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EXHIBIT 4.1
U.S. $100,000,000
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of April 21, 1994
Among
RAYONIER INC.,
as Borrower
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and
THE BANKS NAMED HEREIN,
as Banks
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and
CITIBANK, N.A.,
as Administrative Agent
-- -------------- -----
and
CITICORP SECURITIES, INC.,
and
THE TORONTO-DOMINION BANK,
as Arrangers
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T A B L E O F C O N T E N T S
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.03 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01 The A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.02 Making the A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.03 The B Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.04 The C Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.05 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.06 Termination or Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . 28
2.07 Repayment of A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.08 Interest on A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.09 Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.10 Optional Conversion of A Advances . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.11 Optional Prepayments of A Advances . . . . . . . . . . . . . . . . . . . . . . . . 31
2.12 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.13 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.14 Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.16 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.17 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01 Conditions Precedent to Effectiveness
of Sections 2.01, 2.03 and 2.04 . . . . . . . . . . . . . . . . . . . . . . . . 37
3.02 Conditions Precedent to Each A Borrowing . . . . . . . . . . . . . . . . . . . . . 39
3.03 Conditions Precedent to Each B Borrowing . . . . . . . . . . . . . . . . . . . . . 40
3.04 Conditions Precedent to Each C Borrowing . . . . . . . . . . . . . . . . . . . . . 41
3.05 Determinations Under Section 3.01 . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Borrower . . . . . . . . . . . . . . . . . . 42
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Section Page
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ARTICLE V
COVENANTS OF THE BORROWER
5.01 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.02 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.03 Financial Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VI
EVENTS OF DEFAULT
6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII
THE ADMINISTRATIVE AGENT
7.01 Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.02 Administrative Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . 60
7.03 Citibank, Toronto-Dominion and Affiliates . . . . . . . . . . . . . . . . . . . . . 60
7.04 Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.05 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.06 Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VIII
MISCELLANEOUS
8.01 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.02 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.03 No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.05 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.06 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.07 Assignments, Designations and Participations . . . . . . . . . . . . . . . . . . . 67
8.08 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.09 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.10 Extensions of Termination Dates for Commitments . . . . . . . . . . . . . . . . . . 72
8.11 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
8.12 Jurisdiction, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
8.13 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
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Schedules
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Schedule I - List of Applicable Lending Offices
Schedule 4.01(f) - Litigation and Environmental Matters
Schedule 4.01(p) - Post-Retirement Benefit Obligations
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Subsidiary Debt
Exhibits
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Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit A-3 - Form of C Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit B-3 - Form of Notice of C Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
Exhibit F - Borrower's Environmental Disclosure Report
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REVOLVING CREDIT AGREEMENT
Dated as of April 21, 1994
RAYONIER INC., a North Carolina corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Banks")
listed on the signature pages hereof, and Citibank, N.A. ("Citibank"), as
Administrative Agent (the "Administrative Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means an advance by a Lender to the Borrower as part of an A
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, each
of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances of
the same Type made by each of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the A
Advances made by such Lender.
"Advance" means an A Advance, a B Advance or a C Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct
or indirect, of the power to vote 5% or more of the Voting Stock of such Person
or to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Applicable Lending Office" means, with respect to each Lender,
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such Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance or a C Advance, the office of such
Lender notified by such Lender to the Administrative Agent as its Applicable
Lending Office with respect to such B Advance or the Borrower and the
Administrative Agent as its Applicable Lending Office with respect to a C
Advance, as the case may be.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set
forth below:
Applicable
Public Debt Margin for
Rating Eurodollar Rate
S&P/Moody's Advances
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Level 1
-------
BBB+/Baa1 .2750%
or above
Level 2
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BBB/Baa2 .2875%
Level 3
-------
Less than .5000%
BBB/Baa2
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"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set
forth below:
Public Debt
Rating Applicable
S&P/Moody's Percentage
----------- ----------
Level 1
-------
BBB+/Baa1 .1250%
or above
Level 2
-------
BBB/Baa2 .1500%
Level 3
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Less than .2000%
BBB/Baa2
"Arrangers" means Citicorp Securities and Toronto-Dominion.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender (other than a Designated Bidder) and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form of Exhibit C
hereto.
"B Advance" means an advance by a Lender to the Borrower as part of a B
Borrowing resulting from the auction bidding procedure described in Section
2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part of
such borrowing has been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a B Advance made by
such Lender.
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"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum,
plus (ii) the rate obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money market banks,
such three-week moving average (adjusted to the basis of a year of 360 days)
being determined weekly on each Monday (or, if such day is not a Business Day,
on the next succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York certificate
of deposit dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages specified
during such three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other marginal
reserve requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
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"Base Rate Advance" means an A Advance that bears interest as provided
in Section 2.08(a)(i).
"Borrower's Environmental Disclosure Report" means the report prepared
by the Borrower regarding certain environmental matters, attached hereto as
Exhibit F.
"Borrower's Form 10-K for 1993" has the meaning specified in Section
4.01(f).
"Borrowing" means an A Borrowing, a B Borrowing or a C Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"C Advance" means an advance by a Lender to the Borrower as part of a C
Borrowing resulting from the bidding procedure described in Section 2.04.
"C Borrowing" means a borrowing consisting of simultaneous C Advances
from each of the Requested Lenders whose offer to make one or more C Advances
as part of such borrowing has been accepted by the Borrower under the bidding
procedure described in Section 2.04.
"C Note" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A-3 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a C Advance made by
such Lender.
"C Reduction" has the meaning specified in Section 2.01.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" has the meaning specified in Section 4.01(k).
"Citicorp Securities" means Citicorp Securities, Inc.
"Commercial Paper" means any unsecured promissory note of the Borrower
with a maturity at the time of issuance not exceeding nine months, exclusive of
days of grace, issued by the Borrower pursuant to a commercial paper program of
the Borrower.
"Commitment" means, with respect to any Lender at any time, the amount
set forth opposite such Lender's name on the signature pages
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hereof under the caption "Commitment" or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register, as such
amount may be reduced pursuant to Section 2.06.
"Confidential Information" means information that the Borrower furnishes
to the Administrative Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Administrative Agent or such Lender from a source other than the Borrower, that
is not, to the best of the Administrative Agent's or such Lender's knowledge,
acting in violation of a confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Assets" means on any date of determination, all amounts
that are or should, in accordance with GAAP be included under assets on a
Consolidated balance sheet of the Borrower and its Subsidiaries determined in
accordance with GAAP as at such date.
"Convert", "Conversion" and "Converted" each refers to a conversion of A
Advances of one Type into A Advances of the other Type pursuant to Section 2.09
or 2.10.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables
incurred in the ordinary course of such Person's business and that are not
overdue for a period that is not consistent with the ordinary course of
business of such Person), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property),
(e) all obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person under acceptance, letter
of credit or similar facilities (other than obligations under (i) Trade Letters
of Credit, (ii) performance bonds or letters of credit issued in connection
with the purchase of inventory, including prepaid timber stumpage, by the
Borrower or any of its Subsidiaries in the ordinary course of business, (iii)
performance bonds or letters of credit to secure obligations
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under workers' compensation laws or similar legislation and (iv) performance
bonds or letters of credit to secure obligations under self-insurance programs
to the extent permitted by the terms of this Agreement and in an aggregate
maximum available amount not to exceed at any one time $20,000,000; provided
that in each case such performance bond or letter of credit (including, without
limitation, any Trade Letters of Credit) does not secure Debt), (g) all Debt of
others referred to in clauses (a) through (f) above or clause (h) below
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (i) to
pay or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of
such Debt against loss, (iii) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (iv) otherwise to assure a creditor against loss, and (h) all Debt
referred to in clauses (a) through (f) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt. The Debt of any Person shall
include the Debt of any partnership in which such Person is a general partner,
but shall not include obligations under a financial assurance statement that a
Person is required to provide under an Environmental Law in support of the
closure and post-closure obligations of one or more Subsidiaries.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Designated Bidder" means (a) an Affiliate of a Lender or (b) a special
purpose corporation that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and that
issues (or the parent of which issues) commercial paper rated at least
"Prime-1" by Moody's or "A-1" by S&P or a comparable rating from the successor
of either of them, that, in either case, (x) is organized under the laws of the
United States or any State thereof, (y) shall have become a party hereto
pursuant to Section 8.07(d), (e) and (f) and (z) is not otherwise a Lender.
Notwithstanding the foregoing, other than in the case of an Affiliate of a
Lender, each Designated Bidder shall be subject to the prior written consent of
the Borrower and the Administrative Agent, such consent not to be unreasonably
withheld or delayed.
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"Designation Agreement" means a designation agreement entered into by a
Lender (other than a Designated Bidder) and a Designated Bidder, and accepted
by the Administrative Agent, in substantially the form of Exhibit D hereto.
"Disclosed Litigation" has the meaning specified in Section 4.01(f).
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any Person during any period, earnings (income) from
continuing operations before the cumulative effect of accounting changes and
any provision for dispositions, income taxes, interest expense and
depreciation, depletion and amortization.
"Effective Date" means the first date on which the conditions set forth
in Section 3.01 have been satisfied.
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of a Lender;
(c) a commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $10,000,000,000; (d) a
commercial bank organized under the laws of any other country that is a member
of the Organization for Economic Cooperation and Development or has concluded
special lending arrangements with the International Monetary Fund associated
with its General Arrangements to Borrow or of the Cayman Islands, or a
political subdivision of any such country, and having total assets in excess of
$10,000,000,000, so long as such bank is acting through a branch or agency
located in the country in which it is organized or another country that is
described in this clause (d); (e) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; and (f)
any other Person approved by the Administrative Agent and the Borrower, such
approval not to be unreasonably withheld or delayed; provided, however, that
(x) each Eligible Assignee shall maintain a branch or representative office or
similar presence in the United States and (y) neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any (a) administrative, regulatory or
judicial action, suit, written demand, demand letter, written claim, notice of
non-compliance or violation, notice of liability or
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potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment including, without limitation, (i) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (ii) by any governmental or
regulatory authority for damages, contribution, indemnification, cost recovery,
compensatory or injunctive relief; and (b) any administrative, regulatory or
judicial action, suit or proceeding brought by any third party properly before
a forum of competent jurisdiction relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment.
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance relating to the
environment, health, safety or Hazardous Materials all as amended or hereafter
amended.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC; (b)
the provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (c) the cessation of operations at a facility of the Borrower or any of
its ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (d) the withdrawal by the Borrower or any of its ERISA Affiliates from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (e) the failure by the
Borrower or any of its ERISA Affiliates to make a payment to a Plan
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if the conditions for the imposition of a lien under Section 302(f)(1) of ERISA
are satisfied; (f) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or (g)
the institution by the PBGC of proceedings to terminate a Plan, pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that could constitute grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same A Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered to the Reference Banks by prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such A Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period by
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference Banks
two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an A Advance that bears interest as
provided in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the
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first day of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Subsidiary Debt" has the meaning specified in Section
5.02(d)(ii).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" means each consecutive three calendar month period
ending March 31, June 30, September 30 or December 31 of any fiscal year.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means petroleum and petroleum products, byproducts
or breakdown products, radioactive materials, asbestos-containing materials,
radon gas and any other chemicals, materials or substances designated,
classified or regulated as being "hazardous" or "toxic," or words of similar
import, under any applicable Environmental Law.
"Indemnified Liabilities" has the meaning specified in Section 8.04(b).
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Insufficiency" means, with respect to any Plan, the amount, if
16
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
Borrower may, upon notice received by the Administrative Agent not later than
12:00 Noon (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same A Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Banks listed on the signature pages hereof, each
institution that shall become a party hereto pursuant to Section 8.07(a), (b)
and (c) and, except when used in reference to an A Advance, an A Borrowing, an
A Note, a Commitment, a C Advance,
17
a C Borrowing, a C Note or a term related to any of the foregoing, each
Designated Bidder.
"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Administrative Agent or any Lender under this
Agreement or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any of its ERISA Affiliates 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.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and at least one Person other than the
Borrower and its ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any of its ERISA Affiliates could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NPL" has the meaning specified in Section 4.01(k).
"Note" means an A Note, a B Note or a C Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in Section 2.03(a)(i).
18
"Notice of C Borrowing" has the meaning specified in Section 2.04(a)(i).
