the Principal Office designated by the Company.
(g) The amount of any Money Market Loan made by any Bank
shall not constitute a utilization of such Bank's Commitment.
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2.04 Acceptances.
(a) In addition to borrowings of Loans, each Drawer may, as
set forth in this Section 2.04, request the Banks to make offers to
create and discount Acceptances that arise out of Domestic Shipments.
The Banks may, but shall have no obligation to, make such offers in
the manner provided in this Section 2.04, and the Drawer submitting
any such request may, but shall have no obligation to, accept any such
offers made in response to such request, provided that:
(i) the aggregate outstanding amount of all Acceptance
Liabilities, together with the aggregate outstanding principal
amount of all Loans, at any one time shall not exceed the
aggregate amount of the Commitments at such time; and
(ii) in no event shall the Maturity Date of any Acceptance
occur on or after the Commitment Termination Date.
(b) When a Drawer wishes to request offers to create and
discount Acceptances, it shall give the Agent (which shall promptly
notify the Banks) notice in the form of Exhibit G hereto (an
"Acceptance Quote Request") so as to be received by the Agent no later
than 11:00 a.m. New York time on the Business Day next preceding the
date proposed therein for the creation and discount of such
Acceptances, specifying:
(i) the aggregate face amount of such Acceptances (which
shall be at least $5,000,000 or any integral multiple of $100,000
in excess thereof);
(ii) the Tenor of such Acceptances (which in any event may
not exceed six months);
(iii) the type and C.I.F. value of the goods out of whose
Domestic Shipment such Acceptances will arise;
(iv) the date of shipment (which in any event may not be
more than 30 days prior to the date proposed in the Acceptance
Quote Request for the creation and discount of such Acceptances);
(v) the city and state of origin of shipment; and
(vi) the city and state of destination of shipment.
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Each Acceptance Quote Request shall constitute a certification by a
Drawer, with respect to the Acceptances requested in such Acceptance
Quote Request, to the effect set forth below:
(i) such Acceptances will arise out of a Domestic Shipment;
(ii) the aggregate face amount of such Acceptances will not
exceed the aggregate C.I.F. value of the goods included in such
Domestic Shipment;
(iii) no other financing has been or will be outstanding with
respect to such Domestic Shipment;
(iv) the Maturity Date of such Acceptances will be
reasonably commensurate with the date on which payment for the
goods included in such Domestic Shipment will become due (which
Tenor constitutes credit terms that are (x) customarily given by
the relevant Drawer and (y) usual in the industry in which such
Drawer operates);
(v) the goods included in such Domestic Shipment have been
shipped within 30 days prior to the date of such Acceptance;
(vi) the goods included in such Domestic Shipment have been
shipped either (x) from one State of the United States to another
State or (y) in the case of a shipment within one State of the
United States, not less than 25 miles from the location of origin
of such Domestic Shipment; and
(vii) such Domestic Shipment does not involve a retail sale
to a consumer.
No Acceptance Quote Request shall be given within five Business Days
of any other Acceptance Quote Request.
(c) (i) Any Bank may, by submitting a notice to the Agent
in the form of Exhibit H hereto (an "Acceptance Quote"), offer to
create and discount Acceptances in response to any Acceptance
Quote Request. Each Acceptance Quote must be submitted to the
Agent not later than 11:00 a.m. New York time on the proposed
date of creation and discount of the relevant Acceptances;
provided that any Acceptance Quote submitted by Chase (or its
Applicable Lending Office) may be submitted, and may only be
submitted, if Chase (or such Applicable Lending Office) notifies
the Drawer that submitted the relevant Acceptance Quote Request
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of the terms of the offer contained in such Acceptance Quote not
later than 10:45 a.m. New York time on the proposed date of
creation and discount of the relevant Acceptances. Subject to
Sections 6.02 and 9 hereof, any Acceptance Quote so made shall be
irrevocable except with the written consent of the Agent given on
the instructions of the Drawer that requested the submission of
such Acceptance Quote.
(ii) No Acceptance Quote shall propose terms other than or
in addition to those requested in the applicable Acceptance Quote
Request and, in particular, no Acceptance Quote may be
conditioned upon acceptance by the Drawer that requested the
submission of such Acceptance Quote of all (or some specified
minimum) of the aggregate face amount of the Acceptances
requested in the relevant Acceptance Quote Request; provided that
the minimums specified in Section 2.04(e) hereof shall apply.
(d) The Agent shall, as promptly as practicable (but in any
event not later than 11:15 a.m. New York time), notify the Drawer
submitting an Acceptance Quote Request of the terms (i) of any
Acceptance Quote submitted by a Bank in response to such Acceptance
Quote Request that is in accordance with Section 2.04(c) hereof and
(ii) of any Acceptance Quote that amends, modifies or is otherwise
inconsistent with a previous Acceptance Quote submitted by such Bank
with respect to the same Acceptance Quote Request. Any such
subsequent Acceptance Quote shall be disregarded by the Agent unless
such subsequent Acceptance Quote is submitted solely to correct a
manifest error in such former Acceptance Quote. The Agent's notice to
the Drawer that submitted an Acceptance Quote Request shall specify
(A) the aggregate face amount of the Acceptances for which offers have
been received in response thereto and (B) the aggregate face amount
and All-In Rate for the Acceptances each Bank has offered to create
and discount in response to such Acceptance Quote Request (identifying
the Bank that made each Acceptance Quote).
(e) Not later than noon New York time on the proposed date
of creation and discount of Acceptances, the Drawer requesting the
creation and discount of such Acceptances shall notify the Agent of
its acceptance or nonacceptance of the offers for the creation and
discount of such Acceptances so notified to it pursuant to
Section 2.04(d) hereof (which notice shall specify the aggregate face
amount of Acceptances that are accepted with respect to each Bank
whose offer is accepted in whole or in part; and the failure of the
Drawer to give such notice by such time shall constitute non-
acceptance) and the Agent shall promptly notify each affected Bank of
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the acceptance or non-acceptance of its offer. The notice by the
Agent shall also specify the aggregate face amount of Acceptances that
were accepted. The Drawer that submitted an Acceptance Quote Request
may accept any Acceptance Quote submitted in response thereto in whole
or in part (provided that any Acceptance Quote accepted in part from
any Bank shall be at least equal to $1,000,000 or an integral multiple
of $100,000 in excess thereof); provided that:
(i) the aggregate face amount of the Acceptances created
and discounted may not exceed the aggregate face amount of
Acceptances for which Acceptance Quotes are requested in the
related Acceptance Quote Request;
(ii) acceptance of offers may only be made in ascending
order of their respective All-In Rates; and
(iii) no offer may be accepted if the Agent has advised the
Drawer that such offer fails to comply with Section 2.04(c)(ii)
hereof or otherwise fails to comply with the requirements of this
Agreement (including, without limitation, Section 2.04(a)
hereof).
If offers are made by two or more Banks in response to an Acceptance
Quote Request with the same All-In Rates for an aggregate face amount
of Acceptances that is, together with the aggregate face amount of
Acceptances offered with lower All-In Rates, greater than the
aggregate face amount of Acceptances permitted to be accepted as
provided in clause (i) of the proviso to the immediately preceding
sentence, the aggregate face amount of Acceptances in respect of which
such offers with the same
All-In Rates are accepted shall be allocated by the Drawer that
submitted such Acceptance Quote Request among such Banks as nearly as
possible (in a minimum amount of $1,000,000 or any integral multiple
of $100,000 in excess thereof) in proportion to the aggregate face
amount of such offers.
(f) Any Bank whose offer to create and discount Acceptances
has been accepted in a specified aggregate amount shall, not later
than 2:00 p.m. New York time on the date specified for the creation
and discount of such Acceptances:
(i) create such Acceptances in such aggregate amount by the
acceptance at the Applicable Lending Office of such Bank of a
draft or drafts in the form customarily employed by such Bank in
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creating bankers acceptances (the denomination of each such
Acceptance to be selected by such Bank in its sole discretion);
(ii) discount such Acceptances at the All-In Rate specified
for such Acceptances in the applicable Acceptance Quote;
(iii) give the Agent notice of the creation and discount of
such Acceptances, specifying the aggregate face amount thereof
and All-In Rate therefor; and
(iv) pay to the Agent for account of such Drawer an amount
equal to the proceeds of such discount.
The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be promptly made available by the Agent
to such Drawer by depositing the same, in immediately available funds,
in an account of such Drawer maintained with Chase at the Principal
Office designated by such Drawer.
(g) The amount of any Acceptance Liability with respect to
any outstanding Acceptance made by any Bank shall not constitute a
utilization of such Bank's Commitment.
(h) With respect to any Acceptance created and discounted
hereunder, the Company and the Acceptance Account Party
unconditionally and jointly and severally agree to pay to the Agent,
for account of the Applicable Lending Office of the Accepting Bank, on
the Maturity Date of such Acceptance, or on such earlier date as may
be required pursuant to the terms of this Agreement, the face amount
of such Acceptance. The Agent shall maintain on its books accounts
showing the aggregate face amount of the Acceptance Liabilities owing
from time to time to the Banks hereunder. If either the Company or
the Acceptance Account Party shall default in the payment in full when
due (whether at stated maturity, by acceleration or otherwise) of any
Acceptance Liability, the Company and the Acceptance Account Party
unconditionally and jointly and severally agree to pay interest on the
amount in default from the due date thereof until such amount is paid
in full (such amount to be payable on demand of the Accepting Bank,
through the Agent, in respect of which such amount is due) at a rate
per annum equal to the Post-Default Rate.
