1
EXHIBIT 2.09
$65,000,000
CREDIT AGREEMENT
AMONG
ST. JOE CAPITAL I, INC.
THE BANKS NAMED HEREIN
AND
BANKERS TRUST COMPANY,
AS AGENT
----------------------------------
Dated as of March 9, 1999
----------------------------------
2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 Defined Terms..................................................................................1
1.2 Principles of Construction.....................................................................9
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 The Loans......................................................................................9
2.2 Notes.........................................................................................11
2.3 Interest on the Loans.........................................................................11
2.4 Adjustments for Withholding, Increased Costs, Capital Adequacy, Etc...........................15
2.5 Use of Proceeds...............................................................................15
2.6 Special Tax Provisions........................................................................16
2.7 Special Provisions Governing LIBOR Rate Loans.................................................16
ARTICLE III
FEES
3.1 Fees..........................................................................................19
ARTICLE IV
PREPAYMENTS; PAYMENTS
4.1 Prepayments; Mandatory Reduction of Commitment................................................19
4.2 Method and Place of Payment...................................................................20
4.3 Net Payments..................................................................................20
4.4 Application of Prepayments....................................................................20
4.5 Apportionment of Payments.....................................................................20
4.6 Voluntary Reduction of Commitments............................................................21
-i-
3
TABLE OF CONTENTS
(continued)
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness...................................................................21
5.2 Conditions to all Loans.......................................................................23
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
6.1 Corporate Status..............................................................................24
6.2 Power and Authority...........................................................................24
6.3 No Violation..................................................................................24
6.4 Governmental Approvals........................................................................25
6.5 Financial Statements; Financial Condition; Undisclosed Liabilities; etc.......................25
6.6 Litigation....................................................................................25
6.7 True and Complete Disclosure..................................................................26
6.8 Use of Proceeds; Margin Regulations...........................................................26
6.9 Tax Returns and Payments......................................................................26
6.10 Subsidiaries..................................................................................26
6.11 Compliance with Statutes, etc.................................................................26
6.12 Investment Company Act........................................................................27
6.13 Public Utility Holding Company Act............................................................27
6.14 No Material Adverse Change....................................................................27
6.15 Solvency......................................................................................27
6.16 Year 2000.....................................................................................27
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Information Covenants.........................................................................28
7.2 Books, Records and Inspections................................................................29
7.3 Franchises....................................................................................29
7.4 Compliance with Statutes, etc.................................................................30
7.5 Payment of Taxes and Claims...................................................................30
-ii-
4
TABLE OF CONTENTS
(continued)
7.6 Year 2000 Compliance..........................................................................30
7.7 Further Assurances............................................................................30
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Liens.........................................................................................31
8.2 Consolidation, Merger, Sale of Assets, etc....................................................31
8.3 Indebtedness, Contingent Obligations and Leases...............................................32
8.4 Transactions with Affiliates..................................................................32
8.5 Net Worth.....................................................................................32
8.6 Modifications of Certificate of Incorporation and Collar Documents............................32
8.7 Advances, Investments and Loans...............................................................32
8.8 Distributions.................................................................................32
8.9 Business......................................................................................32
ARTICLE IX
EVENTS OF DEFAULT
9.1 Payments......................................................................................33
9.2 Representations, etc..........................................................................33
9.3 Covenants.....................................................................................33
9.4 Default Under Other Agreements................................................................33
9.5 Bankruptcy, etc...............................................................................34
9.6 ERISA.........................................................................................34
9.7 Failure of Credit Documents...................................................................35
9.8 Change of Control.............................................................................35
9.9 Judgments.....................................................................................35
9.10 Swap Default..................................................................................35
ARTICLE X
THE AGENT
10.1 Appointment...................................................................................36
-iii-
5
TABLE OF CONTENTS
(continued)
10.2 Nature of Duties..............................................................................36
10.3 Lack of Reliance on the Agent.................................................................36
10.4 Certain Rights of the Agent...................................................................37
10.5 Reliance......................................................................................37
10.6 Indemnification...............................................................................37
10.7 The Agent in its Individual Capacity..........................................................37
10.8 Holders.......................................................................................38
10.9 Resignation by the Agent......................................................................38
10.10 Credit Documents..............................................................................38
ARTICLE XI
MISCELLANEOUS
11.1 Payment of Expenses, etc......................................................................39
11.2 Right of Setoff...............................................................................40
11.3 Notices.......................................................................................40
11.4 Benefit of Agreement..........................................................................40
11.5 No Waiver; Remedies Cumulative................................................................41
11.6 Payments Pro Rata.............................................................................42
11.7 Calculations; Computations....................................................................42
11.8 Consent to Jurisdiction and Service of Process; Governing Law; Waiver of Jury Trial...........42
11.9 Counterparts..................................................................................44
11.10 Headings Descriptive..........................................................................44
11.11 Amendment or Waiver...........................................................................44
11.12 Survival......................................................................................44
11.13 Domicile of Loans.............................................................................44
-iv-
6
CREDIT AGREEMENT
This CREDIT AGREEMENT dated as of March 9, 1999 (as amended,
supplemented or otherwise modified from time to time, this "Credit Agreement"),
is by and among ST. JOE CAPITAL I, INC., a Delaware corporation (the
"Borrower"), BANKERS TRUST COMPANY ("BTCo") and any other financial institution
which may become a lender hereunder (each a "Bank" and, collectively, the
"Banks") and BANKERS TRUST COMPANY, acting in the manner and to the extent
described in Article X (in such capacity, the "Agent").
R E C I T A L S
WHEREAS, the Borrower has requested certain extensions of
credit from the Banks and the Banks are willing to make such extensions only on
the terms and conditions set forth below;
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the Borrower, the Banks
and the Agent agree as follows:
ARTICLE I
DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 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):
"Adjusted LIBOR Rate" shall mean, on any particular Interest
Rate Determination Date, the rate determined by dividing (i) the per annum rate
of interest equal to the offered rates for deposits in Dollars for the
applicable Interest Period which appear on Dow Jones Page 3750 or other similar
system as of approximately 11:00 A.M. (London time) on such Interest Rate
Determination Date, except as provided below, by (ii) an amount equal to one
minus the stated maximum rate (expressed as a decimal) of all reserve
requirements (including any marginal, emergency, supplemental, special or other
reserves) that is specified on the first day of such Interest Period by the
Board of Governors of the Federal Reserve System (or any successor agency ) for
determining the maximum reserve requirement with respect to eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
such Board) maintained by a member bank of such System. If more than one
offered rate appears on Dow Jones Page 3750 or
1
7
similar system, the rate in respect of the applicable Interest Rate
Determination Date will be the arithmetic mean of such offered rates. Each
determination by the Agent of the Adjusted LIBOR Rate shall be conclusive and
binding on the Borrower in the absence of manifest error on the part of the
Agent.
"Affiliate" shall mean, with respect to any Person, any other
Person (other than an individual) directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such Person;
provided, however, that for purposes of subsection 8.6, an Affiliate of the
Borrower shall include any Person (including an individual) that directly or
indirectly owns more than 5% of the Borrower and any officer or director of the
Borrower or any such Person. A Person shall be deemed to control another Person
if such Person possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such other Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Agent
appointed pursuant to subsection 10.9.
"Agreement" shall mean this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Bank" shall mean each of BTCo and its successors and
assignees pursuant to subsection 11.4.
"Bankruptcy Code" shall have the meaning provided in
subsection 9.5.
"Base Rate" shall mean, at any time, the higher of (i) the
Prime Lending Rate and (ii) the rate which is 1/2 of 1% in excess of the
Federal Funds Effective Rate.
"Base Rate Loans" shall mean Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.3(a).
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"BTCo" shall have the meaning provided in the first paragraph
of this Agreement.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close, and (ii) with respect to all notices, determinations, fundings and
payments in connection with the Adjusted LIBOR Rate or any LIBOR Rate Loans,
any day that is a Business Day described in clause (i) above and
2
8
that is also a day for trading by and between banks in Dollar deposits in the
London interbank market.
"Certificate of Exemption" shall have the meaning assigned to
that term in subsection 2.6.
"Closing Date" shall mean the initial date on or before March
9, 1999 on which all of the conditions to the effectiveness of this Agreement
set forth in subsection 5.1 are satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collar Collateral" shall have the meaning set forth in the
Pledge and Security Agreement.
"Collar Documents" shall mean, collectively, the Master
Agreement and the Confirmations, as any of the same may from time to time be
amended, supplemented or otherwise modified to the extent permitted under
subsection 8.6.
"Collar Event of Default" shall mean an "Event of Default," a
"Termination Event" or an "Additional Termination Event" (as such terms are
defined in the Collar Documents).
"Collar Transactions" shall mean the put and call option(s)
evidenced by the Confirmations, forming a part of the Collar Documents.
"Collar Value" shall mean on any day the amount (which shall
be expressed as a negative number), if any, estimated by the Agent in good
faith and in a commercially reasonable manner consistent with customary
industry practice, which would be payable by the Borrower to BTCo under the
Collar Documents, if the Collar Transactions then in effect were terminated as
of such date, as the result of a Collar Event of Default with respect to the
Borrower, and a payment was due to BTCo under the Collar Documents, or, if no
such amount would be payable by the Borrower, the amount (which shall be
expressed as a positive number), if any, estimated by the Agent in good faith
and in a commercially reasonable manner consistent with customary industry
practice, which would be payable by BTCo to the Borrower under the Collar
Documents, if the Collar Transactions then in effect were terminated as of such
date, as the result of a Collar Event of Default with respect to the Borrower,
and a payment was due to the Borrower under the Collar Documents. The Agent may
rely, in the absence of manifest error, on valuations provided by the
calculation agent under the Collar Documents in determining Collar Value.
"Collateral" shall mean, collectively, all of the property
(including capital stock) in which Liens are purported to be granted pursuant
to the Pledge and Security Agreement as security for the Obligations.
3
9
"Commitment" or "Commitments" shall mean the commitment or
commitments of a Bank or the Banks to make Loans as set forth in subsection
2.1(a).
"Confirmations" shall mean the equity option transactions
under the Master Agreement evidenced by the confirmations identified on
Schedule II annexed to the Pledge and Security Agreement.
"Contingent Obligation" shall mean, as to any Person, (A) any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business; and (B) any obligations of such Person under any Interest
Rate Agreement or any future, swap, currency contract, forward contract or
financial derivative. The amount of any Contingent Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Credit Documents" shall mean this Agreement, each Note and
the Pledge and Security Agreement.