"Other Taxes" has the meaning specified in Section 2.15(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b) hereof; (b)
Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a reasonable period and
which, individually or when aggregated with all other Permitted Liens
outstanding on any date, do not materially affect the use of the property to
which they relate; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations; and (d) easements, rights of way, encumbrances and minor defects
or irregularities in title to real property not interfering in any material
respect with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the lowest rating that has
been most recently announced by either S&P or Moody's, as the case may be, for
any class of long-term senior unsecured debt issued by the Borrower. For
purposes of the foregoing, (a) if no Public Debt Rating shall be available from
either S&P or Moody's, the Applicable Margin and the Applicable Percentage will
be set in accordance with Level 3 under the definition of "Applicable Margin"
or "Applicable Percentage", as the case may be; (b) if only one of S&P and
Moody's shall have in effect a Public Debt Rating, the Applicable Margin and
the Applicable Percentage shall be determined by reference to the available
rating; (c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin and the Applicable Percentage shall be
based upon the lower rating; (d) if any rating established by S&P or Moody's
shall be changed, the change in Applicable Margin and the Applicable Percentage
shall be effective as of the date on which such change is
19
first announced publicly by the rating agency making such change; and (e) if
S&P or Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the case
may be, shall refer to the then equivalent rating by S&P or Moody's, as the
case may be.
"Reference Banks" means Citibank, Toronto-Dominion and The Chase
Manhattan Bank, N.A.
"Register" has the meaning specified in Section 8.07(g).
"Requested Lender" has the meaning specified in Section 2.04(a)(i).
"Required Lenders" means, at any time, Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount of the A Advances
owing to Lenders, or, if no such principal amount is then outstanding, Lenders
having at least a majority in interest of the Commitments.
"S&P" means Standard & Poor's Corporation.
"Significant Subsidiary" means, at any time, a Subsidiary of the
Borrower having (a) at least 10% of the total Consolidated Assets of the
Borrower and its Subsidiaries (determined as of the last day of the most recent
Fiscal Quarter of the Borrower ended on or prior to such date) or (b) at least
5% of the Consolidated revenues of the Borrower and its Subsidiaries for the
four most recent Fiscal Quarters of the Borrower ended on or prior to such
date.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and no Person other than the Borrower
and its ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any of its ERISA Affiliates could have liability under Section 4069
of ERISA, in the event such plan has been or were to be terminated.
"Specified Date" has the meaning specified in Section 8.10.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors of such corporation (irrespective of whether, at the
time, capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership or joint
20
venture or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries. With respect to the Borrower, GHP Leasing Company shall not
constitute a Subsidiary of the Borrower to the extent that GHP Leasing Company
is a corporation in which neither the Borrower nor any of its Subsidiaries
shall own more than 50% of the capital stock of the type described in clause
(a) above.
"Tangible Net Worth" means, with respect to any Person as of any date of
determination, the excess of total assets over total liabilities, total assets
and total liabilities each to be determined in accordance with GAAP, excluding,
however, from the determination of total assets, (a) goodwill, experimental or
organizational expenses, research and development expenses, franchises,
trademarks, service marks, trade names, copyrights, patents, patent
applications, licenses and rights in any thereof, and other similar
intangibles, (b) all unamortized debt discount and expense, (c) treasury stock
and capital stock, obligations or other securities of, or capital contributions
to, or investments in, any Subsidiary, and (d) any items not included in
clauses (a) through (c) above which are treated as intangibles in conformity
with GAAP, in each case, determined on a Consolidated basis and in accordance
with GAAP.
"Taxes" has the meaning specified in Section 2.15(a).
"Termination Date" means the earlier of (a) subject to the provisions of
Section 8.10, the 364th day after the date hereof and (b) the date of
termination in whole of the Commitments pursuant to Section 2.06 or 6.01.
"Toronto-Dominion" means The Toronto-Dominion Bank.
"Trade Letter of Credit" means any letter of credit that is issued for
the benefit of a supplier of inventory or provider of a service necessary for
the conduct of the business of the Borrower or any of its Subsidiaries (other
than any financial services) to the Borrower or any of its Subsidiaries to
effect payment for such inventory or service.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
21
"Withdrawal Liability" has the meaning specified in Part 1 of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with United States
generally accepted accounting principles as in effect from time to time
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF LOANS
SECTION 2.01. The A Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to exceed
at any time outstanding such Lender's Commitment; provided that the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount of the B Advances and the C Advances then
outstanding and such deemed use of the aggregate amount of the Commitments
shall be applied to the Lenders ratably according to their respective
Commitments (such deemed use of the aggregate amount of the Commitments to the
extent of the aggregate amount of B Advances then outstanding being a "B
Reduction" and, to the extent of the aggregate amount of C Advances then
outstanding being a "C Reduction"). Each A Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of A Advances of the same Type and having the same Interest
Period made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.11
and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than 12:00 Noon (New York City time)
on the third Business Day prior to the date of the proposed A Borrowing (in the
case of an A Borrowing to be comprised of Eurodollar Rate Advances) and given
not later than 11:00 A.M. (New York City time) on the Business Day of the
proposed A Borrowing (in the case of an A Borrowing to be comprised of Base
Rate Advances), by the Borrower to the
22
Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier or by telex. Each such notice of an A Borrowing (a "Notice of A
Borrowing") shall be by telecopier or by telex, confirmed immediately in
writing, in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising
such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the
case of an A Borrowing consisting of Eurodollar Rate Advances, the initial
Interest Period for each such A Advance. Each Lender shall on the date of such
A Borrowing, before 11:00 A.M. (New York City time), in the case of an A
Borrowing to be comprised of Eurodollar Rate Advances, and before 1:00 P.M.
(New York City time), in the case of an A Borrowing to be comprised of Base
Rate Advances, make available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in Section 8.02, in same
day funds, such Lender's ratable portion of such A Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at the Administrative Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any A
Borrowing if the obligation of the Lenders to make Eurodollar Rate Loans shall
then be suspended pursuant to Section 2.09 or 2.13.
(c) Each Notice of A Borrowing shall be irrevocable and binding
on the Borrower. In the case of any A Borrowing that the related Notice of A
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the A Advance to be
made by such Lender as part of such A Borrowing when such A Advance, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any A Borrowing (in the case of an A
Borrowing to be comprised of Eurodollar Rate Advances) and not later than 12:00
Noon (New York City time) on the Business Day of the proposed A Borrowing (in
the case of an A Borrowing to be comprised of Base Rate Advances) that such
Lender will not make available to the Administrative Agent such Lender's
ratable portion of such A Borrowing, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the
date of such A Borrowing in accordance with subsection (a) of this Section 2.02
and the
23
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower 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 Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at such
time to the A Advances comprising such A Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's A Advance as part of such A Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally
agrees that the Borrower may make B Borrowings under this Section 2.03 from
time to time on any Business Day during the period from the Effective Date
until the date occurring 30 days prior to the Termination Date in the manner
set forth below; provided that (x) each B Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, (y) following the making of each B Borrowing, the aggregate amount of all
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders.
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Administrative Agent, by telecopier or by telex, confirmed
immediately in writing, a notice of a B Borrowing (a "Notice of B Borrowing"),
in substantially the form of Exhibit B-2 hereto, specifying the date and
aggregate amount of the proposed B Borrowing, the maturity date for repayment
of each B Advance to be made as part of such B Borrowing (which maturity date
may not be earlier than the date occurring 30 days after the date of such B
Borrowing or later than the earlier of (x) 180 days after the date of such B
Borrowing and (y) the Termination Date), the interest payment date or dates
relating thereto, and any other terms to be applicable to such B Borrowing, not
later than 10:00 A.M. (New York City time) (A) at least one Business Day prior
to the date of the proposed B Borrowing, if the Borrower shall specify in the
Notice of B Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum, and (B) at
24
least four Business Days prior to the date of the proposed B Borrowing, if the
Borrower shall instead specify in the Notice of B Borrowing the basis to be
used by the Lenders in determining the rates of interest to be offered by them.
The Administrative Agent shall in turn promptly notify each Lender of each
request for a B Borrowing received by it from the Borrower by sending such
Lender a copy of the applicable Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower as part of
such proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00 A.M. (New York
City time) (x) on the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i) above
and (y) three Business Days before the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, of the minimum amount and maximum amount of each B Advance
that such Lender would be willing to make as part of such proposed B Borrowing
(which amounts may, subject to clause (y) of the proviso to the first sentence
of Section 2.03(a), exceed such Lender's Commitment, if any), the rate or rates
of interest therefor and such Lender's Applicable Lending Office with respect
to such B Advance; provided that if the Administrative Agent in its capacity as
a Lender shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer before 9:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the Administrative
Agent by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Administrative Agent, before 10:00 A.M.
(New York City time) on the date on which notice of such election is to be
given to the Administrative Agent by the other Lenders, and such Lender shall
not be obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Lender to give such notice shall
not in any event cause such Lender to be obligated to make any B Advance as
part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (x) before 11:00 A.M. (New York City
time) on the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (A) of paragraph (i) above and (y)
before 11:00 A.M. (New York City time) three Business Days before the date of
such proposed B Borrowing, in the case of a Notice of B Borrowing delivered
pursuant to clause (B) of paragraph (i) above, either:
(A) cancel such B Borrowing by giving the Administrative
25
Agent notice to that effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in order of the lowest to highest
rates of interest or margins (or, if two or more Lenders bid at the same rate
of interest, and the amount of accepted offers is less than the aggregate
amount of such offers, the amount to be borrowed from such Lenders as part of
such B Borrowing shall be allocated among such Lenders pro rata on the basis of
the maximum amount offered by such Lenders at such rates or margin in
connection with such B Borrowing), by giving notice to the Administrative Agent
of the amount of each B Advance (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount, notified to
the Borrower by the Administrative Agent on behalf of such Lender for such B
Advance pursuant to paragraph (ii) above) to be made by each Lender as part of
such B Borrowing, and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice to that effect.
(iv) If the Borrower notifies the Administrative Agent that such B
Borrowing is cancelled pursuant to subsection (iii)(A) above, the
Administrative Agent shall give prompt notice thereof to the Lenders and such B
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(B) above, the Administrative
Agent shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of such B
Borrowing and whether or not any offer or offers made by such Lender pursuant
to paragraph (ii) above have been accepted by the Borrower, (B) each Lender
that is to make a B Advance as part of such B Borrowing, of the amount of each
B Advance to be made by such Lender as part of such B Borrowing, and (C) each
Lender that is to make a B Advance as part of such B Borrowing, upon receipt,
that the Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender that
is to make a B Advance as part of such B Borrowing shall, before 12:00 Noon
(New York City time) on the date of such B Borrowing specified in the notice
received from the Administrative Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02 such Lender's
portion of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
26
Administrative Agent of such funds, the Administrative Agent will make such
funds available to the Borrower at the Administrative Agent's aforesaid
address. The Administrative Agent will promptly on the date of each B
Borrowing notify each Lender of the amount of the B Borrowing, the consequent B
Reduction, and the dates upon which such B Reduction commenced and will
terminate and the range of interest rates with respect to the B Advances made
as part of such B Borrowing.
(b) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section
2.03, repay pursuant to subsection (c) below and reborrow under this Section
2.03.
(c) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a B Advance, or each other holder of a
B Note on the maturity date of such B Advance (such maturity date being that
specified by the Borrower for repayment in the related Notice of B Borrowing
and provided in the B Note evidencing such B Advance), the then unpaid
principal amount of such B Advance. The Borrower shall not have the right to
prepay any B Advance.
(d) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance until the date the
principal amount of such B Advance is paid in full at the rate of interest for
such B Advance specified by the Lender making such B Advance in its notice
delivered pursuant to subsection (a)(ii) above on the interest date or dates
specified by the Borrower for such B Advance in the related Notice of B
Borrowing and set forth in the B Note evidencing such B Advance.
(e) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of such B Borrowing shall be evidenced by
a separate B Note of the Borrower payable to the order of the Lender making
such B Advance.
(f) Following the making of each B Borrowing, the Borrower
shall be in compliance with the limitation set forth in clause (y) of the
proviso to the first sentence of Section 2.03(a).
(g) The Borrower shall pay to the Administrative Agent for its
own account such fees as may be agreed between the Borrower and the
Administrative Agent in connection with each request for a B Borrowing whether
or not any B Borrowing is in fact made.
SECTION 2.04. The C Advances. (a) Each Lender severally agrees
that the Borrower may make C Borrowings under this Section 2.04 from time to
time on any Business Day during the period from the
27
Effective Date until the Termination Date in the manner set forth below;
provided that (x) each C Borrowing shall be in an aggregate amount of $500,000
or an integral multiple of $100,000 in excess thereof and (y) following the
making of each C Borrowing (A) the aggregate amount of all C Advances then
outstanding shall not exceed $10,000,000 and (B) the aggregate amount of all
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders.
