EXHIBIT 4.1
CONFORMED COPY
REVOLVING CREDIT FACILITY AGREEMENT dated as of September 7, 1995, among
TREDEGAR INDUSTRIES, INC., a Virginia corporation (the "Company"); the banks
listed in Schedule 2.01 hereto or subsequently becoming parties hereto as
provided herein (the "Banks"); CHEMICAL BANK, a New York banking corpo- ration,
as administrative agent for the Banks (in such capacity, the "Administrative
Agent"); and NationsBank, N.A., a national banking association, and LTCB Trust
Company, a New York trust company, as co-agents for the banks (in such capacity,
the "Co-Agents"; the Administrative Agent and the Co-Agents being collectively
called the "Agents").
The Company has requested the Banks to extend credit to the Company in
order to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(as herein defined) a principal amount not in excess of $275,000,000 at any time
outstanding. The proceeds of such borrowings are to be used to refinance
existing debt and for general corporate purposes. The Banks are willing to
extend such credit to the Company on the terms and subject to the conditions
herein set forth.
Accordingly, the Company, the Agents and the Banks agree as follows:
I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Adjusted CD Rate" shall mean, with respect to any CD Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the sum of (a) a rate per annum equal to the
product of (i) the Fixed CD Rate in effect for such Interest Period and (ii)
Statutory Reserves, plus (b) the Assessment Rate, plus (c) 12.5 basis points.
For purposes hereof, the term "Fixed CD Rate" shall mean the arithmetic average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the prevailing rates
per annum bid at or about 10:00 a.m., New York City time, to the Administrative
Agent on the first Business Day of the Interest Period applicable to such CD
Borrowing by three New York City negotiable certificate of deposit dealers of
recognized standing selected by the Administrative Agent for the purchase at
face value of negotiable certificates of deposit of major United States money
center banks in a principal amount approximately equal to the Administrative
Agent's portion of such CD Borrowing.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves. For purposes
hereof, the term "LIBO Rate" shall mean the rate (rounded upwards, if necessary,
to the next 1/16 of 1%) at which dollar deposits approximately equal in
principal amount to the Administrative Agent's portion of such Eurodollar
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indi- rectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest
per annum publicly announced from time to time by the Administrative Agent as
its prime rate in effect at its principal office in New York City; each change
in the Prime Rate shall be effective on the date such change is publicly
announced as effective. "Base CD Rate" shall mean the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three- month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it. "Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate
or both for any reason, including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c), or
both, of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Three-Month Secondary
CD Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Spread" shall mean the applicable spread per annum set
forth below based upon the Company's Debt/Capitalization Ratio:
Category I Applicable Spread
Debt/Capitalization Ratio less .1750%
than or equal to 35%
Category II
Debt/Capitalization Ratio .2500%
greater than 35% and less than
or equal to 50%
Category III
Debt/Capitalization Ratio .3125%
greater than 50%
For purposes of the foregoing, the Applicable Spread for any date
shall be determined by reference to the Debt/Capitalization Ratio as of the last
day of the Company's fiscal quarter most recently ended as of such date for
which financial statements have been delivered in accordance with Section 5.04,
and any change in the Applicable Spread shall become effective upon the delivery
to the Administrative Agent of a certificate of a Responsible Officer of the
Company with respect to the financial statements to be delivered, pursuant to
Section 5.04 for the fiscal quarter or year most recently ended, as the case may
be, (a) setting forth in reasonable detail the calculation of the
Debt/Capitalization Ratio for and at the end of such fiscal quarter or year and
(b) stating that the signer has reviewed the terms of this Agreement and other
Loan Documents and has made, or caused to be made under his or her supervision,
a review in reasonable detail of the transactions and condition of the Company,
during the accounting period, and that the signer does not have knowledge of the
existence as at the date of such officer's certificate of any Event of Default
or Default and shall apply to Loans outstanding on such delivery date or made on
and after such delivery date. Notwithstanding the foregoing, at any time during
which the Company has failed to deliver the certificate referred to above with
respect to a fiscal quarter or year following the date that delivery of
financial statements relating to such fiscal quarter or year are required to be
delivered under Section 5.04, the Debt/Capitalization Ratio shall be deemed,
solely for the purposes of this definition, to be greater than 50% until such
time as the Company shall have delivered such certificate and financial
statements.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Assignment and Acceptance" shall mean an assign- ment and acceptance
entered into by a Bank and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit C.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a Loan or group of Loans of a single Type made
by the Banks on a single date and as to which a single Interest Period is in
effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in con-
nection with a Eurodollar Standby Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a combina-
tion thereof, which obligations are required to be classi- fied and accounted
for as capital leases on a balance sheet of such person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"CD Borrowing" shall mean a Borrowing comprised of CD Loans.
"CD Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Adjusted CD Rate in accordance with the
provisions of Article II.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) other than (i) any person or group
whose beneficial ownership of common stock is reported on Schedule 13D, filed
with respect to the common stock of the Company on July 20, 1989, as amended
prior to the date of this Agreement, (ii) spouses, children and lineal
descendants of such persons, (iii) trusts created for the benefit of such
persons, or (iv) any combination of the persons described in the foregoing
subclauses (i), (ii) or (iii) (an "Exempt Person"), shall own directly or
indirectly, beneficially or of record, shares representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) a majority of the seats (other than vacant
seats) on the board of directors of the Company shall at any time have been
occupied by persons who were not Continuing Directors; or (c) any person or
group other than an Exempt Person shall otherwise directly or indirectly Control
the Company.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the Commitment of
such Bank hereunder as set forth in Schedule 2.01 hereto, as such Bank's
Commitment may be permanently terminated or reduced from time to time pursuant
to Section 2.10. The Commitments shall automatically and permanently terminate
on the Maturity Date.
"Consolidated Net Income" with respect to any person for any period
shall mean (a) the aggregate net income (or net loss) of such person for such
period equal to net revenues and other proper income or gain of such person for
such period (including gains on the sale of capital assets) less, without
duplication of any items deducted in determining such net revenues, income or
gain, the aggregate for such person during such period of, (i) cost of goods
sold, (ii) interest expense, (iii) operating expense, (iv) selling, general and
administrative expenses, (v) taxes, (vi) depreciation, depletion and
amortization and (vii) any other items that are treated as expenses under GAAP,
plus (b) write-downs of assets, losses from dis- continued operations and other
extraordinary losses (net of tax benefits), in each case to the extent taken
into account in determining the net revenues, income or gain referred to in (a)
above.
"Consolidated Stockholders' Equity" shall mean, at any time (a) the
sum of (i) the Company's issued capital stock taken at par or stated value at
such time, (ii) the Company's capital surplus at such time and (iii) the Compa-
ny's retained earnings at such time, less (b) the Company's treasury stock and
minority interest in subsidiaries at such time, all determined in accordance
with GAAP.
"Consolidated Total Capitalization" shall mean, at any time, the sum
of the Company's Consolidated Total Debt and Consolidated Stockholders' Equity
at such time.
"Consolidated Total Debt" shall mean, at any time, all Indebtedness of
the Company and its consolidated Sub- sidiaries at such time, computed and
consolidated in accor- dance with GAAP.
"Continuing Director" shall mean (a) any member of the Board of
Directors of the Company on the date of this Agreement and (b) any person whose
subsequent nomination for election or election to the Board of Directors was
recom- mended or approved by a majority of the Continuing Directors serving as
such at the time of such nomination.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise.
"Debt/Capitalization Ratio" shall mean the ratio of the Company's
Consolidated Total Debt to the Company's Consolidated Total Capitalization.
"Default" shall mean an event which upon notice or lapse of time or
both would constitute an Event of Default.