(i) Each Drawer hereby appoints each Bank to be, and each
Bank hereby accepts such appointment to be, such Drawer's true and
lawful attorney-in-fact for and on behalf of such Drawer to sign in
the name of such Drawer, as drawer, drafts naming such Bank as drawee
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and payee and otherwise in the form customarily employed by such Bank
in creating bankers acceptances, and to complete such drafts as to
amount, date and maturity (in such numbers and denominations as such
Bank is hereby authorized to determine) in accordance with the
acceptance by such Drawer under Section 2.04(e) hereof of such Bank's
offer to create and discount Acceptances.
(j) At the request of any Bank (through the Agent) that is
a member of the Federal Reserve System or that is a Federal or state
branch or agency of a foreign bank subject to reserve requirements
under Section 7 of the International Banking Act of 1978, the Company
shall cause the relevant Drawer to provide, and the relevant Drawer
shall provide, such Bank such documents as may be necessary
(including, without limitation, contracts of sale, bills of lading and
invoices) to demonstrate to such Bank and the Board of Governors of
the Federal Reserve System the truth of the certifications made
pursuant to the second sentence of Section 2.04(b) hereof upon
submission by such Drawer of any Acceptance Quote Request.
(k) The Company hereby agrees to indemnify each Bank from,
and hold each of them harmless against, any and all losses,
liabilities, claims, damages, costs or expenses incurred by any of
them in the event that any of the certifications made pursuant to the
second sentence of Section 2.04(b) hereof proves to have been
incorrect in any material respect, including, without limitation, any
losses, liabilities, claims, damages, costs or expenses attributable
to any Acceptance created and discounted by such Bank failing to
comply with all applicable provisions of law and all regulations,
rulings and interpretations of the Board of Governors of the Federal
Reserve System regarding bankers acceptances eligible for discount and
purchase by a Federal Reserve Bank.
2.05 Changes of Commitments.
(a) Unless theretofore reduced to such amount pursuant to
paragraphs (b) and (c) below, the aggregate amount of the Commitments
shall automatically be reduced to zero on the Commitment Termination
Date.
(b) The Company shall have the right to terminate or reduce
permanently the amount of the Commitments at any time or from time to
time upon not less than three Business Days' prior notice to the Agent
(which shall promptly notify the Banks) of each such termination or
reduction, which notice shall specify the effective date thereof and
the amount of any such reduction (which shall be in an integral
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multiple of $5,000,000) and shall be irrevocable and effective only
upon receipt by the Agent; provided that the Company may not at any
time (i) terminate the Commitments if Loans or Acceptance Liabilities
are then outstanding or (ii) reduce the aggregate amount of the
Commitments below the sum of the aggregate outstanding principal
amount of the Loans plus the aggregate unpaid amount of all Acceptance
Liabilities.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.06 Fees. The Company shall, if the financial statements
of the Company most recently delivered to the Agent under
Section 8.01(a) hereof (or, until the first financials are delivered
under Section 8.01(a) hereof, the quarterly financial statements
referred to in Section 7.02(a) hereof) demonstrate that the Interest
Coverage Ratio for the fiscal quarter to which such financial
statements relate shall fall within one of the ranges set forth below,
pay to the Agent for account of each Bank a facility fee on such
Bank's pro rata (based on its Commitment) portion of the aggregate
Commitments at the rate per annum set forth below opposite such range
for all of the fiscal quarter (or such portion thereof as Commitments
are outstanding) immediately following the fiscal quarter to which
such financial statements relate:
Interest Coverage Ratio Facility Fee
----------------------- ------------
5.5 to 1 or greater 2/25 of 1%
less than 5.5 to 1 1/10 of 1%
provided that, for any period during which any Specified Default shall
have occurred and be continuing, a facility fee shall be payable at a
rate per annum equal to 1/10 of 1%; provided further that, if the
Company shall terminate the Commitments in any fiscal quarter before
receipt of the financial statements under Section 8.01(a) for the
immediately preceding fiscal quarter, a facility fee shall be payable
for the fiscal quarter in which such termination occurred (to such
termination) at the rate applicable to the prior fiscal quarter.
Accrued facility fee shall be payable on each Quarterly Date in
arrears and on the earlier of the date the Commitments are terminated
and the Commitment Termination Date.
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2.07 Lending Offices. The Loans of each type made by each
Bank shall be made and maintained at such Bank's Applicable Lending
Office for Loans of such type. The Acceptances created and discounted
by each Bank shall be created and discounted at such Bank's Applicable
Lending Office for Acceptances.
2.08 Several Obligations; Remedies Independent. The
failure of any Bank to make any Syndicated Loan to be made by it on
the date specified therefor shall not relieve any other Bank of its
obligation to make its Syndicated Loan on such date, and no Bank shall
be responsible for the failure of any other Bank to make a Loan or
create and discount an Acceptance to be made or created and discounted
by such other Bank. The amounts payable by the Company at any time
hereunder and under the Notes to each Bank shall be a separate and
independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it
shall not be necessary for any other Bank or the Agent to consent to,
or be joined as an additional party in, any proceedings for such
purposes.
2.09 Notes.
(a) The Syndicated Loans made by any Bank shall be
evidenced by a single promissory note of the Company in substantially
the form of Exhibit A-1 hereto, dated the date of its delivery to the
Agent, payable to such Bank in a principal amount equal to the amount
of its Commitment as originally in effect on the date hereof and
otherwise duly completed. The date, amount, type, interest rate and
maturity date of each Syndicated Loan made by each Bank, and all
payments made on account of the principal thereof, shall be recorded
by such Bank on its books and, prior to any transfer of such Note held
by it, endorsed by such Bank on the schedule attached to such Note or
any continuation thereof; provided that the failure of such Bank to
make any such recordation or endorsement shall not affect the
obligations of the Company to make any payment when due of any amount
owing hereunder or under such Note in respect of the Loans to be
evidenced by such Note.
(b) The Money Market Loans made by any Bank shall be
evidenced by a single promissory note of the Company in substantially
the form of Exhibit A-2 hereto, dated the date of its delivery to the
Agent, payable to such Bank and otherwise duly completed. The date,
amount, type, interest rate and maturity date of each Money Market
Loan made by each Bank, and all payments made on account of the
principal thereof, shall be recorded by such Bank on its books and,
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prior to any transfer of such Note held by it, endorsed by such Bank
on the schedule attached to such Note or any continuation thereof;
provided that the failure of such Bank to make any such recordation or
endorsement shall not affect the obligations of the Company to make
any payment when due of any amount owing hereunder or under such Note
in respect of the Loans to be evidenced by such Note.
(c) No Note may be subdivided, whether by exchange for
promissory notes of lesser denominations or otherwise except in
connection with a permitted assignment of a portion of the Loans
evidenced thereby pursuant to Section 11.05(b) hereof.
2.10 Prepayments. The Company may prepay Base Rate Loans
and Acceptance Liabilities upon not less than one Business Day's prior
notice to the Agent (which shall promptly notify the Banks), which
notice shall specify the prepayment date (which shall be a Business
Day) and the amount of the prepayment (which, in the case of partial
prepayments, shall be in an integral multiple of $1,000,000) and shall
be irrevocable and effective only upon receipt by the Agent, provided
that interest on the principal of any Base Rate Loans prepaid, accrued
to the prepayment date, shall be paid on the prepayment date. The
Company may not voluntarily prepay any LIBO Rate Loans or Set Rate
Loans (provided that this sentence shall not affect the Company's
obligation to prepay Loans pursuant to Section 9 of this Agreement).
2.11 Extension of Commitment Termination Date. (a) The
Company may, by notice to the Agent (which shall promptly deliver a
copy to each of the Banks) not less than 60 days and not more than 90
days prior to the Commitment Termination Date then in effect hereunder
(the "Existing Commitment Termination Date"), request that the Banks
extend the Commitment Termination Date for an additional 364 days from
the Consent Date (as defined below). Each Bank, acting in its sole
discretion, shall, by notice to the Company and the Agent given on the
date (and, subject to the proviso below, only on the date) 30 days
prior to the Existing Commitment Termination Date (provided, if such
date is not a Business Day, then such notice shall be given on the
next succeeding Business Day) (the "Consent Date"), advise the Company
whether or not such Bank agrees to such extension; provided that each
Bank that determines not to extend the Commitment Termination Date (a
"Non-extending Bank") shall notify the Agent (which shall notify the
Company) of such fact promptly after such determination (but in any
event no later than the Consent Date) and any Bank that does not
advise the Company on or before the Consent Date shall be deemed to be
a Non-extending Bank. The election of any Bank to agree to such
extension shall not obligate any other Bank to agree.
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(b) The Company shall have the right on or before the
Existing Commitment Termination Date to replace each Non-extending
Bank with, and otherwise add to this Agreement, one or more other
banks (which may include any Bank, each prior to the Existing
Commitment Termination Date an "Additional Commitment Bank") with the
approval of the Agent (which approval shall not be unreasonably
withheld), each of which Additional Commitment Banks shall have
entered into an agreement in form and substance satisfactory to the
Company and the Agent pursuant to which such Additional Commitment
Bank shall, effective as of the Existing Commitment Termination Date,
undertake a Commitment (if any such Additional Commitment Bank is a
Bank, its Commitment shall be in addition to such Bank's Commitment
hereunder on such date).
(c) If (and only if) Banks holding Commitments that,
together with the additional Commitments of the Additional Commitment
Banks that will become effective on the Existing Commitment
Termination Date, aggregate at least 90% of the aggregate amount of
the Commitments (not including the additional Commitments of the
Additional Commitment Banks) on the Consent Date shall have agreed on
the Consent Date to extend the Existing Commitment Termination Date,
then, effective as of the Existing Commitment Termination Date, the
Existing Commitment Termination Date shall be extended to the date
falling 364 days after the Consent Date (provided, if such date is not
a Business Day, then such Commitment Termination Date as so extended
shall be the next preceding Business Day) and each Additional
Commitment Bank shall thereupon become a "Bank" for all purposes of
this Agreement.
