1
EXHIBIT 99.1
************************************************************
RPM, INC.
CREDIT AGREEMENT
Dated as of June 23, 1994
$300,000,000
NATIONAL CITY BANK
and
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Agents
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Administrative Agent
************************************************************
2
TABLE OF CONTENTS
Page
----
RECITALS . . . . . . . . . . . . . . . . . . . . . . 1
Section 1 Definitions and Accounting Matters . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . . 13
1.03 Types of Loans . . . . . . . . . . . . . . . 13
Section 2 Commitments . . . . . . . . . . . . . . . . 13
2.01 Loans . . . . . . . . . . . . . . . . . . . 13
2.02 Reductions of Commitments . . . . . . . . . 14
2.03 Fees . . . . . . . . . . . . . . . . . . . . 14
2.04 Lending Offices . . . . . . . . . . . . . . . 15
2.05 Several Obligations . . . . . . . . . . . . 15
2.06 Notes . . . . . . . . . . . . . . . . . . . 15
2.07 Use of Proceeds . . . . . . . . . . . . . . 15
Section 3 Borrowings, Conversions and Prepayments . . 16
3.01 Borrowings . . . . . . . . . . . . . . . . . 16
3.02 Prepayments and Conversions . . . . . . . . 16
Section 4 Payments of Principal and Interest . . . . . 16
4.01 Repayment of Loans . . . . . . . . . . . . . 16
4.02 Interest . . . . . . . . . . . . . . . . . . 16
Section 5 Payments; Pro Rata Treatment;
Computations; Etc. . . . . . . . . . . . . . 18
5.01 Payments . . . . . . . . . . . . . . . . . . 18
5.02 Pro Rata Treatment . . . . . . . . . . . . . 19
5.03 Computations . . . . . . . . . . . . . . . . 19
5.04 Minimum and Maximum Amounts; Types . . . . . 19
5.05 Certain Notices . . . . . . . . . . . . . . 20
5.06 Non-Receipt of Funds by the
Administrative Agent . . . . . . . . . . . 21
5.07 Sharing of Payments, Etc. . . . . . . . . . 21
5.08 Taxes . . . . . . . . . . . . . . . . . . . 22
i
3
Page
----
Section 6 Yield Protection and Illegality . . . . . . 24
6.01 Additional Costs . . . . . . . . . . . . . . 24
6.02 Limitation on Types of Loans . . . . . . . . 26
6.03 Illegality . . . . . . . . . . . . . . . . . 27
6.04 Substitute Base Rate Loans . . . . . . . . . 27
6.05 Compensation . . . . . . . . . . . . . . . . 27
6.06 Capital Adequacy . . . . . . . . . . . . . . 28
6.07 Substitution of Lender. . . . . . . . . . . . 28
Section 7 Conditions Precedent . . . . . . . . . . . . 29
7.01 Initial Loans . . . . . . . . . . . . . . . 29
7.02 Initial and Subsequent Loans . . . . . . . . 30
Section 8 Representations and Warranties . . . . . . . 31
8.01 Corporate Existence . . . . . . . . . . . . 31
8.02 Information . . . . . . . . . . . . . . . . 31
8.03 Litigation . . . . . . . . . . . . . . . . . 32
8.04 No Breach . . . . . . . . . . . . . . . . . 33
8.05 Corporate Action . . . . . . . . . . . . . . 33
8.06 Approvals . . . . . . . . . . . . . . . . . 33
8.07 Regulations U and X . . . . . . . . . . . . 34
8.08 ERISA . . . . . . . . . . . . . . . . . . . 34
8.09 Taxes . . . . . . . . . . . . . . . . . . . 34
8.10 Subsidiaries . . . . . . . . . . . . . . . . 34
8.11 Investment Company Act . . . . . . . . . . . 35
8.12 Public Utility Holding Company Act . . . . . 35
8.13 Ownership and Use of Properties . . . . . . 35
8.14 Environmental Matters . . . . . . . . . . . 35
Section 9 Covenants . . . . . . . . . . . . . . . . . 36
9.01 Information . . . . . . . . . . . . . . . . 36
9.02 Taxes and Claims . . . . . . . . . . . . . . 38
9.03 Insurance . . . . . . . . . . . . . . . . . 38
9.04 Maintenance of Existence; Conduct
of Business . . . . . . . . . . . . . . . . 38
9.05 Maintenance of and Access to Properties . . 39
9.06 Compliance with Applicable Laws . . . . . . 39
9.07 Litigation . . . . . . . . . . . . . . . . . 39
9.08 Leverage Ratio . . . . . . . . . . . . . . 39
9.09 Interest Coverage Ratio . . . . . . . . . . 39
9.10 Mergers, Asset Dispositions, Etc. . . . . . 40
9.11 Liens . . . . . . . . . . . . . . . . . . . 40
9.12 Investments . . . . . . . . . . . . . . . . 41
ii
4
Page
----
9.13 Transactions with Affiliates . . . . . . . . 41
9.14 Lines of Business . . . . . . . . . . . . . 42
9.15 Environmental Matters . . . . . . . . . . . 42
9.16 Lease Payments . . . . . . . . . . . . . . . 42
Section 10 Defaults . . . . . . . . . . . . . . . . . 43
10.01 Events of Default . . . . . . . . . . . . . 43
Section 11 The Administrative Agent . . . . . . . . . . 46
11.01 Appointment, Powers and Immunities . . . . . 46
11.02 Reliance by Administrative Agent . . . . . . 46
11.03 Defaults . . . . . . . . . . . . . . . . . . 47
11.04 Rights as a Lender . . . . . . . . . . . . . 47
11.05 Indemnification . . . . . . . . . . . . . . 48
11.06 Non-Reliance on Administrative Agent
and Other Lenders . . . . . . . . . . . . 48
11.07 Failure to Act . . . . . . . . . . . . . . . 49
11.08 Resignation or Removal of
Administrative Agent . . . . . . . . . . . 49
11.09 Co-Agents . . . . . . . . . . . . . . . . . 49
Section 12 Miscellaneous . . . . . . . . . . . . . . . 50
12.01 Waiver . . . . . . . . . . . . . . . . . . . 50
12.02 Notices . . . . . . . . . . . . . . . . . . 50
12.03 Expenses, Etc. . . . . . . . . . . . . . . . 50
12.04 Indemnification . . . . . . . . . . . . . . 50
12.05 Amendments, Etc. . . . . . . . . . . . . . . 51
12.06 Successors and Assigns . . . . . . . . . . . 51
12.07 Confidentiality . . . . . . . . . . . . . . 53
12.08 Survival . . . . . . . . . . . . . . . . . . 53
12.09 Captions . . . . . . . . . . . . . . . . . . 53
12.10 Counterparts; Integration . . . . . . . . . 53
12.11 GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL . . . . 54
iii
5
Schedules
---------
PRICING SCHEDULE
SCHEDULE I - Subsidiaries and Joint Ventures
Exhibits
--------
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Opinion of Counsel to
the Company
EXHIBIT B-2 - Form of Opinion of General Counsel
of the Company
EXHIBIT C - Form of Opinion of Special Counsel to
the Administrative Agent
EXHIBIT D - Form of Extension Agreement
iv
6
CREDIT AGREEMENT
AGREEMENT dated as of June 23, 1994 among: RPM,
INC., a corporation duly organized and validly existing
under the laws of the State of Ohio (together with its
successors, the "COMPANY"); each of the lenders which is or
which may from time to time become a signatory hereto
(individually, together with its successors, a "LENDER" and,
collectively, together with their respective successors, the
"LENDERS"; NATIONAL CITY BANK and THE FIRST NATIONAL BANK
OF CHICAGO, as co-agents for the Lenders (in such capacity,
the "CO-AGENTS"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as administrative agent for the Lenders (in
such capacity, together with its successors in such
capacity, the "ADMINISTRATIVE AGENT").
The parties hereto agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when
used in the plural and VICE VERSA):
"ACCEPTABLE INSURER" means an insurance company
(i) having an A.M. Best rating of "A" or better and being in
a financial size category of X or larger (as such category
is defined as of the date hereof) or (ii) otherwise
acceptable to the Majority Lenders.
"ACQUIRED BUSINESS" shall mean substantially all
of the stock of Rust-Oleum Corporation.
"ACQUISITION" shall mean the acquisition by the
Company of the Acquired Business and all other transactions
contemplated by the Acquisition Documents to be consummated
on or before the Closing Date.
"ACQUISITION DOCUMENTS" shall mean the Agreement
and Plan of Merger dated May 3, 1994 between the Company and
certain Shareholders of Rust-Oleum Corporation, including
the exhibits and schedules thereto, and all material
agreements, documents and instruments executed and delivered
by or addressed to or specifically required by the Company
pursuant to or in connection with any of the foregoing.