(i) The Borrower may request a C Borrowing by delivering to at least
three Lenders selected in its sole discretion (each such Lender, a "Requested
Lender"), by telecopier or by telex, confirmed immediately in writing, a notice
of a C Borrowing (a "Notice of C Borrowing") with a copy thereof to the
Administrative Agent, in substantially the form of Exhibit B-3 hereto,
specifying the date and aggregate amount of the proposed C Borrowing, the
maturity date for repayment of each C Advance to be made as part of such C
Borrowing (which maturity date may not be later than the earlier of (x) the
date occurring 30 days after the date of such C Borrowing and (y) the
Termination Date), the interest payment date or dates relating thereto, the
basis to be used by Requested Lenders in determining the rates of interest to
be offered by them, the time at which such C Advance is to be made, the time by
which such Requested Lender's response is due and the time by which the
Borrower will accept or reject offers made by the Requested Lenders, and any
other terms to be applicable to such C Borrowing.
(ii) Each Requested Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more C Advances to the Borrower as
part of such proposed C Borrowing at a rate or rates of interest specified by
such Requested Lender in its sole discretion, by notifying the Borrower at or
before the time specified in the applicable Notice of C Borrowing of the
minimum amount and maximum amount of each C Advance that such Requested Lender
would be willing to make as part of such C Borrowing (which amounts may,
subject to the proviso to the first sentence of this Section 2.04(a), exceed
such Lender's Commitment), the rate or rates of interest therefor and such
Requested Lender's Applicable Lending Office with respect to such C Advance.
(iii) The Borrower shall, in turn, before the time specified therefor
in the applicable Notice of C Borrowing either (A) cancel such C Borrowing by
giving the Requested Lenders and the Administrative Agent notice to that
effect, or (B) accept one or more of the offers made by a Requested Lender
pursuant to paragraph (ii) above by promptly giving notice to each such
Requested Lender and the Administrative Agent of the amount of the C Advance to
be made by such Requested Lender or Lenders and provide each such
28
Requested Lender that is to make a C Borrowing the documents required by the
applicable conditions set forth in Article III. The Borrower's election to
accept or reject any offers made to it by a Requested Lender pursuant to
paragraph (ii) above shall be made in its sole discretion regardless of
the terms and conditions of any offer made by any Requested Lender. Upon
fulfillment of the conditions set forth in Article III, each Requested Lender
will make its portion of such C Borrowing available to the Borrower by
transferring the amount of its C Advance to such account as is notified by the
Borrower to such Requested Lender.
(iv) On the date on which the Borrower makes a request for a C
Borrowing and on each date on which a C Borrowing is made, the Borrower shall
promptly (and in any event no later than 3:00 P.M. (New York City time) on such
day) notify the Administrative Agent of (x) such request for a C Borrowing,
including the aggregate amount of the proposed C Borrowing, the consequent C
Reduction and the dates upon which such C Reduction will terminate, the
maturity date for repayment of each C Advance and the basis to be used by each
Requested Lender in determining the rates of interest being offered by them and
(y) the date of any C Borrowing, the aggregate amount of such C Borrowing, the
consequent C Reduction, each Lender making a C Advance, the interest rate and
the maturity date of each C Advance to be made as part of such C Borrowing and
such other information relating to such C Borrowing as the Administrative Agent
may reasonably request; provided, however, if the Borrower shall be making an A
Borrowing or B Borrowing on the date on which a C Advance is to be made, the
Borrower shall provide the Administrative Agent with the information set forth
in clauses (x) and (y) above prior to the time such A or B Borrowing is to be
made. In addition, if after making a request therefor the Borrower cancels
such C Borrowing, the Borrower shall promptly notify each Lender of such
cancellation. Promptly after each C Borrowing, the Administrative Agent will
notify each Lender of the amount of the C Borrowing, the consequent C Reduction
and the date upon which such C Reduction commenced and will terminate and the
maturity date for repayment of each C Advance. The obligation of the
Administrative Agent to provide the Lenders with the information described in
the preceding sentence is limited by the extent to which the Administrative
Agent, on or prior to the time set forth above, shall have previously received
such information from the Borrower. All payments with respect to each C
Advance shall be made not later than 11:00 A.M. (New York City time) on the
date when due in U.S. dollars, to the Lender making such C Advance at its
Applicable Lending Office or such other office as such Lender may specify in
writing to the Borrower in same day funds. The Borrower shall promptly provide
(and in any event no later than 12:00 Noon (New York City time) on such day)
the Administrative Agent with notice of its payment to a
29
Lender of any amount payable with respect to a C Advance, the name of the
Lender such payment was made to and the amount of such payment.
(b) Within the limits and on the conditions set forth in this
Section 2.04, the Borrower may from time to time borrow under this Section
2.04, repay pursuant to subsection (c) below and reborrow under this Section
2.04.
(c) The Borrower shall repay to each Lender that has made a C
Advance, or each other holder of a C Note on the maturity date of such C
Advance (such maturity date being that specified by the Borrower for repayment
in the related Notice of C Borrowing and provided in the C Note evidencing such
C Advance), the then unpaid principal amount of such C Advance. The Borrower
shall not have the right to prepay any C Advance.
(d) The Borrower shall pay interest on the unpaid principal
amount of each C Advance from the date of such C Advance until the date the
principal amount of such C Advance is paid in full at the rate of interest for
such C Advance specified by the Lender making such C Advance in the notice
delivered pursuant to subsection (a)(ii) above on the interest date or dates
specified by the Borrower for such C Advance in the related Notice of C
Borrowing and set forth in the C Note evidencing such C Advance.
(e) The indebtedness of the Borrower resulting from each C
Advance made to the Borrower as part of such C Borrowing shall be evidenced by
a separate C Note of the Borrower payable to the order of the Lender making
such C Advance.
(f) Following the making of each C Borrowing, the Borrower
shall be in compliance with the limitations set forth in clause (y) of the
proviso to the first sentence of Section 2.04(a).
(g) The Borrower shall not be required to pay to the
Administrative Agent any separate fees in connection with any C Borrowing or C
Advance.
SECTION 2.05. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender (other than a
Designated Bidder) a facility fee on the aggregate amount of such Lender's
Commitment, if any, from the date hereof in the case of each Bank and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each such other Lender until the Termination
Date at a rate per annum equal to the Applicable Percentage in effect from time
to time, payable in arrears quarterly on the last day of each March, June,
September and December,
30
commencing June 30, 1994, and on the Termination Date.
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.06. Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the sum of the aggregate principal amount of the B
Advances then outstanding and the aggregate principal amount of the C Advances
then outstanding, and provided further, that each partial reduction shall be in
the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
SECTION 2.07. Repayment of A Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Lenders on the
Termination Date the principal amount of the A Advances then outstanding.
SECTION 2.08. Interest on A Advances. (a) Scheduled Interest.
The Borrower shall pay interest on the unpaid principal amount of each A
Advance owing to each Lender from the date of such A Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such A Advance is a
Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on the date such
Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such A Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such A Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Advance plus (y) the Applicable Margin in
effect from time to time, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three months,
on each day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. At any time during which the Borrower
31
shall fail (i) to pay any principal of any Advance, any interest on any Advance
or make any other payment in connection with this Agreement when the same
becomes due and payable or (ii) to perform or observe any term, covenant or
agreement contained in Section 5.03, the Borrower shall pay interest on (x) the
unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (y)
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.
SECTION 2.09. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Administrative
Agent for the purpose of determining such interest rate, the Administrative
Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.08(a)(i) or (ii), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.08(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate
for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) each such A Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance (or if
such A Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that
32
the circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance,
and
(ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any A Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances, and on and after such date
the right of the Borrower to Convert such A Advances into Eurodollar Rate
Advances shall terminate.
SECTION 2.10. Optional Conversion of A Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of Sections
2.09, 2.13 and 2.14, Convert all A Advances of one Type comprising the same
Borrowing into A Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances.
Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the A Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the Interest Period for each such A Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
33
SECTION 2.11. Optional Prepayments of A Advances. The Borrower
may, upon at least one Business Day's notice to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given, the Borrower shall, prepay the outstanding principal
amounts of the A Advances comprising part of the same Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount not less than $10,000,000
or an integral multiple of $1,000,000 in excess thereof and (y) in the event of
any such prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(c).
SECTION 2.12. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances, then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that, any Lender claiming
additional amounts under this Section 2.12 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if such change would avoid the
need for, or reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender (other than a Designated Bidder) determines
that compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law) affects or would affect the amount of capital required or expected to
be maintained by such Lender or any corporation controlling such Lender and
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the
34
light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Administrative Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.13. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of
the Lenders to make, or to Convert A Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist and
(ii) the Borrower shall forthwith prepay in full all Eurodollar Rate Advances
of all Lenders then outstanding, together with interest accrued thereon, unless
the Borrower, within five Business Days of notice from the Administrative
Agent, Converts all Eurodollar Rate Advances of all Lenders then outstanding
into Base Rate Advances in accordance with Section 2.10.
SECTION 2.14. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the A Notes and the B Notes not
later than 12:00 Noon (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at its address referred to in Section 8.02 in same
day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.12,
2.15 or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. All payments under the C Notes will be made in accordance with
Section 2.04(a)(iv). Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(g), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the A Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
35
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.15. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.14,
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, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
36
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Administrative Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.15) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.15) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing
payment thereof. In the case of any payment hereunder or under the Notes by
the Borrower through an account or branch outside the United States or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank and on the date of
37
the Assignment and Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if requested in writing
by the Borrower (but only so long as such Lender remains lawfully able to do
so), shall provide the Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income
tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement or the Notes is effectively connected
with the conduct of a trade or business in the United States. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from "Taxes" as
defined in Section 2.15(a).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.15(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under the first sentence of subsection (e)
above), such Lender shall not be entitled to indemnification under Section
2.15(a) with respect to Taxes imposed by the United States; provided, however,
that should a Lender become subject to Taxes because of its failure to deliver
a form required hereunder, the Borrower shall take such steps as the Lender
shall reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.15 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the A Advances owing to it
(other than pursuant to Section 2.12, 2.15 or 8.04(c)) in excess of its ratable
share of payments on account of the A Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations
in the A Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender
38
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for working capital and general corporate purposes of the Borrower and
its Subsidiaries, including, without limitation, making repayments with respect
to Commercial Paper and other similar loan programs.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01, 2.03 and 2.04. Sections 2.01, 2.03 and 2.04 of this Agreement shall
become effective as of the Effective Date, subject to the conditions precedent
that:
(a) There shall have occurred no Material Adverse Change since December
31, 1993.
(b) There shall exist no action, suit, investigation, litigation or
proceeding, including any Environmental Action, affecting the Borrower or any
of its Subsidiaries pending or threatened before any
court, governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect, except as set forth in the Borrower's
Environmental Disclosure Report or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not reasonably
acceptable to the Lenders) and shall remain in effect, and no law or regulation
shall be applicable in the
39
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have paid all accrued fees and expenses of the
Administrative Agent and the Arrangers (including the accrued fees and expenses
of counsel to the Administrative Agent and the Arrangers then due and payable).
(e) On the Effective Date, the following statements shall be true and
the Administrative Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(A) the representations and warranties contained in Section 4.01
are correct on and as of the Effective Date; and
(B) no event has occurred and is continuing that constitutes a
Default.
(f) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and (except for the A Notes) in
sufficient copies for each Lender:
(i) The A Notes to the order of the Lenders, respectively.
(ii) Certified copies of (x) the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and (y) the
Borrower's charter and by-laws and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(iv) A favorable opinion of John B. Canning, Corporate Secretary
and Associate General Counsel of the Borrower, substantially in the form of
Exhibit E hereto and as to such other matters as any Lender through the
Administrative Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent.
40
(vi) Federal Reserve Forms U-1 provided for in Regulation U, the
statements made in which shall be such as to permit the transactions
contemplated hereby in accordance with Regulation U.
SECTION 3.02. Conditions Precedent to Each A Borrowing.