"dollars" and the symbol "$" shall mean the lawful currency of the
United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Company is a member and
which is treated as a single employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Arti- cle II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Facility Fee Percentage" shall mean the applicable percentage set
forth below based upon the Company's Debt/Capitalization Ratio:
Facility Fee
Category I Percentage
Debt/Capitalization Ratio less .1250%
than or equal to 35%
Category II
Debt/Capitalization Ratio .1500%
greater than 35% and less than
or equal to 50%
Category III
Debt/Capitalization Ratio .1875%
greater than 50%
For purposes of the foregoing, the Facility Fee Percentage for any
date shall be determined by reference to the Debt/Capitalization Ratio as of the
last day of the Company's fiscal quarter most recently ended as of such date for
which financial statements have been delivered in accordance with Section 5.04,
and any change in the Facility Fee Percentage shall become effective upon the
delivery to the Administrative Agent of a certificate of a Responsible Officer
of the Company with respect to the financial statements to be delivered,
pursuant to Section 5.04 for the fiscal quarter or year most recently ended, as
the case may be, (a) setting forth in reasonable detail the calculation of the
Debt/Capitalization Ratio for and at the end of such fiscal quarter or year and
(b) stating that the signer has reviewed the terms of this Agreement and other
Loan Documents and has made, or caused to be made under his or her supervision,
a review in reasonable detail of the transactions and condition of the Company,
during the accounting period, and that the signer does not have knowledge of the
existence as at the date of such officer's certificate of any Event of Default
or Default. Notwithstanding the foregoing, at any time during which the Company
has failed to deliver the certificate referred to above with respect to a fiscal
quarter or year following the date that delivery of financial statements
relating to such fiscal quarter or year are required to be delivered under
Section 5.04, the Debt/Capitalization Ratio shall be deemed, solely for the
purposes of this definition, to be greater than 50% until such time as the
Company shall have delivered such certificate and financial statements.
"Fees" shall mean the Facility Fee, Utilization Fee and the
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaran- teeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obliga- tions of such person
upon which interest charges are cus- tomarily paid (other than accounts
payable), (d) all obli- gations of such person under conditional sale or other
title retention agreements relating to property or assets pur- chased by such
person, (e) all obligations of such person issued or assumed as the deferred
purchase price of property or services, (f) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, provided that the amount of such Indebtedness shall be deemed to
be the lesser of (i) the outstanding principal amount of such Indebtedness plus
all accrued and unpaid interest relating thereto and (ii) the fair market value
of the property secured by any such Lien, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner unless such Indebtedness is without any
recourse whatsoever to such person as a general partner of any such partnership.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable thereto and, in the case of a Eurodollar
Standby Loan with an Interest Period of more than three months' duration or a CD
Loan with an Interest Period of more than 90 days' duration, each day that would
have been the Interest Payment Date for such Loan had successive Interest
Periods of 3 months or 90 days, respectively, been applicable to such Loan and,
in addition, the date of any refinancing or conversion of such Loan with or to a
Loan of a different Type.
"Interest Period" shall mean (a) as to any Euro- dollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the Company may elect,
(b) as to any CD Borrowing, a period of 30, 60, 90 or 180 days' duration, as the
Company may elect, commencing on the date of such Borrowing and (c) as to any
ABR Borrowing, the period commencing on the date of such Borrowing and ending on
the date 90 days thereafter or, if earlier, on the Maturity Date or the date of
prepayment of such Borrowing; provided, however, that if any Interest Period
would end on a day which shall not be a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, with respect to
Eurodollar Standby Loans only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan" shall mean a Standby Loan, whether made as a Eurodollar Standby
Loan, a CD Loan or an ABR Loan.
"Loan Documents" shall mean this Agreement (including all exhibits and
schedules attached hereto).
"Margin Stock" shall have the meaning given such term under Regulation
U.
"Material Adverse Effect" shall mean (a) a mate- rially adverse effect
on the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole, (b) material
impairment of the ability of the Company to perform any of its obligations under
any Loan Document to which it is or will be a party or (c) material impairment
of the rights of or benefits available to the Banks under any Loan Document.
"Maturity Date" shall mean the Original Maturity Date, or any
anniversary of such date to which the Maturity Date shall have been extended
pursuant to Section 2.10(d).
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Original Maturity Date" shall mean the fifth anniversary of the date
of this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"person" shall mean any natural person, corpora- tion, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code which
is maintained for employees of the Company or any ERISA Affiliate.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Banks" shall mean, at any time, Banks having Commitments
representing at least 66-2/3% of the Total Commitment and, for purposes of
acceleration pursuant to clause (ii) of Article VII and at any time when no
Commitment is in effect, Banks holding Loans representing at least 66-2/3% of
the aggregate principal amount of the Loans outstanding.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligat- ions
of such corporation in respect of this Agreement.
"Significant Subsidiary" shall mean any Subsidiary whose gross
revenues or assets constitute 1% or more of consolidated gross revenues or
consolidated assets of the Company and its Subsidiaries.
"Standby Borrowing" shall mean a borrowing con- sisting of
simultaneous Standby Loans from each of the Banks.
"Standby Borrowing Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A.
"Standby Loans" shall mean the revolving loans made by the Banks to
the Company pursuant to Section 2.03. Each Standby Loan shall be a Eurodollar
Standby Loan, a CD Loan or an ABR Loan.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority to which the
Administrative Agent is subject for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to (i) the
applicable Interest Period, in the case of the Adjusted CD Rate, and (ii) three
months, in the case of the Base CD Rate (as such term is used in the definition
of "Alternate Base Rate"). Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corpora- tion, partnership, association or other
business entity (a) of which securities or other ownership interests repre-
senting more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or (b) which is, at the
time any determination is made, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" shall mean any subsidiary of the Company.
"Total Commitment" shall mean at any time the aggregate amount of the
Banks' Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the
LIBO Rate, the Adjusted CD Rate and the Alternate Base Rate.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
mascu- line, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determin- ing compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in the Company's audited financial statements referred to in
Section 3.04.
II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Standby Loans to the Company, at any
time and from time to time on and after the date hereof and until the earlier of
the Maturity Date and the termination of the Commitment of such Bank, in an
aggregate principal amount at any time outstanding not to exceed such Bank's
Commitment subject, however, to the condition that at all times the outstanding
aggregate principal amount of all Standby Loans made by a Bank shall equal the
product of (i) the percentage which its Commitment represents of the Total
Commitment times (ii) the outstanding aggregate prin- cipal amount of all
Standby Loans requested by the Company from the Banks pursuant to Section 2.03.
Each Bank's Commitment is set forth opposite its respective name in Schedule
2.01. Such Commitments may be terminated, reduced or extended from time to time
pursuant to Section 2.10.
Within the foregoing limits, the Company may borrow, repay, prepay and
reborrow hereunder, on and after the date hereof and prior to the Maturity Date,
subject to the terms, provisions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part of
a Borrowing consisting of Loans made by the Banks ratably in accordance with
their Commit- ments; provided, however, that the failure of any Bank to make any
Standby Loan shall not in itself relieve any other Bank of its obligation to
lend hereunder (it being under- stood, however, that no Bank shall be
responsible for the failure of any other Bank to make any Loan required to be
made by such other Bank). Standby Loans comprising each Borrowing shall be in an
aggregate principal amount which is an integral multiple of $1,000,000 and not
less than $5,000,000 (or an aggregate principal amount equal to the remaining
balance of the available Commitments).
(b) Each Standby Borrowing shall be comprised entirely of Eurodollar
Standby Loans, CD Loans or ABR Loans, as the Company may request pursuant to
Section 2.03. Each Bank may at its option make any Eurodollar Standby Loan by
causing any domestic or foreign branch or Affiliate of such Bank to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Company to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Company shall not be entitled to request any
Borrowing which, if made, would result in an aggregate of more than ten separate
Loans of any Bank being outstanding hereunder at any one time. For purposes of
the foregoing, Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.04, each Bank shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 12:00 noon, New York City time, and the Administrative Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to the
general deposit account of the Company with the Administrative Agent or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Banks. Subject to Section 2.04, Standby Loans shall be made by the
Banks pro rata in accordance with Section 2.15. Unless the Administrative Agent
shall have received notice from a Bank prior to the date of any Borrowing that
such Bank will not make available to the Administrative Agent such Bank's
portion of such Borrowing, the Administrative Agent may assume that such Bank
has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Administrative Agent
may, in reliance upon such assumption, make available to the Company on such
date a corresponding amount. If and to the extent that such Bank shall not have
made such portion available to the Administrative Agent, such Bank and the
Company (without prejudice to the Company's rights against the defaulting Bank)
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Company until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Company, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Bank, the Federal Funds Effective Rate. If such Bank
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Bank's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Standby Borrowing Procedure. In order to request a
Standby Borrowing, the Company shall give written or telex notice (or telephone
notice promptly confirmed in writing or by telex) to the Administrative Agent in
the form of Exhibit A (a) in the case of a Eurodollar Standby Borrowing, not
later than 10:00 a.m., New York City time, three Business Days before a proposed
borrowing, (b) in the case of a CD Borrowing, not later than 10:00 a.m., New
York City time, two Business Days before a proposed borrowing and (c) in the
case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on the
day of a proposed borrowing. Such notice shall be irrevocable and shall in each
case refer to this Agreement and specify (i) whether the Borrowing then being
requested is to be a Eurodollar Standby Borrowing, a CD Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day) and
the amount thereof; and (iii) if such Borrowing is to be a Eurodollar Standby
Borrowing or CD Borrowing, the Interest Period with respect thereto. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Borrowing or CD Borrowing is specified in any such
notice, then the Company shall be deemed to have selected an Interest Period of
one month's duration, in the case of a Eurodollar Borrowing, or 30 days'
duration, in the case of a CD Borrowing. If the Company shall not have given
notice in accordance with this Section 2.03 of its election to refinance a
Standby Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then the Company shall (unless such Borrowing is repaid at the end of
such Interest Period) be deemed to have given notice of an election to refinance
such Borrowing with an ABR Borrowing. The Administrative Agent shall promptly
advise the Banks of any notice given pursuant to this Section 2.03 and of each
Bank's portion of the requested Borrowing.