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any
Bank unless:
(i) no Default shall have occurred and be continuing on
each of the date of the notice requesting such extension, on the
Consent Date or on the Existing Commitment Termination Date;
(ii) each of the representations and warranties of the
Company in Section 7 hereof shall be true and correct on and as
of each of the date of the notice requesting such extension, the
Consent Date and the Existing Commitment Termination Date with
the same force and effect as if made on and as of each such date
(or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific
date); and
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(iii) each Non-extending Bank shall have been paid in full by
the Company all amounts owing to such Bank hereunder on or before
the Existing Commitment Termination Date.
Even if the Existing Commitment Termination Date is extended as
aforesaid, the Commitment of each Non-extending Bank shall terminate
on the Existing Commitment Termination Date.
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
-----------------------------------
3.01 Repayment of Loans. The Company will pay to the Agent
for account of each Bank the principal of each Loan made by such Bank,
and such Loan shall mature, on the last day of the Interest Period
therefor.
3.02 Interest.
(a) The Company will pay to the Agent for account of each
Bank interest on the unpaid principal amount of each Loan made by such
Bank for the period commencing on the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following
rates per annum:
(i) if such Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time);
(ii) if such Loan is a Eurodollar Loan, the LIBO Rate for
such Loan for the Interest Period therefor plus the Applicable
Margin;
(iii) if such Loan is a LIBOR Market Loan, the LIBO Rate for
such Loan for the Interest Period therefor plus (or minus) the
Money Market Margin quoted by the Bank making such Loan in
accordance with Section 2.03 hereof; and
(iv) if such Loan is a Set Rate Loan, the Money Market Rate
for such Loan for the Interest Period therefor quoted by the Bank
making such Loan in accordance with Section 2.03 hereof.
Notwithstanding the foregoing, the Company will pay to the Agent for
account of each Bank interest at the applicable Post-Default Rate on
any principal of any Loan made by such Bank or any Acceptance
Liability owing to such Bank, and (to the fullest extent permitted by
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law) on any other amount payable by the Company hereunder or under the
Note held by such Bank to or for account of such Bank, which shall not
be paid in full when due (whether at stated maturity, by acceleration
or otherwise), for the period commencing on the due date thereof until
the same is paid in full.
(b) Accrued interest on each Loan shall be payable on the
last day of the Interest Period therefor and, if such Interest Period
is longer than three months, at three-month intervals following the
first day of such Interest Period, except that interest payable at the
Post-Default Rate shall be payable from time to time on demand.
(c) Promptly after the determination of any LIBO Rate
provided for herein, the Agent shall (i) notify the Banks to which
interest at such LIBO Rate is payable and the Company thereof and (ii)
at the request of the Company, furnish to the Company a copy of the
Dow Jones Telerate Service Page on the basis of which the relevant
LIBO Base Rate was determined. At any time that the Agent determines
the LIBO Rate on a basis other than using the Dow Jones Telerate
Service, the Agent shall promptly notify the Company.
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
------------------------------------------------
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the
Company under this Agreement and the Notes, and all payments to be
made by each Acceptance Account Party in respect of its Acceptance
Liabilities, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Agent at the
Principal Office, not later than 2:00 p.m. New York time on the date
on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) If the Company or any Acceptance Account Party shall
default in the payment when due of any principal, interest or other
amounts to be made by the Company or such Acceptance Account Party (as
the case may be) under this Agreement or the Notes, any Bank for whose
account any such payment is to be made may (but shall not be obligated
to) debit the amount of any such payment due such Bank which is not
made by such time to any ordinary deposit account of the Company or
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such Acceptance Account Party (as the case may be) with such Bank
(with notice to the Company or such Acceptance Account Party, as the
case may be, and the Agent).
(c) The Company and each Acceptance Account Party shall, at
the time of making each payment under this Agreement or any Note for
account of any Bank, specify to the Agent the Loans, Acceptance
Liabilities or other amounts payable by it hereunder to which such
payment is to be applied (and in the event that the payor fails to so
specify, or if an Event of Default has occurred and is continuing,
such Bank may apply such payment received by it from the Agent to such
amounts then due and owing to such Bank as such Bank may determine).
(d) Each payment received by the Agent under this Agreement
or any Note for account of any Bank shall be paid promptly to such
Bank, in immediately available funds.
(e) If the due date of any payment under this Agreement or
any Note would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and
interest shall be payable for any principal so extended for the period
of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing from the Banks of Syndicated
Loans under Section 2.01 hereof shall be made from the Banks, each
payment of fees under Section 2.06 hereof shall be made for account of
the Banks, and each termination, reduction or extension of the amount
of the Commitments under Section 2.05 hereof shall be applied to the
Commitments of the Banks, pro rata according to the amounts of their
respective Commitments; (b) each payment of principal of Syndicated
Loans by the Company shall be made for account of the Banks pro rata
in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by the Banks; and (c) each payment of interest
on Syndicated Loans by the Company shall be made for account of the
Banks pro rata in accordance with the amounts of interest due and
payable to the respective Bank; provided that, if an Event of Default
shall have occurred and be continuing, each payment of principal of
and interest on the Loans and Acceptance Liabilities and other amounts
owing hereunder by the Company shall be made for account of the Banks
pro rata in accordance with the aggregate amounts of all principal of
and interest on the Loans and Acceptance Liabilities and all other
amounts owing hereunder by the Company then due and payable to the
respective Bank.
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4.03 Computations. Interest on Set Rate Loans, LIBO Rate
Loans, All-In Rates and the fees payable pursuant to Section 2.06
hereof shall be computed on the basis of a year of 360 days and actual
days elapsed (including the first day but excluding the last day)
occurring in the period for which payable, and interest on Base Rate
Loans shall be computed on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
4.04 Non-Receipt of Funds by the Agent. Unless the Agent
shall have been notified by a Bank, the Company or any Acceptance
Account Party (each, a "Payor") prior to the time by, and on the date
on, which such Payor is scheduled to make payment to the Agent of (in
the case of a Bank) the proceeds of a Loan to be made or the discount
of any Acceptance to be created by it hereunder or (in the case of the
Company or an Acceptance Account Party) a payment to the Agent for
account of one or more of the Banks hereunder (such payment being
herein called the "Required Payment"), which notice shall be effective
upon receipt, that it does not intend to make the Required Payment to
the Agent, the Agent may assume that the Required Payment has been
made and may, in reliance upon such assumption (but shall not be
required to), make the amount thereof available to the intended
recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Agent, the recipient(s) of such payment shall,
on demand, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Agent
to but not including the date the Agent recovers such amount (the
"Advance Period") at a rate per annum equal to (a) if the recipient is
the Company or a Drawer, the Base Rate in effect on such day and
(b) if the recipient is a Bank, the Federal Funds Rate in effect on
such day; and, if such recipient(s) shall fail promptly to make such
payment, the Agent shall be entitled to recover such amount, on
demand, from the Payor, together with interest thereon for each day
during the Advance Period at a rate per annum equal to (i) if the
Payor is the Company or an Acceptance Account Party, the rate of
interest payable on the Required Payment as provided in the second
sentence of Section 3.02(a) hereof and (ii) if the Payor is a Bank,
during the period commencing on the date such amount was so made
available to but excluding the date three Business Days following such
date, the Federal Funds Rate in effect on such day and, thereafter,
the Base Rate in effect on such day.
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4.05 Set-off; Sharing of Payments.
(a) Each of the Company and each Acceptance Account Party
agrees that, in addition to (and without limitation of) any right of
set-off, bankers' lien or counterclaim a Bank may otherwise have, each
Bank shall be entitled, at its option, to offset balances held by it
for account of the Company or such Acceptance Account Party (as the
case may be) at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Bank's
Loans (in the case of the Company) or on any of Acceptance Liabilities
owing to such Bank hereunder (in the case of the Company and the
relevant Acceptance Account Party) which is not paid when due
(regardless of whether such balances are then due to the Company or
such Acceptance Account Party, as the case may be), in which case it
shall promptly notify the Company or such Acceptance Account Party, as
the case may be, and the Agent thereof, provided that such Bank's
failure to give such notice shall not affect the validity thereof.
(b) If any Bank shall obtain payment of any principal of or
interest on any Syndicated Loan made by it to the Company under this
Agreement through the exercise of any right of set-off, bankers' lien
or counterclaim or similar right or otherwise, and, as a result of
such payment, such Bank shall have received a greater percentage of
the amounts then due hereunder by the Company to such Bank in respect
of Syndicated Loans than the percentage received by any other Banks,
it shall promptly purchase from such other Banks participations in
(or, if and to the extent specified by such Bank, direct interests in)
the Syndicated Loans made by such other Banks (or in the interest
thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that
all the Banks shall share the benefit of such excess payment (net of
any expenses which may be incurred by such Bank in obtaining or
preserving such excess payment) pro rata in accordance with the unpaid
principal and interest on the Syndicated Loans held by each of the
Banks. To such end all the Banks shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored. The
Company agrees that any Bank so purchasing a participation (or direct
interest) in the Syndicated Loans made by other Banks (or in the
interest thereon, as the case may be) may exercise all rights of
set-off, bankers' lien, counterclaim or similar rights with respect to
such participation as fully as if such Bank were a direct holder of
Loans (or in the interest thereon, as the case may be) in the amount
of such participation. Nothing contained herein shall require any
Bank to exercise any such right or shall affect the right of any Bank
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to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the Company.
If under any applicable bankruptcy, insolvency or other similar law,
any Bank receives a secured claim in lieu of a set-off to which this
Section 4.05 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this
Section 4.05 to share in the benefits of any recovery on such secured
claim.
SECTION 5. YIELD PROTECTION AND ILLEGALITY.