"ADJUSTED CD RATE", for any CD Loans, shall mean
for the Interest Period for such Loans a rate per annum
7
determined by the Administrative Agent pursuant to the
following formula:
[ CDBR ]
ACDR = -------------- + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate for the Interest
Period for such Loans (rounded
upward, if necessary, to the
next higher 1/100 of 1%)
DRP = Domestic Reserve Percentage
AR = Assessment Rate
"AFFILIATE" shall mean, as to any Person, any
other Person which directly or indirectly controls, or is
under common control with, or is controlled by, such Person
and, if such Person is an individual, any member of the
immediate family (including parents, siblings, spouse,
children, stepchildren, nephews, nieces and grandchildren)
of such individual and any trust whose principal beneficiary
is such individual or one or more members of such immediate
family and any Person who is controlled by any such member
or trust. As used in this definition, "CONTROL" (including,
with correlative meanings, "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of
securities or partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in any event, any
Person which owns directly or indirectly more than 5% of the
securities having ordinary voting power for the election of
directors or other governing body of a corporation or more
than 5% of the partnership or other ownership interests of
any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or
other Person.
"APPLICABLE LENDING OFFICE" shall mean, for each
Lender and for each Type of Loan, the Lending Office of such
Lender (or of an affiliate of such Lender) designated for
such Type of Loan below its name on the signature pages
hereof or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Company as
the office by which its Loans of such Type are to be made
and/or issued and maintained.
"APPLICABLE MARGIN" shall mean, with respect to
any Loan, the rate per annum (calculated as a function of
the Type of such Loan) determined in accordance with the
Pricing Schedule.
2
8
"ASSESSMENT RATE" shall mean, for any day, the
annual assessment rate in effect on such day which is
payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A"
(or a comparable successor assessment risk classification)
within the meaning of 12 C.F.R. Section 327.3(d) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
"BANKRUPTCY CODE" shall mean the United States
Bankruptcy Code, as now or hereafter in effect, or any
successor statute.
"BASE RATE" shall mean, with respect to any Base
Rate Loan for any day, the rate per annum equal to the
higher as of such day of (i) the Federal Funds Rate plus 1/2
of 1% or (ii) the Prime Rate.
"BASE RATE LOANS" shall mean Loans which bear
interest at a rate based upon the Base Rate.
"BASIC DOCUMENTS" shall mean this Agreement, the
Notes and the Acquisition Documents.
"BUSINESS DAY" shall mean any day other than a day
on which commercial banks are authorized or required to
close in New York City and, where such term is used in the
definition of "Quarterly Date" in this Section 1.01 or if
such day relates to a borrowing of, a payment or prepayment
of principal of or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice by the
Company with respect to any such borrowing, payment,
prepayment, conversion or Interest Period, which is also a
day on which dealings in Dollar deposits are carried out in
the London interbank market.
"CAPITAL LEASE OBLIGATIONS" shall mean, as to any
Person, the obligations of such Person to pay rent or other
amounts under a lease of (or other agreement conveying the
right to use) real and/or personal property to the extent
such obligations are required to be classified and accounted
for as a capital lease on a balance sheet of such Person
under GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards
Board) and, for purposes of this Agreement, the amount of
such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP (including such Statement
No. 13).
3
9
"CD BASE RATE" shall mean, with respect to any CD
Loans, the arithmetic mean, as calculated by the
Administrative Agent, of the respective rates per annum
(rounded upwards, if necessary, to the nearest 1/20 of 1%)
of the Reference Lenders, in each such case determined by
the Reference Lender to be the average of the bid rates
quoted to it at its principal office at approximately 10:00
a.m. New York City time (or as soon thereafter as
practicable) on the first day of the Interest Period for
such Loan by New York certificate of deposit dealers of
recognized standing selected by such Reference Lender for
the purchase at face value of certificates of deposit of
such Reference Lender with a term, and in an amount,
comparable to such Interest Period and the principal amount
of the CD Loan which shall be made by such Reference Lender
and outstanding during such Interest Period; provided that,
if such quotations from such dealers are not available to
such Reference Lender, such Lender shall notify the
Administrative Agent of a reasonably equivalent rate
determined by it on the basis of another source or sources
selected by it.
"CD LOANS" shall mean Loans, the interest on which
is determined on the basis of rates referred to in the
definition of "CD Base Rate" in Section 1.01.
"CERCLA" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, and regulations
promulgated thereunder.
"CHASE" shall mean The Chase Manhattan Bank
(National Association) and its successors.
"CLOSING DATE" shall mean the date of the initial
Loans hereunder.
"CODE" shall mean the Internal Revenue Code of
1986, as amended, or any successor statute.
"COMMITMENT" shall mean, as to any Lender, the
obligation of such Lender to make Loans in an aggregate
principal amount at any one time outstanding up to but not
exceeding the amount set forth opposite such Lender's name
on the signature pages hereof under the caption "Commitment"
(as the same may be reduced from time to time pursuant to
Section 2.02 hereof).
"CONTROLLED GROUP" shall mean all members of a
controlled group of corporations and all trades or
businesses (whether or not incorporated) under common
control which, together with the Company, are treated as a
single employer under Section 414 of the Code.
4
10
"DEFAULT" shall mean an Event of Default or an
event which with notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DISCLOSURE DOCUMENTS" shall mean the Company's
annual report on Form 10-K for 1993 and quarterly reports on
Form 10-Q for the quarterly periods ended August 31, 1993,
November 30, 1993 and February 28, 1994, in each case as
filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934, and the audited
consolidated financial statements of Rust-Oleum Corporation
as of and for the fiscal year ended October 31, 1993
included in the schedules forming part of the Acquisition
Documents.
"DOLLARS" and "$" shall mean lawful money of the
United States of America.
"DOMESTIC RESERVE PERCENTAGE" shall mean, for any
day, that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement (including
without limitation any basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System in
New York City with deposits exceeding five billion dollars
in respect of new non-personal time deposits in dollars in
New York City having a maturity comparable to the Interest
Period for which the Adjusted CD Rate is being determined
and in an amount of $100,000 or more. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"EBIT" shall mean, for any period, determined on a
consolidated basis for the Company and its Subsidiaries, net
operating income of the Company and its Subsidiaries
(calculated before provision for income taxes, interest
expense, extraordinary items and income attributable to
equity in affiliates) for such period.
"ENVIRONMENTAL LAWS" shall mean any and all
applicable federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, codes, injunctions, permits,
concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to the environment
or the effect of the environment on human health or to
emissions, discharges or release of pollutants,
contaminants, Hazardous Substances or wastes into the
environment, including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating
5
11
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or
the clean-up or other remediation thereof.
"ENVIRONMENTAL LIABILITIES" shall mean all
liabilities in connection with or relating to the business,
assets, presently or previously owned or leased property,
activities (including, without limitation, off-site
disposal) or operations of the Company and each Subsidiary,
whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which arise under or relate to
matters covered by Environmental Laws.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"EURODOLLAR BASE RATE" shall mean, with respect to
any Eurodollar Loans, the arithmetic mean, as calculated by
the Administrative Agent, of the respective rates per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%)
quoted by the Reference Lenders at approximately 11:00 a.m.
London time by the principal London branch of each of the
Reference Lenders on the day two Business Days prior to the
first day of the Interest Period for such Loans for the
offering to leading banks in the London interbank market of
Dollar deposits in immediately available funds, for a
period, and in an amount, comparable to such Interest Period
and the principal amount of the Eurodollar Loan which shall
be made by such Reference Lender and outstanding during such
Interest Period. If any Reference Lender is not
participating in any Eurodollar Loans during the Interest
Period therefor (pursuant to Section 6.04 hereof or for any
other reason), the Eurodollar Base Rate for such Loans for
such Interest Period shall be determined by reference to the
amount of the Loan which such Reference Lender would have
made had it been participating in such Loans. If any
Reference Lender does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest
rate on the basis of the quotation or quotations furnished
by the remaining Reference Lender or Lenders or, if none of
such quotations is available on a timely basis, the
provisions of Section 6.02 shall apply.
"EURODOLLAR LOANS" shall mean Loans the interest
on which is determined on the basis of rates referred to in
the definition of "Eurodollar Base Rate" in this Section
1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar
Loans, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative
Agent to be equal to (i) the Eurodollar Base Rate for such
6
12
Loans for the Interest Period for such Loans divided by
(ii) 1 minus the Eurodollar Reserve Requirement for such
Loans for such Interest Period.
"EURODOLLAR RESERVE REQUIREMENT" shall mean, for
any Eurodollar Loans for any Interest Period therefor, the
average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required
to be maintained during such Interest Period under
Regulation D by member banks of the Federal Reserve System
in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which
the Eurodollar Rate is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or
(ii) any category of extensions of credit or other assets
which include Eurodollar Loans.
"EVENT OF DEFAULT" shall have the meaning assigned
to such term in Section 10.01 hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the
rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the
average rate charged to Chase on such day on such
transactions as determined by the Administrative Agent.
"FIXED RATE LOANS" shall mean CD Loans or
Eurodollar Loans or both, as the context may require.
"GAAP" shall mean generally accepted accounting
principles as in effect from time to time in the United
States consistently applied.