The obligation of each Lender to make an A Advance on the occasion of
each A Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such A Borrowing (a) the
following statements shall be true (and each of the giving of the applicable
Notice of A Borrowing and the acceptance by the Borrower of the proceeds of
such A Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such A Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in subsection (e) and subsection (f)
thereof) are correct on and as of the date of such A Borrowing, before and
after giving effect to such A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from such
A Borrowing or from the application of the proceeds therefrom, that constitutes
a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender (other than a Designated Bidder) through
the Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender that is to make a B Advance on the occasion of each B
Borrowing to make such B Advance as part of such B Borrowing is subject to the
conditions precedent that the Effective Date shall have occurred and (a) the
Administrative Agent shall have received the Notice of B Borrowing with respect
thereto, (b) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Administrative Agent shall have received a B Note payable to the
order of such Lender for each of the one or more B Advances to be made by such
Lender as part of such B Borrowing, in a principal amount equal to the
principal amount of the B Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such B Advance in accordance with Section 2.03, and
(c) on the date of such B Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of B Borrowing and the acceptance
by the Borrower of the proceeds of such B Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such B
Borrowing such statements are true):
(i) the representations and warranties contained in Section
41
4.01 (except the representations set forth in subsection (e) and subsection (f)
thereof) are correct on and as of the date of such B Borrowing, before and
after giving effect to such B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from such
B Borrowing or from the application of the proceeds therefrom, that constitutes
a Default; and
(iii) no event has occurred and no circumstance exists as a result of
which the information concerning the Borrower that has been provided to the
Administrative Agent and each Lender by the Borrower in connection herewith
would include any untrue statement of a material fact or omit to state any
material fact or any fact necessary to make the statements contained therein,
in the light of the circumstances under which they were made, not misleading.
SECTION 3.04. Conditions Precedent to Each C Borrowing. The
obligation of each Lender that is to make a C Advance on the occasion of each C
Borrowing to make such C Advance as part of such C Borrowing is subject to the
conditions precedent that the Effective Date shall have occurred and (a) such
Lender and the Administrative Agent shall have received the Notice of C
Borrowing with respect thereto, (b) on or before the date of such C Borrowing,
but prior to such C Borrowing, such Lender shall have received a C Note payable
to the order of such Lender for each of the one or more C Advances to be made
by such Lender as part of such C Borrowing, in a principal amount equal to the
principal amount of the C Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such C Advance in accordance with Section 2.04, and
(c) on the date of such C Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of C Borrowing and the acceptance
by the Borrower of the proceeds of such C Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such C
Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in subsection (e) and subsection (f)
thereof) are correct on and as of the date of such C Borrowing, before and
after giving effect to such C Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from such
C Borrowing or from the application of the proceeds therefrom, that constitutes
a Default; and
(iii) no event has occurred and no circumstance exists as a
42
result of which the information concerning the Borrower that has been provided
to the Administrative Agent and each Lender by the Borrower in connection
herewith would include any untrue statement of a material fact or omit to state
any material fact or any fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the proposed Effective Date, as notified by the Borrower to the
Lenders, specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of North Carolina.
(b) The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the consummation of the transactions contemplated
hereby are within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the Borrower's
charter or by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority, regulatory body or any other third
party is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes.
(d) This Agreement is, and each of the Notes when executed and
delivered hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their respective
terms.
43
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries
as at December 31, 1993, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Arthur Andersen & Co., independent public
accountants, copies of which have been furnished to each Lender, fairly present
the Consolidated financial condition of the Borrower and its Subsidiaries as at
such date and the Consolidated results of the operations of the Borrower and
its Subsidiaries for the fiscal year then ended, all in
accordance with generally accepted accounting principles consistently applied.
Since December 31, 1993, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower,
threatened action or proceeding, including any Environmental Action, affecting
the Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) could be reasonably likely to have a Material Adverse
Effect, other than the matters described on the Borrower's Environmental
Disclosure Report (the "Disclosed Litigation"), or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note, and since
the date the Borrower's Environmental Disclosure Report was prepared there has
been no adverse change (other than an adverse change of an inconsequential
nature) in the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described in the Borrower's
Environmental Disclosure Report. Schedule 4.01(f) sets forth any action, suit,
investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Borrower, threatened before
any court, governmental agency or arbitrator that the Borrower has disclosed in
its Form 10-K for the fiscal year ended December 31, 1993, as filed with the
Securities and Exchange Commission (the "Borrower's Form 10-K for 1993").
(g) No written information, report, financial statement, exhibit or
schedule furnished by or on behalf of the Borrower to the Administrative Agent
or any Lender in connection with the negotiation of this Agreement or included
herein or delivered pursuant hereto contained or contains any material
misstatement of fact or omitted or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were or are made, not misleading.
(h) No proceeds of any Advance will be used to acquire any equity
security of a class that is registered pursuant to Section 12 of the Securities
Exchange Act of 1934.
(i) The Borrower is not engaged in the business of extending
44
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(j) (A) Except as set forth in the Borrower's Environmental Disclosure
Report, the operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental Laws, all
material and necessary Environmental Permits have been obtained and are in
effect for the operations and properties of the Borrower and each of its
Subsidiaries, and the Borrower and each of its Subsidiaries are in compliance
in all material respects with all such Environmental Permits.
(B) Except as set forth in the Borrower's Form 10-K for 1993 and in the
Borrower's Environmental Disclosure Report, and except for the potential effect
of the proposed new regulations for the control of pollutants from pulp and
paper mills as published by the U.S. Environmental Protection Agency in the
December 17, 1993 Federal Register (Volume 58, Federal Register, 66078), to the
knowledge of the Borrower, there are no circumstances that are resonably likely
to form the basis of an Environmental Action against the Borrower or any of its
Subsidiaries that could be reasonably likely to have a Material Adverse Effect.
(k) Except as set forth in the Borrower's Environmental Disclosure
Report, none of the properties currently or formerly owned or operated by the
Borrower or any of its Subsidiaries is listed or, to the knowledge of the
Borrower, proposed for listing on the National Priorities List under CERCLA
(the "NPL") or on the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency ("CERCLIS") or any analogous state list; and no underground storage
tanks, as such term is defined in 42 U.S.C. Section 6991, are located on any
property currently or formerly owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be likely to have a Material Adverse Effect.
(l) Except as set forth in the Borrower's Environmental Disclosure
Report, to the knowledge of the Borrower, neither the Borrower nor any of its
Subsidiaries has transported or arranged for the transportation of
any Hazardous Materials to any location that is listed or proposed for listing
on the NPL or on the CERCLIS, which could reasonably be likely to lead to
claims against the Borrower or such Subsidiary for any remedial work, damage to
natural resources or personal injury that have, or could reasonably be
45
likely to have, a Material Adverse Effect.
(m) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan.
(n) Neither the Borrower nor any of its ERISA Affiliates has incurred
or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(o) Neither the Borrower nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA.
(p) Except as set forth in Schedule 4.01(p), the Borrower and its
Subsidiaries have no material liability with respect to "accumulated
post-retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(q) As of the last annual actuarial valuation date, the "current
liability," as defined in Section 412 of the Internal Revenue Code, under each
Plan does not exceed the fair market value of the assets of such plan and there
has been no material adverse change in the funding status of such Plan since
such date.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include,
without limitation, compliance with (i) ERISA and (ii) Environmental Laws to
the extent set forth in Section 5.01(d).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither the Borrower
nor any of
46
its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves, if any, to the extent
required in accordance with GAAP, are being maintained.
(c) Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, or in the case of any trade payable before such
trade payable becomes Debt, except where the amount or validity thereof is
currently being contested in good faith and by appropriate proceedings and as
to which appropriate reserves, if any, to the extent required in accordance
with GAAP, are being maintained.
(d) Compliance with Environmental Laws. (i) Comply and cause each of
its Subsidiaries to comply, in all material respects, with all Environmental
Laws and Environmental Permits that are material to the conduct of the business
of the Borrower or any of its Subsidiaries or necessary for their operations
and properties, and (ii) obtain and renew, and cause each of its Subsidiaries
to obtain and renew, all Environmental Permits that are material to the conduct
of the business of the Borrower or any of its Subsidiaries or necessary for
their operations and properties; except, with respect to (i) and (ii) above, to
the extent that any such Environmental Law or the terms of any Environmental
Permit are being contested in good faith and by proper proceedings and as to
which appropriate reserves, if any, to the extent required in accordance with
GAAP, are being maintained.
(e) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including self-insurance, in amounts
consistent with industry practice and custom) with responsible insurance
companies or associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such Subsidiary
operates.
(f) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Borrower and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(b) and provided further that neither
the Borrower nor any of its Subsidiaries shall be required to preserve any
right or franchise or the corporate existence of any Subsidiary of the Borrower
if the Board of Directors of the Borrower or such Subsidiary shall determine
that the preservation thereof is no
47
longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower and its Subsidiaries
taken as a whole or the Lenders.
(g) Visitation Rights. At any reasonable time and from time to time,
upon reasonable prior notice, permit the Administrative Agent or any of the
Lenders or any agents or representatives thereof to examine and make copies of
and abstracts from the records and books of account of, and visit the
properties of the Borrower and any of its Subsidiaries, as shall be reasonably
requested, and to discuss the affairs, finances and accounts of the Borrower
and any of its Subsidiaries with any of their officers and with their
independent certified public accountants.
(h) Preparation of Environmental Reports. If an Event of Default,
based either on (i) a breach of any of the representations and warranties
contained in Section 4.01(f) (to the extent such Section relates to
environmental matters), (j), (k) or (l) or (ii) noncompliance with the covenant
contained in Section 5.01(d), shall have occurred and be continuing for more
than 30 days, at the request of the Required Lenders, provide to the Lenders
within 60 days after such request, at the expense of the Borrower, an
environmental site assessment report for the properties relating to such breach
or noncompliance and as described in such request, prepared by an environmental
consulting firm reasonably acceptable to the Required Lenders, indicating the
presence or absence of Hazardous Materials, where appropriate, and the
estimated cost of any compliance, removal or remedial action in connection with
any Hazardous Materials on such properties; without limiting the generality of
the foregoing, if the Required Lenders reasonably determine at any time that a
material risk exists that any such report will not be provided within the time
referred to above, the Required Lenders may retain an environmental consulting
firm to prepare such report, at the expense of the Borrower (provided that
prior to the commencement of work by an environmental consulting firm retained
by the Required Lenders in connection herewith, the Required Lenders provide
the Borrower with the identity of such consulting firm, the scope of the
assignment and a copy of the budget provided by such consulting firm in
connection with such assignment), and the Borrower hereby grants and agrees to
cause any Subsidiary that owns any property described in such request to grant
at the time of such request, to the Administrative Agent, the Lenders, such
firm and any agents or representatives thereof a limited (for the duration of
such assessment) irrevocable license, subject to the rights of tenants, to
enter onto their respective properties to undertake such an assessment upon
reasonable prior notice to the Borrower and in a manner that will not
materially
48
interrupt or disrupt the business operations of the Borrower or its
Subsidiaries or tenants.
(i) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which appropriate entries that are
correct in all material respects shall be made, of all financial transactions
and the assets and business of the Borrower and each such Subsidiary so as to
permit preparation of their Consolidated financial statements in accordance
with GAAP.
(j) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties that
are used or, in the reasonable judgment of the Borrower or such Subsidiary,
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
(k) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that
are fair and reasonable and no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate other than:
(i) transactions among the Borrower and any of its wholly owned
Subsidiaries; and
(ii) transactions among wholly owned Subsidiaries of the Borrower.