SECTION 2.04. Refinancings. The Company may refinance all or any
part of any Borrowing with a Borrowing of the same or a different Type made
pursuant to Section 2.03, subject to the conditions and limitations set forth
herein and elsewhere in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.06 with the
proceeds of a new Borrowing hereunder and the proceeds of the new Borrowing, to
the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Banks to the Administrative Agent or by the
Administrative Agent to the Company pursuant to Section 2.02(c).
SECTION 2.05. Fees. (a) The Company agrees to pay to each Bank,
through the Administrative Agent, on each March 31, June 30, September 30 and
December 31, commencing September 30, 1995, and on the date on which the
Commitment of such Bank shall be terminated as provided herein, a facility fee
(a "Facility Fee") equal to the Facility Fee Percentage of the daily average
amount of the Commitment of such Bank, whether used or unused, during the
preceding quarter (or other period commencing with the date of this Agreement or
ending with the Maturity Date or any date on which the Commitment of such Bank
shall be terminated). All Facility Fees shall be computed on the basis of the
actual number of days elapsed over a 360 day year. The Facility Fee due to each
Bank shall commence to accrue on the Closing Date and shall cease to accrue on
the earlier of the Maturity Date and the termination of the Commitment of such
Bank as provided herein.
(b) The Company agrees to pay the Administrative Agent, for its own
account, the fees set forth in the Engagement Letter dated June 28, 1995, among
the Administrative Agent, Chemical Securities Inc. and the Company at the times
and in the amounts set forth therein.
(c) The Company agrees to pay to each Bank, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31,
commencing September 30, 1995, and on each date on which the Commitment of such
Bank shall be terminated as provided herein, a utilization fee (the "Utilization
Fee") equal to .10% per annum on the outstanding principal amount of the Loans
of such Bank for each day during the preceding quarter or such shorter period on
which the outstanding aggregate principal amount of the Loans exceeds 50% of the
Total Commitment. All Utilization Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Banks. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Repayment of Loans. (a) The Company agrees to pay the
outstanding principal balance of each Standby Loan on the last day of the
Interest Period applicable to such Loan and on the Maturity Date. Each Standby
Loan shall bear interest from the date of such Borrowing on the outstanding
principal balance thereof as set forth in Section 2.07.
(b) Each Bank shall, and is hereby authorized by the Company to
maintain, in accordance with its usual practice, records evidencing the
indebtedness of the Company to such Bank hereunder from time to time, including
the date, amount and Type of and the Interest Period applicable to each Loan
made by such Bank from time to time and the amounts of principal and interest
paid to such Bank from time to time in respect of each such Loan.
(c) The entries made in the records maintained pursuant to paragraph
(b) of this Section 2.06 and in the Register maintained by the Administrative
Agent pursuant to Section 9.04(d) shall be prima facie evidence of the existence
and amounts of the obligations of the Company to which such entries relate;
provided, however, that the failure of any Bank or the Administrative Agent to
maintain or to make any entry in such records or the Register, as applicable, or
any error therein shall not in any manner affect the obligation of the Company
to repay any Standby Loans in accordance with the terms of this Agreement.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Spread in effect at such
time.
(b) Subject to the provisions of Section 2.08, the Loans comprising
each CD Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted CD Rate for the Interest Period in effect plus the Applicable Spread in
effect at such time.
(c) Subject to the provisions of Section 2.08, the Loans comprising
each ABR Borrowing shall bear interest (if the Alternate Base Rate is based on
the Prime Rate, computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be, or if the Alternate Base Rate is
based on the Base CD Rate or the Federal Funds Effective Rate, computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to the Alternate Base Rate.
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Adjusted LIBO Rate, Adjusted CD Rate or Alternate Base Rate for
each Interest Period or day within an Interest Period, as the case may be, shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.08. Default Interest. If the Company shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Company shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the Alternate Base Rate plus
2%.
SECTION 2.09. Alternate Rate of Interest. (a) In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Bank of making or maintaining
its Eurodollar Standby Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telex notice of
such determination to the Company and the Banks. In the event of any such
determination, until the Administrative Agent shall have advised the Company and
the Banks that the circumstances giving rise to such notice no longer exist, any
request by the Company for a Eurodollar Standby Borrowing pursuant to Section
2.03 shall be deemed to be a request for an ABR Borrowing. Each determination
by the Administrative Agent hereunder shall be conclusive absent manifest error.
(b) In the event, and on each occasion, that on or before the day on
which the Adjusted CD Rate for a CD Borrowing is to be determined the
Administrative Agent shall have determined that such Adjusted CD Rate cannot be
determined for any reason, including the inability of the Agent to obtain
sufficient bids in accordance with the terms of the definition of Fixed CD Rate,
or the Agent shall determine that the Adjusted CD Rate for such CD Borrowing
will not adequately and fairly reflect the cost to any Bank of making or
maintaining its CD Loan during such Interest Period, the Administrative Agent
shall, as soon as practicable thereafter, give written or telex notice of such
determination to the Company and the Banks. In the event of any such
determination, any request by the Company for a CD Borrowing pursuant to Section
2.03 shall, until the Administrative Agent shall have advised the Company and
the Banks that the circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.10. Termination, Reduction and Exten- sion of Commitments.
(a) The Commitments shall be auto- matically terminated on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telex notice to the Administrative Agent, the Company may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; provided, however, that each partial reduction of the Commitments
shall be in an integral multiple of $1,000,000 and in a minimum principal amount
of $10,000,000.
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Banks in accordance with their respective applicable Commitments. The
Company shall pay to the Administrative Agent for the account of the Banks, on
the date of each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(d) Not later than the date 45 days prior to (i) the first
anniversary of the date hereof or (ii) any anniversary of the date hereof during
the 45 days prior to which the Commitments shall have been extended as provided
in this paragraph (d), the Company may deliver to the Administrative Agent
(which shall promptly transmit to each Bank) a notice requesting that the
Commitments be extended to the first anniversary of the Maturity Date at the
time in effect. Within 30 days after its receipt of any such notice, each Bank
shall notify the Administrative Agent of its willingness or unwillingness so to
extend its Commitment. In the event each Bank shall be willing to extend its
Commitment, the Administrative Agent shall so notify the Company and each Bank
and the Maturity Date shall without further act be extended to the first
anniversary of the date which shall theretofore have been the Maturity Date.
SECTION 2.11. Prepayment. (a) The Company shall have the right at
any time and from time to time to prepay any Standby Borrowing, in whole or in
part, upon at least three Business Days' prior written or telex notice (or
telephone notice promptly confirmed by written or telex notice) to the
Administrative Agent; provided, however, that each partial prepayment shall be
in an amount which is an integral multiple of $1,000,000 and not less than
$5,000,000.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.10, the Company shall pay or prepay so much of the Standby
Borrowings as shall be necessary in order that the aggregate principal amount of
the Loans outstanding will not exceed the aggre- gate Commitments after giving
effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Company to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.11 shall be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be accompanied by
accrued interest on the principal amount being prepaid to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Bank of the principal
of or interest on any Eurodollar Standby Loan or CD Loan made by such Bank or
any other fees or amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Bank by the jurisdiction in
which such Bank has its principal office or by any political subdivision or
taxing authority therein), shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by, such Bank (except any reserve requirement
reflected in the Adjusted LIBO Rate), or shall impose on such Bank or the London
interbank market any other condition affecting this Agreement or any Eurodollar
Standby Loan or CD Loan made by such Bank, and the result of any of the
foregoing shall be to increase the cost to such Bank of making or maintaining
any Eurodollar Standby Loan or CD Loan or to reduce the amount of any sum
received or receivable by such Bank hereunder (whether of principal, interest or
otherwise) in respect thereof by an amount deemed by such Bank to be material,
then the Company shall pay to such Bank upon demand such additional amount or
amounts as will compensate such Bank for such additional cost incurred or
reduction suffered.