"Credit Parties" shall mean the Borrower and each other
Person (other than the Agent or any Bank) party to any Credit Document.
"Credit Parties" shall mean the Borrower and each other
Person (other than the Agent or any Bank) party to any Credit Document.
"Dollars" and "$" shall mean the lawful money of the United
States of America.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time. Section references to ERISA are to
ERISA, as in effect at the date of this Agreement, and to any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or substituted
therefor.
4
10
"ERISA Affiliate" shall mean any person (as defined in
Section 3(9) of ERISA) which together with the Borrower would be a member of
the same "controlled group" within the meaning of Section 414(b), (m), (c) and
(o) of the Code.
"Event of Default" shall have the meaning provided in Article
IX.
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with the members
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in subsection 3.1.
"Foreign Bank" shall have the meaning assigned to that term
in subsection 2.6.
"Funding Date" shall mean the date of the funding of a Loan.
"Government Acts" shall have the meaning assigned to such
term in subsection 2.7(h).
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, fees and charges) of
such Person for borrowed money or for the deferred purchase price of property
or services, (ii) the undrawn amount of or unreimbursed amount under all
letters of credit issued for the account of such Person and all drafts drawn
thereunder, (iii) all liabilities secured by any Lien on any property owned by
such Person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under generally accepted
accounting principles under leases under which such Person is the lessee and
(v) all Contingent Obligations of such Person.
"Interest Payment Date" means (i) with respect to any Base
Rate Loan, the last day of each calendar month, commencing on the first such
date to occur after the Closing Date, and (ii) with respect to any LIBOR Rate
Loan, the last day of each Interest Period applicable to such Loan; provided
that in the case of each Interest Period of longer than three months "Interest
Payment Date" shall also include the date that is three months, or an integral
multiple thereof, after the commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in
subsection 2.3(b).
5
11
"Interest Rate Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement or other similar agreement or
arrangement designed to protect the Borrower against fluctuations in interest
rates hereunder.
"Interest Rate Determination Date" means, with respect to any
Interest Period, the second Business Day prior to the first day of such
Interest Period.
"Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified opposite its signature below as its lending
office or such other office, Subsidiary or Affiliate of such Bank as such Bank
may from time to time specify as such to the Borrower and the Agent.
"Letter of Non-Exemption" shall have the meaning assigned to
that term in subsection 2.6.
"LIBOR Rate Loans" shall mean Loans bearing interest at rates
determined by reference to the Adjusted LIBOR Rate as provided in subsection
2.3(a).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, any agreement to give
any security interest and any lease having substantially the same effect as any
of the foregoing).
"Loans" shall mean the Loans made by the Banks on or after
the Closing Date pursuant to subsection 2.1(a).
"Loan to Collateral Value Ratio" shall mean, as of any date
of determination, the ratio of (x) the sum of (1) 50% of the Market Value of
the Collateral consisting of Margin Stock plus (2) the fair market value of all
other Collateral to (y) the principal amount of all outstanding Loans on such
date; provided that for purposes of this definition, the Market Value and fair
market value of any equity securities or debt obligations of Parent held by the
Borrower shall be zero.
"Margin Stock" shall have the meaning provided in Regulation
U of the Board of Governors of the Federal Reserve System.
"Market Value" shall mean the value calculated on the basis
of the closing price per share or other unit of the Collateral being valued as
reported in The Wall Street Journal or the last sale price as reported on the
securities exchange or other market where the unit of Collateral being valued
is primarily traded.
6
12
"Master Agreement" shall mean the ISDA Master Agreement,
dated as of June 15, 1998, and any Schedules and Annexes thereto, between BTCo
and the Borrower (BT Master Agreement No. 1N866).
"Net Worth" shall mean the excess of assets over liabilities
based upon the fair market value of such assets and liabilities, it being
assumed that the value of the Collar Transactions shall be the Collar Value.
"Notes" shall mean the promissory notes of the Borrower
issued in favor of the Banks pursuant to subsection 2.2 to evidence the Loans,
substantially in the form of Exhibit B annexed hereto.
"Notice of Borrowing" shall mean a notice substantially in
the form of Exhibit A annexed hereto with respect to a proposed borrowing.
"Notice of Conversion/Continuation" shall mean a notice
substantially in the form of Exhibit B annexed hereto with respect to a
proposed conversion or continuation of the applicable basis for determining the
interest rate with respect to the Loans specified therein.
"Notice Office" shall mean the office of the Agent located at
One Bankers Trust Plaza, 14th Floor, New York, New York 10006, or such other
office as the Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to the Agent or
any Bank pursuant to the terms of this Agreement or any other Credit Document.
"Parent" shall mean The St. Joe Company, a Florida
corporation.
"Payment Office" shall mean the office of the Agent
located at One Bankers Trust Plaza, New York, New York 10006, Attention:
Commercial Loan Division Ref: St. Joe Capital I, Inc., or such other office as
the Agent may hereafter designate in writing as such to the other parties
hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA or any successor thereto.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any multiemployer plan or single-employer
plan as defined in Section 4001 of ERISA, which is maintained or contributed
to, or at any time during the five calendar years preceding the date of this
Agreement was maintained or contributed to, by the Borrower or by an ERISA
Affiliate.
7
13
"Pledge and Security Agreement" shall mean that certain
Pledge and Security Agreement dated the Closing Date between the Agent and the
Borrower, in substantially the form of Exhibit D annexed hereto, as such
agreement may thereafter be amended, supplemented or otherwise modified from
time to time.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, and the Prime Lending Rate shall
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Pro Rata Share" shall mean, with respect to each Bank, the
percentage designated as such Bank's Pro Rata Share set forth opposite the name
of such Bank on Schedule I; provided that Schedule I shall be amended and the
Banks' Pro Rata Shares shall be adjusted from time to time to give effect to
the addition of any new Banks and any reallocations among existing Banks
necessary to reflect assignments pursuant to subsection 11.4. The sum of the
Pro Rata Shares of all Banks at any date of determination shall equal 100%.
"Required Banks" shall mean, at any time, the Banks holding
51% or more of the aggregate Commitments (or, if the Commitments have been
terminated, the aggregate unpaid principal amount of the Loans).
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at the time.
"Termination Date" shall mean the earlier of (a) January 14,
2000 and (b) the date upon which the Commitments are terminated pursuant to
subsection 4.1, 4.6 or 9.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" shall mean, as to any Plan, the
amount, if any, by which the present value of the accrued benefits under such
Plan as of the close of its most recent plan year determined in accordance with
Section 412 of the Code exceeds the fair market value of the assets allocable
thereto.
8
14
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
1.2 PRINCIPLES OF CONSTRUCTION.
(A) All references to sections, schedules and exhibits
are to sections, schedules and exhibits in or to this Agreement unless
otherwise specified. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(B) All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles
in conformity with those used in the preparation of the financial statements
referred to in subsection 6.5.
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 THE LOANS.
(A) LOANS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower set forth herein, each Bank hereby severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Loans
permitted to be outstanding from time to time, to make Loans to the Borrower in
an amount not exceeding its Pro Rata Share of the aggregate Commitments (as
defined below) for the purposes identified in subsection 2.5. Each Bank's
commitment to make Loans to the Borrower pursuant to this subsection 2.1(a) is
hereby called its "Commitment" and such commitments of all Banks in the
aggregate are herein called the "Commitments". The initial amount of each
Bank's Commitment is set forth in Schedule I annexed hereto and the aggregate
initial amount of all Commitments is $65,000,000. The amount of the Commitments
shall be reduced by the amount of all reductions thereof required or otherwise
made pursuant to subsections 4.1 and 4.6 through the date of determination. In
no event shall the aggregate principal amount of the Loans from any Bank
outstanding at any time exceed the amount of its Commitment then in effect.
Each Bank's Commitment shall expire on the Termination Date and all Loans and
all other amounts owed hereunder with respect to the Loans, the Commitments, or
otherwise shall be paid in full no later than that date.
All Loans under this Agreement shall be made by the Banks
simultaneously and proportionately to their respective Pro Rata Shares, it
being understood that no Bank shall be responsible for any default by any other
Bank in that other Bank's obligation to make Loans hereunder nor shall the
Commitment of any Bank be increased or decreased as a result of the default by
any other Bank in that other Bank's
9
15
obligation to make Loans hereunder. Amounts borrowed by the Borrower under this
subsection 2.1(a) may be repaid and, through but excluding the Termination
Date, reborrowed.
(B) NOTICE OF BORROWING. Subject to subsection 2.1(a),
whenever the Borrower desires to borrow Loans under this subsection 2.1, it
shall deliver to the Agent a Notice of Borrowing no later than 10:00 A.M. (New
York time) at least three Business Days in advance of the proposed Funding Date
in the case of a LIBOR Rate Loan or at least one Business Day in advance of the
proposed Funding Date in the case of a Base Rate Loan. The Notice of Borrowing
shall specify (a) the proposed Funding Date (which shall be a Business Day),
(b) the amount of the proposed borrowing, (c) whether such Loans shall be Base
Rate Loans or LIBOR Rate Loans, (d) in the case of any Loans requested to be
made as LIBOR Rate Loans, the initial Interest Period therefor, (e) the
proposed use of proceeds and (f) that the aggregate principal amount of
outstanding Loans (after giving effect to the Loans then requested) will not
exceed the Commitments then in effect. Loans shall be made in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of that
amount. In lieu of delivering the above-described Notice of Borrowing, the
Borrower may give the Agent telephonic notice by the required time of any
proposed borrowing of Loans under this subsection 2.1; provided that such
notice shall be promptly confirmed in writing by delivery of a Notice of
Borrowing to the Agent on or prior to the Funding Date of the requested Loans.
Neither the Agent nor any Bank shall incur any liability to
the Borrower in acting upon any telephonic notice referred to above that Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of the Borrower or for otherwise acting
in good faith under this subsection 2.1, and upon funding of Loans by the Banks
in accordance with this Agreement pursuant to any such telephonic notice, the
Borrower shall have effected Loans hereunder.
Except as otherwise provided in subsections 2.7(b), 2.7(c)
and 2.7(f), a Notice of Borrowing for a LIBOR Rate Loan (or telephonic notice
in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and the Borrower shall be bound to make a borrowing in
accordance therewith.