--------------------------------
5.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time
to time such amounts as such Bank may determine to be necessary to
compensate such Bank for any costs that such Bank determines are
attributable to its making or maintaining of any LIBO Rate Loans or
its obligation to make any LIBO Rate Loans hereunder, or any reduction
in any amount receivable by such Bank hereunder in respect of any of
such Loans or such obligation (such increases in costs and reductions
in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or its Notes in respect of any of
such Loans (other than taxes imposed on or measured by the
overall net income of such Bank or of its Applicable Lending
Office for any of such Loans by the jurisdiction in which such
Bank has its principal office or such Applicable Lending Office);
or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized
in the determination of the LIBO Rate for such Loan) relating to
any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Bank (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "LIBO Base Rate" in Section 1.01 hereof), or any
commitment of such Bank (including, without limitation, the
Commitment of such Bank hereunder); or
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(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or
its Commitment.
If any Bank requests compensation from the Company under this
Section 5.01(a), the Company may, by notice to such Bank (with a copy
to the Agent), suspend the obligation of such Bank thereafter to make
LIBO Rate Loans until the Regulatory Change giving rise to such
request ceases to be in effect (in which case the provisions of
Section 5.04 hereof shall be applicable), provided that such
suspension shall not affect the right of such Bank to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason of
any Regulatory Change, any Bank either (i) incurs Additional Costs
based on or measured by the excess above a specified level of the
amount of a category of deposits or other liabilities of such Bank
that includes deposits by reference to which the interest rate on LIBO
Rate Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Bank that includes
LIBO Rate Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if
such Bank so elects by notice to the Company (with a copy to the
Agent), the obligation of such Bank to make LIBO Rate Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions
of this Section 5.01 (but without duplication), the Company shall pay
directly to each Bank from time to time on request such amounts as
such Bank may determine to be necessary to compensate such Bank (or,
without duplication, the bank holding company of which such Bank is a
subsidiary) for any costs that it determines are attributable to the
maintenance by such Bank (or any Applicable Lending Office or such
bank holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) heretofore or hereafter issued by any
government or governmental or supervisory authority implementing at
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the national level the Basel Accord (including, without limitation,
the Final Risk-Based Capital Guidelines), of capital in respect of its
Commitment, Loans or Acceptance Liabilities (such compensation to
include, without limitation, an amount equal to any reduction of the
rate of return on assets or equity of such Bank (or any Applicable
Lending Office or such bank holding company) to a level below that
which such Bank (or any Applicable Lending Office or such bank holding
company) would have achieved with respect to its Commitment, Loans or
Acceptance Liabilities but for such law, regulation, interpretation,
directive or request).
(d) Each Bank shall notify the Company of any event
occurring after the date of this Agreement entitling such Bank to
compensation under paragraph (a) or (c) of this Section 5.01 as
promptly as practicable, but in any event within 45 days, after such
Bank obtains actual knowledge thereof. If any Bank fails to give such
notice within 45 days after it obtains actual knowledge of such an
event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such
event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such
Bank does give such notice. Each Bank will designate a different
Applicable Lending Office for the Loans of such Bank affected by such
event if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole opinion of such
Bank, be disadvantageous to such Bank, except that such Bank shall
have no obligation to designate an Applicable Lending Office located
in the United States of America. Each Bank will furnish to the
Company a certificate setting forth the basis and amount of each
request by such Bank for compensation under paragraph (a) or (c) of
this Section 5.01. Determinations and allocations by any Bank for
purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) or (b) of this Section 5.01, or of the
effect of capital maintained pursuant to paragraph (c) of this
Section 5.01, on its costs or rate of return of maintaining Loans or
its obligation to make Loans, or on amounts receivable by it in
respect of Loans, and of the amounts required to compensate such Bank
under this Section 5.01, shall be conclusive absent manifest error,
provided that such determinations and allocations are made on a
reasonable basis.
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5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if:
(a) the LIBO Base Rate is to be determined under clause
(ii) of the first sentence of the definition of "LIBO Base Rate"
and the Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant
deposits referred to in such clause (ii) are not being provided
in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for LIBO Rate Loans as
provided herein; or
(b) the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR Market
Loan, determines) which determination shall be conclusive, and
notify (or notifies, as the case may be) the Agent that the
relevant rates of interest referred to in the definition of "LIBO
Base Rate" in Section 1.01 hereof do not adequately cover the
cost to such Banks (or such quoting Bank) of making or
maintaining its LIBO Rate Loans;
then the Agent shall give the Company and each Bank prompt notice
thereof, and so long as such condition remains in effect, the Banks
(or such quoting Bank) shall be under no obligation to make additional
LIBO Rate Loans.
5.03 Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Bank or
its Applicable Lending Office to honor its obligation to make or
maintain LIBO Rate Loans hereunder, then such Bank shall promptly
notify the Company thereof (with a copy to the Agent) and such Bank's
obligation to make Eurodollar Loans shall be suspended until such time
as such Bank may again make and maintain Eurodollar Loans (in which
case the provisions of Section 5.04 hereof shall be applicable), and
such Bank shall no longer be obligated to make any LIBOR Market Loan
that it has offered to make.
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03.
If the obligation of any Bank to make any LIBO Rate Loans shall be
suspended pursuant to Section 5.01 or 5.03 hereof (Loans of such type
being herein called "Affected Loans" and such type being herein called
the "Affected Type"), all Loans (other than Money Market Loans) which
would otherwise be made by such Bank as Loans of the Affected Type
shall be made instead as Base Rate Loans (and, if an event referred to
in Section 5.01(b) or 5.03 hereof has occurred and such Bank so
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requests by notice to the Company with a copy to the Agent, all
Affected Loans of such Bank then outstanding shall be automatically
converted into Base Rate Loans on the date specified by such Bank in
such notice) and, to the extent that Affected Loans are so made as (or
converted into) Base Rate Loans, all payments of principal which would
otherwise be applied to such Bank's Affected Loans shall be applied
instead to its Base Rate Loans.
5.05 Compensation. The Company shall pay to the Agent for
account of each Bank, upon the request of such Bank through the Agent,
such amount or amounts as shall be sufficient (in the reasonable
opinion of such Bank) to compensate it for any loss, cost or expense
which such Bank determines are attributable to:
(a) any payment or conversion of a LIBO Rate Loan or a Set
Rate Loan made by such Bank for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9
hereof) on a date other than the last day of the Interest Period
for such Loan;
(b) any failure by the Company for any reason (excluding
only failure due solely to a default by any Bank or the Agent in
its obligation to provide funds to the Company hereunder but
including, without limitation, the failure of any of the
conditions precedent specified in Section 6 hereof to be
satisfied) to borrow a LIBO Rate Loan or a Set Rate Loan from
such Bank on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 or
2.03(b) hereof; or
(c) any failure for any reason (excluding only failure due
solely to a default by any Bank or the Agent in its obligation to
provide funds to the Company hereunder but including, without
limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) for an Acceptance
to be created and discounted on the date on which such Acceptance
is to be created and discounted as specified in the notice given
by the Drawer requesting the creation and discount of such
Acceptance to the Agent under Section 2.04(e) hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include, in the case of a Loan, an amount equal to
the excess, if any, of (i) the amount of interest which otherwise
would have accrued on the principal amount so paid or converted or not
borrowed for the period from the date of such payment, conversion or
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failure to borrow to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, the Interest Period for such
Loan which would have commenced on the date specified for such
borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the interest component of the amount such Bank
would have bid in the London interbank market for Dollar deposits of
lending banks in amounts comparable to such principal amount and with
maturities comparable to such period (as reasonably determined by such
Bank).
SECTION 6. CONDITIONS PRECEDENT.
---------------------
6.01 Initial Credit Extension. The obligation of the Banks
to make the initial Credit Extension hereunder is subject to the
receipt by the Agent of the following documents, each of which shall
be satisfactory to the Agent in form and substance:
(a) Certified copies of the charter and by-laws of each
Obligor and all corporate action taken by each Obligor approving
(i) in the case of the Company, this Agreement and the Notes,
borrowings by the Company and the creation and discount of
Acceptances and (ii) in the case of each Drawer, this Agreement
and the creation and discount of Acceptances in respect of which
such Drawer is obligated hereunder (including, without
limitation, a certificate setting forth the resolutions of the
Board of Directors of each Obligor adopted in respect of the
transactions contemplated hereby and thereby).
(b) A certificate of each Obligor in respect of each of the
officers (i) who is authorized to sign (in the case of the
Company) this Agreement, the Notes and Money Market Quote
Requests, (in the case of the Drawers) this Agreement, the drafts
furnished to the Banks pursuant to Section 2.04(i) hereof and
Acceptance Quote Requests on its behalf, as the case may be, and
(ii) who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the
purposes of signing documents and giving notices and other
communications in connection herewith and with the Notes and the
transactions contemplated hereby and thereby. The Agent and each
Bank may conclusively rely on such certificate until it receives
notice in writing from such Obligor to the contrary.
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(c) A certificate, dated the date of the initial Credit
Extension, of a senior officer of the Company to the effect set
forth in clauses (a) and (b) of the first sentence of
Section 6.02 hereof.
(d) An opinion, dated the date hereof, of Schiff, Hardin &
Waite, special Illinois counsel to the Obligors, substantially in
the form of Exhibit B-1 hereto (and the Obligors hereby instruct
such counsel to deliver such opinion to the Banks and the Agent);
and an opinion, dated the date hereof, of Dale L. Matschullat,
Esq., general counsel to the Company, substantially in the form
of Exhibit B-2 hereto (and the Company hereby instructs such
counsel to deliver such opinion to the Banks and the Agent).
(e) An opinion, dated the date hereof, of Milbank, Tweed,
Hadley & McCloy, special New York counsel to the Banks and the
Agent, substantially in the form of Exhibit C hereto.