"GUARANTY" by any Person shall mean any
obligation, contingent or otherwise, of such Person directly
or indirectly guaranteeing any Indebtedness of any other
Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or
7
13
otherwise, of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise, other
than agreements to purchase goods at an arm's length price
in the ordinary course of business) or (ii) entered into for
the purpose of assuring in any other manner the holder of
such Indebtedness of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in
part), PROVIDED that the term Guaranty shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has
a corresponding meaning.
"HAZARDOUS SUBSTANCES" shall mean any toxic,
radioactive, caustic or otherwise hazardous substance,
including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having constituent elements
displaying any of the foregoing characteristics, regulated
under Environmental Laws.
"INDEBTEDNESS" shall mean, as to any Person
(determined without duplication): (i) indebtedness of such
Person for borrowed money (whether by loan or the issuance
and sale of debt securities) or for the deferred purchase or
acquisition price of property or services, other than
accounts payable (other than for borrowed money) incurred in
the ordinary course of business; (ii) obligations of such
Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial
institutions for the account of such Person (whether or not
such obligations are contingent); (iii) Capital Lease
Obligations of such Person; (iv) obligations of such Person
to redeem or otherwise retire shares of capital stock of
such Person; (v) indebtedness of others of the type
described in clause (i), (ii), (iii) or (iv) above secured
by a Lien on the property of such Person, whether or not the
respective obligation so secured has been assumed by such
Person; and (vi) indebtedness of others of the type
described in clause (i), (ii), (iii) or (iv) above
Guaranteed by such Person.
"INTEREST EXPENSE" shall mean, for any period, the
sum (determined without duplication) of the aggregate amount
of interest accruing during such period on Indebtedness of
the Company and its Subsidiaries (on a consolidated basis),
including the interest portion of payments under Capital
Lease Obligations and any capitalized interest, and
excluding amortization of debt discount and expense.
8
14
"INTEREST PERIOD" shall mean,
(1) with respect to any Eurodollar Loans, the
period commencing on the date such Loans are made or
converted from other types of Loans or the last day of the
next preceding Interest Period with respect to such Loans
and ending on the numerically corresponding day in the
first, second (subject to the availability of deposits of
the corresponding maturity to each of the Lenders in the
London interbank market), third or sixth calendar month
thereafter, as the Company may select as provided in Section
5.05 hereof, except that each such Interest Period which
commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent
calendar month; and
(2) with respect to any CD Loans, the period
commencing on the date such CD Loans are made or converted
from other Types of Loans or the last day of the next
preceding Interest Period with respect to such Loans and
ending on the day 30, 60, 90 or 180 days thereafter, as the
Company may select as provided in Section 5.05 hereof.
Notwithstanding the foregoing: (i) each Interest
Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day
(or, in the case of an Interest Period for Eurodollar Loans,
if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business
Day); and (ii) no Interest Period for any Fixed Rate Loans
shall have a duration of less than one month (in the case of
Eurodollar Loans) or 30 days (in the case of CD Loans) and,
if the Interest Period for any Fixed Rate Loan would
otherwise be a shorter period, such Loans shall not be
available hereunder.
"INVESTMENTS" shall have the meaning assigned to
such term in Section 9.12 hereof.
"LIEN" shall mean, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, the Company and each of its
Subsidiaries shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to
such asset.
9
15
"LIQUID INVESTMENTS" shall mean (i) certificates
of deposit maturing within 90 days of the acquisition
thereof denominated in Dollars and issued by (X) a Lender or
(Y) a bank or trust company having combined capital and
surplus of at least $500,000,000 and which has (or which is
a Subsidiary of a bank holding company which has) publicly
traded debt securities rated A- or higher by Standard &
Poor's Corporation or A-3 or higher by Moody's Investors
Service, Inc.; (ii) obligations issued or guaranteed by the
United States of America, with maturities not more than one
year after the date of issue; and (iii) commercial paper
with maturities of not more than 90 days and a published
rating of not less than A-1 from Standard & Poor's
Corporation or P-1 from Moody's Investors Service, Inc.
"LOANS" shall mean the loans provided for by
Section 2.01 hereof.
"MAJORITY LENDERS" shall mean, at any time while
no Loans are outstanding, Lenders having at least 66-2/3% of
the aggregate amount of the Commitments and, at any time
while any Loans are outstanding, Lenders holding at least
66-2/3% of the outstanding aggregate principal amount of the
Loans.
"MATERIAL ADVERSE EFFECT" means (i) a material
adverse effect on the condition (financial or otherwise),
results of operations, properties, assets, liabilities
(including, without limitation, tax and ERISA liabilities
and Environmental Liabilities), business, operations,
capitalization, shareholders' equity, franchises or
prospects of the Company and its Subsidiaries, taken as a
whole; or (ii) a material adverse effect on the ability of
the Company to perform its obligations under the Credit
Agreement or the Notes.
"MULTIEMPLOYER PLAN" shall mean at any time an
employee pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which the Company or any member of
the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding
five plan years made contributions, including for these
purposes any Person which ceased to be a member of the
Controlled Group during such five year period.
"NOTES" shall have the meaning assigned to such
term in Section 2.06 hereof.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
10
16
"PERSON" shall mean an individual, a corporation
a company, a voluntary association, a partnership, a trust,
an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
"PLAN" shall mean an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title
IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and either (i) is maintained
or contributed to, by the Company or any member of the
Controlled Group for employees of the Company or any member
of the Controlled Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by
the Company or any Person which was at such time a member of
the Controlled Group for employees of any Person which was
at such time a member of the Controlled Group.
"POST-DEFAULT RATE" shall mean, in respect of any
principal of any Loan or any other amount payable by the
Company under this Agreement, a rate per annum equal to the
sum of 2% plus the higher of (i) the Base Rate as in effect
from time to time PLUS the Applicable Margin for Base Rate
Loans and (ii) in the case of any Loan, the rate of interest
(if any) otherwise applicable to such Loan.
"PRICING SCHEDULE" shall mean the Pricing Schedule
attached hereto.
"PRIME RATE" shall mean the rate of interest from
time to time announced by Chase at the Principal Office as
its prime commercial lending rate. Each change in the
interest rate provided for herein resulting from a change in
the Prime Rate shall take effect at the time of such change
in the Prime Rate.
"PRINCIPAL OFFICE" shall mean the principal office
of Chase, presently located at 1 Chase Manhattan Plaza, New
York, New York 10081.
"QUARTERLY DATES" shall mean the last Business Day
of each March, June, September and December.
"REFERENCE LENDERS" shall mean each of National
City Bank, The First National Bank of Chicago and Chase.
"REGULATION D" shall mean Regulation D of the
Board of Governors of the Federal Reserve System as the same
may be amended or supplemented from time to time.
"REGULATORY CHANGE" shall mean, with respect to
any Lender, any change on or after the date of this
Agreement in United States federal, state or foreign laws or
regulations (including Regulation D) or the adoption or
11
17
making on or after such date of any interpretations,
directives or requests applying to a class of lenders
including such Lender of or under any United States federal
or state, or any foreign, laws or regulations (whether or
not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or
administration thereof.
"RELEASE" shall mean any discharge, emission or
release, including a "Release" as defined in CERCLA at 42
U.S.C. Section 9601(22). The term "Released" shall have a
corresponding meaning.
"REVOLVING CREDIT PERIOD" shall mean the period
from and including the date hereof to but not including June
28, 1997, or such later date to which the Revolving Credit
Period shall have been extended pursuant to Section 2.01(b).
"SENIOR OFFICER" shall mean the chief executive
officer, president, chief financial officer or vice
president-finance and treasurer of the Company.
"SIGNIFICANT SUBSIDIARY" shall mean at any
time any Subsidiary of the Company, except Subsidiaries
of the Company which, if aggregated and considered as a
single Subsidiary at the time of occurrence with respect to
such Subsidiaries of any event or condition of the kind
described in clause (e), (f) or (g) of Section 10.01, would
not meet the definition of a "significant subsidiary"
contained as of the date hereof in Regulation S-X of the
Securities and Exchange Commission.
"SUBSIDIARY" shall mean, with respect to any
Person, any corporation of which at least a majority of the
outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether or
not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly
or indirectly owned or controlled by such Person or one or
more of the Subsidiaries of such Person or by such Person
and one or more of the Subsidiaries of such Person.
"TYPE" shall have the meaning assigned to such
term in Section 1.03 hereof.
"UNFUNDED LIABILITIES" shall mean, with respect to
any Plan, at any time, the amount (if any) by which (i) the
value of all benefits liabilities under such Plan,
determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds (ii) the fair market value of all Plan assets
12
18
allocable to such benefits under Title IV of ERISA
(excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess
represents a potential liability of the Company or any
member of the Controlled Group to the PBGC or any other
Person under Title IV of ERISA.