(C) DISBURSEMENT OF FUNDS. Promptly after receipt of a
Notice of Borrowing related to a Loan pursuant to subsection 2.1(b) (or
telephonic notice thereof), the Agent shall notify each Bank of the proposed
borrowing. Each Bank shall make the amount of its Loan available to the Agent,
in same day funds, at its Payment Office not later than 1:00 P.M. (New York
time) on the Funding Date. Upon satisfaction or waiver of the conditions
precedent specified in Article V, as applicable, the Agent shall make the
proceeds of such Loans available to the Borrower on such Funding Date by
causing an amount of same day funds equal to the proceeds of all such Loans
received by the Agent to be credited to the account of the Borrower at such
office of the Agent.
Unless the Agent shall have been notified by any Bank in
writing prior to any Funding Date in respect of any Loans that such Bank does
not intend to make
10
16
available to the Agent such Bank's Loan on such Funding Date (which such
notice, if so received by the Agent, shall promptly be communicated to the
Borrower), the Agent may assume that such Bank has made such amount available
to the Agent on such Funding Date and the Agent in its sole discretion may, but
shall not be obligated to, make available to the Borrower a corresponding
amount on such Funding Date. If such corresponding amount is not in fact made
available to the Agent by such Bank, the Agent shall be entitled to recover
such corresponding amount on demand from such Bank together with interest
thereon, for each day from such Funding Date until the date such amount is paid
to the Agent, at the customary rate set by the Agent for the correction of
errors among banks for three Business Days and thereafter at the Base Rate. If
such Bank does not pay such corresponding amount forthwith upon the Agent's
demand therefor, the Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Agent. Nothing in this
subsection 2.1(c) shall be deemed to relieve any Bank from its obligation to
fulfill its Commitment hereunder or to prejudice any rights that the Borrower
may have against any Bank as a result of any default by such Bank hereunder.
2.2 NOTES.
The Borrower shall execute and deliver to each Bank (or to
the Agent for that Bank) on the Closing Date a Note substantially in the form
of Exhibit C annexed hereto to evidence that Bank's Loans, in the principal
amount of that Bank's Commitment and with other appropriate insertions. Each
Bank will note on its internal records the amount of each Loan made by it and
each payment in respect thereof and will prior to any transfer of any of its
Notes endorse on the reverse side thereof the outstanding principal amount of
the Loans evidenced thereby. Failure to make any such notation shall not affect
the Borrower's obligations in respect of such Loans.
2.3 INTEREST ON THE LOANS.
(A) RATE OF INTEREST. Subject to the provisions of
subsections 2.4 and 2.7, each Loan shall bear interest on the unpaid principal
amount thereof from the date made until paid in full (whether by acceleration
or otherwise) at a rate determined by reference to the Base Rate or the
Adjusted LIBOR Rate, as the case may be. The applicable basis for determining
the rate of interest with respect to any Loan shall be selected by the Borrower
initially at the time a Notice of Borrowing is given with respect to such Loan
pursuant to subsection 2.1(b), and the basis for determining the interest rate
with respect to any Loan may be changed from time to time pursuant to
subsection 2.3(c). If on any day a Loan is outstanding with respect to which
notice has not been delivered to the Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of interest,
then for that day that Loan shall bear interest determined by reference to the
Base Rate.
Subject to the provisions of subsections 2.3(c) and 2.4,
the Loans shall bear interest until paid in full as follows:
11
17
(i) if a Base Rate Loan, then at the Base Rate
per annum; or
(ii) if a LIBOR Rate Loan, then at the sum of
the Adjusted LIBOR Rate plus .50% per annum.
(B) INTEREST PERIODS. In connection with each LIBOR Rate
Loan, the Borrower may, pursuant to the applicable Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, select an interest
period (each an "Interest Period") to be applicable to such Loan, which
Interest Period shall be, at the Borrower's option, either a one, two, three or
six month period; provided that:
(i) the initial Interest Period for any LIBOR
Rate Loan shall commence on the Funding Date in respect of such Loan,
in the case of a Loan initially made as a LIBOR Rate Loan, or on the
date specified in the applicable Notice of Conversion/Continuation, in
the case of a Loan converted to a LIBOR Rate Loan;
(ii) in the case of immediately successive
Interest Periods applicable to a LIBOR Rate Loan continued as such
pursuant to a Notice of Conversion/Continuation, each successive
Interest Period shall commence on the day on which the next preceding
Interest Period expires;
(iii) if an Interest Period would otherwise
expire on a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided that, if any
Interest Period would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (v) of this subsection
2.3(b), end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any
portion of the Loans shall extend beyond the Termination Date;
(vi) there shall be no more than four Interest
Periods outstanding at any time; and
(vii) in the event the Borrower fails to specify
an Interest Period for any LIBOR Rate Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, the Borrower shall be
deemed to have selected an Interest Period of one month.
12
18
(C) CONVERSION OR CONTINUATION. Subject to the
provisions of subsection 2.7, the Borrower shall have the option (i) to convert
at any time all or any part of the outstanding Loans equal to $500,000 and
integral multiples of $100,000 in excess of that amount from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or (ii) upon
the expiration of any Interest Period applicable to a LIBOR Rate Loan, to
continue all or any portion of such Loan equal to $500,000 and integral
multiples of $100,000 in excess of that amount as a LIBOR Rate Loan; provided,
however, that a LIBOR Rate Loan may only be converted into a Base Rate Loan on
the expiration date of an Interest Period applicable thereto.
The Borrower shall deliver a Notice of
Conversion/Continuation to the Agent no later than 10:00 A.M. (New York time)
at least one Business Day in advance of the proposed conversion date (in the
case of a conversion to a Base Rate Loan) and at least three Business Days in
advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a LIBOR Rate Loan). A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount and type of the Loan to
be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, a LIBOR Rate Loan, the requested Interest Period, and (v) in the case of a
conversion to, or a continuation of, a LIBOR Rate Loan, that no Default or
Event of Default has occurred and is continuing. In lieu of delivering the
above-described Notice of Conversion/Continuation, the Borrower may give the
Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.3(c); provided that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to the Agent on or before the proposed
conversion/continuation date. Upon receipt of written or telephonic notice of
any proposed conversion/continuation under this subsection 2.3(c), the Agent
shall promptly transmit such notice by telefacsimile or telephone to each Bank.
Neither the Agent nor any Bank shall incur any liability to
the Borrower in acting upon any telephonic notice referred to above that the
Agent believes in good faith to have been given by a duly authorized officer or
other person authorized to act on behalf of the Borrower or for otherwise
acting in good faith under this subsection 2.3(c), and upon conversion or
continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice the Borrower shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.7(b), 2.7(c)
and 2.7(f), a Notice of Conversion/Continuation for conversion to, or
continuation of, a LIBOR Rate Loan (or telephonic notice in lieu thereof) shall
be irrevocable on and after the related Interest Rate Determination Date, and
the Borrower shall be bound to effect a conversion or continuation in
accordance therewith.
13
19
(D) INTEREST PAYMENTS. Subject to subsection 2.3(e),
interest shall be payable on the Loans in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity.
(E) DEFAULT RATE. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable upon demand at a rate that is 2% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable
Loans (or, in the case of any such fees and other amounts, at a rate which is
2% per annum in excess of the interest rate otherwise payable under this
Agreement for Base Rate Loans); provided that, in the case of LIBOR Rate Loans,
upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such LIBOR Rate Loans shall thereupon
become Base Rate Loans and shall thereafter bear interest payable upon demand
at a rate which is 2% per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.3(e) is not a
permitted alternative to timely payment and shall not constitute a waiver of
any Event of Default or an amendment to this Agreement otherwise prejudice or
limit any rights or remedies of the Agent or any Bank.
(F) COMPUTATION OF INTEREST. Interest on the Loans shall
be computed (i) in the case of Base Rate Loans, on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of LIBOR Rate Loans, on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate Loan to such
Base Rate Loan, as the case may be, shall be included, and the date of payment
of such Loan or the expiration date of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan,
the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
day on which it is made, one day's interest shall be paid on that Loan.
14
20
2.4 ADJUSTMENTS FOR WITHHOLDING, INCREASED COSTS,
CAPITAL ADEQUACY, ETC. In the event that any Bank, in its sole discretion,
determines that the enactment, adoption or issuance of any applicable law,
rule, regulation, order or decree or any change in any existing law or any
existing interpretation or application thereof, or compliance by such Bank with
any request or directive (whether or not having the force of law) from any
governmental, fiscal, monetary or other authority:
(i) subjects such Bank to any tax, duty, charge
or withholding on or from payments due from the Borrower not in effect
or whose equivalent is not in effect on the date of this Agreement
(excluding taxation on the overall net income of such Bank); or
(ii) imposes, modifies or holds applicable or
changes any reserve requirement (including, without limitation, basic,
supplemental, marginal, special or emergency reserves but not
including reserve requirements already taken into account in
calculating the interest rate hereunder), special deposit, compulsory
deposit or similar requirement with respect to assets of, deposits
with or for the account of advances or loans by, other credit extended
by, or any other acquisition of funds by, such Bank (including,
without limitation, all eurocurrency funding and all "Eurocurrency
liabilities" as defined in Regulation D); or
(iii) affects the amount of capital required or
expected to be maintained by such Bank in respect of the Loans made by
such Bank to the Borrower hereunder; or
(iv) does or shall impose on such Bank any other
condition or change therein;
and the result of any of the foregoing is to increase the cost to such Bank of
making available to the Borrower, converting from or to, or maintaining, any
Loans hereunder, then, and in any such event, such Bank shall notify the
Borrower in writing of such occurrence setting forth in reasonable detail the
basis for and amounts of such increased costs, and, if such Bank demands such a
payment, the Borrower shall pay to such Bank, within five (5) Business Days
after demand (but in no event prior to the date such Bank becomes liable for,
suffers or incurs such increased cost), such amounts as will compensate such
Bank for such increased costs. The certificate of such Bank as to any amounts
payable pursuant to this subsection 2.4 shall, absent manifest error, be final,
conclusive and binding on the Borrower. The obligations of the Borrower under
this subsection 2.4 shall survive for six (6) months after the making and
repayment of the Loans and the termination of the Commitments.
2.5 USE OF PROCEEDS.
(A) LOANS. The proceeds of the Loans shall be
applied to make intercompany loans to Parent to be used by Parent to
purchase publicly traded equity securities of Parent and for working
capital and general corporate purposes.