(l) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the Borrower,
Consolidated balance sheets of the Borrower and its Subsidiaries as of the end
of such quarter and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with GAAP, together with (a) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto and (b) a schedule in form and substance satisfactory
to the Administrative Agent of the computations used by the Borrower in
determining compliance with the covenant contained
49
in Section 5.03;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the annual audit report for
such year for the Borrower and its Subsidiaries, containing Consolidated
balance sheets of the Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case accompanied by
an opinion reasonably acceptable to the Required Lenders by Arthur Andersen &
Co. or other independent public accountants acceptable to the
Required Lenders, together with (a) a certificate of the chief financial
officer of the Borrower stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take with
respect thereto and (b) a schedule in form and substance satisfactory to the
Administrative Agent of the computations used by the Borrower in determining
compliance with the covenant contained in Section 5.03;
(iii) promptly after the Borrower becomes aware of and in any event
within two Business Days after becoming aware of each Default, continuing on
the date of such statement, a statement of the chief financial officer of the
Borrower setting forth details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to any of its securityholders, and copies of
all reports and registration statements that the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the Borrower becomes aware of the commencement
thereof, notice of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in the first sentence of Section 4.01(f);
(vi) promptly and in any event within 10 days after the Borrower or
any of its ERISA Affiliates knows that any ERISA Event has occurred, a
statement of the chief financial officer of the Borrower describing such ERISA
Event and the action, if any, that the Borrower or such ERISA Affiliate has
taken and proposes to take with respect thereto;
(viii) promptly and in any event within three Business Days
50
after receipt thereof by the Borrower or any of its ERISA Affiliates, copies of
each notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any such Plan;
(ix) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each Plan;
(x) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any of its ERISA Affiliates from the sponsor
of a Multiemployer Plan, copies of each notice concerning (x) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (y) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (z) the amount of liability incurred, or that may be incurred, by the
Borrower or any of its ERISA Affiliates in connection with any event described
in clause (x) or (y);
(xi) (A) as soon as practical and in any event promptly after the
receipt thereof by the Borrower, copies of all written claims, complaints,
notices or inquiries relating to compliance by the Borrower or any of its
Subsidiaries with any Environmental Law or Environmental Permit that could
reasonably be likely to have a Material Adverse Effect or could reasonably be
likely to (x) form the basis of an Environmental Action against the Borrower or
any of its Subsidiaries or such property that could reasonably be likely to
have a Material Adverse Effect or (y) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could reasonably be likely to have a Material Adverse
Effect and (B) on or before every March 31 and September 30, commencing on or
before September 30, 1994, a report regarding environmental matters containing
the type of information set forth in the Borrower's Environmental Disclosure
Report; and
(xii) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
Notwithstanding any of the foregoing, at any time when the
Borrower is subject to the reporting requirements of Section 13(a)(2) of the
Securities Exchange Act of 1934, the Borrower shall be deemed to have complied
with the requirements of clauses (i), (ii) and (v) above, if the Borrower shall
deliver such information to the Administrative Agent promptly after the filing
thereof with the Securities and Exchange
51
Commission by the Borrower and in any event within three Business Days after
such filing.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to any
of its properties, whether now owned or hereafter acquired, or assign, or
permit any of its Subsidiaries to assign, any right to receive income, other
than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any property acquired or held
by the Borrower or any Subsidiary in the ordinary course of business to secure
the purchase price of such property or to secure Debt incurred solely for the
purpose of financing the acquisition of such property, or Liens existing on
such property at the time of its acquisition (other than any such Lien created
in contemplation of such acquisition) or extensions, renewals or replacements
of any of the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any property other than the property
being acquired, and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) the Liens described on Schedule 5.02(a),
(iv) other Liens securing Debt outstanding in an aggregate
principal amount not to exceed $25,000,000, and
(v) the replacement, extension or renewal of any Lien permitted by
clauses (ii) and (iii) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its Subsidiaries
to do so, except that (i) any wholly owned Subsidiary of the Borrower may merge
or consolidate with or into, or dispose of all or substantially all of its
assets to, any other wholly owned Subsidiary of the Borrower, (ii) any wholly
owned Subsidiary of the Borrower may merge into or
52
dispose of all or substantially all of its assets to the Borrower, and (iii)
the Borrower may merge with any other Person; provided in each case that no
Default shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom and, in the case of any merger to which
the Borrower is a party, (A) the Borrower is the surviving corporation, (B)
after giving effect to the consummation of such merger, (x) the Consolidated
Tangible Net Worth of the Borrower and its Subsidiaries shall be no less than
the Consolidated Tangible Net Worth of the Borrower and its Subsidiaries
immediately prior to such merger, (y) the Borrower's Public Debt Rating from
each of S&P and Moodys shall be the same or better than immediately prior to
the merger and (z) the Borrower shall be in compliance with the covenant set
forth in Section 5.03 (calculated on a pro forma basis, as of the date of the
consummation of such merger) and (C) the Borrower shall be in the same line of
business as conducted by it immediately prior to such merger.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase, lease
or otherwise acquire any assets, except (i) as permitted by Section 5.02(b),
(ii) any such sale, lease, transfer or disposition that is made in the ordinary
course of its business, (iii) any such sale, lease, transfer or disposition by
a Subsidiary of the Borrower to the Borrower or to another wholly owned
Subsidiary of the Borrower (whether by dissolution, liquidation or otherwise)
and (iv) any such sale, lease transfer or disposition to the extent the net
book value of all assets sold, leased, transferred or disposed of
from and after the date hereof pursuant to this clause (iv), does not exceed
the greater of (x) $147,477,500 and (y) 10% of the Borrower's Consolidated
Assets measured as of the last day of the most recent Fiscal Quarter of the
Borrower ended on or prior to such date of determination.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned Subsidiary of
the Borrower,
(ii) Debt existing on the Effective Date and described on Schedule
5.02(d) (the "Existing Subsidiary Debt"), and any Debt extending the maturity
of, or refunding or refinancing, in whole or in part, the Existing Subsidiary
Debt, provided that the terms of any such extending, refunding or refinancing
Debt, and of any agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by this Agreement and provided
53
further that the principal amount of such Existing Subsidiary Debt shall not be
increased above the principal amount thereof outstanding immediately prior to
such extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection with
such extension, refunding or refinancing,
(iii) Debt secured by Liens permitted by Section 5.02(a)(ii) or
(iv), and with respect to Section 5.02(a)(iv), not to exceed in the aggregate
the amount set forth in such subsection,
(iv) unsecured Debt incurred in the ordinary course of business in
an aggregate amount not to exceed at any one time outstanding 10% of the
Consolidated Tangible Net Worth of the Borrower and its Subsidiaries, and
(v) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business of the
Borrower and its Subsidiaries taken as a whole as carried on at the date
hereof.
(f) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices that would prevent the Borrower from preparing its Consolidated
financial statements in accordance with GAAP.
SECTION 5.03. Financial Covenant. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
Leverage Ratio. Cause, on the last day of each Fiscal Quarter of the
Borrower, the ratio of (i) Consolidated Debt of the Borrower and its
Subsidiaries on such date of determination to (ii) Consolidated EBITDA of the
Borrower and its Subsidiaries for the four Fiscal Quarters ended on such date
not to exceed 4.0 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
54
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable or the Borrower shall fail to pay any interest
on any Advance or make any other payment due in connection with this Agreement
or any Note within five days after the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by or on behalf
of the Borrower herein or in any notice, report, certificate, financial
statement, instrument, agreement or other writing delivered or prepared in
connection with this Agreement, shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(f), (g) or (l), Section
5.02(a), (b), (c), (d) or (e) or Section 5.03, or (ii) the Borrower shall fail
to perform or observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall have been given to
the Borrower by the Administrative Agent or any Lender; or
(d) (i) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium, interest or other amount payable with respect to any
Debt that is outstanding in a principal amount of at least $1,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or (ii) any
event shall occur or condition shall exist (other than a default of the type
described in clause (i) above) under any agreement or instrument relating to
any Debt that is outstanding in a principal amount of at least $1,000,000 in
the aggregate (but excluding Debt outstanding hereunder) of the Borrower or any
of its Subsidiaries (as the case may be) and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, and
as a result of such default, event of default, event or condition such Debt is
accelerated, matures, is declared to be due and payable or is otherwise
required to be repaid, prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be made, in
each case prior to the stated maturity thereof; or (iii) any event shall occur
or condition shall exist (including, without limitation, any event of the type
described in clause (i) above) under any agreement or instrument relating to
any Debt that is outstanding in a principal amount of at least
55
$25,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or any of its Subsidiaries (as the case may be) and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt, or any such Debt shall
be accelerated, declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make
a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Significant Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts, in each such case, under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or
the appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Significant Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against the
Borrower or any of its Subsidiaries that could be reasonably expected to have a
Material Adverse Effect, and there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal
56
or otherwise, shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 30% or more of the combined
voting power of all Voting Stock of the Borrower; or (ii) during any period
of up to 24 consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Borrower (except to the
extent that individuals who at the beginning of such 24-month period were
replaced by individuals (x) elected by 66-2/3% of the remaining members of the
board of directors of the Borrower or (y) nominated for election by a majority
of the remaining members of the board of directors of the Borrower and
thereafter elected as directors by the shareholders of the Borrower); or (iii)
any Person or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of, the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) Any ERISA Event shall have occurred and the sum (determined as of
the date of occurrence of such ERISA Event) of the Insufficiency of the Plan
with respect to which such ERISA Event shall have occurred and the
Insufficiency of any and all other Plans with respect to which an ERISA Event
shall have occurred and then exist (or the liability of the Borrower and its
ERISA Affiliates related to any such ERISA Event) exceeds $10,000,000; or
(j) The Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Borrower
and its ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $10,000,000 or requires payments exceeding
$5,000,000 per annum; or
(k) The Borrower or any of its ERISA Affiliates 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, and as a result of such reorganization or termination the aggregate
annual contributions of
57
the Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $10,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the Notes,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
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. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement or collection
of the Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
58
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03. Citibank, Toronto-Dominion and Affiliates. With
respect to its Commitment, the Advances made by it and the Notes issued to it,
each of Citibank and Toronto-Dominion shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent or the Arrangers, as the case may be; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include each of Citibank and Toronto-Dominion in its individual capacity. Each
of Citibank and Toronto-Dominion and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if Citibank was
not the Administrative Agent and Citicorp Securities and Toronto-Dominion were
not Arrangers and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
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acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower), ratably according to the respective principal
amounts of the A Notes then held by each of them (or if no A Notes are at the
time outstanding or if any A Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender (other than the Designated Bidders) agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation or
the Required Lenders' removal of the retiring Administrative Agent, then
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the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
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 under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each of the Lenders (other than the Designated
Bidders), do any of the following: (a) waive any of the conditions specified
in Section 3.01, and in the case of the initial Borrowing, Section 3.02, (b)
increase the Commitments of such Lenders or subject such Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the A Notes or any fees
or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the A Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or (f) amend this Section 8.01; provided further that
no amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, waive any of the conditions specified in Section 3.03 or 3.04; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Administrative
Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
61
telecopier or telex communication) and mailed, telecopied, telexed or
delivered, if to the Borrower, at its address at 1177 Summer Street, Stamford,
Connecticut 06904, Attention: Treasurer, with a copy to: Corporate Secretary;
if to any Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance or Designation Agreement pursuant to
which it became a Lender; and if to the Administrative Agent, at its address at
1 Court Avenue, Long Island City, New York 11120, Attention: Cathy ReillyLoan
Syndications Operations; or, as to the Borrower or the Administrative Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied or telexed, be effective when deposited in the mails, telecopied or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all out-of-pocket costs and expenses of the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing and distribution), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the
reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement; provided that all such costs
and expenses of the Administrative Agent (other than (i) fees and expenses of
counsel for the Administrative Agent, (ii) printing costs of the Arrangers
incurred in connection with the syndication of the Commitments and (iii)
expenses arising under Section 5.01(h)) in excess of $1,000 shall be subject to
the prior consent of the Borrower, such consent not to be unreasonably
withheld. The Borrower further agrees to pay on demand all costs and expenses
of the Administrative Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through
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negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify, exonerate and hold
harmless the Administrative Agent, each Arranger and each Lender and each of
their Affiliates and their officers, directors, employees, agents, advisors,
representatives and controlling persons (each, an "Indemnified Party") from and
against any and all actions, causes of action, suits, costs, claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel), joint or several (collectively, the "Indemnified
Liabilities") that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property currently or formerly owned or operated by the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, in each case whether or not an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to
the extent such Indemnified Liability is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted (x) from such
Indemnified Party's gross negligence or willful misconduct, or (y) in an action
brought by the Borrower against an Indemnified Party, such Indemnified Party's
negligence. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The Borrower also
agrees not to assert any claim against the Administrative Agent, each Arranger,
each Lender, each of their Affiliates, or any of their respective officers,
directors, employees, agents, advisors, representatives and controlling
persons, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries.