(f) The Notes, duly completed and executed by the Company.
(g) Such other documents as the Agent or any Bank or
special New York counsel to the Banks may reasonably request.
6.02 Initial and Subsequent Credit Extensions. The
obligation of any Bank to make any Credit Extension hereunder
(including, without limitation, the initial Credit Extension
hereunder) is subject to the further conditions precedent that, as of
the date of such Credit Extension and after giving effect thereto and
the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company
in Section 7 hereof shall be true on and as of the date of such
Credit Extension with the same force and effect as if made on and
as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of
such specific date).
Each notice of borrowing by the Company hereunder and each Acceptance
Quote Request shall constitute a certification by the Company to the
effect set forth in the preceding sentence (both as of the date of
such notice and, unless the Company otherwise notifies the Agent prior
to the date of such Credit Extension, as of the date of such Credit
Extension).
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SECTION 7. REPRESENTATIONS AND WARRANTIES. The Company
-------------------------------
represents and warrants to the Banks that:
7.01 Corporate Existence. Each of the Company and its
Significant Subsidiaries: (a) is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power, and has all
material governmental licenses, authorizations, consents and
approvals, necessary to own its assets and carry on its business as
now being or as proposed to be conducted; and (c) is qualified to do
business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure
so to qualify would have a material adverse effect on the consolidated
financial condition, operations, business or prospects of the Company
and its Subsidiaries (taken as a whole).
7.02 Financial Condition.
(a) The consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1993 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon of Arthur Andersen & Co., and the unaudited
consolidated balance sheet of the Company and its Subsidiaries as at
March 31, 1994 and the related consolidated statements of income, cash
flows and stockholders' equity of the Company and its Subsidiaries for
the three-month period ended on such date, heretofore furnished to
each of the Banks, are complete and correct and fairly present the
consolidated financial condition of the Company and its Subsidiaries
as at said dates and the consolidated results of their operations for
the fiscal year and three-month period ended on said dates (subject,
in the case of such financial statements as at March 31, 1994, to
normal year-end audit adjustments), all in accordance with generally
accepted accounting principles. Neither the Company nor any of its
Subsidiaries had on said dates any material contingent liabilities,
material liabilities for taxes, material unusual forward or long-term
commitments or material unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or
provided for in said balance sheets as at said dates.
(b) Since December 31, 1993, there has been no material
adverse change in the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole).
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7.03 Litigation. To the best knowledge and belief of the
Company, there are no legal or arbitral proceedings or any proceedings
by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the
Company or any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect.
7.04 No Breach. None of the making or performance of this
Agreement, the Notes or any Acceptance Document, or the consummation
of the transactions herein or therein contemplated, will conflict with
or result in a breach of, or require any consent under, the charter or
by-laws of any Obligor or any applicable law or regulation, or any
order, writ, injunction or decree of any court or governmental
authority or agency, or any agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them
is bound or to which any of them is subject, or constitute a default
under any such agreement or instrument, or constitute a tortious
interference with any agreement, or result in the creation or
imposition of any Lien upon any of the revenues or assets of the
Company or any of its Subsidiaries pursuant to the terms of any such
agreement or instrument.
7.05 Corporate Action. Each of the Company and each Drawer
has all necessary corporate power and authority to make and perform
its obligations under this Agreement, (in the case of the Company) the
Notes and (in the case of each Drawer) each of the Acceptance
Documents to which it is a party; the making and performance (in the
case of the Company and each Drawer) this Agreement, (in the case of
the Company) the Notes and (in the case of each Drawer) each
Acceptance Document to which such Drawer is a party, have been duly
authorized by all necessary corporate action on their respective
parts; and this Agreement has been duly and validly executed and
delivered by the Company and each Drawer and constitutes, and each of
the Notes when executed and delivered by the Company for value will
constitute, and each Acceptance Document when executed and delivered
by each Drawer party thereto will constitute its legal, valid and
binding obligation, enforceable in accordance with their respective
terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally.
7.06 Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency are necessary for the execution,
delivery or performance by (i) the Company of this Agreement or the
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Notes or any Acceptance Document, or (ii) any Drawer of this Agreement
or any Acceptance Document or for the validity or enforceability of
any thereof.
7.07 Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U or X of the Board of
Governors of the Federal Reserve System), and no part of the proceeds
of any Credit Extension hereunder will be used in a manner that will
cause the Company to violate said Regulation X or any Bank to violate
said Regulation U.
7.08 ERISA. Each of the Company and each ERISA Affiliate
has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each of its Plans and is (and to
the best of its knowledge in the case of any Multiemployer Plan is) in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability
on account of the termination of any of its Plans to the PBGC or any
of its Plans and has not incurred any withdrawal liability to any
Multiemployer Plan.
7.09 Credit Agreements. Schedule I hereto is a complete
and correct list, as of the date of this Agreement, of each credit
agreement, loan agreement, indenture, purchase agreement, Guarantee or
other arrangement (other than a letter of credit) providing for or
otherwise relating to any extension of credit (or commitment for any
extension of credit) to, or Guarantee by, the Company or any
Subsidiary of any of them the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $1,000,000 and the
aggregate principal or face amount outstanding or which may become
outstanding under each such arrangement is correctly described in said
Schedule I.
7.10 Hazardous Materials. The Company and each of its
Subsidiaries have obtained all permits, licenses and other
authorizations that are required under all Environmental Laws, except
to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. The Company
and each of its Subsidiaries are in compliance with the terms and
conditions of all such permits, licenses and authorizations, and are
also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
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schedules and timetables contained in any applicable Environmental Law
or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply would not have a
Material Adverse Effect. Except as heretofore disclosed to the Banks,
there have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or that are in the
possession of the Company or any of its Subsidiaries with respect to
any property or facility now or previously owned or leased by the
Company or any of its Environmental Affiliates which reveal facts or
circumstances that could reasonably be expected to have a Material
Adverse Effect.
7.11 Taxes. The Company and its Subsidiaries are members
of an affiliated group of corporations filing consolidated returns for
Federal income tax purposes, of which the Company is the "common
parent" (within the meaning of Section 1504 of the Code) of such
group. The Company and its Subsidiaries have filed all Federal income
tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion
of the Company, adequate. The United States Federal income tax
returns of the Company and its Subsidiaries have been examined and/or
closed through the fiscal years of the Company and its Subsidiaries
ended on or before December 31, 1985. The Company has not given or
been requested to give a waiver of the statute of limitations relating
to the payment of Federal, state, local and foreign taxes or other
impositions except that with respect to the Company's 1986 and 1987
tax years there has been an extension in the statute of limitations
relating to the payment of Federal taxes through December 31, 1993 and
with respect to the Company's 1988 and 1989 tax years there has been
such an extension through September 15, 1994.
7.12 True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of the Company to the Banks in connection with
the negotiation, preparation or delivery of this Agreement or included
herein or delivered pursuant hereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in
light of the circumstances under which they are made, not misleading.
All written information furnished after the date hereof by the Company
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and its Subsidiaries to the Banks in connection with this Agreement
and the transactions contemplated hereby will be true, complete and
accurate in every material respect, or (in the case of projections)
based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse
Effect that has not been disclosed herein or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing
furnished to the Banks for use in connection with the transactions
contemplated hereby.
7.13 Subsidiaries. Set forth in Schedule III hereto is a
complete and correct list, as of the date of this Agreement, of all of
the Subsidiaries of the Company, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding ownership interests in such Subsidiary and
(iii) the nature of the ownership interests held by each such Person
and the percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Schedule III hereto, (x)
each of the Company and its Subsidiaries owns, free and clear of
Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Schedule
III hereto and (y) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully
paid and nonassessable.
7.14 Compliance with Law. As of the date of this
Agreement, the Company and its Subsidiaries are in material compliance
with all applicable laws and regulations, except to the extent that
failure to comply therewith would not have a Material Adverse Effect.
SECTION 8. COVENANTS OF THE COMPANY. The Company agrees
-------------------------
that, so long as any of the Commitments are in effect and until
payment in full of all Loans and all Acceptance Liabilities hereunder,
all interest thereon and all other amounts payable by the Company
hereunder:
8.01 Financial Statements. The Company shall deliver to
each of the Banks:
(a) as soon as available and in any event within 60 days
after the end of each of the fiscal quarterly periods of each
fiscal year of the Company, consolidated statements of income,
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cash flows and stockholders' equity of the Company and its
Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form
the corresponding figures for the corresponding period in the
preceding fiscal year, and accompanied by a certificate of a
senior financial officer of the Company, which certificate shall
state that said financial statements fairly present the
consolidated financial condition and results of operations of the
Company and its Subsidiaries, in accordance with generally
accepted accounting principles, as at the end of (and for) such
period (subject to normal year-end audit adjustments).
(b) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting
forth in each case in comparative form the corresponding figures
for the preceding fiscal year, and accompanied by an opinion
thereon of independent certified public accountants of recognized
national standing, which opinion shall state that said financial
statements fairly present the consolidated financial condition
and results of operations of the Company and its Subsidiaries, in
accordance with generally accepted accounting principles, as at
the end of (and for) such fiscal year, and a certificate of such
accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default.
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any,
which the Company shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange.
(d) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements,
reports and proxy statements so mailed.
(e) as soon as possible, and in any event within ten days
after the Company knows or has reason to know that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan of the Company have occurred or exist, a
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statement signed by a senior financial officer of the Company
setting forth details respecting such event or condition and the
action, if any, which the Company or any ERISA Affiliate proposes
to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC by the Company or such
ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC has not
by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence
of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302
of ERISA shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of
the Code);
(ii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any
Plan if at the date of such filing or termination the fair
market value of the assets of such Plan, as determined by
the Plan's independent actuaries, is exceeded by the present
value as determined by such actuaries as of such date, of
benefit commitments under such Plan by more than $1,000,000
(including any prior terminations subject to this
provision);
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan of the
Company, of the receipt by the Company or any
ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company
or any ERISA Affiliate under Section 4201 or 4204 of ERISA
from a Multiemployer Plan causing any withdrawal liability
in excess of $500,000 (including any prior withdrawals
subject to this provision), or the receipt by the Company or
any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to
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terminate or has terminated under Section 4041A of ERISA;
and
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days.