15
21
(B) MARGIN REGULATIONS. No portion of the
proceeds of any borrowing under this Agreement shall be used by the
Borrower to purchase or carry any Margin Stock in any manner that
might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of the
Board or to violate the Securities Exchange Act of 1934, in each case
as in effect on the date or dates of such borrowing and such use of
proceeds.
2.6 SPECIAL TAX PROVISIONS. Each Bank organized under
the laws of a jurisdiction outside of the United States (referred to in this
subsection 2.6 as a "Foreign Bank") as to which payments to be made hereunder
or under the Notes are exempt from United States withholding tax or are subject
to such tax at a reduced rate under an applicable statute or tax treaty shall
provide to the Borrower and the Agent (x) a properly completed and executed
Internal Revenue Service Form 4224 or Form 1001 or other applicable form,
certificate or document prescribed by the Internal Revenue Service of the
United States certifying as to such Foreign Bank's entitlement to such
exemption or reduced rate with respect to payments to be made to such Foreign
Bank hereunder and under the Notes (referred to in this subsection 2.6 as a
"Certificate of Exemption") or (y) a letter from such Foreign Bank stating that
it is not entitled to any such exemption or reduced rate (referred to in this
subsection 2.6 as a "Letter of Non-Exemption"). Each Foreign Bank shall provide
such a Certificate of Exemption or a Letter of Non-Exemption on or before the
Closing Date; provided, however, that each Foreign Bank that becomes a Bank
pursuant to the proviso in the definition of "Bank" shall provide a Certificate
of Exemption or a Letter of Non-Exemption on the date such Foreign Bank becomes
a Bank. Until the Borrower and the Agent have received from such Foreign Bank a
Certificate of Exemption, the accuracy of which shall be reasonably
satisfactory to the Borrower, the Borrower shall be entitled to withhold taxes
from such payments to such Foreign Bank at the statutory rate applicable to
amounts to be paid hereunder to such Foreign Bank.
2.7 SPECIAL PROVISIONS GOVERNING LIBOR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to LIBOR Rate Loans as to the
matters covered:
(A) DETERMINATION OF APPLICABLE INTEREST RATE. As soon
as practicable after 10:00 A.M. (New York time) on each Interest Rate
Determination Date, the Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the
interest rate that shall apply to the LIBOR Rate Loans for which an interest
rate is then being determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by telephone confirmed in writing)
to the Borrower and each Bank.
(B) INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In
the event that the Agent shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any LIBOR Rate Loans, that by reason of
circumstances affecting the London interbank
16
22
market adequate and fair means do not exist for ascertaining the interest rate
applicable to such Loans on the basis provided for in the definition of
Adjusted LIBOR Rate, the Agent shall on such date give notice (by telefacsimile
or by telephone confirmed in writing) to the Borrower and each Bank of such
determination, whereupon (i) no Loans may be made as, or converted to, LIBOR
Rate Loans until such time as the Agent notifies the Borrower and Banks that
the circumstances giving rise to such notice no longer exist and (ii) any
Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower
with respect to the Loans in respect of which such determination was made shall
be deemed to be rescinded by the Borrower.
(C) ILLEGALITY OR IMPRACTICABILITY OF LIBOR RATE LOANS.
In the event that on any date any Bank shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with the Borrower and the Agent) that
the making, maintaining or continuation of its LIBOR Rate Loans (i) has become
unlawful as a result of compliance by such Bank in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not
be unlawful) or (ii) has become impracticable, or would cause such Bank
material hardship, as a result of contingencies occurring after the date of
this Agreement which materially and adversely affect the London interbank
market or the position of such Bank in that market, then, and in any such
event, such Bank shall be an "AFFECTED BANK" and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to the Borrower
and the Agent of such determination (which notice the Agent shall promptly
transmit to each other Bank). Thereafter (a) the obligation of the Affected
Bank to make Loans as, or to convert Loans to, LIBOR Rate Loans shall be
suspended until such notice shall be withdrawn by the Affected Bank, (b) to the
extent such determination by the Affected Bank relates to a LIBOR Rate Loan
then being requested by the Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, the Affected Bank shall make such Loan as
(or convert such Loan to, as the case may be) a Base Rate Loan, (c) the
Affected Bank's obligation to maintain its outstanding LIBOR Rate Loans (the
"AFFECTED LOANS") shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or
when required by law, and (d) the Affected Loans shall automatically convert
into Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Bank as described above
relates to a LIBOR Rate Loan then being requested by the Borrower pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, the Borrower shall
have the option, subject to the provisions of subsection 2.7(d), to rescind
such Notice of Borrowing or Notice of Conversion/Continuation as to all Banks
by giving notice (by telefacsimile or by telephone confirmed in writing) to the
Agent of such rescission on the date on which the Affected Bank gives notice of
its determination as described above (which notice of rescission the Agent
shall promptly transmit to each other Bank). Except as provided in the
immediately preceding sentence, nothing in this subsection 2.7(c) shall affect
the obligation of any Bank other than an Affected Bank to
17
23
make or maintain Loans as, or to convert Loans to, LIBOR Rate Loans in
accordance with the terms of this Agreement.
(D) COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF
INTEREST PERIODS. The Borrower shall compensate each Bank, upon written request
by that Bank (which request shall set forth the basis for requesting such
amounts), for all reasonable losses, expenses and liabilities (including any
interest paid by that Bank to lenders of funds borrowed by it to make or carry
its LIBOR Rate Loans and any loss, expense or liability sustained by that Bank
in connection with the liquidation or re-employment of such funds) which that
Bank may sustain: (i) if for any reason (other than a default by that Bank) a
borrowing of any LIBOR Rate Loan does not occur on a date specified therefor in
a Notice of Borrowing or a telephonic request for borrowing, or a conversion to
or continuation of any LIBOR Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment or other principal payment
or any conversion of any of its LIBOR Rate Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its LIBOR Rate Loans is not made on any date specified in a notice of
prepayment given by the Borrower, or (iv) as a consequence of any other default
by the Borrower in the repayment of its LIBOR Rate Loans when required by the
terms of this Agreement.
(E) ASSUMPTIONS CONCERNING FUNDING OF LIBOR RATE LOANS.
Calculation of all amounts payable to a Bank under this subsection 2.7 and
under subsection 2.4 shall be made as though that Bank had actually funded each
of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan
and having a maturity comparable to the relevant Interest Period and through
the transfer of such LIBOR deposit from an offshore office of that Bank to a
domestic office of that Bank in the United States of America; provided,
however, that each Bank may fund each of its LIBOR Rate Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes
of calculating amounts payable under this subsection 2.7 and under subsection
2.4.
(F) LIBOR RATE LOANS AFTER DEFAULT. After the occurrence
of and during the continuation of a Default or an Event of Default, (i) the
Borrower may not elect to have a Loan be made or maintained as, or converted
to, a LIBOR Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.7(d)
any Notice of Borrowing or Notice of Conversion/Continuation given by the
Borrower with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be rescinded by the Borrower.
18
24
ARTICLE III
FEES
3.1 FEES.
(A) UNDERWRITING FEES. On the Closing Date, the Borrower
agrees to pay to BTCo such underwriting fees as have been mutually agreed upon.
(B) COMMITMENT FEES. The Borrower agrees to pay to the
Agent, for distribution to each Bank in proportion to its Pro Rata Share,
commitment fees for the period from and including the Closing Date to but
excluding the Termination Date equal to the average of the daily unused portion
of the Commitments multiplied by 1/8 of 1% per annum, such commitment fees to
be calculated on the basis of a 360-day year and the actual number of days
elapsed and to be payable monthly in arrears on and to the last day of each
calendar month, commencing on the first such date occurring after the Closing
Date, and upon the termination of the Commitments. Anything contained in this
Agreement to the contrary notwithstanding, for the purposes of calculating the
commitment fees payable by the Borrower pursuant to this subsection 3.1(b), the
"unused portion of the Commitments", as of any date of determination, shall be
an amount equal to the aggregate amount of Commitments as of such date minus
the aggregate principal amount of all outstanding Loans on such date, and the
unused portion of the Commitments shall not be reduced for the purposes of
calculating commitment fees by reason of the Borrower's inability to satisfy
the conditions precedent set forth in Article V and consequent inability to
borrow Loans hereunder.
ARTICLE IV
PREPAYMENTS; PAYMENTS
4.1 PREPAYMENTS; MANDATORY REDUCTION OF COMMITMENT.
(A) OPTIONAL PREPAYMENTS. The Borrower shall have the
right to prepay the Loans in the minimum amount of $500,000 and integral
multiples of $100,000 in excess thereof (or such lesser amount as constitutes
the remaining principal amount of the Loans outstanding), without premium or
penalty, in whole or in part from time to time, upon at least one Business
Days' prior written notice of its intent to prepay the Loans, which notice
shall be delivered to the Agent at its Notice Office and shall specify the
amount of such prepayment. The Agent shall promptly transmit a copy of each
such notice to each of the Banks.
(B) MANDATORY PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
The Borrowers shall make prepayments on the Loans necessary so that on any
date, the Loan to Collateral Value Ratio shall be no less than 1.00:1.00. In
the event of any termination, expiration or amendment of any components of the
Collar Transactions, (x) the Commitments shall be automatically reduced (such
reduction to reduce the Commitment of each Bank proportionately to its Pro Rata
Share) to the extent necessary so that the ratio of the Commitments to the
notional value of the put options then effective and
19
25
included in the Collar Transactions (calculated as the option price multiplied
by the number of shares covered by the option) shall not exceed 0.90:1.00, and
(y) the Borrower shall make prepayments on the Loans to the extent necessary so
that after giving effect to such reduction, the outstanding principal amount of
the Loans shall not exceed the Commitments.
4.2 METHOD AND PLACE OF PAYMENT.
Except as otherwise specifically provided herein, all
payments under this Agreement or any Note shall be made to the Agent for the
account of the Bank or Banks entitled thereto not later than 2:00 P.M. (New
York time) on the date when due and shall be made in Dollars in immediately
available funds at the Payment Office of the Agent. Whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or under any Note or of the
commitment or other fees hereunder, as the case may be.
4.3 NET PAYMENTS.
All payments made by the Borrower hereunder or under any Note
will be made without setoff, counterclaim or other defense.