(b) If any Bank shall have determined that the applicability of any
law, rule, regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and Supervi- sory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards", or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank or comparable agency charged with the
inter- pretation or administration thereof, or compliance by any Bank (or any
lending office of such Bank) or any Bank's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital or on the capital
of such Bank's holding company, if any, as a consequence of this Agreement or
the Loans made by such Bank pursuant hereto to a level below that which such
Bank or such Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies and the
policies of such Bank's holding company with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time the Company
shall pay to such Bank such additional amount or amounts as will compensate such
Bank or such Bank's holding company for any such reduction suffered.
(c) A certificate of a Bank setting forth such amount or amounts as
shall be necessary to compensate such Bank (or participating banks or other
entities pursuant to Section 9.04) as specified in paragraph (a) or (b) above,
as the case may be, shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay each Bank the amount shown as due
on any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right with respect to such period or any other period. The
protection of this Section shall be available to each Bank regardless of any
possible contention of invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have been
imposed.
SECTION 2.13. Change in Legality. (a) Notwith- standing any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Standby Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Standby Loan,
then, by written notice to the Company and to the Administrative Agent, such
Bank may:
(i) declare that Eurodollar Standby Loans will not thereafter be made
by such Bank hereunder, whereupon any request by the Company for a
Eurodollar Standby Borrowing shall, as to such Bank only, be deemed a
request for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Standby Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Standby Loans
shall be automatically converted to ABR Loans as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Standby Loans that would have been made by such Bank or the
converted Eurodollar Standby Loans of such Bank shall instead be applied to
repay the ABR Loans made by such Bank in lieu of, or resulting from the
conversion of, such Eurodollar Standby Loans.
(b) For purposes of this Section 2.13, a notice to the Company by any
Bank shall be effective as to each Eurodollar Standby Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar Standby
Loan; in all other cases such notice shall be effective on the date of receipt
by the Company.
SECTION 2.14. Indemnity. The Company shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Company to fulfill on the date of any Bor-
rowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by the Company to borrow or to refinance or continue any Loan hereunder
after irrevocable notice of such borrowing, refinancing or continuation has been
given pursuant to Section 2.03, (c) any payment, prepayment or conversion of a
Eurodollar Standby Loan or CD Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day of
the Interest Period applicable thereto, (d) any default in payment or prepayment
of the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, by irrevocable
notice of prepayment or otherwise) or (e) the occurrence of any Event of
Default, including, in each such case, any loss or reasonable expense sustained
or incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurodollar Standby Loan or CD Loan. Such loss or reasonable expense shall
include an amount equal to the excess, if any, as reasonably determined by such
Bank, of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
converted or not borrowed (based on the Adjusted LIBO Rate or Adjusted CD Rate,
as applicable) for the period from the date of such payment, prepayment,
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in reemploying the funds so paid, prepaid, converted or not borrowed for
such period or Interest Period, as the case may be. A certificate of any Bank
setting forth any amount or amounts which such Bank is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under Sections
2.12 and 2.13, each Standby Borrowing, each payment or prepayment of principal
of any Standby Borrowing, each payment of interest on the Standby Loans, each
payment of the Facility Fees, each payment of the Utilization Fees, each
reduction of the Commitments and each refinancing of any Borrowing with a
Standby Borrowing of any Type, shall be allocated pro rata among the Banks in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Standby Loans). Each Bank agrees that in computing such
Bank's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Bank's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Company, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of its Loans shall be proportionately less
than the unpaid principal portion of the Loans of any other Bank, it shall
promptly purchase from such other Bank at face value a participation in the
Loans of such other Bank, so that the aggregate unpaid principal amount of the
Loans and partici- pations in Loans held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount of all Loans then
outstanding as the principal amount of its Loans prior to such exercise of
banker's lien, setoff or counter- claim or other event was to the principal
amount of all Loans outstanding prior to such exercise of banker's lien, setoff
or counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Company expressly
consents to the foregoing arrangements and agrees that any Bank holding a
participation in a Loan deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Company to such Bank by reason thereof as fully as if such
Bank had made a Loan directly to the Company in the amount of such
participation.
SECTION 2.17. Payments. (a) The Company shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the
Administrative Agent at Agent Bank Services, Attn: Andrew N. Stasiw, 140 East
45th Street, 29th Floor, New York, New York 10017 (Telecopy No. (212)-622-0002),
in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Busi- ness Day,
and such extension of time shall in such case be included in the computation of
interest or Fees, if appli- cable.
SECTION 2.18. Taxes. (a) Any and all payments by the Company
hereunder shall be made, in accordance with Section 2.17, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the Administrative Agent's or any Bank's income, and
franchise taxes imposed on the Administrative Agent or any Bank, by the United
States or any jurisdiction under the laws of which it is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Company shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Banks or the Administrative
Agent (i) the sum payable shall be increased by the amount necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.18) such Bank or the Administrative
Agent (as the case may be) shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount deducted to the
relevant taxing authority or other Governmental Authority in accordance with
applicable law.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank and the Administrative Agent
for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.18) paid by
such Bank or the Administrative Agent, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank or the
Administrative Agent, as the case may be, makes written demand therefor. If a
Bank or the Administrative Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes, it shall promptly notify
the Company of the availability of such refund and shall, within 30 days after
receipt of a request by the Company, apply for such refund at the Company's
expense. If any Bank or the Administrative Agent receives a refund in respect
of any Taxes or Other Taxes for which such Bank or the Administrative Agent has
received payment from the Company hereunder it shall promptly notify the Company
of such refund and shall, within 30 days after receipt of a request by the
Company (or promptly upon receipt, if the Company has requested application for
such refund pursuant hereto), repay such refund to the Company without interest,
provided that the Company, upon the request of such Bank or the Administrative
Agent, agrees to return such refund (plus penalties, inter- est or other
charges) to such Bank or the Administrative Agent in the event such Bank or the
Administrative Agent is required to repay such refund.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Company in respect of any payment to any Bank or the
Administrative Agent, the Company will furnish to the Administrative Agent, at
its address referred to in Section 2.17, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obli- gations contained in this Section
2.18 shall survive the payment in full of the principal of and interest on all
Loans made hereunder.
(f) Each Bank which is organized outside the United States shall
promptly notify the Company of any change in its funding office and upon written
request of the Company shall, prior to the immediately following due date of any
payment by the Company hereunder, deliver to the Company such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form 4224 and any
other certificate or statement of exemption required by Treasury Regulation
Section 1.1441-1(a) or Sec- tion 1.1441-6(c) or any subsequent version thereof,
properly completed and duly executed by such Bank establishing that such payment
is (i) not subject to withholding under the Code because such payment is
effectively connected with the conduct by such Bank of a trade or business in
the United States or (ii) totally exempt from United States tax under a
provision of an applicable tax treaty. Unless the Company and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments hereunder are not subject to United States withholding
tax or are subject to such tax at a rate reduced by an applica- ble tax treaty,
the Company or the Administrative Agent shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any Bank or
assignee organized under the laws of a jurisdiction outside the United States.
(g) Any Bank claiming any additional amounts payable pursuant to this
Section 2.18 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue and would not, in the sole
determination of such Bank, be otherwise disadvanta- geous to such Bank.
III. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Banks that:
SECTION 3.01. Organization; Powers. Each of the Company and the
Subsidiaries (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as pro- posed to be conducted, (c) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Effect,
and (d) in the case of the Company, has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated thereby to which it is or
will be a party and to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by the Company of each of the Loan Documents, the actions taken by the Company
in connection with the borrowings hereunder (the "Transactions") (a) have been
duly authorized by all requisite corporate and, if required, stockholder action
and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of the Company or any Subsidiary, (B) any
order of any Governmental Authority applicable to the Company or (C) any
provision of any indenture, agreement or other instrument to which the Company
or any Subsidiary is a party or by which any of them or any of their property is
or may be bound, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon any property or assets of the Company or any
Subsidiary except Liens set forth on Schedule 6.01.