(c) If any payment of principal of, or Conversion of, any
63
Eurodollar Rate Advance is made to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, as a result of a payment
or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.15 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates 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 Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its
Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01, 2.03 and 2.04 which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Borrower and the Administrative
Agent and when the Administrative Agent shall have been notified by each Lender
that such Lender has executed it and thereafter shall be binding upon and inure
to the benefit of the
64
Borrower, the Administrative Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations. (a)
Each Lender (other than a Designated Bidder) may and, if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.12 or 2.13)
upon at least five Business Days notice to such Lender and the Administrative
Agent will, assign to one or more banks or other entities all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the A Advances owing to it and the A Note
or Notes held by it); provided that (i) other than in the case of an assignment
to an Affiliate of such Lender, another Lender, or assignments of the type
described in subsection (j) below, such Lender shall have obtained the prior
written consent of the Administrative Agent and the Borrower, such consent not
to be unreasonably withheld, (ii) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make B Advances, B Advances owing to it or B
Notes), (iii) the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 and shall be an integral multiple of $1,000,000 and, if
the assigning Lender is assigning less than all of its Commitments after giving
effect to such assignment, the amount of the Commitment of the assigning Lender
shall be equal to or greater than $5,000,000, (iv) each such assignment shall
be to an Eligible Assignee, (v) each such assignment made as a result of a
demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by
the Borrower after consultation with the Administrative Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (vi) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrower pursuant to
this Section 8.07(a) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount
of the Advances owing to such Lender, together with accrued interest thereon to
the date of payment of such principal amount and all other amounts payable to
such Lender under this Agreement, and (vii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any A
Note or A Notes subject to such assignment and a processing and
65
recordation fee of $3,000 (such fee payable by the assignor or assignee, as
agreed by the parties thereto). Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement 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 financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) 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 (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed
66
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, Lender or Affiliate of such assigning Lender, together with any A
Note or A Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower. Within five Business Days after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered A Note or Notes a new A
Note, to the order of such Eligible Assignee, in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new A Note, as the case
may be, to the order of the assigning Lender, in an amount equal to the
Commitment retained by it hereunder. Such new A Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered A Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(d) Each Lender (other than a Designated Bidder) may designate
one or more banks or other entities to have a right to make B Advances as a
Lender pursuant to Section 2.03; provided that (i) other than in the case of a
designation by a Lender of an Affiliate of such Lender, such Lender shall have
obtained the prior written consent of the Administrative Agent and the
Borrower, such consent not to be unreasonably withheld or delayed, (ii) no such
Lender shall be entitled to make more than two such designations, (iii) each
such Lender making one or more of such designations shall retain the right to
make B Advances as a Lender pursuant to Section 2.03, (iv) each such
designation shall be to a Designated Bidder and (v) the parties to each such
designation shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, a Designation Agreement. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Designation Agreement, the designee thereunder shall be
a party hereto with a right to make B Advances as a Lender pursuant to Section
2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm
and agree with each other and the other parties hereto as follows: (i) such
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished
67
pursuant hereto; (ii) such Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee 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 (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by
a designating Lender and a designee representing that it is a Designated
Bidder, the Administrative Agent shall, if such Designation Agreement has been
completed and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of each of the Lenders and, with respect
to Lenders other than Designated Bidders, the Commitment of, and principal
amount of the A Advances owing to, each such Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or
68
Notes held by it); provided, however, that (i) such Lender's obligations under
this Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant, or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee
or participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest (or any other
similar interest) in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the Notes held by
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Administrative
Agent nor any Lender shall disclose any Confidential Information to any Person
without the consent of the Borrower, such consent not to be unreasonably
withheld, other than (a) to the Administrative Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective assignees, designees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
69
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 8.10. Extensions of Termination Date for Commitments.
The Borrower may make a single request in writing that the Lenders (other than
the Designated Bidders) agree in writing to extend the Termination Date then in
effect (the "Specified Date") for the Commitments to the 364th day after such
Specified Date; such request shall be received by such Lenders at least 20 days
(but not more than 30 days) prior to the Specified Date. The Termination Date
then in effect will be extended only as to those Lenders who accept the
Borrower's request but shall not be extended as to any other Lender. Such
extended Commitments shall become effective on the Specified Date. To the
extent that the Termination Date in effect at any time is not extended as to
any Lender pursuant to this Section 8.10 or by other written agreement
executed by such Lender on or before such Termination Date, the Commitment of
such Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Borrower,
such Lender or any other Person. It is understood that no Lender shall have
any obligation whatsoever to agree to any request made by the Borrower for the
extension of the Termination Date.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the Borrower,
the Administrative Agent and the Lenders hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Notes, 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 any 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 party
70
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
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.
71
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or
the Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
RAYONIER INC.
By Macdonald Auguste
---------------------
Title: Treasurer
By Gerald J. Pollack
---------------------
Title: Senior Vice
President & Chief
Financial Officer
Commitment
- ----------
$10,000,000 CITIBANK, N.A.,
as Administrative
Agent and Lender
By W. Dwight Raiford
---------------------
Title: Vice President
$10,000,000 THE TORONTO-DOMINION BANK,
as Lender
By Jorge A. Garcia
---------------------
Title: Manager-Credit
Administration
72
$8,333,334 THE BANK OF NEW YORK
By Kenneth Snyder
--------------------
Title: Vice President
$8,333,334 BANKERS TRUST COMPANY
By June C. George
--------------------
Title: Vice President
$8,333,334 THE CHASE MANHATTAN BANK, N.A.
By Nancy A. Bridgeman
----------------------
Title: Vice President
$8,333,334 J.P. MORGAN DELAWARE
By David J. Morris
----------------------
Title: Vice President
$8,333,334 NATIONSBANK OF NORTH
CAROLINA, N.A.
By James Sigman
---------------------
Title: Vice President
$6,666,666 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By Doug Bontemps
---------------------
Title: Vice President
73
$5,000,000 CORESTATES BANK, N.A.
By Brian M. Haley
---------------------
Title: Assistant Vice
President
$5,000,000 FLEET BANK, N.A.
By Dorothy Bambach
---------------------
Title: Senior Vice
President
$5,000,000 TRUST COMPANY BANK
By Craig Farnsworth
-----------------------
Title: Vice President
$5,000,000 UNITED STATES NATIONAL
BANK OF OREGON
By Steven T. Williams
-----------------------
Title: Vice President
$5,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By Linda M. Harris
----------------------
Title: Senior Vice President
$3,333,333 AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By G.N. Park
-----------------------
Title: Senior Vice President
74
$3,333,333 CREDIT LYONNAIS NEW YORK BRANCH
By W. Jay Buckley
----------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By W. Jay Buckley
-----------------------
Title: Vice President
$100,000,000 Total of the Commitments
75
SCHEDULE I
RAYONIER INC.
$100,000,000 REVOLVING CREDIT AGREEMENT
DATED AS OF APRIL 21, 1994
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Australia and New Zealand Banking 120 Wall St., 8th Fl. 120 Wall St., 8th Fl.
Group Limited New York, NY 10005-3990 New York, NY 10005-3990
Attn: Christine Pomeranz Attn: Christine Pomeranz
Telecopier: (212) 514-5166 Telecopier: (212) 514-5166
Bank of America 1850 Gateway Blvd. 1850 Gateway Blvd.
National Trust and Savings Concord, CA 94520 Concord, CA 94520
Association Attn: Heather Martinez Attn: Heather Martinez
Telecopier: (510) 675-7531 Telecopier: (510) 675-7531
The Bank of New York One Wall St., 22nd Fl. One Wall St., 22nd Fl.
New York, NY 10286 New York, NY 10286
Attn: Kenneth P. Sneider, Jr. Attn: Kenneth P. Sneider, Jr.
Telecopier: (212) 635-6999 Telecopier: (212) 635-6999
Bankers Trust Company One Bankers Trust Plaza One Bankers Trust Plaza
23rd Floor 23rd Floor
New York, NY 10006 New York, NY 10006
Attn: Timothy G. Parker Attn: Timothy G. Parker
Telecopier: (212) 250-6815 Telecopier: (212) 250-6815
The Chase Manhattan Bank, N.A. One Chase Manhattan Plaza One Chase Manhattan Plaza
New York, NY 10081 New York, NY 10081
Attn: Nancy A. Bridgman Attn: Nancy A. Bridgman
Telecopier: (212) 552-7773 Telecopier: (212) 552-7773
Citibank, N.A. 399 Park Avenue 399 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: W. Dwight Raiford Attn: W. Dwight Raiford
Telecopier: (212) 832-9137 Telecopier: (212) 832-9137
CoreStates Bank, N.A. 1345 Chestnut Street 1345 Chestnut Street
F.C. 1-8-12-3 F.C. 1-8-12-3
Philadelphia, PA 19107 Philadelphia, PA 19107
Attn: Brian M. Haley Attn: Brian M. Haley
Telecopier: (215) 973-7820 Telecopier: (215) 973-7820
76
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Credit Lyonnais 1301 Ave. of the Americas 1301 Ave. of the Americas
New York and Cayman New York, NY 10019 New York, NY 10019
Island Branch Attn: George M. Dugan Attn: George M. Dugan
Telecopier: (212) 261-7368 Telecopier: (212) 261-7368
Fleet Bank, N.A. One Stamford Plaza One Stamford Plaza
263 Tresser Blvd. 263 Tresser Blvd.
Stamford, CT 06901 Stamford, CT 06901
Attn: Dorothy Bambach Attn: Dorothy Bambach
Telecopier: (203) 351-1511 Telecopier: (203) 351-1511
J. P. Morgan Delaware 902 Market Street 902 Market Street
Wilmington, Delaware 19801 Wilmington, Delaware 19801
Attn: David J. Morris Attn: David J. Morris
Telecopier: (302) 654-5336 Telecopier: (302) 654-5336
NationsBank of NationsBank Corporate Center NationsBank Corporate Center
North Carolina, N.A. 8th Floor 8th Floor
100 North Tryon Street 100 North Tryon Street
Charlotte, NC 28255 Charlotte, NC 28255
Attn: James L. Sigman Attn: James L. Sigman
Telecopier: (704) 386-3271/1270 Telecopier: (704) 386-3271/1270
The Toronto-Dominion Bank 909 Fannin, Suite 1700 909 Fannin, Suite 1700
Houston, TX 77010 Houston, TX 77010
Attn: J. Garcia Attn: J. Garcia
Telecopier: (713) 951-9921 Telecopier: (713) 951-9921
Trust Company Bank 711 5th Avenue, 5th Fl. 711 5th Avenue, 5th Fl.
New York, NY 10022 New York, NY 10022
Attn: Craig Farnsworth Attn: Craig Farnsworth
Telecopier: (212) 371-9386 Telecopier: (212) 371-9386
United States 309 S.W. Sixth Ave., BB-12 309 S.W. Sixth Ave., BB-12
National Bank of Oregon Portland, OR 97204 Portland, OR 97204
Attn: Steven T. Williams Attn: Steven T. Williams
Telecopier: Telecopier:
Wachovia Bank of 191 Peachtree Street, NE 191 Peachtree Street, NE
Georgia, N.A. 28th Floor, MC 370 28th Floor, MC 370
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Kevin T. McConnell, VP Attn: Kevin T. McConnell, VP
Telecopier: (404) 332-6898 Telecopier: (404) 332-6898
77
Schedule 4.01(f)
Rayonier Inc.
Legal Proceedings
As of March 31, 1994
The Borrower and its wholly owned subsidiary, Southern Wood Piedmont Company
(SWP), are named defendants in six cases arising out of former wood preserving
operations at SWP's plant located in Augusta, Georgia. In general, these
cases, five pending in the U.S. District Court for the Southern District of
Georgia and one pending in the Superior Court of Richmond County, Georgia, seek
recovery for property damage and personal injury or medical monitoring costs
based on the alleged exposure to toxic chemicals used by SWP in its former
operations. One case, Ernest Jordan v. Southern Wood Piedmont Co., et al, seek
certification as a class action and damages in the amount of $700 million.
Counsel for the Borrower believes that the Borrower has meritorious defenses in
all these cases. Several previous lawsuits related to the Augusta facility
have been settled for amounts not material to the Borrower.
The Borrower has been named as a "Potentially Responsible Party" (PRP) or is a
defendant in actions being brought by a PRP in five proceedings instituted by
the U.S. Environmental Protection Agency (EPA) under the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA) or state
agencies under comparable state statutes. In three of these proceedings, the
Borrower is presently considered a de minimis participant. In one proceeding,
the Borrower is not a de minimis participant because of the limited number of
PRP's, and the Borrower believes that its share of liability for total cleanup
costs (currently estimated to be between $30 million and $39 million) will be
less than 9 percent of the total. In another proceeding, the Borrower is not a
de minimis participant based on an analysis of the volume and type of waste
that the Borrower is alleged to have disposed of at the site, and the Borrower
believes that its share of liability for total cleanup costs (currently
estimated to be between $25 million and $32 million) will be less than 1.75
percent of the total. In each case, the Borrower has established reserves for
its estimated liability. The Borrower has also received requests for
information from the EPA in connection with two other CERCLA sites, but the
Borrower does not currently know to what extent, if at all, liability under
CERCLA will be asserted against the Borrower with respect to either site.
There are various other lawsuits pending against or affecting the Borrower and
its subsidiaries, some of which involve claims for substantial amounts. The
ultimate liability with respect to all actions pending against the Borrower and
its subsidiaries is not considered material in relation to the consolidated
financial condition of the Borrower and its subsidiaries.
78
Schedule 5.02(d)
Rayonier Inc.
Existing Subsidiary Debt
As of March 31, 1994
Subsidiary Instrument Comments
---------- ---------- --------
Rayonier Timberlands US $749,333 timber mortgage Bryce E. Kenndy, Sr., Helen B.
Operating Company Kennedy, Joy Kennedy Carter, Allen
V. Kennedy, II, Bryce E. Kennedy,
Jr. and the Trust Company Bank of
Savannah, N.A.