4.4 APPLICATION OF PREPAYMENTS.
All prepayments shall include payment of accrued interest on
the principal amount so prepaid other than with respect to any voluntary
prepayment of the Loans and shall be applied to the payment of interest before
application to principal. Any prepayment of Loans shall be applied first to
Base Rate Loans to the full extent thereof before application to LIBOR Rate
Loans, in a manner which minimizes the amount of any payments required to be
made by the Borrower pursuant to subsection 2.7(d).
4.5 APPORTIONMENT OF PAYMENTS
Aggregate principal and interest payments shall be
apportioned among all outstanding Loans to which such payments relate, and such
payments shall be apportioned ratably to the Banks, proportionately to the
Banks' respective Pro Rata Shares. The Agent shall promptly distribute to each
Bank at its primary address set forth below its name on the appropriate
signature page hereof or such other address as any Bank may request its share
of all such payments received by the Agent and the commitment fees of such Bank
when received by the Agent pursuant to subsection 3.1(b).
20
26
4.6 VOLUNTARY REDUCTION OF COMMITMENTS.
The Borrower shall have the right, at any time and from time
to time, to terminate in whole or permanently reduce in part, without premium
or penalty, the Commitments in an amount up to the amount by which the
Commitments exceed the principal amount of outstanding Loans. The Borrower
shall give not less than one Business Day's prior written notice to the Agent
designating the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction. Promptly after receipt of a
notice of such termination or partial reduction, the Agent shall notify each
Bank of the proposed termination or reduction. Such termination or partial
reduction of the Commitments shall be effective on the date specified in the
Borrower's notice and shall reduce the Commitment of each Bank proportionately
to its Pro Rata Share. Any such partial reduction of the Commitments shall be
in an aggregate minimum amount of $500,000 and integral multiples of $100,000
in excess of that amount unless the remaining amount of the Commitments is less
than $100,000 in which case such reduction shall be in the amount of the then
remaining Commitments.
ARTICLE V
CONDITIONS PRECEDENT
The effectiveness of this Agreement and the obligations of
the Banks to maintain and make Loans hereunder are subject to the satisfaction
of the following conditions.
5.1 CONDITIONS TO EFFECTIVENESS.
This Agreement shall become effective only upon satisfaction
of all of the following conditions:
(A) EXECUTION OF AGREEMENT, NOTES AND OTHER CREDIT
DOCUMENTS. The Agent shall have received duly copies of each of the
following, duly executed by each party thereto:
(1) this Agreement;
(2) Notes made to the order of each of the
Banks; and
(3) the Pledge and Security Agreement.
The Borrower shall also have delivered to the Agent all
instruments (together with undated stock powers, duly endorsed in blank), if
any, representing securities pledged pursuant to the Pledge and Security
Agreement, and shall have executed and delivered UCC-1 financing statements and
taken all such further action as the Agent may request in order to create a
valid and perfected first priority Lien in favor of the Agent for the benefit
of the Banks on the Collateral.
(b) NO DEFAULT; REPRESENTATION AND WARRANTIES. All
representations and warranties of each Credit Party set forth in each of Credit
Documents
21
27
to which such Credit Party is a party shall be true, correct and complete in
all material respects on and as of the Closing Date after giving effect to the
transactions contemplated to occur on such date, and the Borrower shall have
delivered to the Agent an officer's certificate, dated as of the Closing Date,
signed by the President or Vice President of the Borrower, and attested to by
the Secretary or any Assistant Secretary of the Borrower, in form and substance
satisfactory to the Agent, to the effect that on and as of the Closing Date and
after giving effect to the transactions contemplated to occur on such date, (i)
no Default or Event of Default shall have occurred and be continuing and (ii)
all representations and warranties of the Credit Parties contained herein and
in the other Credit Documents are true, correct and complete in all material
respects.
(C) CORPORATE DOCUMENTS; PROCEEDINGS.
(1) On the Closing Date, the Agent shall have
received a certificate, dated the Closing Date, signed by an authorized officer
of the Borrower, in form and substance satisfactory to the Agent, certifying
(i) resolutions of the Board of Directors of the Borrower authorizing and
approving the execution and delivery by the Borrower of this Agreement and the
Note and the other Credit Documents to which it is a party and the transactions
contemplated hereby and thereby, (ii) the certificate or articles of
incorporation of the Borrower, and (iii) the bylaws of the Borrower.
(2) On the Closing Date, the Agent shall have
received, with respect to the Borrower, a good standing certificate from its
jurisdiction of incorporation, dated a recent date prior to the Closing Date.
(3) All corporate and legal proceedings and
all instruments and agreements in connection with the transactions contemplated
by this Agreement and the other Credit Documents shall be satisfactory in form
and substance to the Banks, and the Agent shall have received all information
and copies of all documents and papers, including records of corporate
proceedings and governmental approvals, if any, which any Bank reasonably may
have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
(D) PAYMENT OF FEES. The Borrower shall have paid the
Fees required by subsection 3.1 to be paid on the Closing Date and the
reasonable fees and expenses of O'Melveny & Myers LLP, counsel to the Agent,
as of the Closing Date.
(E) PRO FORMA BALANCE SHEET. On or before the Closing
Date, Banks shall have received from the Borrower a pro forma balance sheet as
at the Closing Date, prepared in accordance with generally accepted accounting
principles and reflecting the consummation of the transactions contemplated by
the Credit Documents, which pro forma financial statements shall be in form and
substance satisfactory to the Banks.
(F) OPINIONS OF COUNSEL. On the Closing Date, the Agent
shall have received from internal counsel to the Borrower and Latham & Watkins,
special New York counsel to the Borrower, opinions in form and substance
satisfactory to the Agent,
22
28
addressed to each of the Banks and dated the date of delivery, covering such
matters incident to the transactions contemplated herein as the Agent may
reasonably request. The Borrower hereby acknowledges that it has requested such
counsel to deliver such opinions to the Agent and the Banks.
(G) AMENDMENTS TO COLLAR DOCUMENTS. On or prior to the
Closing Date, the Agent shall have received copies of fully executed amendments
to the Collar Documents, in form and substance reasonably satisfactory to the
Agent, providing for (i) BTCo's right to tender any unpaid portion of the
Obligations as payment for the purchase price under any of the Collar
Transactions and (ii) acknowledgment by the parties to the Collar Documents of
the modification to the credit support annex thereunder which is effected by
the Pledge and Security Agreement.
All the Notes, certificates, legal opinions and other
documents and papers referred to in this Article V, unless otherwise specified,
shall be delivered to the Agent at the Agent's Notice Office for the account of
each of the Banks and, except for the Notes, in sufficient counterparts for
each of the Banks and shall be satisfactory in form and substance to the Banks.
5.2 CONDITIONS TO ALL LOANS.
The obligations of the Banks to make Loans on each Funding
Date are subject to the following further conditions precedent:
(A) The Agent shall have received, in accordance with
the provisions of subsection 2.1(b), an originally executed Notice of Borrowing
signed by a duly authorized officer of the Borrower.
(B) As of the Funding Date:
(1) The representations and warranties
contained herein shall be true, correct and complete in all material respects
on and as of that Funding Date to the same extent as though made on and as of
that date;
(2) No event shall have occurred and be
continuing or would result from the consummation of the borrowing contemplated
by such Notice of Borrowing that would constitute a Default or an Event of
Default;
(3) The Borrower shall have performed in all
material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed by it on or before that Funding Date;
(4) No order, judgment or decree of any
court, arbitrator or governmental authority shall purport to enjoin or restrain
any Bank from making the Loans; and
23
29
(5) The making of the Loans requested on such
Funding Date shall not (x) violate any law, including, without limitation,
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or (y) cause the Loan to Collateral Value Ratio to be
less than 1.00:1.00.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In order to induce the Banks to enter into this Agreement and
to maintain and make the Loans, the Borrower makes the following
representations, warranties and agreements, which shall survive the execution
and delivery of this Agreement and the Notes and the making of Loans.
6.1 CORPORATE STATUS.
Each Credit Party (i) is a corporation duly incorporated and
existing in good standing under the laws of its jurisdiction of incorporation,
(ii) has the power and authority to own its property and assets and to transact
the business in which it is engaged and (iii) is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, condition (financial or otherwise) or prospects of such
Credit Party.
6.2 POWER AND AUTHORITY.
Each Credit Party has the corporate power to execute, deliver
and perform the terms and provisions of each of the Credit Documents to which
it is a party and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of each of such Credit Documents.
Each Credit Party and has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
the legal, valid and binding obligation of such Credit Party, enforceable
against such Credit Party in accordance with its terms except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
6.3 NO VIOLATION.
Neither the execution, delivery or performance by any Credit
Party of the Credit Documents to which it is a party, nor compliance by it with
the terms and provisions of any such Credit Documents, (i) will contravene any
provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default
24
30
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien (other than Liens permitted under subsection 8.1) upon any
of the property or assets of any Credit Party pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other agreement, contract or instrument to which such Credit Party is a party
or by which it or any of its property or assets is bound or to which it may be
subject or (iii) will violate any provision of the articles or certificate of
incorporation or by-laws of any Credit Party.
6.4 GOVERNMENTAL APPROVALS.
No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made prior to the Closing Date), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery and
performance by any Credit Party of any Credit Document to which it is a party,
or (ii) the legality, validity, binding effect or enforceability of any such
Credit Document.
6.5 FINANCIAL STATEMENTS; FINANCIAL CONDITION;
UNDISCLOSED LIABILITIES; ETC.
(A) The audited consolidated balance sheet of Parent and
its Subsidiaries as at December 31, 1997 heretofore furnished to the Banks is
true and correct and presents fairly the financial condition (including without
limitation total assets, total liabilities, (including contingent liabilities),
shareholders' equity (defined as shareholder capital and not shareholder loans)
and Net Worth of the Borrower) of the Parent and its Subsidiaries on a
consolidated basis at the date of such balance sheet. Such balance sheet has
been prepared in accordance with generally accepted accounting principles and
practices consistently applied.
(B) Except as fully reflected in the financial
statements described in subsection 6.5(a), there were as of the Closing Date no
liabilities or obligations with respect to the Borrower of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due) which, either individually or in aggregate, would be material to the
Borrower. As of the Closing Date the Borrower does not know of any basis for
the assertion against the Borrower of any liability or obligation of any nature
whatsoever that is not fully reflected in the financial statements described in
subsection 6.5(a) which, either individually or in the aggregate, would be
material to the Borrower.