(f) promptly after the Company knows or has reason to know
that any Default has occurred, a notice of such Default,
describing the same in reasonable detail.
(g) from time to time such other information regarding the
business, affairs or financial condition of the Company or any of
its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required
to be filed under ERISA) as any Bank or the Agent may reasonably
request.
The Company will furnish to each Bank, at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of the Company (i) to the
effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in
reasonable detail) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in
compliance with Sections 8.06, 8.07(a)(vii), 8.08 (xiii), 8.10 and
8.11 hereof as of the end of the respective fiscal quarter or fiscal
year.
8.02 Litigation. The Company shall promptly give to each
Bank notice of all legal or arbitral proceedings, and of all
proceedings before any governmental or regulatory authority or agency,
instituted, or (to the knowledge of the Company) threatened, against
the Company or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
8.03 Corporate Existence, Etc. The Company shall, and
shall cause each of its Significant Subsidiaries to: preserve and
maintain its corporate existence and all its material rights,
privileges and franchises (except as otherwise expressly permitted
under Section 8.07 hereof); comply with the requirements of all
applicable laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such requirements
would have a Material Adverse Effect; pay and discharge all taxes,
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assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which
penalties attach thereto, except for any such tax, assessment, charge
or levy the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being
maintained; maintain all its properties used or useful in its business
in good working order and condition, ordinary wear and tear excepted;
and permit representatives of any Bank or the Agent, during normal
business hours, to examine, copy and make extracts from its books and
records, to inspect its properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by
such Bank or the Agent (as the case may be).
8.04 Insurance. The Company shall, and shall cause each of
its Subsidiaries to, keep insured by financially sound and reputable
insurers all property of a character usually insured by corporations
engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured
against by such corporations and carry such other insurance as is
usually carried by such corporations.
8.05 Use of Proceeds. The Company and the Drawers shall
use the proceeds of the Credit Extensions hereunder solely for
commercial paper back-up (which use shall be in compliance with all
applicable legal and regulatory requirements, including, without
limitation, Regulations G, U and X of the Board of Governors of the
Federal Reserve System and the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder). The Company will not permit more than 25% of
the value (as determined by any reasonable method) of its assets, nor
more than 25% of the value (as determined by any reasonable method) of
the assets of the Company and its Subsidiaries, to be represented by
margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System).
8.06 Indebtedness. The Company will not, nor will it
permit any of its Subsidiaries to, incur, assume or suffer to exist
obligations in respect of standby and performance letters of credit in
an aggregate amount exceeding 5% of Total Consolidated Assets at any
one time outstanding. The Company will not permit any of its
Subsidiaries to create, issue, incur or assume, or suffer to exist,
any Indebtedness, except: (i) Indebtedness existing on the date
hereof, but not any renewals, extensions or refinancings of the same;
(ii) Indebtedness owing to the Company; (iii) Indebtedness of any
Person that becomes a Subsidiary of the Company after the date hereof
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so long as such Indebtedness exists at the time such Person becomes
such a Subsidiary and was not incurred in anticipation thereof;
(iv) Capital Lease Obligations in an aggregate amount not to exceed an
amount equal to 5% of Total Consolidated Assets at any one time
outstanding; and (v) additional Indebtedness in an aggregate amount
not to exceed an amount equal to 5% of Total Consolidated Assets at
any one time outstanding.
8.07 Fundamental Changes.
(a) The Company will not, and will not permit any of its
Subsidiaries to, be a party to any merger or consolidation, and the
Company will not, and will not permit any of its Subsidiaries or
operating divisions (whether now owned or existing or hereafter
acquired or designated) to, (x) sell, assign, lease or otherwise
dispose of all or substantially all of its Property whether now owned
or hereafter acquired or (y) sell, assign or otherwise dispose of any
capital stock of any such Subsidiary, or permit any such Subsidiary to
issue any capital stock, to any Person other than the Company or any
of its
Wholly-Owned Subsidiaries if, after giving effect thereto, the Company
does not own, directly or indirectly, a majority of the capital stock
of such Subsidiary ("Controlling Stock Disposition"); except that, so
long as both before and after giving effect thereto no Default shall
have occurred and be continuing:
(i) the Company may be a party to any merger or
consolidation if it shall be the surviving corporation;
(ii) any such Subsidiary may be a party to any merger or
consolidation with another such Subsidiary (or with any Person
that becomes another such Subsidiary as a result of such merger
or consolidation);
(iii) any such Subsidiary may merge into, and any such
Subsidiary or operating division may transfer any Property to,
the Company;
(iv) any such Subsidiary or operating division may transfer
any Property to another such Subsidiary or operating division (or
to any Person that becomes as part of such transfer another such
Subsidiary or operating division);
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(v) the Company, any such Subsidiary or operating division
may sell, assign, lease or otherwise dispose of any Non-Strategic
Property; and
(vi) the Company or any such Subsidiary or operating
division may make sales, assignments and other dispositions of
Property (including Controlling Stock Dispositions) and any such
Subsidiary may become a party to a merger or consolidation (each
such sale, assignment, disposition, Controlling Stock
Disposition, merger or consolidation, other than those described
in clauses (i) through (vi) hereof, a "Disposition") if the
Property that was the subject of any such Disposition, together
with the Property that was the subject of all Dispositions during
the Disposition Period for such Disposition, did not produce
revenue that was greater in amount than an amount equal to 10% of
the revenue of the Company and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP)
for the twelve-month period ending on the Determination Date for
such Disposition (for which purpose, a Controlling Stock
Disposition with respect to any such Subsidiary shall be deemed
to be the disposition of Property of such Subsidiary that
produced all of the revenues of such Subsidiary).
(b) Notwithstanding anything in clauses (i)-(vi) of
Section 8.07(a) hereof to the contrary:
(i) the Company will not, and will not permit any of its
Subsidiaries or operating divisions (whether now owned or
existing or hereafter acquired or designated) to, sell, lease,
assign, transfer or otherwise dispose of (whether in one
transaction or in a series of transactions) any of its Property
(whether now owned or hereafter acquired) if such sale,
assignment, lease or other disposition (whether in one
transaction or in a series of transactions) shall have a Material
Adverse Effect; and
(ii) no Wholly-Owned Subsidiary of the Company shall be a
party to any merger or consolidation with, or shall sell, lease,
assign, transfer or otherwise dispose of any substantial part of
its Property to, any Subsidiary of the Company that is not a
Wholly-Owned Subsidiary of the Company.
8.08 Liens. The Company shall not, and shall not permit
any of its Subsidiaries to, create, assume or suffer to exist any Lien
upon any of its property or assets, now owned or hereafter acquired,
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securing any Indebtedness or other obligation except: (i) Liens
outstanding on the date hereof and listed in Schedule II hereto;
(ii) Liens for taxes or other governmental charges not yet delinquent;
(iii) Liens in respect of Property acquired or constructed or improved
by the Company or any such Subsidiary after the date hereof which
Liens exist or are created at the time of acquisition or completion of
construction or improvement of such Property or within six months
thereafter to secure Indebtedness assumed or incurred to finance all
or any part of the purchase price or cost of construction or
improvement of such Property, but any such Lien shall cover only the
Property so acquired or constructed and any improvements thereto (and
any real property on which such Property is located); (iv) Liens on
Property of any corporation that becomes a Subsidiary of the Company
after the date of this Agreement, provided that such Liens are in
existence at the time such corporation becomes a Subsidiary of the
Company and were not created in anticipation thereof; (v) Liens on
Property acquired after the date hereof, provided that such Liens were
in existence at the time such Property was acquired and were not
created in anticipation thereof; (vi) Liens imposed by law, such as
mechanics, materialmen, landlords, warehousemen and carriers Liens,
and other similar Liens, securing obligations incurred in the ordinary
course of business which are not past due for more than thirty days or
which are being contested in good faith by appropriate proceedings and
for which appropriate reserves have been established; (vii) Liens
under workmen's compensation, unemployment insurance, social security
or similar legislation; (viii) Liens, deposits, or pledges to secure
the performance of bids, tenders, contracts (other than contracts for
the payment of money), leases, public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds,
or other similar obligations arising in the ordinary course of
business; (ix) judgment and other similar Liens arising in connection
with court proceedings, provided the execution or other enforcement of
such Liens is effectively stayed and the claims secured thereby are
being actively contested in good faith and by appropriate proceedings;
(x) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by the Company or any such
Subsidiary of the Property encumbered thereby in the normal course of
its business or materially impair the value of the Property subject
thereto; (xi) Liens securing obligations of any such Subsidiary to the
Company or another Subsidiary of the Company; (xii) Liens securing
obligations of the Company (in an aggregate amount not exceeding at
any one time the greater of (a) $175,000,000 and (b) an aggregate
amount equal to 75% of the sum of (i) the book value of the accounts
receivable of the Company and its Subsidiaries plus (ii) the unpaid
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amount of all accounts receivable that, but for the sale of such
accounts receivable pursuant to the Receivable Sales Agreements, would
have been reflected in accounts receivable on a consolidated balance
sheet of the Company and its Subsidiaries) pursuant to Receivables
Sale Agreements; and (xiii) other Liens securing Indebtedness in an
aggregate amount, which together with outstanding obligations referred
to in clause (xii) above, does not exceed 15% of Total Consolidated
Assets.