US $65,625 timber mortgage Estate of Willie H. Eddy (61.9%),
Jack Eddy Partnership (19.05%), and
Hazel Williams (19.05%)
Rayonier Canada C $8,000,000 Operating Line of Credit
C $360,000 Standby Letter of Credit - Tsilhqot'in
C $100,000 Standby Letter of Credit - Kaska Forest Resources
US Dollar Equivalent at March 31, 1994 of 1.3883
US $5,762,443 Operating Line of Credit
US $259,310 Standby Letter of Credit - Tsilhqot'in
US $72,031 Standby Letter of Credit - Kaska Forest
Resources
Rayonier New Zealand NZ $1,000,000 Operating Line of Credit
NZ $750,000 Bank Guaranty
NZ $3,600,000 Standby Letter of Credit - Paynters
US Dollar Equivalent at March 31, 1994 of 1.7699
US $565,004 Operating Line of Credit
US $423,753 Bank Guaranty
US $2,034,013 Standby Letter of Credit - Paynters
79
Schedule 5.02(a)
Rayonier Inc.
Existing Liens
As of March 31, 1994
Outstanding
Principal
Creditor Amount Comments
-------- ------ --------
Bryce E. Kennedy, Sr., Helen B. Kennedy, $749,333 Purchase money mortgage on timberland
Joy Kennedy Carter, Allen V. Kennedy,
II, Bryce E. Kennedy, Jr., and the Trust
Company Bank of Savannah, N.A.
Estate of Willie H. Eddy (61.9%), Jack 65,625 Purchase money mortgage on timberland
Eddy Partnership (19.05%), and Hazel --------
Williams (19.05%)
TOTAL $814,958
========
80
Schedule 4.01(P)
Rayonier Inc.
Accumulated Post-Retirement Benefit Obligations
As of March 31, 1994
(Dollars in Thousands)
Accumulated Post-Retirement Benefit Obligations For:
Hourly Employees $ 9,800
Salaried Employees $ 5,000
-----
TOTAL $14,800
=======
81
EXHIBIT A-1
FORM OF A NOTE
U.S.$ Dated: ,
-------------- --------
FOR VALUE RECEIVED, the undersigned, RAYONIER INC., a North
Carolina corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
- ---------------------- (the "Lender") for the account of its Applicable Lending
Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the A Advances (as
defined below) made by the Lender to the Borrower pursuant to the Credit
Agreement outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each A Advance from the date of such A Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at 399
Park Avenue, New York, New York 10043, in same day funds. Each A Advance made
by the Lender to the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto or set
forth in a schedule substantially in the form of such grid and attached hereto,
either of which is part of this Promissory Note.
This Promissory Note is one of the A
Notes referred to in, and is entitled to the benefits of, the $100,000,000
Credit Agreement dated as of April 21, 1994 (the "Credit Agreement") among the
Borrower, the Lender and certain other lenders parties thereto, and Citibank,
N.A., as Administrative Agent for the Lender and such other lenders. The
Credit Agreement, among other things, (i) provides for the making of advances
(the "A Advances") by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting from each
such A Advance being evidenced
82
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
RAYONIER INC.
By
--------------------------
Title:
By
--------------------------
Title:
83
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Amount of Principal Unpaid Principal Notation
Date A Advance Paid or Prepaid Balance Made By
84
EXHIBIT A-2
FORM OF B NOTE
U.S.$ Date: , 19
------------- ------ ---
FOR VALUE RECEIVED, the undersigned, RAYONIER INC., a North
Carolina corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
- ---------------- (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on
- --------, 19--, the principal amount of
U.S.$[amount of the B Advance in figures ---------].
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: ----% per annum (calculated on the basis of a year of
- --- days for the actual number of days elapsed).
Interest Payment Date or Dates:
------------------
Both principal and interest are payable in lawful money of the
United States of America to the account of the Lender at the office of
Citibank, N.A., as Administrative Agent, at 399 Park Avenue, New York, New York
10043, in same day funds, free and clear of and without any deduction, with
respect to the payee named above, for any and all present and future taxes,
deductions, charges or withholdings, and all liabilities with respect thereto.
This Promissory Note is one of the B Notes referred to in, and
is entitled to the benefits of, the $100,000,000 Credit Agreement dated as of
April 21, 1994 (the "Credit Agreement") among the Borrower, the Lender and
certain other banks parties thereto, and Citibank, N. A., as Administrative
Agent for the Lender and such other banks. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events. As set forth in Section 2.03(c), this
Promissory Note is not subject to prepayment.
85
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
RAYONIER INC.
By
-----------------
Title:
By
-----------------
Title:
86
EXHIBIT A-3
FORM OF C NOTE
U.S.$ Date: , 19
------------- -------- ---
FOR VALUE RECEIVED, the undersigned, RAYONIER INC., a North
Carolina corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
- ---------------- (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on
- --------, 19--, the principal amount of
U.S.$[amount of the C Advance in figures ---------].
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: ----% per annum (calculated on the basis of a year of
- --- days for the actual number of days elapsed).
Interest Payment Date or Dates:
-------------------
Both principal and interest are payable in lawful money of the
United States of America to -----------, in same day funds, free and clear of
and without any deduction, with respect to the payee named above, for any and
all present and future taxes, deductions, charges or withholdings, and all
liabilities with respect thereto.
This Promissory Note is one of the C Notes referred to in, and
is entitled to the benefits of, the $100,000,000 Credit Agreement dated as of
April 21, 1994 (the "Credit Agreement") among the Borrower, the Lender and
certain other banks parties thereto, and Citibank, N.A., as Administrative
Agent for the Lender and such other banks. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events. As set forth in Section 2.04(c), this
Promissory Note is not subject to prepayment.
87
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
RAYONIER INC.
By
-----------------
Title:
By
-----------------
Title:
88
EXHIBIT B-1
NOTICE OF A BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: --------------------
Ladies and Gentlemen:
The undersigned, Rayonier Inc., refers to the $100,000,000
Credit Agreement, dated as of April 21, 1994 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as Administrative Agent for
said Lenders, and hereby gives you notice, irrevocably, pursuant to Section
2.02 of the Credit Agreement that the undersigned hereby requests an A
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the "Proposed A Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is -----------, 199--.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is $-----------.
[(iv) The initial Interest Period for each Eurodollar Rate Advance made
as part of the Proposed A Borrowing is ---- month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
89
(A) the representations and warranties contained in Section 4.01
(except the representations set forth in subsection (e) and subsection (f)
thereof) of the Credit Agreement are correct, before and after giving effect to
the Proposed A Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed A Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
Very truly yours,
RAYONIER INC.
By
----------------------
Title:
90
EXHIBIT B-2
NOTICE OF B BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement referred
to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: ------------------
Gentlemen:
The undersigned, Rayonier Inc., refers to the $100,000,000
Credit Agreement, dated as of April 21, 1994 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as Administrative Agent for
said Lenders, and hereby gives you notice pursuant to Section 2.03 of the
Credit Agreement that the undersigned hereby requests a B Borrowing under the
Credit Agreement, and in that connection sets forth the terms on which such B
Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Date of B Borrowing
--------------------
(B) Amount of B Borrowing
--------------------
(C) Maturity Date
--------------------
(D) Interest Rate Basis
--------------------
(E) Interest Payment Date(s)
--------------------
(F) Amount of B Reduction
--------------------
(G)
------------------- --------------------
(H)
------------------- --------------------
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in subsection (e) and subsection (f)
thereof) are correct, before and after giving effect to the Proposed B
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date;
91
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds therefrom, which
constitutes a Default;
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the undersigned that has been provided to the
Administrative Agent and each Lender by the undersigned in connection with the
Credit Agreement would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading; and
(d) in compliance with Section 2.03(a) of the Credit Agreement, the
aggregate amount of the Proposed B Borrowing and all other Borrowings to be
made on the same day under the Credit Agreement does not exceed the aggregate
amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B Borrowing is
to be made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
RAYONIER INC.
By
-----------------------
Title:
92
EXHIBIT B-3
NOTICE OF C BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement referred
to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: ------------------
Gentlemen:
The undersigned, Rayonier Inc., refers to the $100,000,000
Credit Agreement, dated as of April 21, 1994 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as Administrative Agent for
said Lenders, and hereby gives you notice pursuant to Section 2.03 of the
Credit Agreement that the undersigned has requested and made a C Borrowing as
of the date first written above under the Credit Agreement, and in that
connection sets forth the terms on which such C Borrowing (the "Proposed C
Borrowing") has been made:
(A) Date of C Borrowing
--------------------
(B) Amount of C Borrowing
--------------------
(C) Maturity Date
--------------------
(D) Interest Rate Basis
--------------------
(E) Interest Payment Date(s)
--------------------
(F) Amount of C Reduction
--------------------
(G)
------------------- --------------------
(H)
------------------- --------------------
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed C
Borrowing:
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in subsection (e) and subsection (f)
thereof) are correct, before and after giving effect to the Proposed C
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date;
93
(b) no event has occurred and is continuing, or would result from the
Proposed C Borrowing or from the application of the proceeds therefrom, which
constitutes a Default;
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the undersigned that has been provided to the
Administrative Agent and each Lender by the undersigned in connection with the
Credit Agreement would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading; and
(d) in compliance with Section 2.04(a) of the Credit Agreement,
following the making of the Proposed C Borrowing (x) the aggregate amount of
the C Advances of all Lenders outstanding as of the date of such C Borrowing
does not exceed $10,000,000 and (y) the aggregate amount of all Advances
outstanding on the date of such C Borrowing does not exceed the aggregate
amount of the Commitments of the Lenders.
The undersigned hereby confirms that the Proposed C Borrowing is
to be made available to it in accordance with Section 2.04(a)(iii) of the
Credit Agreement.
Very truly yours,
RAYONIER INC.
By
-----------------------
Title:
94
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $100,000,000 Credit Agreement dated as
of April 21, 1994 (the "Credit Agreement") among Rayonier Inc., a North
Carolina corporation (the "Borrower"), the Lenders (as defined in the Credit
Agreement) and Citibank, N.A., as Administrative Agent for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of B Advances, B Notes, C Advances and C
Notes) equal to the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement, including,
without limitation, such interest in the Assignor's Commitment, the A Advances
owing to the Assignor, and the A Note[s] held by the Assignor. After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the A Advances owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the A Note
or Notes referred to in paragraph 1 above and requests that the Administrative
Agent exchange such A Note or Notes for a new A Note or Notes payable to the
order of the Assignee in an amount equal to the Commitment
95
assumed by the Assignee pursuant hereto or a new A Note or Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement, respectively, as specified
on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of the Credit Agreement are required to be performed by it as a
Lender; (vi) specifies as its Domestic Lending Office (and address for notices)
and Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof; and (vii) attaches any U.S. Internal Revenue Service
forms required under Section 2.15 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date
of this Assignment and Acceptance shall be the date of acceptance thereof by
the Administrative Agent, unless otherwise specified on Schedule 1 hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
96
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the A Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the A Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
97
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: %
------------
Assignee's Commitment: $
------------
Aggregate outstanding principal
amount of A Advances assigned: $
------------
Principal amount of A Note
payable to Assignee: $
------------
Principal amount of A Note
payable to Assignor: $ ]
------------
Effective Date (if other than date
of acceptance by Agent): * , 19
------------ ---
[NAME OF ASSIGNOR],
as Assignor
By:
------------------------
Title
Dated: , 19
-------------- ---
[NAME OF ASSIGNEE],
as Assignee
By:
------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
98
Accepted [**and Approved] this ---- day
of -------------, 19--
CITIBANK, N.A., as Administrative Agent
By:
-----------------------
Title:
**[Approved this ----- day
of -------------, 19--
RAYONIER INC.
By:
-----------------------]
Title:
- --------------------------
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
** Approval not required for an assignment to an Affiliate of the Assignor, to
another Lender or as provided in SEction 8.07(j).
99
EXHIBIT D
DESIGNATION AGREEMENT
Dated --------, 19---
Reference is made to the $100,000,000 Credit Agreement dated as
of April 21, 1994 (the "Credit Agreement") among Rayonier Inc., a North
Carolina corporation (the "Borrower"), the Lenders (as defined in the Credit
Agreement) and Citibank, N.A., as Administrative Agent for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
-------------- (the "Designator") and ------------ (the
"Designee") agree as follows:
1. The Designator hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make B Advances pursuant to
Section 2.03 of the Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any any other instrument or document furnished
pursuant thereto and (ii) the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administration Agent, the Designator or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv)
appoints and authorizes the Administrative
100
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) specifies as its Applicable Lending
Office with respect to B Advances (and address for notices) the offices set
forth beneath its name on the signature pages hereof.