6.6 LITIGATION.
There is no action, suit or arbitration or other proceeding
pending or, to the best knowledge of the Borrower, threatened with respect to
(i) any Credit Document, (ii) any tax return, or (iii) any other matter that,
if adversely determined, is reasonably
25
31
likely to materially and adversely affect the business, operations, property,
assets, condition (financial or otherwise) or prospects of any Credit Party.
6.7 TRUE AND COMPLETE DISCLOSURE.
All factual information (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of the Borrower or any Credit Party
in writing to any Bank (including, without limitation, all information
contained in the Credit Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to any Bank will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading at such time in light of the circumstances
under which such information was provided.
6.8 USE OF PROCEEDS; MARGIN REGULATIONS.
All proceeds of the Loans have been and will be used by the
Borrower for the purposes set forth in subsection 2.5. Neither the making of
any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations T, U or X of the Board of Governors of the
Federal Reserve System.
6.9 TAX RETURNS AND PAYMENTS.
Each of the Credit Parties has filed all tax returns required
to be filed by it and has paid all income taxes payable by it which have become
due pursuant to such tax returns and all other taxes and assessments payable by
it which have become due, other than those not yet delinquent, those being
contested in good faith.
6.10 SUBSIDIARIES.
The Borrower has no Subsidiaries. The Borrower is a
Wholly-Owned Subsidiary of Parent.
6.11 COMPLIANCE WITH STATUTES, ETC.
The Borrower is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as would not, in the aggregate, have a
material adverse effect on the business, operations, property, assets,
condition (financial or otherwise) or prospects of the Borrower.
26
32
6.12 INVESTMENT COMPANY ACT.
Neither the Borrower nor Parent is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
6.13 PUBLIC UTILITY HOLDING COMPANY ACT.
Neither the Borrower nor Parent is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6.14 NO MATERIAL ADVERSE CHANGE.
Since December 31, 1997, there has been no material adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of the Borrower.
6.15 SOLVENCY.
The Borrower is not, and upon the incurrence of any
Obligations hereunder on any date will not be, insolvent, and the pledge of the
Collateral pursuant to the Pledge and Security Agreement shall not result in
the insolvency of the Borrower.
6.16 YEAR 2000.
All Information Systems and Equipment are either Year 2000
Compliant or any reprogramming, remediation, or any other corrective action,
including the internal testing of all such Information Systems and Equipment,
will be completed prior to any material adverse effect on the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of the Borrower which could reasonably be expected to result from failure to
take such action. Further, to the extent that such reprogramming/remediation
and testing action is required, the cost thereof, as well as the cost of the
reasonably foreseeable consequences of failure to become Year 2000 Compliant,
to Parent and its Subsidiaries (including, without limitation, reprogramming
errors and the failure of other systems or equipment) will not result in an
Event of Default or a material adverse effect on the business, operations,
properties, assets, condition (financial or otherwise) or prospects of the
Borrower. As used in this subsection, "Year 2000 Compliant" means that all
Information Systems and Equipment accurately process date data (including, but
not limited to, calculating, comparing and sequencing) before, during and after
the year 2000, as well as same and multi-century dates, or between the years
1999 and 2000, taking into account all leap years, including the fact that the
year 2000 is a leap year, and further, that when used in combination with, or
interfacing with, other Information Systems and Equipment, shall accurately
accept, release and exchange date data, and shall in all material respects
continue to function in the same manner as it performs today and shall not
otherwise impair the accuracy or functionality of
27
33
Information Systems and Equipment; and "Information Systems and Equipment"
means all computer hardware, firmware and software, as well as other
information processing systems, or any equipment containing embedded
microchips, whether directly owned, licensed, leased, operated or otherwise
controlled by Borrower or any of its Subsidiaries, including through
third-party service providers, and which, in whole or in part, are used,
operated, relied upon, or integral to, Borrower's or any of its Subsidiaries'
conduct of their business.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the
Closing Date and until the Loans and the Notes, together with interest, Fees
and all other obligations incurred hereunder and thereunder, are paid in full
and the Commitments have terminated:
7.1 INFORMATION COVENANTS.
The Borrower will furnish to each Bank:
(A) INTERIM FINANCIAL STATEMENTS. As soon as available
and in any event within ten days after the end of the Borrower's first three
fiscal quarters, copies of the balance sheets of the Borrower as of the end of
such fiscal quarter in reasonable detail, prepared in accordance with generally
accepted accounting principles, containing the certification of and signed on
behalf of the Borrower by the chief operating officer, president, chief
financial officer or other executive officer reasonably acceptable to the
Agent. All such balance sheets shall set forth in comparative form figures from
the preceding year end.
(B) ANNUAL FINANCIAL STATEMENTS. As soon as available
and in any event within thirty days after the end of each fiscal year of the
Borrower, copies of the balance sheets of the Borrower as of the end of such
fiscal year setting forth in comparative form the figures for the preceding
fiscal year of the Borrower, all in reasonable detail and prepared in
accordance with generally accepted accounting principles, accompanied by an
unqualified opinion rendered by the Parent's regularly retained nationally
recognized independent certified public accountants satisfactory to the Agent
and containing the certification of and signed by on behalf of the Borrower by
its chief operating officer, president, chief financial officer or other
executive officer reasonably acceptable to the Agent.
(C) OFFICER'S CERTIFICATES. At the time of the delivery
of the financial statements provided for in subsections 7.1(a) and 7.1(b), a
certificate of the chief executive officer or the chief financial officer of
the Borrower, to the effect that, to the best of his knowledge, no Default or
Event of Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and extent
thereof, which certificate shall set forth the calculations required to
establish
28
34
whether the Borrower was in compliance with the provisions of subsection 8.7 at
the end of such fiscal quarter or year, as the case may be.
(D) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in
any event within three Business Days after any officer of the Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which constitutes
a Default or an Event of Default, (ii) any litigation or governmental or
arbitration proceeding pending (x) against any Credit Party which could
materially and adversely affect the business, operations, property, assets,
condition (financial or otherwise) or prospects of the Borrower or the ability
of any Credit Party to perform its obligations under any Credit Document to
which it is a party or (y) with respect to any Credit Document, (iii) any
material changes in the status of any litigation or other proceeding reported
by the Borrower pursuant to subsection 6.6 or subsection 7.1(d)(ii), and (iv)
any other event which could materially and adversely affect the business,
operations, property, assets, condition (financial or otherwise) or prospects
of the Borrower or the ability of any Credit Party to perform its obligations
under any Credit Document to which it is a party.
(E) REPORTS OF PARENT. Promptly upon their
becoming available, copies of (i) all financial statements, reports, notices
and proxy statements sent or made available generally by Parent to its security
holders, (ii) all regular and periodic reports and all registration statements
and prospectuses, if any, filed by Parent or any of its Subsidiaries with the
Securities and Exchange Commission (including, without limitation, any Form
10-K or 10-Q), and (iii) all other press releases and other statements made
available generally by Parent or any of its Subsidiaries to the public
concerning material developments in the business of Parent or any of its
Subsidiaries.
(F) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) as any Bank may reasonably
request.
7.2 BOOKS, RECORDS AND INSPECTIONS.
The Borrower will keep proper books of record and account in
which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities. The Borrower will
permit officers and designated representatives of the Agent or any Bank to
visit and inspect, under guidance of officers of the Borrower, any of the
properties of the Borrower, and to examine the books of record and account of
the Borrower and discuss the affairs, finances and accounts of the Borrower
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Agent or such Bank may request.
7.3 FRANCHISES.
The Borrower will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and its material
rights, licenses and permits.
29
35
7.4 COMPLIANCE WITH STATUTES, ETC.
The Borrower will comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies in respect of the conduct of its business and the ownership
of its property, except such noncompliances as could not, in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, condition (financial or otherwise) or prospects
of the Borrower.
7.5 PAYMENT OF TAXES AND CLAIMS.
The Borrower will pay or cause to be paid all taxes,
assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its franchises, business, income
or property before any material penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a material Lien upon any of its properties or assets, prior to the time
when any material penalty or fine shall be incurred with respect thereto;
provided that so long as no property or assets (other than money for such
charge or claim and the interest or penalty accruing thereof) of the Borrower
are in danger of being lost or forfeited as a result thereof, no such charge or
claim need be paid if it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if such reserve or
other appropriate provision, if any, as shall be required in conformity with
generally accepted accounting principles shall have been made therefor.
7.6 YEAR 2000 COMPLIANCE.
The Borrower will ensure that its Information Systems and
Equipment are at all times Year 2000 Compliant, except insofar as the failure
to do so will not result in a material adverse effect on the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of the Borrower, and shall notify the Agent and any Bank promptly upon
detecting any failure of the Information Systems and Equipment to be Year 2000
Compliant. In addition, the Borrower shall provide the Agent and any Bank with
such information about its year 2000 computer readiness (including, without
limitation, information as to contingency plans, budgets and testing results)
as the Agent or such Bank shall reasonably request.
7.7 FURTHER ASSURANCES.
At any time and from time to time upon the request of the
Agent, the Borrower shall execute and deliver such further documents and do
such other acts and things as the Agent may reasonably request in order to
effect fully the purposes of this Agreement and the other Credit Documents and
to provide for payment of the Obligations in accordance with the terms of this
Agreement and the other Credit Documents.
30
36
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the
Closing Date and until the Loans and the Notes, together with interest, Fees
and all other obligations incurred hereunder and thereunder, are paid in full
and the Commitments have terminated:
8.1 LIENS.
The Borrower will not create, incur, assume or permit to
exist any Lien upon or with respect to any property or assets (real or
personal, tangible or intangible) of the Borrower, whether now owned or
hereafter acquired; provided that the provisions of this subsection 8.1 shall
not prevent the creation, incurrence, assumption or existence of:
(i) Liens for taxes not yet due, or Liens for taxes
being contested in good faith and by appropriate proceedings for which adequate
reserves have been established;
(ii) Liens in respect of property or assets of the
Borrower or any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business, such as carriers', warehousemen's and mechanics'
liens and other similar Liens arising in the ordinary course of business and
(x) which do not in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of the
business of the Borrower or any of its Subsidiaries or (y) which are being
contested in good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets subject
to any such Lien;
(iii) Easements, rights-of-way, restrictions, minor
defects or irregularities of title and other similar charges or encumbrances
not interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries; and
(iv) Liens in favor of the Agent and Banks.