8.09 Lines of Businesses. Neither the Company nor any of
its Subsidiaries shall engage to any significant extent in any line or
lines of business other than the lines of business in which they are
engaged on the date hereof and any other line or lines of business
directly related to the manufacture, distribution and/or sale of
consumer or industrial products (collectively, "Permitted
Activities"). Notwithstanding the foregoing, the Company and its
Subsidiaries may engage in other lines of business as a result of the
acquisition of any Person primarily engaged in Permitted Activities so
long as the Company uses its best efforts to come into compliance with
the first sentence of this Section 8.09 within a reasonable period of
time after such acquisition.
8.10 Interest Coverage Ratio. The Company shall cause the
Interest Coverage Ratio, for any fiscal quarter of the Company, to be
greater than 3.0 to 1.
8.11 Total Indebtedness to Total Capital. The Company
shall not permit the ratio of Total Indebtedness to Total Capital at
any time to be greater than .50 to 1.
SECTION 9. EVENTS OF DEFAULT. If one or more of the
------------------
following events (herein called "Events of Default") shall occur and
be continuing:
(a) The Company shall default in the payment when due of
any principal of or interest on any Loan or any other amount
payable by it hereunder; or any Acceptance Account Party shall
default in the payment when due of any Acceptance Liability; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of
its other Indebtedness aggregating $10,000,000 or more; or any
event specified in any note, agreement, indenture or other
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document evidencing or relating to any Indebtedness aggregating
$20,000,000 or more shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become due prior to its stated maturity or
to permit termination of the commitment to lend pursuant to any
such instrument or agreement; or
(c) Any representation, warranty or certification made or
deemed made by the Company or any Drawer herein, or by the
Company or any Guarantor or any Drawer in any certificate
furnished to any Bank or the Agent pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading
as of the time made or furnished in any material respect; or
(d) The Company shall default in the performance of any of
its obligations under Section 8.01(f) or 8.05 through 8.11
(inclusive) hereof; or the Company shall default in the
performance of any of its other obligations in this Agreement and
such default shall continue unremedied for a period of 30 days
after notice thereof to the Company by the Agent or any Bank
(through the Agent); or
(e) The Company or any of its Significant Subsidiaries
shall admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(f) The Company or any of its Significant Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy
Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the
Bankruptcy Code, or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced against the
Company or any of its Significant Subsidiaries without its
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application or consent, in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of it or of all or any substantial part of
its assets, or (iii) similar relief in respect of it under any
law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a
period of 60 days; or an order for relief against it shall be
entered in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money
in excess of $20,000,000 in the aggregate shall be rendered by a
court or courts against the Company and/or any of its
Subsidiaries and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of
entry thereof and the Company or the relevant Subsidiary shall
not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) An event or condition specified in Section 8.01(e)
hereof shall occur or exist with respect to any Plan or Multi-
employer Plan of the Company and, as a result of such event or
condition, together with all other such events or conditions, the
Company or any ERISA Affiliate shall incur or in the opinion of
the Majority Banks shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any
combination of the foregoing) which is, in the determination of
the Majority Banks, material in relation to the consolidated
financial position of the Company and its Subsidiaries (taken as
a whole); or
(j) An event of default (as defined in the Indenture) shall
occur and be continuing; or
(k) During any period of 25 consecutive calendar months
(i) individuals who were directors of the Company on the first
day of such period and (ii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
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by at least a majority of the individuals referred to in clause
(i) above and (iii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clauses
(i) and (ii) above shall no longer constitute a majority of the
Board of Directors of the Company;
THEREUPON: (i) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9 in respect of the
Company or any Acceptance Account Party, (x) the Agent may and, upon
request of the Majority Banks, shall, by notice to the Company, cancel
the Commitments and (y) the Agent may and, upon request of Banks
holding at least 66-2/3% of the aggregate unpaid principal amount of
Loans, and unpaid amount of Acceptance Liabilities, then outstanding
shall, by notice to the Company, declare the principal amount of and
the accrued interest on the Loans and Acceptance Liabilities, and all
other amounts payable by the Company or any Acceptance Account Party
hereunder and under the Notes, to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Company and (in the case of
each Acceptance Liability) the Acceptance Account Party; and (ii) in
the case of the occurrence of an Event of Default referred to in
clause (f) or (g) of this Section 9 in respect of the Company or any
Acceptance Account Party, the Commitments shall be automatically
cancelled and the principal amount then outstanding of, and the
accrued interest on, the Loans and Acceptance Liabilities and all
other amounts payable by the Company or any Acceptance Account Party
hereunder and under the Notes shall become automatically immediately
due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by
the Company and (in the case of each Acceptance Liability) the
Acceptance Account Party.
SECTION 10. THE AGENT; THE CO-AGENT.
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10.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably (but subject to Section 10.08 hereof) appoints and
authorizes the Agent to act as its agent hereunder with such powers as
are specifically delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this sentence
and in Section 10.05 and the first sentence of Section 10.06 hereof
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shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall
have no duties or responsibilities except those expressly set forth in
this Agreement, and shall not by reason of this Agreement be a trustee
for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this
Agreement, or in any certificate or other document referred to or
provided for in, or received by any of them under this Agreement, or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, any Note, or any other document
referred to or provided for herein or for any failure by the Company
or any other Person to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and (d) shall not be
responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith, except for its own
gross negligence or willful misconduct. The Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Agent may deem and treat the payee of any
Syndicated Note as the holder thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall
have been filed with the Agent, together with the written consent of
the Company to such assignment or transfer.
10.02 Reliance by Agent. The Agent shall be entitled to
rely upon any certification, notice or other communication (including
any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf
of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by
the Agent. As to any matters not expressly provided for by this
Agreement, the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Majority Banks, and such instructions of
the Majority Banks and any action taken or failure to act pursuant
thereto shall be binding on all the Banks.
10.03 Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default unless the Agent has received
notice from a Bank or the Company specifying such Default and stating
that such notice is a "Notice of Default". In the event that the
Agent receives such a notice of the occurrence of a Default, the Agent
shall give prompt notice thereof to the Banks. The Agent shall
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(subject to Section 10.07 hereof) take such action with respect to
such Default as shall be directed by the Majority Banks, provided
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 as it
shall deem advisable in the best interest of the Banks.
10.04 Rights as a Bank. With respect to its Commitment and
the Loans made, and the Acceptances created and discounted, by it,
Chase (and any successor acting as Agent), in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other
Bank and may exercise the same as though it were not acting as the
Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Agent in its individual capacity.
Chase (and any successor acting as Agent) and its affiliates may
(without having to account therefor to any Bank) accept deposits from,
lend money to and generally engage in any kind of banking, trust or
other business with the Company (and any of its affiliates) as if it
were not acting as the Agent, and Chase and its affiliates may accept
fees and other consideration from the Company for services in
connection with this Agreement or otherwise without having to account
for the same to the Banks.
10.05 Indemnification. The Banks agree to indemnify the
Agent (to the extent not reimbursed under Section 11.03 hereof, but
without limiting the obligations of the Company under said
Section 11.03), ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement or any other documents contemplated
by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the
Company is obligated to pay under Section 11.03 hereof but excluding,
unless a Default has occurred and is continuing, normal administrative
costs and expenses incident to the performance of its agency duties
hereunder) or the enforcement of any of the terms hereof or of any
such other documents, provided that no Bank shall be liable for any of
the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or
any other Bank, and based on such documents and information as it has
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deemed appropriate, made its own credit analysis of the Company, the
Drawers and their respective Subsidiaries and decision to enter into
this Agreement and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own analysis and decisions in taking or not taking action under
this Agreement. The Agent shall not be required to keep itself
informed as to the performance or observance by the Company or any
Drawer of this Agreement or any other document referred to or provided
for herein or to inspect the properties or books of the Company, any
Drawer or any of their respective Subsidiaries. Except for notices,
reports and other documents and information expressly required to be
furnished to the Banks by the Agent hereunder, the Agent shall not
have any duty or responsibility to provide any Bank with any credit or
other information concerning the affairs, financial condition or
business of the Company, the Drawers or any of their respective
Subsidiaries (or any of their affiliates) which may come into the
possession of the Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required
of the Agent hereunder the Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it
shall be indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
10.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving notice thereof to the Banks,
the Company and the Drawers and the Agent may be removed at any time
with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so
appointed by the Majority Banks and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice
of resignation or the Majority Banks' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a bank which has an office in New
York, New York with a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the
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provisions of this Section 10 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent.
10.09 The Co-Agent. The Co-Agent referred to on the cover
page of this Agreement shall not have any rights or obligations under
this Agreement except in its capacity as a "Bank" hereunder.
SECTION 11. MISCELLANEOUS.
--------------
11.01 Waiver. No failure on the part of the Agent or any
Bank to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement,
any Note or any Acceptance Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or
privilege under this Agreement, any Note or any Acceptance Document
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
11.02 Notices. All notices and other communications
provided for herein (including, without limitation, any modifications
of, or requests, demands, waivers or consents under, this Agreement)
shall be given or made by telex, telecopy, telegraph, cable or in
writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly
given when transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as
aforesaid.
11.03 Expenses, Etc. The Company agrees to pay or
reimburse each of the Banks and the Agent for paying: (a) the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy,
special New York counsel to the Banks, in connection with (i) the
preparation, execution and delivery of this Agreement and the Notes,
the making of the Loans and the creation and discount of the
Acceptances hereunder and (ii) any amendment, modification or waiver
(whether or not such amendment, modification or waiver shall become
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effective) of any of the terms of this Agreement or any of the Notes
or Acceptance Documents; (b) all reasonable costs and expenses of the
Banks and the Agent (including reasonable counsels' fees) in
connection with the enforcement of this Agreement or any of the Notes
or Acceptance Documents; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental
or revenue authority in respect of this Agreement, any of the Notes,
any Acceptance Document or any other document referred to herein. The
Company hereby agrees to indemnify the Agent and each Bank and their
respective directors, officers, employees and agents from, and hold
each of them harmless against, any and all losses, liabilities,
claims, damages or expenses incurred by any of them arising out of or
by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other
proceedings) relating to any actual or proposed use by the Company or
any Subsidiary of the Company of the proceeds of any of the Loans or
Acceptances, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation or litigation or other proceedings (but excluding any
such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to
be indemnified).