4. Following the execution of this Designation Agreement by the
Designator and its Designee, it will be delivered to the Agent for acceptance
and recording by the Administrative Agent. The effective date of this
Designation Agreement shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on the signature page hereto
(the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make B Advances as a Lender pursuant to Section 2.03 of the
Credit Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
101
IN WITNESS WHEREOF, the parties hereto have caused this Designation
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
Effective Date*: ----------, 19---
[NAME OF DESIGNATOR]
By
--------------------
Title:
[NAME OF DESIGNEE]
By
-------------------
Title:
Applicable Lending Office
(and address for notices)
[Address]
Accepted [**and Approved] this
--- day of --------, 19--
[CITIBANK, N.A.]
By
-------------------
Title:
**[Approved this --- day
of --------, 19--
RAYONIER INC.
By
-------------------
Title:
- ----------------
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
** Approval not required for a designation of an Affiliate of a Lender.
102
EXHIBIT E
RAYONIER INC.
ENVIRONMENTAL DISCLOSURE REPORT
A. PULP MILLS
The Borrower owns and operates three pulp mills in Jesup, Georgia; Port
Angeles, Washington, and Fernandina Beach, Florida.
1. Potential impact of proposed regulations under the Clean Air
and Clean Water Acts.
The United States Environmental Protection Agency (the "EPA")
recently proposed new regulations under the Clean Air Act and
Clean Water Act. The regulations are expected to be issued by
1995 or 1996 followed by a three-year grace period, during
which time the Borrower's mills must be brought into
compliance. The EPA's proposed regulations under the Clean Air
Act and Clean Water Act will affect the Borrower's three mills.
Under the proposed regulations, Best Available Technology
("BAT") requirements, the Borrower would be forced to meet
effluent limits based on oxygen delignification plus
substitution of chloride dioxide for elemental chlorine in its
pulp manufacturing process. The amount of ClO2 substitution
required is 70 percent at Jesup and a 100 percent at Port
Angeles and Fernandina Beach. Unless the proposed regulations
are changed to remove the oxygen delignification requirement
and provide appropriate ClO2 substitution, or if not changed,
unless a variance in granted, the proposed BAT requirements
would force Borrower to discontinue its high purity cellulose
production, which could reduce total annual sales by 30 percent
(approximately $279 million). The Borrower is drafting
comments to the proposed regulations to enable the continued
manufacture of the
103
Borrower's high purity cellulose products.
BAT requirements:
- $550,000 to demonstrate unfeasibility of
proposed regulation
- $55.4 million for Jesup
- $25.8 million for Port Angeles
- $26.8 million for Fernandina Beach
Under the proposed regulations, for Best Practicable Control
Technology ("BPT") and Best Conventional Pollutant Control
Technology ("BCT") the Borrower would be required to install
wastewater treatment improvements to control pollutants. The
Borrower will challenge these requirements on the grounds that
the EPA failed to properly analyze current technology.
BPT and BCT requirements
- $2 million for Jesup
- $1 million for Port Angeles
- $1 million for Fernandina Beach
The proposed regulations would also require the Borrower to
satisfy certain Best Management Practices ("BMP") in the
prevention, containment and control of pulping liquid spills.
BMP requirements
- $7 million for Jesup
104
- $4 million for Port Angeles
- $4 million for Fernandina Beach
Evaporators for Fernandina Beach: $13 million
Under the proposed regulations, for Maximum Achievable Control
Technology ("MACT"), the Borrower would be required to
incinerate pulp mill emissions and scrub bleach plant emissions
to control hazardous air pollutants. The Borrower will
challenge these requirements on the grounds that the EPA's
underlying data is incorrect and that a separate subcategory
should be established for dissolving sulfite mills which
recognizes that pulp mill emissions in this subcategory are
scrubbed. Title V permits under the 1990 Clean Air Act
amendments will also impose additional reporting and
recordkeeping requirements for air emissions.
MACT requirements:
- $30 million for Jesup
- $10 million for Port Angeles
- $10 million for Fernandina Beach
2. Jesup Mill
The company is not aware of any hazardous waste listing or
characteristic which affects the solid waste generated by this
mill, but, foreseeably, that solid waste will be subject to
more regulatory control in the future. Through capital
improvements the mill is reducing the amount of solid waste it
generates and some reclamation of past depositions is
occurring.
3. Fernandina Beach Mill
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The Fernandina Beach Mill has an on-site waste management
program. The Borrower is planning to spend over $550,000 to
develop a new solid waste disposal system for purposes of
remedying violations of Florida soil sodium standards and
obtaining an exemption from Florida's new landfill regulations
that go into effect in early 1995.
A National Pollutant Discharge Elimination System ("NPDES")
permit issued under the Clean Water Act, has been stayed by a
challenge filed by an environmentalist group.
The mill also requires a state operating permit to cover its
discharge to Florida waters. The Borrower has applied for a
new operating permit. In the past the state has taken the
position that the mills BOD discharge is adversely affecting
the dissolved oxygen content of the receiving water. The mill
accepted a Temporary Operating Permit (TOP) to cover the time
in which a study was to be run by EPA to settle this D.O.
issue. The study has not been done. More recently, the state
has asserted that the mills discharge is causing a violation of
the biointegrity standard and the nutrient enrichment
regulation. Borrower disagrees but is willing to provide a
bioassessment (cost $650,000) to prove that discharge is not
having such an effect. A second TOP is being negotiated to
cover this study. If nutrient enrichment or biodiversity are
adversely affected, Borrower may have to spend $4.5 million to
reduce ammonia discharge.
4. Port Angeles
The Port Angeles Mill is generally in compliance with all
currently applicable ambient air quality standards discharge
and emission limitations.
5. Grays Harbor
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The Borrower discontinued operations at its Grays Harbor,
Washington Pulp Mill and Vanillin Plant, and the associated
Grays Harbor Paper Company (collectively, the "Grays Harbor
Complex") in 1992. The Borrower sold a portion of the Grays
Harbor Complex in 1993 and is planning to dismantle the
remainder of the facilities. Deed restrictions limit the
Borrower's liability for waste on the sold property. The
Borrower is spending between $30,000 and $60,000 to study
polychlorinated biphenyl ("PCB") waste at the site and clean up
should cost less than $1 million. The Borrower has reserved
$7.5 million to cover environmental contingencies at the Grays
Harbor Complex.
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B. TIMBER HARVEST RESTRICTIONS
A portion of the Borrower's Washington timberlands are located on the
Olympic Peninsula. The Borrower's timber harvest could be impacted by
recent regulatory efforts to designate the Olympic Peninsula as one of
several Special Emphasis Areas that harbor northern spotted owls and
marbled murrelets, pursuant to the Endangered Species Act. The
proposed designation for the Olympic Peninsula would result in about
$30 million in lost timber revenue to the Company to be incurred over
the next seven years. The Borrower has submitted comments to the Fish
and Wildlife Service on January 28, 1994 concerning the proposed
restrictions seeking clarification of the service's underlying data.
C. SOUTHERN WOOD PIEDMONT (SWP) SITES
SWP is a wholly-owned subsidiary company of the Borrower which was in
the wood preserving business, but is now solely engaged in remediation
of former plant sites; no wood preserving operations are on-going. The
Borrower discontinued its SWP business in 1986. The Borrower has
reserved $52 million for purposes of the remediation. Six of the nine
SWP sites are subject, or may soon become subject, to corrective action
under the Federal Resource Conservation and Recovery Act ("RCRA").
1. Augusta, Georgia
There is a RCRA permit in place at the Augusta site. Borrower
spent $16 million between 1987 and 1990 on corrective action at
this site. The Borrower is attempting to modify the permit to
provide construction of a deep slurry wall and a bioreactor.
The estimated cost is $17 million.
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2. East Point, Georgia
There is a RCRA permit in place at the East Point site. The
Borrower has nearly completed corrective action at this site.
The Borrower has reserved $1 million to complete the
remediation. Recently the EPD has proposed a permit amendment
giving the agency unlimited rights to require a RFI, CMS study.
The company will oppose this proposed permit amendment.
3. Chattanooga, Tennessee
There is a RCRA permit in place at the Chattanooga site.
Between 1987 and 1990 the Borrower spent $4.8 million on
corrective action at the Chattanooga site. The cleanup is
essentially complete. There is creosote contamination beneath
the sediment at the bottom of the Chattanooga Creek adjacent to
the Chattanooga site. The Borrower believes that there may be
a potential for the stream bed to be placed on the NPL as
Superfund site.
4. Baldwin, Florida
There is a RCRA permit in place at the Baldwin site. Between
1987 and 1990, Borrower spent nearly $7 million on corrective
action at this site. Borrower has reserved $2 million to
complete remediation at Baldwin.
5. Spartanburg, South Carolina
There was a RCRA permit in place at the Spartanburg site dated
August 12, 1988 that expired on August 11, 1993. The Borrower
is currently challenging the terms of a new permit. The
Borrower has reserved $2.3 million to purchase an adjacent
piece of property in which it is currently remediating deep
contamination.
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6. Waverly, Ohio
A consent agreement with the Ohio EPA covers the closure of the
RCRA unit at the Waverly site and the cleanup of various
associated units. The Borrower has reserved $1 million to
complete the cleanup.
7. Macon, Georgia
The Borrower has a sharing agreement in place with Norfolk
Southern Railroad ("Norfolk"), the owner of the Macon site.
Pursuant to the agreement, Norfolk is paying 40 percent of
total cleanup cost. The Borrower has proposed a consent order
to cover cleanup of a creek on this site (cost $450,000).
8. Wilmington, North Carolina
The town of Wilmington, North Carolina is the owner of the
Wilmington site. The Borrower believes that cleanup of this
site is now complete.
9. Gulf, North Carolina
The Borrower has performed some remediation at this site. The
Gulf site is a potential CERCLA site and the site may be placed
on the NPL.
D. SUPERFUND SITES
1. Combe Fill South Landfill located in New Jersey. The Borrower
is not a deminimis Potentially Responsible Party ("PRP") at
this site because of the limited number of PRP's.
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The total cleanup for this site is estimated at between $30
million and $39 million. The Borrower has reserved $3.5
million for its share of cleanup costs at the site.
2. Sharkey Landfill located in New Jersey. The Borrower is not a
deminimis PRP at this site based on an analysis of the volume
and type of waste that the Borrower is alleged to have disposed
of at the site. The estimated total cleanup cost for the site
is $28 million. The Borrower has reserved $523,000 for its
share of cleanup costs at the site.
3. Kin-Buc Landfill located in New Jersey. The Borrower is a
deminimis PRP at this site. The estimated total cleanup cost
for the site is $99 million. The Borrower has reserved
$800,000 for its share of cleanup costs at the site.
4. Davis Liquid Waste located in Rhode Island. The Borrower has
no reserves for cleanup of this site and the Borrower is
considered a deminimis PRP at this site.
5. Chemical Control Corporation located in New Jersey. The
Borrower was a deminimis PRP and has paid $220,000 to the EPA
in federal action and the cleanup of the site is complete.
6. Commencement Bay located in Washington State. The estimated
total cleanup for the site is $32 million. Borrower has no
reserves for cleanup of this site and the potential liability
to the Borrower is unknown but expected to be little or
nothing.
7. Combe Fill North Landfill located in New Jersey. An
information request was recently received by the Borrower from
the EPA. Borrower contends that its waste was never
transported to this site and it has no reserves for cleanup of
this site. The potential liability to the Borrower is unknown
but expected to be little or nothing.
E. SWP LEGAL PROCEEDINGS
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The Borrower and its wholly owned subsidiary, SWP, are named defendants
in six cases arising out of former wood preserving operations at SWP's
plant located in Augusta, Georgia. In general, these cases, all in the
U.S. District Court for the Southern District of Georgia, seek recovery
for property damage and personal injury or medical monitoring costs
based on the alleged exposure to toxic chemicals used by SWP in its
former operations. One case, Ernest Jordan v. Southern Wood Piedmont
Co., et. al., seeks certification as a class action and damages in the
amount of $700 million. Another case in which class certification has
been denied relates to the Macon site. Counsel for the Borrower
believes that the Borrower has meritorious defenses in all these cases.
Several previous lawsuits related to the Augusta facility have been
settled for amounts not material to the Borrower.
F. RESERVES FOR ENVIRONMENTAL CONTINGENCIES
1. Total reserves: $76 million (1993 year-end)
2. Reserves for Superfund Sites: $7.5 million
3. Reserves for SWP Sites: $52 million
4. Reserves for Grays Harbor: $13-15 million.