8.2 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
The Borrower will not wind up, liquidate or dissolve its
affairs or enter into any transaction of merger or consolidation, or convey,
sell, lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or any part of its property or assets, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets of any Person or make any capital expenditure, except that
the Borrower may enter into transactions permitted under subsection 8.9.
31
37
8.3 INDEBTEDNESS, CONTINGENT OBLIGATIONS AND LEASES.
The Borrower will not contract, create, incur, assume or
suffer to exist any Indebtedness, Contingent Obligation, obligation with
respect to any lease or any other obligation of any nature whatsoever, except
obligations of the Borrower incurred under the Credit Documents and the Collar
Documents.
8.4 TRANSACTIONS WITH AFFILIATES.
The Borrower will not enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower, other than on terms and conditions substantially
as favorable to the Borrower as would be obtainable by the Borrower at the time
in a comparable arm's-length transaction with a Person other than an Affiliate.
8.5 NET WORTH. The Borrower shall not permit its
Net Worth at any time to be less than $80,000,000.
8.6 MODIFICATIONS OF CERTIFICATE OF INCORPORATION AND
COLLAR DOCUMENTS.
The Borrower will not (i) amend, modify or change any of its
organizational documents in any manner which would adversely affect the Agent
or the Banks or (ii) amend or modify the Collar Documents or the Collar
Transactions or enter into or modify any "Transaction" (as defined in the
Collar Documents) unless consented to by the Agent and Required Banks in their
sole discretion, nor exercise any right under the Collar Documents which would
adversely affect the value thereof or the Agent's Lien thereon.
8.7 ADVANCES, INVESTMENTS AND LOANS. The Borrower will
not lend money or credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, except that (i) the Borrower may
purchase and hold publicly traded equity securities and (ii) the Borrower may
make intercompany Loans to Parent with the proceeds of Loans, to be used to
purchase publicly traded equity securities of Parent and for working capital
and general corporate purposes of Parent.
8.8 DISTRIBUTIONS. The Borrower will not authorize,
declare, make or pay any distribution or payment (whether in cash or property
and whether as compensation for services, management fees, return of capital,
distributions from income or retained earnings or otherwise) to its
shareholders.
8.9 BUSINESS.
The Borrower will not engage (directly or indirectly) in any
business activity except purchasing and holding the capital stock of Parent and
other publicly
32
38
traded equity securities and such activities which are incidental to entering
into the Credit Documents and the Collar Documents and performing its
obligations thereunder.
ARTICLE IX
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events
(each an "Event of Default");
9.1 PAYMENTS.
The Borrower shall (i) default in the payment when due of any
principal of any Loan or any Note or (ii) default, and such default shall
continue unremedied for five Business Days, in the payment when due of interest
on any Loan, any Fees or any other amounts owing hereunder or under any Note;
or
9.2 REPRESENTATIONS, ETC.
Any representation, warranty or statement made by the
Borrower herein or in any other Credit Document or in any certificate delivered
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
9.3 COVENANTS.
The Borrower shall (i) default in the due performance or
observance by it of any term, covenant or agreement contained in subsection
7.1(d)(i) or Article VIII or (ii) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in
subsections 9.1 and 9.2 and clause (i) of this subsection 9.3) contained in
this Agreement and such default shall continue unremedied for a period of 30
days after written notice to the Borrower by the Agent or after the Borrower
otherwise becomes aware of such default; or
9.4 DEFAULT UNDER OTHER AGREEMENTS.
Any of the Borrower or Parent shall (i) default in any
payment of any Indebtedness (other than the Notes) beyond the period of grace
(not to exceed 30 days), if any, provided in the instrument or agreement under
which such Indebtedness was created or (ii) default in the observance or
performance of any agreement or condition relating to any Indebtedness (other
than the Notes) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, any such Indebtedness to become due
prior to its stated maturity; or any Indebtedness of any of the Borrower or
Parent shall be declared to be due and payable, or
33
39
required to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof; or
9.5 BANKRUPTCY, ETC.
Either the Borrower or Parent shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced against any of the
Borrower or Parent, and the petition is not controverted within 10 days, or is
not dismissed within 60 days, after commencement of the case (provided that the
Borrower expressly authorizes the Agent and each Bank to appear in any court
conducting any such proceeding during such 60 day period to preserve, protect
and defend their rights under this Agreement and the other Credit Documents);
or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of any of the Borrower or
Parent; or any of the Borrower or Parent commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to any of the Borrower or Parent;
or there is commenced against any of the Borrower or Parent any such proceeding
which remains undismissed for a period of 60 days; or any of the Borrower or
Parent is adjudicated insolvent or bankrupt, or any order of relief or other
order approving any such case or proceeding is entered; or any of the Borrower
or Parent suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or of the Borrower or Parent makes a general assignment for
the benefit of creditors; or any action is taken by any of the Borrower or
Parent for the purpose of effecting any of the foregoing; or
9.6 ERISA.
Any Plan shall fail to maintain the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code; any Plan is, shall have been or is likely to be terminated or the
subject of a termination proceeding under ERISA; any Plan shall have an
Unfunded Current Liability, or the Borrower or any ERISA Affiliates has
incurred or is likely to incur a liability to or on account of a Plan under
Sections 502(c), (i) or (l), 515, 4062, 4063, 4064, 4071, 4201 or 4204 of ERISA
or Chapter 43 of the Code; and there shall result from any such event or events
the imposition of a Lien upon or the granting of a security interest in the
assets of the Borrower, or a liability or a material risk of incurring a
liability to the PBGC or a Plan or a trustee appointed under ERISA, which will
have a material adverse effect upon the business, operations, property, assets,
condition (financial or otherwise) or prospects of the Borrower; or
34
40
9.7 FAILURE OF CREDIT DOCUMENTS.
The Pledge and Security Agreement or any provision thereof
shall cease to be in full force and effect for any reason other than the
satisfaction in full of all Obligations and the termination of this Agreement,
or is declared to be null and void, or shall cease to give the Agent for the
benefit of the Banks the Liens, rights, powers and privileges purported to be
created thereby; or any Credit Party party to the Pledge and Security Agreement
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant thereto; or any
Credit Party party to the Pledge and Security Agreement denies that it has any
further liability or obligations thereunder or gives notice to such effect; or
there shall not exist in favor of the Agent for the benefit of the Banks a
first priority Lien in any of the rights or property of the Borrower purported
to be encumbered under the Pledge and Security Agreement; or
9.8 CHANGE OF CONTROL. .
The Borrower shall cease to be Wholly-Owned Subsidiary of
Parent; or
9.9 JUDGMENTS.
One or more judgments, decrees or arbitration awards shall be
entered against the Borrower involving in the aggregate for the Borrower a
liability (not paid or fully covered by insurance) of $250,000 or more, and all
such judgments, decrees or awards shall not have been vacated, discharged or
stayed or bonded pending appeal within 60 days after the entry thereof; or
9.10 SWAP DEFAULT.
A Collar Event of Default shall have occurred or the Borrower
shall have otherwise defaulted beyond the applicable cure period, if any, under
the Collar Documents:
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent, upon the written request of
Required Banks, shall by written notice to the Borrower (provided, that, if an
Event of Default specified in subsection 9.5 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Agent to the Borrower as hereafter shall occur automatically without the giving
of any such notice) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower, and the obligation of each Bank to make any
Loan shall thereupon terminate.
35
41
ARTICLE X
THE AGENT
10.1 APPOINTMENT.
The Banks hereby designate BTCo as the Agent (for purposes of
this Article X, the term "Agent" shall include BTCo in its capacity as the
Agent pursuant to any Credit Document) to act as specified herein and in the
other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably
to authorize, the Agent to take such action on its behalf under the provisions
of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its officers, directors, agents or employees.
10.2 NATURE OF DUTIES.
The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Credit Documents.
Neither the Agent nor any of its officers, directors, agents or employees shall
be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the Agent
shall be mechanical and administrative in nature; the Agent shall not have by
reason of this Agreement or any other Credit Document a fiduciary relationship
in respect of any Bank or the holder of any Note; and nothing in this Agreement
or any other Credit Document, expressed or implied, is intended to or shall be
so construed as to impose upon the Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein.
10.3 LACK OF RELIANCE ON THE AGENT.
Independently and without reliance upon the Agent, each Bank
and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of the Borrower and the other Credit Parties in
connection with the making and the continuance of the Loans and the taking or
not taking of any action in connection herewith and (ii) its own appraisal of
the creditworthiness of the Borrower and the other Credit Parties and, except
as expressly provided in this Agreement, the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or
at any time or times thereafter. The Agent shall not be responsible to any Bank
or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution,
36
42
effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of the Borrower or the existence or possible existence of
any Default or Event of Default.
10.4 CERTAIN RIGHTS OF THE AGENT.
If the Agent shall request instructions from Required Banks
with respect to any act or action (including failure to act) in connection with
this Agreement or any other Credit Document, the Agent shall be entitled to
refrain from such act or taking such action unless and until the Agent shall
have received instructions from Required Banks; and the Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank or the holder of any Note shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder or under any other Credit Document in accordance with the
instructions of Required Banks.
10.5 RELIANCE.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
the Agent believed to be the proper Person, and, with respect to all legal
matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by it.
10.6 INDEMNIFICATION.
To the extent the Agent is not reimbursed and indemnified by
the Borrower, the Banks will reimburse and indemnify the Agent, in proportion
to their respective proportionate shares of the aggregate amount of the
Commitments as of the date of determination, for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements of whatsoever kind or nature
which may be imposed on, asserted against or incurred by the Agent in
performing its duties hereunder or under any other Credit Document, or in any
way relating to or arising out of this Agreement or any other Credit Document;
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgment, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct.
10.7 THE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to maintain and make Loans
under this Agreement, the Agent shall have the rights and powers specified
herein for a "Bank" and
37
43
may exercise the same rights and powers as though it were not performing the
duties specified herein; and the term "Banks," "Required Banks," "holders of
Notes" or any similar terms shall, unless the context clearly otherwise
indicates, include the Agent in its individual capacity. The Agent may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust or other business with the Borrower, any Credit Party or any other
Affiliate of the Borrower as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Borrower and the
other Credit Parties for services in connection with this Agreement and the
other Credit Documents and otherwise without having to account for the same to
the Banks.