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by the Company and consti- tutes, and each other Loan Document
when executed and delivered by the Company will constitute, a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms.
SECTION 3.04. Financial Statements. The Company has heretofore
furnished to the Banks (a) consolidated balance sheets and statements of income
and changes in stockholders' equity and cash flows as of and for the fiscal year
ended December 31, 1994, audited by and accompanied by the opinion of Coopers &
Lybrand, independent public accountants, and (b) its consolidated balance sheets
and statements of income and consolidated statement of cash flows as of and for
the fiscal quarter ended June 30, 1995, certified by its chief financial
officer. Such financial statements present fairly the financial condition and
results of operations of the Company and its consolidated Subsidiaries as of
such dates and for such periods. Such balance sheets and notes thereto disclose
all material liabilities, direct or contingent, of the Company and its
Subsidiaries as of the dates thereof. Such financial statements were prepared
in accordance with GAAP applied on a consistent basis.
SECTION 3.05. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Company and the Subsidiaries, taken as a whole,
since December 31, 1994.
SECTION 3.06. Title to Properties and Possession Under Leases. (a)
Each of the Company and the Subsidiaries will, on the Closing Date and at all
times thereafter, have good and marketable title to, or valid leasehold
interests in, all its material properties and assets, except for minor defects
in title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties and assets for their intended
purposes and except for Liens permitted by Section 6.01. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.01.
(b) Each of the Company and the Subsidiaries (or their respective
predecessors) has complied with all obli- gations under all material leases to
which it is a party and all such leases are in full force and effect. Each of
the Company and the Subsidiaries enjoys peaceful and undisturbed possession
under all such material leases.
SECTION 3.07. The Subsidiaries and the Company. Schedule 3.07 sets
forth as of the Closing Date a list of all Subsidiaries and the percentage
ownership interest of the Company therein.
SECTION 3.08. Litigation; Compliance with Laws. (a) Except as set
forth in Schedule 3.08, there are not any actions, suits or proceedings at law
or in equity or by or before any Governmental Authority now pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any business, property or rights of any such person (i) which
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, could, individually or in the aggregate, result in a Material
Adverse Effect.
(b) Neither the Company nor any of the Subsidi- aries is in violation
of any law, rule or regulation, or in default with respect to any judgment,
writ, injunction or decree of any Governmental Authority, where such violation
or default could result in a Material Adverse Effect.
SECTION 3.09. Agreements. (a) Neither the Company nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or, in the absence of a material default
by the Company or such Subsidiary, could result in a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidi- aries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its proper- ties or
assets are or may be bound, where such default could result in a Material
Adverse Effect.
SECTION 3.10. Federal Reserve Regulations. (a) Neither the Company
nor any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immedi- ately, incidentally or ultimately,
for any purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including Regulation G, U or X.
SECTION 3.11. Investment Company Act; Public Utility Holding Company
Act. Neither the Company nor any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.12. Use of Proceeds. The Company will use the proceeds of
the Loans only for the purposes speci- fied in the preamble to this Agreement.
SECTION 3.13. Tax Returns. Each of the Company and the Subsidiaries
has filed or caused to be filed all Federal, state and local tax returns
required to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except taxes that are being contested in accordance with Section 5.03.
SECTION 3.14. No Material Misstatements. No information, report,
financial statement, exhibit or sched- ule furnished by or on behalf of the
Company to the Administrative Agent or any Bank in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading.
SECTION 3.15. Employee Benefit Plans. Each of the Company and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Company or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $1,000,000 the value of the assets of such Plan.
Neither the Company nor any ERISA Affiliate has incurred any Withdrawal
Liability that could result in a Material Adverse Effect. Neither the Company
nor any ERISA Affiliate has received any notifica- tion that any Multiemployer
Plan is in reorganization or has been terminated within the meaning of Title IV
of ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated where such reorganization or termination has
resulted or could reasonably be expected to result, through increases in the
contributions required to be made to such Plan or otherwise, in a Material
Adverse Effect.
SECTION 3.16. Environmental Matters. Each of the Company and the
Subsidiaries, and each of their respective businesses, has complied in all
material respects with all Federal, state, local and other statutes, ordinances,
orders, judgments, rulings and regulations relating to environmental pollution
or to environmental regulation or control. Neither the Company nor any
Subsidiary has received notice of any failure so to comply which alone or
together with any other such failure could result in a Material Adverse Effect.
The Company's and the Subsidiaries' plants do not manage any hazardous wastes,
hazardous substances, hazardous materials, toxic substances or toxic pollutants,
as those terms are used in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act or the Clean Water Act, in violation of any regulations
promulgated pursuant thereto or in any other applicable law where such violation
could result, individually or together with other violations, in a Material
Adverse Effect.
SECTION 3.17. Solvency. On the date hereof and on the date of each
Borrowing hereunder after giving effect to each Loan to be made and the use of
the proceeds thereof, (a) the fair salable value of the assets of the Company
will exceed the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of the
Company as they mature; (b) the assets of the Company will not constitute
unreasonably small capital to carry out its business as conducted or as proposed
to be conducted; and (c) the Company will not intend to, and will not believe
that it will, incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be received by it and the
amounts to be payable on or in respect of its obligations).
IV. CONDITIONS OF LENDING
SECTION 4.01. All Borrowings. The obligations of the Banks to make
Loans hereunder on the date of each Borrowing hereunder, including each
Borrowing in which Loans are refinanced with new Loans as contemplated by Sec-
tion 2.04, shall be subject to satisfaction of the following conditions
precedent:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III
(excluding, in the case of a refinancing of a Standby Borrowing with a new
Standby Borrowing that does not increase the aggregate principal amount of
the Loans of any Bank outstanding, the representations set forth in
Sections 3.05 and 3.08(a)) shall be true and correct in all material
respects on and as of the date of such Borrowing with the same effect as if
made on and as of such date, except to the extent that such representations
and warranties expressly relate to an earlier date.
(c) The Company shall be in compliance with all the terms and
provisions set forth herein on its part to be observed or performed
(including but not limited to, compliance with the financial ratios and
restrictions set forth in Sections 6.02, 6.04, 6.05, 6.07 and 6.08), and at
the time of and immediately after such Borrowing no Event of Default or
Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representa- tion and warranty by
the Company on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effectiveness of Agreement. The obligations of the
Banks to make Loans hereunder shall be subject to satisfaction on the Closing
Date of the following additional conditions precedent:
(a) The Administrative Agent shall have received a favorable written
opinion of Nancy M. Taylor, Esq. dated the Closing Date and addressed to
the Banks, to the effect set forth in Exhibit D hereto.
(b) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Banks and their counsel and to
Cravath, Swaine & Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto,
of the Company, certified as of a recent date by the Secretary of State of
the state of its organization, and a certificate as to the good standing of
the Company as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Company dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of the Loan
Documents and the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of the Company have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing
any Loan Document or any other document delivered in connection herewith on
behalf of the Company; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Banks or their counsel or Cravath, Swaine & Moore, counsel
for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Company,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received payment of the fees
then due set forth in the Engagement Letter dated June 28, 1995, among the
Administrative Agent, Chemical Securities Inc. and the Company in the
amounts set forth therein.
(f) The commitments under the Revolving Credit Facility Agreement
dated as of August 18, 1994, among the Company, the lenders party thereto,
Chemical, as administrative agent and NationsBank of Virginia, N.A., as
co-agent, shall have been terminated and all principal, interest and other
amounts outstanding thereunder shall have been paid in full.