1.02 ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all
financial statements and certificates and reports as to
financial matters required to be delivered hereunder shall
be prepared, in accordance with GAAP; PROVIDED that if any
change in GAAP in itself materially affects the calculation
of any financial covenant in Section 9, the Company may by
notice to the Administrative Agent, or the Administrative
Agent (at the request of the Majority Lenders) may by notice
to the Company, require that such covenant thereafter be
calculated in accordance with GAAP as in effect, and applied
by the Company, immediately before such change in GAAP
occurs. If such notice is given, the compliance
certificates delivered pursuant to Section 9.01 after such
change occurs shall be accompanied by reconciliations of the
difference between the calculation set forth therein and a
calculation made in accordance with GAAP as in effect from
time to time after such change occurs. To enable the ready
determination of compliance with the covenants set forth in
Section 9 hereof, the Company will not change from May 31 in
each year the date on which its fiscal year ends, nor from
August 31, November 30 and February 28 the dates on which
the first three fiscal quarters in each fiscal year end.
1.03 TYPES OF LOANS. Loans hereunder are
distinguished by "Type". The "Type" of a Loan refers to the
determination whether such Loan is a Eurodollar Loan, a CD
Loan or a Base Rate Loan.
Section 2. COMMITMENTS.
2.01 LOANS. (a) Each Lender severally agrees,
on the terms and subject to the conditions of this
Agreement, to make Loans from time to time during the
Revolving Credit Period to the Company in an aggregate
principal amount at any one time outstanding which shall not
exceed its Commitment, as reduced from time to time pursuant
to Section 2.02 hereof.
13
19
(b) The Revolving Credit Period may be extended,
in the manner set forth in this subsection (b), on each of
June 28, 1995 and, if (and only if) it has been extended on
June 28, 1995, June 28, 1996 (an "Extension Date") for a
period of one year after the date on which the Revolving
Credit Period would otherwise have expired. If the Company
wishes to request an extension of the Revolving Credit
Period on an Extension Date, it shall give written notice to
that effect to the Administrative Agent not less than 45 nor
more than 90 days prior to such Extension Date, whereupon
the Administrative Agent shall notify each of the Lenders of
such notice. Each Lender will use its best efforts to
respond to such request, whether affirmatively or
negatively, within 30 days. If all Lenders respond
affirmatively, then, subject to receipt by the
Administrative Agent prior to such Extension Date of
counterparts of an Extension Agreement in substantially the
form of Exhibit D hereto duly completed and signed by all of
the parties hereto, the Revolving Credit Period shall be
extended, effective on such Extension Date, for a period of
one year to the date stated in such Extension Agreement.
2.02 REDUCTIONS OF COMMITMENTS.
(a) MANDATORY. The Commitments shall terminate
on the last day of the Revolving Credit Period; PROVIDED,
that if the Closing Date shall not have occurred by December
31, 1994, the Commitments shall terminate on such date.
(b) OPTIONAL. The Company shall have the right
to terminate or reduce the Commitments at any time or from
time to time, provided that: (i) the Company shall give
notice of each such termination or reduction to the
Administrative Agent as provided in Section 5.05 hereof and
(ii) each partial reduction shall be in an aggregate amount
equal to $10,000,000 or any greater multiple of $5,000,000.
(c) NO REINSTATEMENT. Commitments once
terminated or reduced may not be reinstated.
2.03 FEES.
(a) COMMITMENT FEES. The Company shall pay to
the Administrative Agent for the account of each Lender
commitment fees on the daily average unused amount of such
Lender's Commitment, for the period from the Closing Date to
and including the earlier of the date the Commitments are
terminated or the last day of the Revolving Credit Period,
at a commitment fee rate per annum determined in accordance
with the Pricing Schedule. Accrued commitment fees shall be
payable on the Quarterly Dates and on the earlier of the
date the Commitments are terminated or the last day of the
Revolving Credit Period.
14
20
(b) OTHER FEES. The Company shall pay to the
Administrative Agent on the Closing Date other fees in the
amounts heretofore mutually agreed. The Company shall pay
to the Administrative Agent on the Closing Date and on each
anniversary thereof, so long as any of the Commitments are
in effect and until payment in full of all Loans hereunder,
all interest thereon and all other amounts payable
hereunder, an annual administrative agency fee in the amount
heretofore mutually agreed.
2.04 LENDING OFFICES. The Loans of each Type
made by each Lender shall be made and maintained at such
Lender's Applicable Lending Office for Loans of such Type.
2.05 SEVERAL OBLIGATIONS. The failure of any
Lender to make any Loan to be made by it on the date
specified therefor shall not relieve any other Lender of its
obligation to make its Loan on such date, but neither the
Administrative Agent nor any Lender shall be responsible for
the failure of any other Lender to make a Loan to be made by
such other Lender.
2.06 NOTES. The Loans made by each Lender shall
be evidenced by a single Note of the Company (each a "Note")
in substantially the form of Exhibit A hereto, dated the
Closing Date, payable to the order of such Lender in a
principal amount equal to such Lender's Commitment as
originally in effect and otherwise duly completed. Each
Lender may, by notice to the Company and the Administrative
Agent, request that its Loans of a particular Type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant Type. Each reference
in this Agreement to the "Note" of such Lender shall be
deemed to refer to and include any or all of such Notes, as
the context may require. Each Lender is hereby authorized
by the Company to endorse on the schedule (or a continuation
thereof) attached to each Note of such Lender, to the extent
applicable, the date, amount and Type of and the Interest
Period (if any) for each Loan made by such Lender to the
Company hereunder, and the date and amount of each payment
or prepayment of principal of such Loan received by such
Lender, provided that any failure by such Lender to make any
such endorsement or any error in such endorsement shall not
affect the obligations of the Company under such Note or
hereunder in respect of such Loan.
2.07 USE OF PROCEEDS. The proceeds of the Loans
shall be used by the Company to refinance certain existing
indebtedness, to finance the consummation of the Acquisition
and for working capital and other general corporate
15
21
purposes. None of such proceeds shall be used, directly or
indirectly, for the purpose, whether immediate, incidental
or ultimate, of buying or carrying any margin stock (within
the meaning of Regulation U or X of the Board of Governors
of the Federal Reserve System).
Section 3. BORROWINGS, CONVERSIONS AND
PREPAYMENTS.
3.01 BORROWINGS. The Company shall give the
Administrative Agent notice of each borrowing to be made
hereunder as provided in Section 5.05 hereof. Not later
than 11:00 a.m. (or, in the case of Base Rate Loans,
1:00 p.m.) New York time on the date specified for each such
borrowing hereunder, each Lender shall make available the
amount of the Loan to be made by it on such date to the
Administrative Agent, at the Principal Office, in
immediately available funds, for the account of the Company.
The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, be
made available to the Company by depositing the same, in
immediately available funds, in an account designated by the
Company maintained with the Administrative Agent at the
Principal Office.
3.02 PREPAYMENTS AND CONVERSIONS. The Company
shall have the right to prepay Loans or to convert Loans of
one Type into Loans of another Type, at any time or from
time to time, provided that: (i) the Company shall give the
Administrative Agent notice of each such prepayment or
conversion as provided in Section 5.05 hereof, and (ii)
except to the extent required pursuant to Section 6.04
hereof, Fixed Rate Loans may be prepaid or converted only on
the last day of an Interest Period for such Loans.
Section 4. PAYMENTS OF PRINCIPAL AND INTEREST.
4.01 REPAYMENT OF LOANS. The Loans shall mature
on the last day of the Revolving Credit Period.
4.02 INTEREST. The Company will pay to the
Administrative Agent for the account of each Lender interest
on the unpaid principal amount of each Loan made by such
Lender for the period commencing on the date of such Loan to
but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) if such Loan is a Base Rate Loan, the Base
Rate PLUS the Applicable Margin;
(b) if such Loan is a Eurodollar Loan, the
Eurodollar Rate PLUS the Applicable Margin; and
16
22
(c) if such Loan is a CD Loan, the Adjusted CD
Rate PLUS the Applicable Margin.
Notwithstanding any of the foregoing, the Company will pay
to the Administrative Agent for the account of each Lender
interest at the applicable Post-Default Rate on the
principal of any Loan made by such Lender and on any other
amount payable by the Company hereunder to or for the
account of such Lender (but, if such amount is interest,
only to the extent legally enforceable), which shall not be
paid in full when due (whether at stated maturity, by
acceleration or otherwise) for the period commencing on the
due date thereof until the same is paid in full.
Accrued interest on each Loan shall be payable (i)
if such Loan is a Base Rate Loan, on each Quarterly Date,
(ii) if such Loan is a Fixed Rate Loan, on the last day of
the Interest Period for such Loan (and, if such Interest
Period exceeds 90 days' (in the case of a CD Loan) or three
months' (in the case of a Eurodollar Loan) duration,
quarterly, commencing on the first quarterly anniversary of
the first day of such Interest Period), and (iii) in any
event, upon the payment, prepayment or conversion thereof,
but only on the principal so paid or prepaid or converted;
PROVIDED that interest payable at the Post-Default Rate
shall be payable from time to time on demand of the
Administrative Agent or the Majority Lenders. Promptly
after the determination of any interest rate provided for
herein or any change therein, the Administrative Agent shall
notify the Lenders and the Company thereof.