11.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be
amended or modified only by an instrument in writing signed by the
Company, the Drawers, the Agent and the Majority Banks, or by the
Company, the Drawers and the Agent acting with the consent of the
Majority Banks, and any provision of this Agreement may be waived by
the Majority Banks or by the Agent acting with the consent of the
Majority Banks; provided that no amendment, modification or waiver
shall, unless by an instrument signed by all of the Banks or by the
Agent acting with the consent of all of the Banks: (i) increase or
extend the term, or extend the time or waive any requirement for the
reduction or termination, of the Commitments, (ii) extend the date
fixed for the payment of any Acceptance Liability or any principal of
or interest on any Loan, (iii) reduce the amount of any Acceptance
Liability or any principal of any Loan or the rate at which interest
or any fee is payable hereunder, (iv) alter the terms of this Section
11.04, (v) amend the definition of the term "Majority Banks" or
(vi) waive any of the conditions precedent set forth in Section 6
hereof; and provided, further, that any amendment of Section 10
hereof, or which increase the obligations of the Agent hereunder,
shall require the consent of the Agent.
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11.05 Assignments and Participations.
(a) The Company may not assign any of its rights or
obligations hereunder or under the Notes, and neither the Company
nor any Acceptance Account Party may assign any of its rights or
obligations in respect of any Acceptance Liabilities, without the
prior consent of all of the Banks and the Agent.
(b) No Bank may assign all or any part of its Acceptance
Liabilities, its Loans, its Notes or its Commitment without the
prior consent of the Company and the Agent, which consent will
not be unreasonably withheld; provided that, (i) without the
consent of the Company or the Agent, any Bank may assign to
another Bank all or (subject to the further clauses below) any
portion of its Commitment; (ii) any such partial assignment shall
be not less than $5,000,000 and in multiples of $1,000,000 in
excess thereof; and (iii) such assigning Bank shall also
simultaneously assign the same proportion of each of its
Syndicated Loans then outstanding (together with the same
proportion of its Syndicated Note then outstanding). Upon
written notice to the Company and the Agent of an assignment
permitted by the preceding sentence (which notice shall identify
the assignee, the amount of the assigning Bank's Commitment,
Loans and Acceptance Liabilities assigned in detail reasonably
satisfactory to the Agent) and upon the effectiveness of any
assignment consented to by the Company and the Agent, the
assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the
Company and the Agent), the obligations, rights and benefits of a
Bank hereunder holding the Commitment, Loans and Acceptance
Liabilities (or portions thereof) assigned to it (in addition to
the Commitment, Loans and Acceptance Liabilities, if any,
theretofore held by such assignee) and the assigning Bank shall,
to the extent of any such Commitment assignment, be released from
its Commitment (or portions thereof) so assigned. Upon the
effectiveness of any assignment referred to in this
Section 11.05(b), the assigning Bank or the assignee Bank shall
pay to the Agent a transfer fee in an amount equal to $3,000.
(c) A Bank may sell or agree to sell to one or more other
Persons a participation in all or any part of its Commitment, its
Loans or its Acceptance Liabilities, in which event each such
participant shall be entitled to the rights and benefits of the
provisions of Section 8.01(g) hereof with respect to its
participation as if (and the Company shall be directly obligated
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to such participant under such provisions as if) such participant
were a "Bank" for purposes of said Section, but shall not have
any other rights or benefits under this Agreement or such Bank's
Notes or any Acceptance Document (the participant's rights
against such Bank in respect of such participation to be those
set forth in the agreement (the "Participation Agreement")
executed by such Bank in favor of the participant). All amounts
payable by the Company to any Bank under Section 5 hereof shall
be determined as if such Bank had not sold or agreed to sell any
participations and as if such Bank were funding all of its Loans
in the same way that it is funding the portion of its Loans in
which no participations have been sold. In no event shall a Bank
that sells a participation be obligated to the participant under
the Participation Agreement to take or refrain from taking any
action hereunder or under such Bank's Note or under any
Acceptance Document except that such Bank may agree in the
Participation Agreement that it will not, without the consent of
the participant, agree to (i) the increase, or the extension of
the term, or the extension of the time or waiver of any
requirement for the reduction or termination, of such Bank's
Commitment, (ii) the extension of any date fixed for the payment
of principal of or interest on any participated Loan or
Acceptance Liability or any portion of any fees payable to the
participant, (iii) the reduction of any payment of principal of
any participated Loan or Acceptance Liability, (iv) the reduction
of the rate at which either interest or (if the participant is
entitled to any part thereof) fees are payable hereunder to a
level below the rate at which the participant is entitled to
receive interest or fees (as the case may be) in respect of such
participation or (v) any modification, supplement or waiver
hereof or of any of the other Basic Documents to the extent that
the same, under the terms hereof or thereof, requires the consent
of each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 11.05, a
Bank may assign and pledge all or any portion of its Loans and
its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Bank
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from time to time to assignees and participants (including
prospective assignees and participants).
11.06 Survival. The obligations of the Company under
Sections 5.01 and 5.05 hereof, the obligations of the Banks under
Section 10.05 hereof and the obligations of Company under
Section 11.03 hereof shall survive the repayment of the Loans and
Acceptance Liabilities and the termination of the Commitments. In
addition, each representation and warranty made, or deemed to be made,
by a notice of borrowing of Loans or an Acceptance Quote Request for
the creation and discount of Acceptances hereunder shall survive the
making of such Loans or the creation and discount of such Acceptances,
and no Bank shall be deemed to have waived, by reason of making any
Loan, creating and discounting any Acceptance, any Default or Event of
Default which may arise by reason of such representation or warranty
proving to have been false or misleading, notwithstanding that such
Bank or the Agent may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading
at the time such Loan was made or such Acceptance was created and
discounted.
11.07 Captions. Captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this
Agreement.
11.08 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be identical and all of
which, when taken together, shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
11.09 Governing Law; Jurisdiction; Service of Process;
Waiver of Jury Trial; Etc.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND ANY ACTION OR PROCEEDING TO
EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT OBTAINED IN CONNECTION
THEREWITH, MAY BE INSTITUTED IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT THE COMPANY IRREVOCABLY AND UNCONDITIONALLY SUBMITS
GENERALLY (BUT NON-EXCLUSIVELY) TO THE JURISDICTION OF EACH SUCH
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COURT. THE COMPANY IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF
SUCH PROCESS TO THE COMPANY AT ITS ADDRESS SET FORTH UNDERNEATH ITS
SIGNATURE HERETO. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. THE COMPANY 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 PROCEEDING BROUGHT IN SUCH
A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY FURTHER AGREES
THAT ANY SUCH ACTION OR PROCEEDING AGAINST THE AGENT AND/OR ANY OF THE
BANKS SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THE AGENT AND THE BANKS HEREBY
CONSENT TO THE JURISDICTION OF SUCH COURTS FOR SUCH PURPOSE.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.10 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
NEWELL CO.
By /s/ C.R. Davenport
-----------------------------
Title: Vice President-Treasurer
Address for Notices:
Newell Co.
29 East Stephenson Street
Freeport, Illinois 61032
Telecopy No.: 815-233-8060
Telephone No.: 815-233-8040
Attention: C.R. Davenport
Vice President and Treasurer
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THE DRAWERS
ANCHOR HOCKING CORPORATION
By /s/ C.R. Davenport
----------------------------
Title: Vice President-Treasurer
Address for Notices:
Anchor Hocking Corporation
c/o Newell Co.
29 East Stephenson Street
Freeport, Illinois 61032
Telecopy No.: 815-233-8060
Telephone No.: 815-233-8040
Attention: C.R. Davenport
Vice President and Treasurer
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NEWELL OPERATING COMPANY
By /s/ C.R. Davenport
-----------------------------
Title: Vice President-Treasurer
Address for Notices:
Newell Operating Company
c/o Newell Co.
29 East Stephenson Street
Freeport, Illinois 61032
Telecopy No.: 815-233-8060
Telephone No.: 815-233-8040
Attention: C.R. Davenport
Vice President and Treasurer
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THE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /s/ Alexander Danzberger
--------------------------
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association),
as Agent
New York Agency
4 Metrotech Center
13th Floor
Brooklyn, New York 11245
Telecopy No.: 718-242-6910
Telephone No.: 718-242-7979
Attention: New York Agency
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THE BANKS
Commitment THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
$50,000,000 By /s/ Alexander H. Danzberger
----------------------------
Title:
Lending Office for all Credits:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Telecopy No.: (212) 552-1457
Telephone No.: (212) 552-2750
Attention: Alexander H. Danzberger
Vice President
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Commitment ROYAL BANK OF CANADA
$50,000,000 By /s/ G. David Cole
-----------------------------
Title:
Lending Office for all Credits:
New York Branch
Royal Bank of Canada
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Address for Notices:
New York Branch
Royal Bank of Canada
c/o New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Attention: Manager, Loans
Administration
Telecopy No.: (718) 522-6292/3
Telephone No.: (212) 858-7168
with a copy to:
Royal Bank of Canada
One North Franklin Street
Suite 700
Chicago, Illinois 60606
Attention: G. David Cole,
Senior Manager
Telecopy No.: (312) 551-0805
Telephone No.: (312) 551-1618
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