V. AFFIRMATIVE COVENANTS
The Company covenants and agrees with each Bank and the Agents that so
long as this Agreement shall remain in effect or the principal of or interest on
any Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall be unpaid, unless the Required Banks shall otherwise consent in
writing, the Company will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Proper- ties; Compliance. (a)
Do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly permitted
under Section 6.04.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regula- tions and
orders of any Governmental Authority, whether now in effect or hereafter
enacted; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, addi- tions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by
it; and maintain such other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accor- dance with their terms and pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materi- als and supplies or otherwise which, if unpaid, might give rise to a
Lien upon such properties or any part thereof; provided, however, that such
payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Company
shall have set aside on its books adequate reserves with respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Company, furnish to the Administrative Agent and each Bank:
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheets and related statements of income and cash flows, showing the
financial condition of the Company and its consolidated Subsidiaries as of
the close of such fiscal year and the results of its operations and the
operations of such Subsidiaries during such year, all audited by Coopers &
Lybrand or other independent public accoun- tants of recognized national
standing acceptable to the Required Banks and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present the
financial condition and results of operations of the Company on a
consolidated basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
statements of income and cash flows, showing the financial condition of the
Company and its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such
Subsidiaries during such fiscal quarter and the then elapsed portion of the
fiscal year, all certified by one of its Finan- cial Officers as fairly
presenting the financial condition and results of operations of the Company
on a consolidated basis in accordance with GAAP, subject to normal year-end
audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the accounting firm or Financial Officer
opining on or certifying such statements (which certificate, when furnished
by an accounting firm, may be limited to accounting matters and disclaim
responsibility for legal interpretations) (i) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Sections
6.05, 6.07 and 6.08;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
it with the Securities and Exchange Commission, or any govern- mental
authority succeeding to any of or all the functions of said Commission, or
with any national securities exchange, or distributed to its share-
holders, as the case may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Company or any
Subsidi- ary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Bank may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent and each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or com- mence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Company or any Affiliate thereof which, if adversely
determined, could result in a Material Adverse Effect;
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Administrative Agent and
each Bank (i) as soon as possible, and in any event within 30 days after any
Responsible Officer of the Company or any ERISA Affiliate either knows or has
reason to know that any Reportable Event has occurred that alone or together
with any other Reportable Event could reasonably be expected to result in
liability of the Company to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer setting forth details as to such
Reportable Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) promptly after receipt thereof, a copy of any notice the Company
or any ERISA Affiliate may receive from the PBGC relating to the intention of
the PBGC to terminate any Plan or Plans (other than a Plan maintained by an
ERISA Affiliate which is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 412 of the Code) or to appoint a trustee to
administer any Plan or Plans, (iii) within 20 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a Plan, a statement
of a Financial Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Company or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Company or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a deter-
mination that a Multiemployer Plan is, or is expected to be, terminated or in
reorganization, in each case within the meaning of Title IV of ERISA.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Company or any Subsidiary at reasonable times
and as often as requested and to make extracts from and copies of such financial
records, and permit any representatives designated by any Bank to discuss the
affairs, finances and condition of the Company or any Subsidiary with the
officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds; Termination of Prior Credit Agreement.
(a) Simultaneous with or prior to the first Borrowing under this Agreement, (i)
use a portion of the proceeds of such Borrowing or other funds to pay in full
all principal, interest and other amounts outstanding under the $35,000,000
Credit Agreement dated August 19, 1994, among the Company, the lenders party
thereto and LTCB Trust Company, as agent (the "LTCB Credit Agreement") and (ii)
terminate all commitments under the LTCB Credit Agreement.
(b) Use the remaining proceeds of the Loans only for the purposes set
forth in the preamble to this Agreement.
VI. NEGATIVE COVENANTS
The Company covenants and agrees with each Bank and the Agents that,
so long as this Agreement shall remain in effect or the principal of or interest
on any Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall be unpaid, unless the Required Banks shall otherwise consent in
writing, the Company will not, and will not cause or permit any of the
Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary, but excluding Margin Stock to the extent that
the value of such Margin Stock, determined in accordance with Regulation U,
exceeds 25% of the value (as so determined) of the assets and properties that
would be subject to this Section 6.01 without giving effect to this
parenthetical, or such other maximum amount or percentage as is then provided
for or permitted under Regulation U or any successor regulation in order that no
Loan shall be deemed "indirectly secured" by Margin Stock for purposes of such
regulation), now owned or hereafter acquired by it or on any income or rights in
respect of any thereof, except:
(a) Liens on property or assets of the Company and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.01; provided that
such Liens shall secure only those obligations which they secure on the
date hereof;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acqui- sition and (ii) such Lien does not apply to any other property or
assets of the Company or any Subsidiary;
(c) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(d) carriers', warehousemen's, mechanic's, mater- ialmen's,
repairmen's or other like Liens arising in the ordinary course of business
and securing obliga- tions which are not due or which are being contested
in compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's com- pensation, unemployment insurance and other
social security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of busi- ness which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(h) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Company or any Subsidiary; provided that (i) such
security interests are incurred, and the Indebtedness secured thereby is
created, within 90 days after such acquisition (or construction), (ii) the
Indebtedness secured thereby does not exceed 80% of the lesser of the cost
or the fair market value of such real property, improvements or equipment
at the time of such acquisition (or construction) and (iii) such security
interests do not apply to any other property or assets of the Company or
any Subsidiary; and
(i) Liens other than those referred to in sub- paragraphs (a) through
(h) above, provided that the sum of the aggregate amount of all
Indebtedness or other obligations which are secured or evidenced by Liens
other than those referred to in subparagraphs (a) through (h) above plus
the fair market value in the aggregate of properties sold by the Company in
the sale and lease-back transactions permitted under Sec- tion 6.02, does
not at any time exceed an amount equal to 10% of Consolidated Stockholders'
Equity.
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided, however, that the
Company shall be permitted to enter into any such arrange- ments to the extent
that the sum of the fair market value in the aggregate of properties sold by the
Company pursuant to all such arrangements, plus the aggregate amount of indebt-
edness secured by Liens under paragraph (i) of Section 6.01, is not greater than
10% of Consolidated Stockholders' Equity.
SECTION 6.03. Obligations of Subsidiaries. Permit the Subsidiaries to
incur Indebtedness, except for Indebtedness which in the aggregate for all the
Subsidiaries constitutes not more than 10% of Consolidated Stockholders' Equity
at any time or Indebtedness to the Company incurred by the Subsidiaries in the
ordinary course of business.
SECTION 6.04. Mergers, Consolidations and Sales of Assets. Merge into
or consolidate with any other person, or permit any other person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of its
assets (whether now owned or here- after acquired) or any capital stock of any
Subsidiary (other than any Margin Stock to the extent the value of such Margin
Stock, determined in accordance with Regulation U, together with the value of
other Margin Stock owned by the Company and its Subsidiaries, exceeds 25% of the
aggregate value of the assets of the Company and its Subsidiaries), or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or any substantial part of the assets or capital stock of any other person;
provided, that nothing in the foregoing shall prohibit:
(a) the Company and any of its Subsidiaries from purchasing or selling
inventory in the ordinary course of business in arm's-length transactions;
(b) the sale of all or any substantial part of the assets or capital
stock of Tredegar Molded Products Company and its Subsidiaries, Brudi, Inc.
and its Subsidiary and Swing-Shift Brudi Pacific PTY LTD;
(c) if at the time thereof and immediately after giving effect thereto
no Event of Default or Default shall have occurred and be continuing (i)
any entity from merging into the Company or any wholly owned Subsidiary in
a transaction in which the Company or such wholly owned Subsidiary, as the
case may be, is the surviving corporation, and (ii) the Company and any
Subsidiary from acquiring all or any substantial part of the assets or
capital stock of any other person; and
(d) the Company and any of its Subsidiaries from selling,
transferring, leasing or otherwise disposing of (in one transaction or in a
series of transactions) during any fiscal year in arm's-length transactions
(i) assets the fair market value of which is not more than 5% of the
consolidated assets of the Company calculated in accordance with GAAP,
determined as of the beginning of such fiscal year and (ii) any other
assets to the extent the Commitments of the Banks are permanently reduced
pursuant to Section 2.10 by the amount of the proceeds received by the
Company from the sale of such assets.
SECTION 6.05. Dividends and Distributions. Declare or pay, directly
or indirectly, any dividend or make any other distribution (by reduction of
capital or other- wise), whether in cash, property, securities or a combina-
tion thereof, with respect to any shares of its capital stock or set aside any
amount for any such purpose; pro- vided, however, that (a) any Subsidiary may
declare and pay dividends or make other distributions to the Company and (b) if
no Event of Default or Default shall have occurred and be continuing, the
Company may at any time declare and pay dividends in an aggregate amount not at
any time to exceed $48,003,000 plus the Company's Consolidated Net Income for
the period (which shall be treated as a single accounting period) beginning on
April 1, 1994 and ending on the last day of the fiscal quarter for which
financial statements of the Company shall at such time most recently have been
delivered pursuant to Section 5.04.
SECTION 6.06. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that as long as no Default or Event of Default shall have occurred and be
continuing, the Company or any Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Company or such Sub- sidiary than could be
obtained on an arm's-length basis from unrelated third parties.