Notwithstanding the foregoing provisions of this
Section 4.02, if at any time the rate of interest set forth
above on any Loan of or other obligation payable to any
Lender (the "STATED RATE") exceeds the maximum non-usurious
interest rate permissible for such Lender to charge
commercial borrowers under applicable law (the "MAXIMUM
RATE" for such Lender), the rate of interest charged on such
Loan of or other obligation payable to such Lender hereunder
shall be limited to the Maximum Rate for such Lender.
If the Stated Rate for any Loan of a Lender that
has theretofore been subject to the preceding paragraph at
any time is less than the Maximum Rate for such Lender, the
principal amount of such Loan shall bear interest at the
Maximum Rate for such Lender until the total amount of
interest paid to such Lender or accrued on its Loans
hereunder equals the amount of interest which would have
been paid to such Lender or accrued on such Lender's Loans
hereunder if the Stated Rate had at all times been in
effect.
17
23
If, upon payment in full of all amounts payable
hereunder, the total amount of interest paid to any Lender
or accrued on such Lender's Loans under the terms of this
Agreement is less than the total amount of interest which
would have been paid to such Lender or accrued on such
Lender's Loans if the Stated Rate had, at all times, been in
effect, then the Company shall, to the extent permitted by
applicable law, pay to the Administrative Agent for the
account of such Lender an amount equal to the difference
between (a) the lesser of (i) the amount of interest which
would have accrued on such Lender's Loans if the Maximum
Rate for such Lender had at all times been in effect or (ii)
the amount of interest which would have accrued on such
Lender's Loans if the Stated Rate had at all times been in
effect and (b) the amount of interest actually paid to such
Lender or accrued on its Loans under this Agreement.
If any Lender ever receives, collects or applies
as interest any sum in excess of the Maximum Rate for such
Lender, such excess amount shall be applied to the reduction
of the principal balance of its Loans or to other amounts
(other than interest) payable hereunder, and if no such
principal is then outstanding, such excess or part thereof
remaining shall be paid to the Company.
Section 5. PAYMENTS; PRO RATA TREATMENT;
COMPUTATIONS; ETC.
5.01 PAYMENTS. Except to the extent otherwise
provided herein, all payments of principal, interest and
other amounts to be made by the Company hereunder and under
the Notes shall be made in Dollars, in immediately available
funds, to the Administrative Agent at the Principal Office,
not later than 11:00 a.m. New York time on the date on which
such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on
the next succeeding Business Day). The Administrative
Agent, or any Lender for whose account any such payment is
made, may (but shall not be obligated to) debit the amount
of any such payment which is not made by such time to any
ordinary deposit account of the Company with the
Administrative Agent or such Lender, as the case may be.
The Company shall, at the time of making each payment
hereunder or under any Note, specify to the Administrative
Agent the Loans or other amounts payable by the Company
hereunder to which such payment is to be applied (and in the
event that it fails to so specify, or if an Event of Default
has occurred and is continuing, the Administrative Agent may
apply such payment as it may elect in its sole discretion to
amounts then due, but subject to the other terms and
conditions of this Agreement, including, without limitation,
Section 5.02 hereof). Each payment received by the
Administrative Agent hereunder or under any Note for the
18
24
account of a Lender shall be paid promptly to such Lender,
in immediately available funds, for the account of such
Lender's Applicable Lending Office. If the due date of any
payment hereunder or under any Note would otherwise fall on
a day which is not a Business Day such date shall be
extended to the next succeeding Business Day and interest
shall be payable for any principal so extended for the
period of such extension.
5.02 PRO RATA TREATMENT. Except to the extent
otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.01 hereof shall be made from the
Lenders, each payment of commitment fees under Section 2.03
hereof shall be made for the account of the Lenders, and
each termination or reduction of the Commitments under
Section 2.02 hereof shall be applied to the Commitments of
the Lenders, pro rata according to the Lenders' respective
percentages of the Commitments; (b) each payment by the
Company of principal of or interest on Loans of a particular
Type (other than payments in respect of Loans of individual
Lenders provided for by Section 6 hereof) shall be made to
the Administrative Agent for the account of the Lenders pro
rata in accordance with the respective unpaid principal
amounts of such Loans held by the Lenders; and (c) each
conversion of Loans of a particular Type (other than
conversions of Loans of individual Lenders pursuant to
Section 6.04 hereof) shall be made pro rata among the
Lenders in accordance with the respective principal amounts
of such Loans held by the Lenders.
5.03 COMPUTATIONS. Interest on Fixed Rate Loans
and fees shall be computed on the basis of a year of 360
days and actual days elapsed, and interest on Base Rate
Loans shall be computed on the basis of a year of 365 or 366
days and actual days elapsed (in each case, including the
first day but excluding the last day), occurring in the
period for which payable.
5.04 MINIMUM AND MAXIMUM AMOUNTS; TYPES. Each
borrowing, conversion and prepayment of principal of Loans
shall be in an aggregate principal amount equal to (a) in
the case of Eurodollar Loans, $5,000,000 or any larger
multiple of $1,000,000, (b) in the case of CD Loans,
$10,000,000 or any larger multiple of $1,000,000, and (c) in
the case of Base Rate Loans, at least $5,000,000, except
that any borrowing may be in the aggregate amount of the
unused portion of the Commitments (borrowings, conversions
or prepayments of Loans of different Types or, in the case
of Fixed Rate Loans, having different Interest Periods, at
the same time hereunder to be deemed separate borrowings,
conversions and prepayments for purposes of the foregoing,
one for each Type or Interest Period). Notwithstanding
anything to the contrary contained in this Agreement there
19
25
shall not be, at any one time, more than six Interest
Periods in effect with respect to Fixed Rate Loans.
5.05 CERTAIN NOTICES. Notices to the
Administrative Agent of terminations or reductions of
Commitments, of borrowings, conversions and prepayments of
Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the
Administrative Agent not later than 12:00 noon (or, in the
case of borrowings or prepayments of Base Rate Loans, 10:30
a.m.) New York time on the number of Business Days prior to
the date of the relevant termination, reduction, borrowing,
conversion and/or prepayment specified below:.
Number of
Business
Notice Days Prior
------ ----------
Termination or
reduction of Commitments 3
Borrowing or
prepayment of Base Rate
Loans 0
Borrowing or
prepayment of, conversion of or into,
or duration of Interest Period
for, Fixed Rate Loans 3
Each notice of termination or reduction shall specify the
amount of the Commitments to be terminated or reduced. Each
notice of borrowing, conversion or prepayment shall specify
the amount, and Type of the Loans to be borrowed, converted
or prepaid (subject to Sections 3.02 and 5.04 hereof), the
date of borrowing, conversion or prepayment (which shall be
a Business Day) and, in the case of Fixed Rate Loans, the
duration of the Interest Period therefor (subject to the
definition of Interest Period). Each such notice of
duration of an Interest Period shall specify the Loans to
which such Interest Period is to relate. The Administrative
Agent shall promptly notify the affected Lenders of the
contents of each such notice. In the event that the Company
fails to select the duration of any Interest Period for any
Fixed Rate Loans within the time period and otherwise as
provided in this Section 5.05, such Loans (if outstanding as
Fixed Rate Loans) will be automatically converted into Base
Rate Loans on the last day of the then current Interest
Period for such Loans or (if outstanding as Base Rate Loans)
will remain as, or (if not then outstanding) will be made
as, Base Rate Loans.
20
26
5.06 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE
AGENT. Unless the Administrative Agent shall have been
notified by a Lender or the Company (the "Payor") prior to
the date on (or, in the case of Base Rate Loans, prior to
the time by) which such Lender is to make payment to the
Administrative Agent of the proceeds of a Loan to be made by
it hereunder or the Company is to make a payment to the
Administrative Agent for the account of one or more of the
Lenders, as the case may be (such payment being herein
called the "REQUIRED PAYMENT"), which notice shall be
effective upon receipt, that the Payor does not intend to
make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment
has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available
to the intended recipient on such date (or at such time)
and, if the Payor has not in fact made the Required Payment
to the Administrative Agent, the recipient of such payment
shall, on demand, pay to the Administrative Agent the amount
made available to it together with interest thereon in
respect of the period commencing on the date such amount was
so made available by the Administrative Agent until the date
the Administrative Agent receives such amount at a rate per
annum equal to the Federal Funds Rate for such period.
5.07 SHARING OF PAYMENTS, ETC. The Company agrees
that, in addition to (and without limitation of) any right
of set-off, bankers' lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its
option, to offset balances held by it for the account of the
Company at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of
such Lender's Loans to the Company hereunder which is not
paid when due (regardless of whether such balances are then
due to the Company), in which case it shall promptly notify
the Company and the Administrative Agent thereof, provided
that such Lender's failure to give such notice shall not
affect the validity thereof. If a Lender shall obtain
payment of any principal of or interest on any Loan made by
it under this Agreement, through the exercise of any right
of set-off, banker's lien, counterclaim or similar right, or
otherwise, it shall promptly purchase from the other Lenders
participations in the Loans made, by the other Lenders in
such amounts, and make such other adjustments from time to
time as shall be equitable to the end that all the Lenders
shall share the benefit of such payment (net of any expenses
which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with the
unpaid principal and interest on the Loans or other
obligations then due to each of them. To such end all the
Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The
21
27
Company agrees, to the fullest extent it may effectively do
so under applicable law, that any Person purchasing a
participation in the Loans made, by another Person, whether
or not acquired pursuant to the foregoing arrangements, may
exercise all rights of set-off, bankers' lien, counterclaim
or similar rights with respect to such participation as
fully as if such Lender were a direct holder of Loans or
other obligations in the amount of such participation.
Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any
Lender to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness or
obligation of the Company.
5.08 TAXES. (a) Any and all payments by the
Company hereunder shall be made, in accordance with Section
5.01, free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the
laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on
its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "TAXES").
If the Company shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, (i) except as provided
in subsection (g) below, the sum payable shall be increased
as may be necessary so that after making all required
deductions (including deductions applicable to additional
sums payable under this Section 5.08), such Lender or the
Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to,
this Agreement or any other Basic Document or other document
referred to herein or therein (hereinafter referred to as
"OTHER TAXES").
22
28
(c) The Company will indemnify each Lender and
the Administrative Agent for the full amount of Taxes or
Other Taxes (including related penalties, interest and
expenses) imposed by any jurisdiction on amounts payable
under this Section 5.08 paid by such Lender or the
Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date
such Lender or the Administrative Agent (as the case may be)
makes written demand therefor. It is understood that Taxes
do not include any withholdings or other obligations imposed
on a Lender with respect to payments by such Lender to a
participant in such Lender's Loans.
(d) Within 30 days after the date of any payment
of Taxes, the Company or a Lender, in the case of any Taxes
paid by such Lender, will furnish to the Administrative
Agent, at its address referred to in Section 12.02, the
original or a certified copy of a receipt evidencing payment
thereof.
(e) At the reasonable request of the Company, a
Lender or the Administrative Agent shall apply at the
Company's expense for a refund in respect of Taxes or Other
Taxes previously paid by the Company pursuant to this
Section 5.08 if in the opinion of such Lender or
Administrative Agent there is a reasonable basis for such
refund. Notwithstanding the foregoing, none of the Lenders
or the Administrative Agent shall be obligated to pursue
such refund if, in its sole good faith judgment, such action
would be disadvantageous to it. If any Lender subsequently
receives from a taxing authority a refund of any Tax
previously paid by the Company and for which the Company has
indemnified the Lender pursuant to this Section 5.08, such
Lender shall within 30 days after receipt of such refund,
and to the extent permitted by applicable law, pay to the
Company the net amount of any such recovery after deducting
taxes and expenses attributable thereto.
(f) Not later than the Closing Date or, in the
case of any bank or financial institution that becomes a
Lender after the Closing Date pursuant to Section 12.06, the
date of the instrument of assignment pursuant to which such
bank or financial institution became a Lender, and annually
thereafter or at such other times as the Administrative
Agent or the Company may request, each Lender organized
under the laws of a jurisdiction outside the United States
shall provide the Administrative Agent and the Company with
duly completed copies of Form 1001 or Form 4224 or any
successor form prescribed by the Internal Revenue Service of
the United States certifying that such Lender is exempt from
23
29
United States withholding taxes with respect to all payments
to be made to such Lender hereunder or other documents
satisfactory to the Company and the Administrative Agent
indicating that all payments to be made to such Lender
hereunder are not subject to such taxes (an "EXEMPTION
CERTIFICATE"). In the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the
United States, unless the Administrative Agent and the
Company have received an Exemption Certificate from such
Lender, the Company, or the Administrative Agent if the
Company has not withheld, may withhold taxes from such
payments at the applicable statutory rate; PROVIDED that if
the Company has withheld it shall so notify the
Administrative Agent. If the Company is required to pay
additional amounts to any Lender pursuant to this Section
5.08, such Lender shall use reasonable efforts to designate
a different Applicable Lending Office if such designation
will thereafter avoid the need for any additional payments
under this Section 5.08 and will not, in the sole judgment
of such Lender, be otherwise disadvantageous to such Lender.
A Lender which ceases to be exempt from United States
withholding taxes shall notify the Administrative Agent and
the Company promptly thereof.
(g) If a Lender organized under the laws of a
jurisdiction outside the United States fails to comply with
the provisions of subsection (f) above, then the Company
shall not have any obligation to increase the sum payable to
such Lender pursuant to Section 5.08(a) or to indemnify such
Lender pursuant to Section 5.08(c) for Taxes (including
related penalties, interest and expenses) imposed by the
United States or any political subdivision thereof.
Section 6. YIELD PROTECTION AND ILLEGALITY.
6.01 ADDITIONAL COSTS.
(a) The Company shall pay to the Administrative
Agent for the account of each Lender from time to time such
amounts as such Lender may determine to be necessary to
compensate it for any costs incurred by such Lender which
such Lender determines are attributable to its making or
maintaining of any Fixed Rate Loans hereunder or its
obligation to make any of such Loans hereunder, or any
reduction in any amount receivable by such Lender hereunder
in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable
being herein called "ADDITIONAL COSTS"), in each case
resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or its
Notes in respect of any of such Loans (other than
24
30
changes which affect taxes measured by or imposed on
the overall net income of such Lender or of its
Applicable Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special
deposit, insurance assessment or similar requirements
relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such
Lender (including any of such Loans or any deposits
referred to in the definitions of "CD Base Rate" or
"Eurodollar Base Rate" in Section 1.01 hereof but
excluding, with respect to any such Fixed Rate Loan,
any such requirements included in the applicable
Domestic Reserve Requirement or Eurodollar Reserve
Requirement); or
(iii) imposes any other condition affecting this
Agreement (or any of such extensions of credit or
liabilities).
Each Lender will notify the Company through the
Administrative Agent of any event occurring after the date
of this Agreement which will entitle such Lender to
compensation pursuant to this Section 6.01(a) as promptly as
practicable after it obtains knowledge thereof and
determines to request such compensation, and (if so
requested by the Company through the Administrative Agent)
will designate a different Applicable Lending Office for the
relevant Type of Fixed Rate Loans of such Lender if such
designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole opinion of
such Lender, be disadvantageous to such Lender (provided
that such Lender shall have no obligation to so designate an
Applicable Lending Office located in the United States of
America). Each Lender will furnish the Company with a
statement setting forth the basis and amount of each request
by such Lender for compensation under this Section 6.01(a).
If any Lender requests compensation from the Company under
this Section 6.01(a), the Company may, by notice to such
Lender through the Administrative Agent, suspend the
obligation of such Lender to make additional Fixed Rate
Loans of the relevant Type to the Company until the
Regulatory Change giving rise to such request ceases to be
in effect (in which case the provisions of Section 6.04
hereof shall be applicable).
(b) Without limiting the effect of the foregoing
provisions of this Section 6.01, if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional
Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other
25
31
liabilities of such Lender which includes deposits by
reference to which the interest rate on any Type of Fixed
Rate Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of such
Lender which includes any Type of Fixed Rate Loans or (ii)
becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then,
if such Lender so elects by notice to the Company (with a
copy to the Administrative Agent), the obligation of such
Lender to make Fixed Rate Loans of the relevant Type
hereunder shall be suspended until the date such Regulatory
Change ceases to be in effect (in which case the provisions
of Section 6.04 hereof shall be applicable).
(c) Determinations and allocations by any Lender
for purposes of this Section 6.01 of the effect of any
Regulatory Change on its costs of maintaining its
obligations to make Loans or of making or maintaining Loans
or on amounts receivable by it in respect of Loans, and of
the additional amounts required to compensate such Lender in
respect of any Additional Costs, shall be presumed correct
absent manifest error.
(d) Notwithstanding the foregoing, the Company
shall not be required to compensate any Lender for any
Additional Costs incurred more than one year prior to the
date that such Lender notifies the Company thereof, unless
such Additional Costs were caused by the retroactive
application of a Regulatory Change to a date more than one
year prior to the date of such notice.
6.02 LIMITATION ON TYPES OF LOANS. Anything
herein to the contrary notwithstanding, if, with respect to
any Fixed Rate Loans:
(a) the Administrative Agent determines (which
determination shall be conclusive) that quotations of
interest rates for the relevant deposits referred to in
the definition of "CD Base Rate" or "Eurodollar Base
Rate", as the case may be, in Section 1.01 hereof are
not being provided by the Reference Lenders in the
relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such
Loans for Interest Periods therefor as provided in this
Agreement; or
(b) the Majority Lenders determine (which
determination shall be conclusive) and notify the
Administrative Agent that the relevant rates of
interest referred to in the definition of "CD Base
Rate" or "Eurodollar Base Rate", as the case may be, in
Section 1.01 hereof upon the basis of which the rates
of interest for such Loans are to be determined do not
26
32
accurately reflect the cost to such Lenders of making
or maintaining such Loans for Interest Periods
therefor;
then the Administrative Agent shall promptly notify the
Company and each Lender thereof, and so long as such
condition remains in effect, the Lenders shall be under no
obligation to make Fixed Rate Loans of the relevant Type or
to convert Base Rate Loans into Fixed Rate Loans of the
relevant Type and the Company shall, on the last day(s) of
the then current Interest Period(s) for the outstanding
Fixed Rate Loans of the relevant Type, either prepay such
Loans or convert such Loans into Base Rate Loans in
accordance with Section 3.02 hereof.