10.8 HOLDERS.
The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
10.9 RESIGNATION BY THE AGENT.
(A) The Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving 15 Business Days prior written notice to the Borrower and
the Banks. Such resignation shall take effect upon the appointment of a
successor Agent pursuant to clauses (b) and (c) below or as otherwise provided
below.
(B) Upon any such notice of resignation, the Banks
shall appoint a successor Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(C) If no successor Agent has been appointed pursuant
to clause (b) above by the 20th Business Day after the date such notice of
resignation was given by the Agent, the Agent's resignation shall become
effective and the Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Credit Documents until such time, if any, as
the Banks appoint a successor Agent as provided above.
10.10 CREDIT DOCUMENTS.
Each Bank hereby authorizes the Agent to enter into the
Pledge and Security Agreement on behalf of and for the benefit of that Bank.
Each Bank hereby acknowledges and consents to and agrees to be bound by the
terms of the Pledge and Security Agreement and hereby authorizes and empowers
the Agent to take all actions under, and to act on behalf of and for the
benefit of that Bank for all purposes under, the Pledge and Security Agreement;
provided, however, that the Agent shall not enter into
38
44
or consent to any amendment, modification, termination or waiver of any
provisions contained in the Pledge and Security Agreement without the prior
consent of the Banks. Each Bank agrees that no Bank shall have any right
individually to enforce or realize on the security granted by the Pledge and
Security Agreement, it being understood and agreed that such rights and
remedies may be exercised by the Agent for the benefit of the Banks and the
Agent upon the terms and conditions set forth in the Pledge and Security
Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 PAYMENT OF EXPENSES, ETC.
The Borrower shall: (i) whether or not the transactions
herein contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses (x) of the Agent (including, without limitation, the reasonable fees
and disbursements of O'Melveny & Myers LLP, special counsel to the Agent) in
connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or thereto and
(y) of the Agent and each of the Banks in connection with the enforcement of
this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of O'Melveny & Myers LLP, special counsel to the Agent,
and for each of the Banks) and (z) of any consultants or accountants chosen by
Required Banks, to investigate, test or review such matters relating to the
Borrower and its Subsidiaries as the Agent shall designate; provided that the
fees of such consultants or accountants shall be subject to the prior approval
of the Borrower, which approval shall not be unreasonably withheld; (ii) pay
and hold each of the Banks harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify the Agent and
each Bank, its officers, directors, employees, representatives and agents from
and hold each of them harmless against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, suits, costs, expenses
and disbursements incurred by any of them as a result of, or arising out of, or
in any way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not the Agent or any Bank is a party thereto) related to
the entering into and/or performance of this Agreement or any other Credit
Document or the use of the proceeds of any Loans hereunder or the consummation
of any transactions contemplated herein or in any other Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such liabilities, obligations, losses, etc., to
the extent incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified).
39
45
11.2 RIGHT OF SETOFF.
In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, each Bank is hereby authorized at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply (x) any
and all deposits (general or special) of the Borrower, (y) any other
Indebtedness at any time held or owing by such Bank (including without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower and (z) any marketable securities
owned by the Borrower and held by such Bank and, in the case of BTCo, any
obligations of BTCo to the Borrower under the Collar Documents, against and on
account of the Obligations and liabilities of the Borrower to such Bank under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
subsection 11.6(b), and all other claims of any nature or description arising
out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
11.3 NOTICES.
Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrower, at its address
specified opposite its signature below; if to any Bank, at its office specified
opposite its signature below; and if to the Agent, at its Notice Office; or, as
to the Borrower or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties hereto 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 Agent. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Agent shall not be effective until received by the Agent.
11.4 BENEFIT OF AGREEMENT.
(A) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided, however, that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of each Bank.
(B) BTCo may assign its rights and delegate its
obligations under this Agreement, and each of such assignees shall be deemed to
be a "Bank" and may further
40
46
assign its rights and delegate its obligations under this Agreement upon the
prior written consent of the Agent and the Borrower (which consents shall not
be unreasonably withheld). Each Bank further may sell participations in all or
any part of any Loan made by it or any other interest herein or in its Note to
another bank or other entity. Thereupon (i) in the case of an assignment, upon
notice thereof by such Bank to the Borrower and the Agent, the assignee shall
have, to the extent of such assignment (unless otherwise provided thereby), the
same rights and benefits as it would have if it were a Bank hereunder and the
holder of a Note and, if the assignee has expressly assumed, for the benefit of
the Borrower, the assignor Bank's obligations hereunder, such assignor Bank
shall be relieved of its obligations hereunder to the extent of such assignment
and assumption, and (ii) in the case of a participation, (A) the participant
shall not have any rights under this Agreement or any Note or any other
document delivered in connection herewith and all amounts payable by the
Borrower under subsections 2.4, 2.6, 2.7(g) and 4.3 hereof shall be determined
as if the Bank had not sold such participation and (B) the participant, other
than an Affiliate of such Bank, shall not be entitled to require such Bank to
take or omit to take any action hereunder except action directly affecting the
extension of the final maturity of the principal amount of a Loan or the
Commitments or a reduction of the principal amount of or the decrease in the
rate of interest payable on the Loans or any fees related thereto. At the time
any Bank makes an assignment of any of its rights hereunder, such assignor Bank
shall pay to the Agent for its own account an administrative transfer fee of
$3,500. Any Bank may furnish any information concerning the Borrower in the
possession of such Bank from time to time to Affiliates of such Bank and to
assignees and participants (including prospective assignees and participants);
provided, however, that the furnishing of such information (and the nature,
manner and extent thereof) by any Bank to its Affiliates and such assignees and
participants shall be governed by the relevant agreement, assignment or
participation agreement relating to such arrangement, assignment or
participation, as the case may be. Notwithstanding the foregoing provisions of
this subsection 11.4 to the contrary, each Bank may at any time pledge or
assign any portion of its rights under this Agreement and its Note to any
Federal Reserve Bank without notice to or consent of the Borrower or the Agent
and without the payment of any fee to the Agent; provided that no such pledge
or assignment shall otherwise release such Bank from its obligations hereunder.
11.5 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Bank or
the holder of any Note in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between the Borrower
and the Agent or any Bank or the holder of any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Agent or any Bank or the holder of any
Note would otherwise have. No notice to or demand on the Borrower in any case
shall entitle the
41
47
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or any Bank or
the holder of any Note to any other or further action in any circumstances
without notice or demand.
11.6 PAYMENTS PRO RATA.
(a) The Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations of
the Borrower hereunder, it shall distribute such payment to the Banks pro rata
based upon their respective shares, if any, of the Obligations with respect to
which such payment was received.
(b) Each of the Banks agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the Credit
Documents, or otherwise), which is applicable to the payment of the principal
of, or interest on, the Loans, of a sum which with respect to the related sum
or sums received by other Banks is in a greater proportion than the total
amount of such Obligation then owed and due to such Bank bears to the total
amount of such Obligation then owed and due to all of the Banks immediately
prior to such receipt, then such Bank receiving such excess payment shall
purchase for cash without recourse or warranty from the other Banks an interest
in the Obligations of the Borrower to such Banks in such amount as shall result
in a proportional participation by all the Banks in such amount; provided,
however, that if all or any portion of such excess amount is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
11.7 CALCULATIONS; COMPUTATIONS.
The financial statements to be furnished to the Banks
pursuant hereto shall be made and prepared in accordance with generally
accepted accounting principles in the United States consistently applied
throughout the periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Borrower to the Banks); provided that,
except as otherwise specifically provided herein, all computations determining
compliance with Article VIII shall utilize accounting principles and policies
in conformity with those used to prepare the historical financial statements
delivered to the Banks pursuant to subsection 6.5.
11.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS;
GOVERNING LAW; WAIVER OF JURY TRIAL.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE BORROWER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY
OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
42
48
EXECUTING AND DELIVERING THIS AGREEMENT, THE BORROWER, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SUBSECTION 11.3; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE BORROWER IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT THE BANKS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND (VI) AGREES
THAT THE PROVISIONS OF THIS SUBSECTION 11.8 RELATING TO JURISDICTION AND VENUE
SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE. EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP
THAT IS BEING ESTABLISHED. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 11.9 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
43
49
11.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts by facsimile or
otherwise, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set
of counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Agent.
11.10 HEADINGS DESCRIPTIVE.
The headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
11.11 AMENDMENT OR WAIVER.
No approval, consent, amendment or waiver of this Agreement
or any of the Credit Documents shall be effective unless it is in writing
signed by the Agent and Required Banks; provided, however, that any such
approval, consent, amendment or waiver, which (a) reduces the amount of any
interest, principal or fees owing to any Bank hereunder, including, without
limitation, amounts payable under subsection 3.1; (b) extends the date on which
any sum is due hereunder; (c) releases any Person from all or any portion of
its liabilities under any Credit Document; (d) amends any provisions of this
subsection 11.11; (e) changes the definition of the term "Required Banks"; or
(f) by the terms of any provision of this Agreement requires the approval of
all the Banks shall be effective only if it is in writing signed by all the
Banks.
11.12 SURVIVAL.
All indemnities set forth herein including, without
limitation, in subsections 2.4, 10.6 and 11.1 shall survive the execution and
delivery of this Agreement and the Notes and the making and repayment of the
Loans.
11.13 DOMICILE OF LOANS.
Each Bank may transfer and carry its Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Bank.
[Remainder of Page Intentionally Left Blank]
44
50
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
ST. JOE CAPITAL I, INC.
By
----------------------------------
Name: David F. Childers III
Title: President
Notice Address:
St. Joe Capital I, Inc.
c/o
Griffin Corporate Services
300 Delaware Avenue
9th Floor
Wilmington, Delaware 19801
Attention: Kurt Krahnke
Facsimile: (302) 552-3128
With a copy to:
DuPont Center
1650 Prudential Drive, Suite 400
Jacksonville, Florida 32207
Attention: David F. Childers III
Facsimile: (904) 396-4042
Telephone: (904) 858-5209
S-1
51
BANKERS TRUST COMPANY,
Individually and as Agent
By
-----------------------------------
Name:
Title:
Notice Address:
One Bankers Trust Plaza
25th Floor
New York, New York 10006
Attention: Howard Guja
Facsimile: (212) 669-0752
With a copy to:
Lending Office:
Bankers Trust Co.
One Bankers Trust Plaza
25th Floor
New York, New York 10006
Attention: Credit Officer
Facsimile: (212) 669-0752