SECTION 6.07. Consolidated Stockholders' Equity. Permit Consolidated
Stockholders' Equity of the Company to be less than $100,000,000 at any time.
SECTION 6.08. Debt Ratio. Permit the Debt/Capitalization Ratio to
exceed 0.65 to 1.00 at any time prior to June 30, 1996, or 0.60 to 1.00 at any
time thereafter; provided, that if the Debt/Capitalization Ratio required by the
Loan Agreement dated June 16, 1993, among the Company and Metropolitan Life
Insurance Company, evidencing the 7.20% Senior Promissory Notes due June 16,
2003 (or any loan agreement entered into by the Company as a result of the
refinancing or repayment of such Loan Agreement) (in each such case, the
operative agreement being known as the "MetLife Agreement") shall not be lower
than 0.65 to 1.00 on or after June 30, 1996, the maximum Debt/Capitalization
Ratio permitted by this Section 6.08 shall be 0.65 to 1.00 so long as the
Debt/Capitalization Ratio required by the MetLife Agreement remains at such
level.
VII. EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of
five Business Days;
(d) default shall be made in the due observance or performance by the
Company or any Subsidiary of any covenant, condition or agreement contained
in Sec- tion 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by the
Company or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in (b), (c) or (d) above)
and such default shall continue unremedied for a period of ten Business
Days after notice thereof from the Administrative Agent or any Bank to the
Company;
(f) the Company or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any Indebtedness in an
aggregate principal amount in excess of $5,000,000, when and as the same
shall become due and payable, or (ii) fail to observe or perform any other
term, covenant, condition or agreement on its part to be performed under
any agreement or instrument evidencing or governing any such Indebtedness
if the effect of any failure referred to in this clause (ii) is to cause,
or to permit the holder or holders of such Indebtedness or a trustee on its
or their behalf (with or without the giving of notice, the lapse of time or
both) to cause, such Indebtedness to become due prior to its stated
maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Company or any Subsidiary, or of a substantial
part of the property or assets of the Company or a Subsidi- ary, under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency, receivership
or similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of the property or assets of the
Company or a Subsidiary or (iii) the winding-up or liquidation of the
Company or any Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(h) the Company or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described
in (g) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar offi- cial for the
Company or such Significant Subsidiary or for a substantial part of the
property or assets of the Company or such Significant Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undis-
charged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Company or any
Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liabil- ity of the
Company to the PBGC or to a Plan in an aggregate amount exceeding
$5,000,000 and, within 30 days after the reporting of any such Reportable
Event to the Administrative Agent or after the receipt by the
Administrative Agent of the statement required pursuant to Section 5.06,
the Administrative Agent shall have notified the Company in writing that
(i) the Required Banks have made a determination that, on the basis of such
Reportable Event or Reportable Events or the failure to make a required
payment, there are reasonable grounds (A) for the termination of such Plan
or Plans by the PBGC, (B) for the appointment by the appropriate United
States District Court of a trustee to administer such Plan or Plans or (C)
for the impo- sition of a lien in favor of a Plan and (ii) as a result
thereof an Event of Default exists hereunder; or a trustee shall be
appointed by a United States Dis- trict Court to administer any such Plan
or Plans; or the PBGC shall institute proceedings to terminate any Plan or
Plans;
(k) (i) the Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan, (ii) the Company or such ERISA
Affiliate does not have reasonable grounds for con- testing such Withdrawal
Liability or is not in fact contesting such Withdrawal Liability in a
timely and appropriate manner and (iii) the amount of the With- drawal
Liability specified in such notice, when aggre- gated with all other
amounts required to be paid to Multiemployer Plans in connection with
Withdrawal Liabilities (determined as of the date or dates of such
notification), exceeds $5,000,000 or requires payments exceeding $1,000,000
in any year;
(l) the Company or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, if solely as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA Affiliates to
all Multiemployer Plans that are then in reorganization or have been or are
being terminated have been or will be increased over the amounts required
to be contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $1,000,000; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Banks shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable, whereupon the principal of the Loans, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Company
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Company, anything
contained herein or in any other Loan Document to the contrary notwithstanding;
and in any event with respect to the Company described in paragraph (g) or (h)
above, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Company accrued hereunder and
under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Company, anything contained herein or
in any other Loan Document to the contrary notwithstanding.
VIII. The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
Chemical Bank is hereby appointed to act as sole Administrative Agent on behalf
of the Banks. Each of the Banks, and each subsequent Bank, hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of such Bank
or holder and to exercise such powers as are specifically delegated to the
Administrative Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Banks, without hereby limiting any
implied authority, (a) to receive on behalf of the Banks all payments of
principal of and interest on the Loans and all other amounts due to the Banks
hereunder, and promptly to distribute to each Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the Banks to the
Company of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Bank copies of all notices, financial
statements and other materials delivered by the Company pursuant to this
Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or administrative agents shall be liable as such for any action taken
or omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Company of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Administrative Agent shall not
be responsible to the Banks or any subsequent Bank for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or any
other Loan Documents or other instruments or agreements. The Administrative
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks
and, except as otherwise specifically provided herein, such instructions and any
action or inac- tion pursuant thereto shall be binding on all the Banks and each
subsequent Bank. The Administrative Agent shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Company on account of the failure of or delay in performance or breach by any
Bank of any of its obligations hereunder or to any Bank on account of the
failure of or delay in performance or breach by any other Bank or the Company of
any of their respective obligations hereunder or under any other Loan Document
or in connection herewith or therewith. The Administrative Agent may execute any
and all duties hereunder by or through administrative agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the advice of such
counsel.
The Banks hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Banks.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Banks and the Company. Upon any such resignation, the
Required Banks shall appoint either NationsBank, N.A. or LTCB Trust Company as
successor Administrative Agent and, if such appointment is not accepted by
NationsBank, N.A. or LTCB Trust Company, the Required Banks shall have the right
to appoint a different successor. If no successor shall have been appointed by
the Required Banks and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a bank with an office in New York, New
York, having a combined capital and surplus of at least $500,000,000 or an
Affiliate of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Bank and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Bank agrees (i) to reimburse the Administrative Agent, on demand,
in the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Banks by the Administrative Agent,
including counsel fees and compensation of administrative agents and employees
paid for services rendered on behalf of the Banks, which shall not have been
reimbursed by the Company and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or
administrative agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against it in
its capacity as the Administrative Agent or any of them in any way relating to
or arising out of this Agreement or any other Loan Document or any action taken
or omitted by it or any of them under this Agreement or any other Loan Document,
to the extent the same shall not have been reimbursed by the Company; provided
that no Bank shall be liable to the Administrative Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or administrative agents.
Each Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Bank and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder. Neither
NationsBank, N.A. nor LTCB Trust Company shall have any duties or obligations
whatsoever under this Agreement or any other document or matter related hereto,
other than as a Bank, unless appointed as successor Administrative Agent
pursuant to this Article VIII.
IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other commu- nications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telex, graphic scanning or other telegraphic
commu- nications equipment of the sending party, as follows:
(a) if to the Company, to it at 1100 Boulders Parkway, Richmond,
Virginia 23225, Attention of Norman A. Scher (Telecopy No. (804) 330-1010);
(b) if to the Administrative Agent, to it at 270 Park Avenue, New
York, New York 10017, Attention of Stewart U. Wallace, Managing Director
(Telecopy No. (212) 270-1474); and
(c) if to a Bank, to it at its address (or tele- copy number) set
forth in Schedule 2.01.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, graphic scanning or other telegraphic communications equipment of the
sender, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All cove- nants, agreements,
representations and warranties made by the Company herein and in the
certificates or other instru- ments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the making by the Banks of
the Loans, regardless of any investigation made by the Banks or on their behalf,
and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid and so long as
the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Bank, and thereafter shall be
binding upon and inure to the benefit of the Company, the Administrative Agent
and each Bank and their respective successors and assigns, except that the
Company shall not have the right to assign its obligations or rights hereunder
or any interest herein without the prior written consent of all the Banks.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and (to the extent permitted by Section 9.04) assigns of
such party; and all covenants, promises and agreements by or on behalf of the
Company, the Administrative Agent or the Banks that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Bank may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment by a Bank to an Affiliate
of such Bank or another existing Bank (or its Affiliate), the Company and the
Administrative Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Bank's rights and obligations under this Agreement, (iii) the amount of the
Commitment of the assigning Bank subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $20,000,000 (or
such assigning Bank's entire Commitment, if such Commitment is less than
$20,000,000) and the amount of the Commitment of such Bank remaining after such
assignment shall not be less than $20,000,000 or shall be zero, (iv) the parties
to each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance and a processing and recordation fee of $3,000, and
(v) each assignee shall deliver to the Administrative Agent a completed
Administrative Questionnaire in the form of Exhibit B. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank under this
Agreement and (B) the assigning Bank thereunder shall, to the extent provided in
such assignment, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Bank's rights and obligations under this Agreement, such
assigning Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim, such
assigning Bank makes no representation or warranty and assumes no respon-
sibility with respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto;
(ii) such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or any
Subsidiary or the performance or observance by the Company of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will independently and without reliance upon the Administrative Agent,
such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Banks, and
the Commitment of, and principal amount of the Loans owing to, each Bank
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and the
Company, the Administrative Agent and the Banks may treat each person whose name
is recorded in the Register pursuant to the terms hereof as a Bank hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Company and any Bank, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assign- ment and Acceptance
executed by an assigning Bank and an assignee, the processing and recordation
fee referred to in paragraph (b) above and, if required, the written consent of
the Company to such assignment, the Administrative Agent shall (subject to the
consent of the Administrative Agent to such assignment, if required), (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Banks.