6.03 ILLEGALITY. Notwithstanding any other
provision of this Agreement to the contrary, in the event
that it becomes unlawful for any Lender or its Applicable
Lending Office to (a) honor its obligation to make Fixed
Rate Loans of any Type hereunder, or (b) maintain Fixed Rate
Loans of any Type hereunder, then such Lender shall promptly
notify the Company thereof through the Administrative Agent
and such Lender's obligation to make Fixed Rate Loans of
such Type hereunder shall be suspended until such time as
such Lender may again make and maintain Fixed Rate Loans of
such Type (in which case the provisions of Section 6.04
hereof shall be applicable).
6.04 SUBSTITUTE BASE RATE LOANS. If the
obligation of any Lender to make Fixed Rate Loans of any
Type shall be suspended pursuant to Section 6.01, 6.02 or
6.03 hereof, all Loans which would otherwise be made by such
Lender as Fixed Rate Loans of such Type shall be made
instead as Base Rate Loans (and, if an event referred to in
Section 6.01(b) or 6.03 hereof has occurred and such Lender
so requests by notice to the Company with a copy to the
Administrative Agent, each Fixed Rate Loan of such Type of
such Lender then outstanding shall be automatically
converted into a Base Rate Loan on the date specified by
such Lender in such notice) and, to the extent that Fixed
Rate Loans of such Type are so made as (or converted into)
Base Rate Loans, all payments of principal which would
otherwise be applied to such Fixed Rate Loans of such Type
shall be applied instead to such Base Rate Loans.
6.05 COMPENSATION. The Company shall pay to the
Administrative Agent for the account of each Lender, upon
the request of such Lender through the Administrative Agent,
such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any
loss, cost or expense incurred by it as a result of:
27
33
(a) any payment, prepayment or conversion of a
Fixed Rate Loan made by such Lender on a date other
than the last day of an Interest Period for such Loan;
or
(b) any failure by the Company to borrow a Fixed
Rate Loan to be made by such Lender on the date for
such borrowing specified in the relevant notice of
borrowing under Section 5.05 hereof.
Notwithstanding the foregoing, the Company shall
not be required to compensate any Lender for any such loss,
cost or expense incurred more than one year prior to the
date that such Lender notifies the Company thereof.
6.06 CAPITAL ADEQUACY. If any Lender shall
determine that the adoption or implementation of any
applicable law, rule, regulation or treaty regarding capital
adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by any Lender (or its Applicable Lending Office) with any
request or directive issued after the date hereof regarding
capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on
capital of such Lender or any Person controlling such Lender
(a "PARENT") as a consequence of its obligations hereunder
to a level below that which such Lender (or its Parent)
could have achieved but for such adoption, change or
compliance (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 15
days after demand by such Lender (with a copy to the
Administrative Agent), the Company shall pay to such Lender
such additional amount or amounts as will compensate such
Lender for such reduction. A statement of any Lender
claiming compensation under this Section and setting forth
the additional amount or amounts to be paid to it hereunder
shall be presumed correct absent manifest error. In
determining such amount, such Lender may use any reasonable
averaging and attribution methods.
6.07 SUBSTITUTION OF LENDER. If (i) the Company
is required to withhold with respect to any Lender pursuant
to Section 5.08, (ii) any Lender has demanded compensation
under Section 6.01(a) or Section 6.06 or (iii) the
obligation of any Lender to make Fixed Rate Loans has been
suspended pursuant to Section 6.01(b)(ii) or Section 6.03,
and so long as no Default shall have occurred and be
continuing, the Company shall have the right to request one
or more substitute banks, financial institutions or funds
28
34
(which may be one or more of the Lenders) reasonably
satisfactory to the Administrative Agent to purchase such
Lender's Note and assume such Lender's Commitment hereunder
by paying to such Lender an amount equal to all of the
obligations of the Company to such Lender hereunder
including, without limitation, principal and accrued
interest and fees. Any costs or expenses incurred by the
Administrative Agent in connection with assisting the
Company pursuant hereto shall be paid upon demand by the
Company. The Administrative Agent shall respond promptly to
any request by the Company for its consent to a substitute
for a Lender.
Section 7. CONDITIONS PRECEDENT.
7.01 INITIAL LOANS. The obligation of each
Lender to make the initial Loans to be made by it hereunder
is subject to the following conditions precedent, each of
which shall have been fulfilled to the satisfaction of the
Administrative Agent:
(a) CORPORATE ACTION. The Administrative Agent
shall have received certified copies of the articles of
incorporation and Code of Regulations of the Company
and of all corporate action taken by the Company
authorizing the execution, delivery and performance of
this Agreement and the Notes (including, without
limitation, a certificate of the Company setting forth
the resolutions authorizing the transactions
contemplated thereby).
(b) INCUMBENCY. The Company shall have delivered
to the Administrative Agent a certificate in respect of
the name and signature of each of the officers (i) who
is authorized to sign on its behalf this Agreement and
the Notes and (ii) who will, until replaced by another
officer or officers duly authorized for that purpose,
act as its representative for the purposes of signing
documents and giving notices and other communications
in connection with this Agreement and the Notes. The
Administrative Agent and each Lender may conclusively
rely on such certificates until it receives notice in
writing from the Company to the contrary.
(c) NOTES. The Administrative Agent shall have
received a Note for each Lender, duly completed and
executed.
(d) ACQUISITION. All of the conditions to the
consummation of the Acquisition (other than the initial
borrowing hereunder) shall have been duly satisfied in
accordance with the Acquisition Documents (subject to
waivers and other modifications thereof which, in the
29
35
aggregate, are not material), and the Administrative
Agent shall have received (or arrangements satisfactory
to the Administrative Agent shall have been made for it
to receive) a copy of each Acquisition Document
(including, without limitation, each certificate,
opinion of counsel or other material writing delivered
in connection with the consummation of the Acquisition)
and a certificate of the Company to the effect set
forth in the first clause of this Section 7.01(d).
(e) FEES AND EXPENSES. The Company shall have
paid to the Administrative Agent for its account fees
in the amount previously agreed upon between the
Company and the Administrative Agent.
(f) OPINION OF COUNSEL TO THE COMPANY. The
Administrative Agent shall have received an opinion of
Calfee, Halter & Griswold, counsel to the Company, and
the General Counsel of the Company, substantially in
the form of Exhibit B-1 and B-2 hereto, respectively.
(g) OPINION OF SPECIAL COUNSEL TO THE
ADMINISTRATIVE AGENT. The Administrative Agent shall
have received an opinion of Davis Polk & Wardwell,
special counsel to the Administrative Agent,
substantially in the form of Exhibit C hereto.
(h) COUNTERPARTS. The Administrative Agent shall
have received counterparts of this Agreement executed
and delivered by or on behalf of each of the parties
hereto (or, in the case of any Lender as to which the
Administrative Agent shall not have received such a
counterpart, the Administrative Agent shall have
received evidence satisfactory to it of the execution
and delivery by such Lender of a counterpart hereof).
(i) EXISTING CREDIT AGREEMENT. The
Administrative Agent shall have received evidence that,
after giving effect to the application of the proceeds
of the initial Loans to be made hereunder, all amounts
outstanding under the $55,000,000 Credit Agreement
dated October 20, 1993 between the Company and National
City Bank shall have been paid in full and all
commitments thereunder shall have been terminated.
(j) OTHER DOCUMENTS. The Administrative Agent
shall have received such other documents relating to
the transactions contemplated hereby as the
Administrative Agent may reasonably request.
7.02 INITIAL AND SUBSEQUENT LOANS. The
obligation of each Lender to make any Loan to be made by it
hereunder is subject to the conditions precedent that, as of
30
36
the date of such Loan, and before and after giving effect
thereto:
(a) no Default shall have occurred and be
continuing; and
(b) the representations and warranties made by
the Company in this Agreement shall be true on and as
of the date of the making of such Loan, with the same
force and effect as if made on and as of such date.
Each notice of borrowing by the Company hereunder shall
constitute a certification by the Company to the effect set
forth in the preceding sentence (both as of the date of such
notice and as of the date of such borrowing).
Section 8. REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to the Lenders and the
Administrative Agent as follows (including, in the case of
any representation or warranty made as of the Closing Date,
both before and immediately after giving effect to the
Acquisition):
8.01 CORPORATE EXISTENCE. Each of the Company
and its Subsidiaries: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has all requisite
corporate power, and has all governmental licenses,
authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed
to be conducted, except in the case of such licenses,
authorizations, consents and approvals, where the failure to
obtain them would not have a Material Adverse Effect; and
(c) is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify
would have a Material Adverse Effect.