(f) Each Bank may without the consent of the Company or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Bank's obligations under this Agreement shall
remain unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.12 and 2.14 to the same extent as if they
were Banks and (iv) the Company, the Administrative Agent and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obliga- tions under this Agreement, and such Bank shall
retain the sole right to enforce the obligations of the Company relat- ing to
the Loans and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers with respect
to any fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, or the dates fixed for payments of principal
of or interest on the Loans).
(g) Any Bank or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or partic-
ipant any information relating to the Company furnished to such Bank by or on
behalf of the Company; provided that, prior to any such disclosure, each such
assignee or partic- ipant or proposed assignee or participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confiden- tiality of any confidential information
relating to the Company received from such Bank.
(h) The Company shall not assign or delegate any of its respective
rights and duties hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Company agrees to pay all
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation of this Agreement and the other Loan Documents (including those
set forth in the Engagement Letter dated June 28, 1995, among the Administrative
Agent, Chemical Securities Inc. and the Company) or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Administrative Agent or any Bank in connection with the
enforcement or protection of their rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made hereunder,
including the fees and disbursements of Cravath, Swaine & Moore, counsel for the
Administrative Agent, and, in connection with any such amendment, modification
or waiver or any such enforcement or protection, the fees and disbursements of
any other counsel for the Administrative Agent or any Bank. The Company further
agrees that it shall indemnify the Banks from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Agreement or any of the other Loan
Docu- ments.
(b) The Company agrees to indemnify the Administrative Agent, each
Bank and its directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees and expenses, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consumma- tion of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent or any Bank. All amounts due
under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing and any Bank shall have requested the Administrative
Agent to declare the Loans immediately due and payable pursuant to Article VII,
each Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Company against any of and all the obligations of the Company now or
hereafter existing under this Agreement and other Loan Documents held by such
Bank, irrespective of whether or not such Bank shall have made any demand under
this Agreement or such other Loan Document and although such obligations may be
unmatured. The rights of each Bank under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Bank may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Bank in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Banks hereunder and under the other Loan Documents
are cumulative and exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agree- ment or any other
Loan Document or consent to any departure by the Company therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the Company in any
case shall entitle the Company to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Banks; provided, however, that no
such agreement shall (i) change the principal amount of, or extend or advance
the maturity of or any date for the payment of any principal of or interest on,
any Loan, or waive or excuse any such payment or any part thereof, or change the
rate of interest on any Loan, without the prior written consent of each Bank
affected thereby, (ii) change the Commitment, Facility Fees or Utilization Fees
of any Bank without the prior written consent of such Bank, or (iii) amend or
modify the provisions of Section 2.15, the provisions of this Section or the
definition of the "Required Banks", without the prior written consent of each
Bank; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 9.09. Interest Rate Limitation. Not- withstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are treated as interest under applicable law
(collectively, the "Charges") as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Bank, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Bank in accordance with applicable law, the rate of interest
payable on such Loan, together with all Charges payable to such Bank, shall be
limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement and the other Loan
Documents and the letter agreements referred to in Section 2.05(b) constitute
the entire con- tract between the parties relative to the subject matter hereof.
Any previous agreement among the parties with respect to the subject matter
hereof is superseded by this Agreement and the other Loan Documents. Nothing in
this Agreement or in the other Loan Documents, expressed or implied, is intended
to confer upon any party other than the parties hereto any rights, remedies,
obligations or liabil- ities under or by reason of this Agreement or the other
Loan Documents.
SECTION 9.11. Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no representative,
administrative agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement and the other Loan
Documents, as applicable, by, among other things, the mutual waivers and
certifications in this Section 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotia- tions to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become effec-
tive as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Confidentiality. Any information obtained by the
Administrative Agent or any of the Banks from the Company shall not be disclosed
by the Administrative Agent or such Bank to any other person if such information
is not otherwise in the public domain except (i) to its officers, directors,
employees, administrative agents, independent accountants, Affiliates and legal
counsel (it being understood that the persons to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (ii) pursuant to statutory and
regulatory requirements or requests of regulatory authorities, (iii) pursuant to
any mandatory court order, subpoena or other legal process, (iv) to the
Administrative Agent or any other Bank, (v) pursuant to any agreement heretofore
or hereafter made between such Bank and the Company which permits such
disclosure, (vi) in connection with the exercise of any remedy under or
litigation in connection with the Loan Documents or (vii) subject to Section
9.04(g), to any participant in or assignee of, or prospective participant in or
assignee of, any Loan or Commitment.
SECTION 9.16. Jurisdiction; Consent to Service of Process. (a) The
Company hereby irrevocably and uncon- ditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any Bank
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against the Company or its proper- ties in the
courts of any jurisdiction.
(b) The Company hereby irrevocably and uncondi- tionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or here- after have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
IN WITNESS WHEREOF, the Company, the Agents and the Banks have caused
this Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
TREDEGAR INDUSTRIES, INC.,
by
/s/ Norman Scher
Name: Norman Scher
Title: Executive Vice-
President and CFO
CHEMICAL BANK, individually
and as Administrative Agent,
by
/s/ Timothy J. Storms
Name: Timothy J. Storms
Title: Managing Director
NATIONSBANK, N.A.,
individually and as Co-Agent,
by
/s/ E. Turner Coggin
Name: E. Turner Coggin
Title: Sr. Vice-President
LTCB TRUST COMPANY,
individually and as Co-Agent,
by
/s/ Satoru Otsubo
Name: Satoru Otsubo
Title: Executive Vice
President
CENTRAL FIDELITY NATIONAL
BANK,
by
/s/ Harry A. Turton, Jr.
Name: Harry A. Turton, Jr.
Title: Vice President
CREDIT LYONNAIS ATLANTA
AGENCY,
by
/s/ David M. Cawrse
Name: David M. Cawrse
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH,
by
/s/ David M. Cawrse
Name: David M. Cawrse
Title: Authorized Signature
CRESTAR BANK,
by
/s/ J. F. Gayle, Jr.
Name: J. F. Gayle, Jr.
Title: Senior Vice
President
FIRST UNION NATIONAL BANK,
by
/s/ Monica Benziger
Name: Monica Benziger
Title: Vice President
MELLON BANK,
by
/s/ Dwayne R. Finney
Name: Dwayne R. Finney
Title: Assistant Vice
President
PNC BANK, NATIONAL
ASSOCIATION,
by
/s/ Gary W. Tyrrell
Name: Gary W. Tyrrell
Title: Vice President
SIGNET BANK/VIRGINIA,
by
/s/ William D. Garrison
Name: William D. Garrison
Title: Senior Vice President
SOCIETE GENERALE,
by
/s/ Ralph Saheb
Name: Ralph Saheb
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ J. R. Trimble
Name: J. R. Trimble
Title: Authorized Signatory
THE SUMITOMO BANK, LIMITED,
by
/s/ Y. Kawamura
Name: Y. Kawamura
Title: Joint General
Manager
THE YASUDA TRUST & BANKING
CO., LTD.,
by
/s/ Neil T. Chau
Name: Neil T. Chau
Title: First Vice
President
WACHOVIA BANK OF NORTH
CAROLINA,
by
/s/ Susan Funderburk
Name: Susan Funderburk
Title: Banking Officer