8.02 INFORMATION. (a) All information
heretofore furnished by the Company to the Administrative
Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby did
not as of the date thereof and will not as of the Closing
Date contain any untrue statement of a material fact or
assumption or omit to state a material fact or assumption
necessary in order to make the statements contained therein
not misleading; PROVIDED that (i) the Company makes no
representation as to any materials prepared by or on behalf
of Rust-Oleum Corporation in connection with the offer for
sale of Rust-Oleum Corporation and (ii) although the
management of the Company believes that the projections
presented in the pro forma consolidated balance sheet of the
Company and its Subsidiaries as of May 31, 1995 are
31
37
reasonable, they were not prepared in accordance with GAAP
and the Company makes no representation as to their
attainability.
(b) Without limiting the generality of
paragraph (a):
(i) The audited consolidated balance sheet of the
Company and its Subsidiaries as of May 31, 1993 and the
audited consolidated statements of income,
shareholders' equity and cash flows for the fiscal year
ended May 31, 1993 (collectively, the "FINANCIAL
STATEMENTS") have been prepared in accordance with
generally accepted accounting principles consistently
applied. The Financial Statements fairly present the
financial position of the Company and its Subsidiaries
as of May 31, 1993 and the results of their operations
and their cash flows for the fiscal year ended May 31,
1993 in conformity with generally accepted accounting
principles.
(ii) The unaudited consolidated balance sheet of
the Company and its Subsidiaries as of February 28,
1994 and the unaudited consolidated statements of
income, shareholders' equity and cash flows for the
nine months then ended have been prepared in accordance
with generally accepted accounting principles
consistently applied, and fairly present the financial
position of the Company and its Subsidiaries as of
February 28, 1994 and the results of their operations
and their cash flows for the nine months then ended in
conformity with generally accepted accounting
principles (subject to normal year-end adjustments).
(iii) The Company and its Subsidiaries did not on
the date of the balance sheet referred to in clause
(ii) above, and will not on the Closing Date, have any
material contingent liabilities, material liabilities
for taxes, unusual and material forward or long-term
commitments or material unrealized or anticipated
losses from any unfavorable commitments, except as
referred to or reflected or provided for in said
balance sheet.
(c) The Company has disclosed to the Lenders in
writing any and all facts (other than general economic and
industry conditions) which have or may have a Material
Adverse Effect.
(d) Since February 28, 1994 no event has occurred
and no condition has come into existence which has had, or
is reasonably likely to have, a Material Adverse Effect.
32
38
8.03 LITIGATION. Except as disclosed in the
Disclosure Documents, there are no legal or arbitral
proceedings or any proceedings by or before any governmental
or regulatory authority or agency, now pending or, to the
knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or
which in any manner draw into question the validity of the
Credit Agreement or the Notes. The disclosure of litigation
to the Lenders pursuant to this Section does not necessarily
mean that such litigation is of the type described in this
Section or that the Company believes that such litigation
has any merit whatsoever.
8.04 NO BREACH. None of the execution and
delivery of the Basic Documents, the consummation of the
Acquisition or the transactions therein contemplated or
compliance with the terms and provisions thereof will
conflict with or result in a breach of, or require any
consent under, the articles of incorporation or Codes of
Regulation or comparable instruments of the Company or any
of its Subsidiaries, or any applicable law or regulation, or
any order, writ, injunction or decree of any court or
governmental authority or agency, or any Basic Document or
other material agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which it is
bound or to which it is subject, or constitute a default
under any such material agreement or instrument, or result
in the creation or imposition of any Lien upon any of the
revenues or assets of the Company or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
8.05 CORPORATE ACTION. Each of the Company and
RPM of Illinois, Inc. has all necessary corporate power and
authority to consummate the Acquisition and to execute,
deliver and perform its obligations under the Basic
Documents to which it is a party; the consummation of the
Acquisition and the execution, delivery and performance by
the Company and RPM of Illinois, Inc. of the Basic Documents
to which they are parties have been duly authorized by all
necessary corporate action; and this Agreement has been duly
and validly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the
Company and, on the Closing Date, each of the other Basic
Documents to which the Company or RPM of Illinois, Inc. is
to be a party will constitute its legal, valid and binding
obligation, in each case enforceable in accordance with its
terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or moratorium or
other similar laws relating to the enforcement of creditors'
rights generally and by general equitable principles.
33
39
8.06 APPROVALS. Each of the Company and its
Subsidiaries has obtained all authorizations, approvals and
consents of, and has made all filings and registrations
with, any governmental or regulatory authority or agency and
any third party necessary for the consummation of the
Acquisition and the execution, delivery or performance by it
of any Basic Document to which it is a party, or for the
validity or enforceability thereof.
8.07 REGULATIONS U AND X. Neither the Company
nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U or X of the
Board of Governors of the Federal Reserve System) and no
part of the proceeds of any Loan hereunder will be used to
purchase or carry any such margin stock.
8.08 ERISA. The Company and each member of the
Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect
to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the
Code with respect to each Plan. No such Person has (i)
sought a waiver of the minimum funding standard under
Section 412 of the Code in respect of any Plan, (ii) failed
to make any contribution or payment to any Plan or
Multiemployer Plan, or made any amendment to any Plan, which
has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the
Code or (iii) incurred any liability under Title IV of ERISA
(other than a liability to the PBGC for premiums under
Section 4007 of ERISA).
8.09 TAXES. Each of the Company and its
Subsidiaries has filed all United States Federal income tax
returns and all other material tax returns which are
required to be filed by it and has paid all taxes due
pursuant to such returns or pursuant to any assessment
received by it, except to the extent the same may be
contested as permitted by Section 9.02 hereof. There are no
material tax disputes or contests pending as of the Closing
Date. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of taxes and
other governmental charges are, in the opinion of the
Company, adequate.
8.10 SUBSIDIARIES. Schedule I hereto is a
complete and correct list, as of the date of this Agreement,
of all Subsidiaries of the Company and of all Investments
held by the Company or any of its Subsidiaries in any
material joint venture or other similar Person. The Company
owns, free and clear of Liens, all outstanding shares of its
34
40
Subsidiaries and all such shares are validly issued, fully
paid and non-assessable and the Company (or the respective
Subsidiary of the Company) also owns, free and clear of
Liens, all such Investments.
8.11 INVESTMENT COMPANY ACT. Neither the Company
nor any of its Subsidiaries is an investment company within
the meaning of the Investment Company Act of 1940, as
amended, or, directly or indirectly, controlled by or acting
on behalf of any Person which is an investment company,
within the meaning of said Act.
8.12 PUBLIC UTILITY HOLDING COMPANY ACT. Neither
the Company nor any of its Subsidiaries is a "holding
company", or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935,
as amended.
8.13 OWNERSHIP AND USE OF PROPERTIES. Each of
the Company and its Subsidiaries will have on the Closing
Date and at all times thereafter, legal title or ownership
of, or the right to use pursuant to enforceable and valid
agreements or arrangements, all tangible property, both real
and personal, and all franchises, licenses, copyrights,
patents and know-how which is material to the operation of
its business as proposed to be conducted.
8.14 ENVIRONMENTAL MATTERS. Except as disclosed
in the Disclosure Documents, neither the Company nor any of
its Subsidiaries has (i) failed to obtain any permits,
certificates, licenses, approvals, registrations and other
authorizations which are required under any applicable
Environmental Law where failure to have any such permit,
certificate, license, approval, registration or
authorization would have a Material Adverse Effect; (ii)
failed to comply with the terms and conditions of all such
permits, certificates, licenses, approvals, registrations
and authorizations, and are also in compliance with all
other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or
in any notice or demand letter from any regulatory authority
issued, entered, promulgated or approved thereunder where
failure to comply would have a Material Adverse Effect; or
(iii) failed to conduct its business so as to comply in all
respects with applicable Environmental Laws where failure to
so comply would have a Material Adverse Effect. The
disclosure of any failure or alleged failure to the Lenders
pursuant to this Section does not necessarily mean that such
failure is of the type described in this Section or that any
such allegation has any merit whatsoever.
35
41
Section 9. COVENANTS. The Company agrees that,
so long as any of the Commitments are in effect and until
payment in full of all Loans hereunder, all interest thereon
and all other amounts payable hereunder, unless the Majority
Lenders shall agree otherwise as contemplated by Section
12.05 hereof:
9.01 INFORMATION. The Company shall deliver to
each of the Lenders:
(a) as soon as available and in any event within
90 days after the end of each fiscal year of the
Company, consolidated statements of income,
shareholders' equity and cash flows of the Company and
its Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year,
setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year,
and accompanied by an opinion thereon of Ciulla
Stephens & Co. or other independent certified public
accountants of recognized national standing, which
opinion shall state that said consolidated financial
statements fairly present in all material respects the
consolidated financial condition and results of
operations of the Company and its Subsidiaries as at
the end of, and for, such fiscal year, and a standard
letter from such accountants stating that, in
performing the auditing procedures necessary for their
above-described opinion (but without any special or
additional procedures for that purpose), nothing came
to their attention that caused them to believe, except
as specifically stated, that the Company was not in
compliance with any of the terms, covenants, provisions
or conditions of this Agreement;
(b) as soon as available and in any event within
45 days after the end of each fiscal quarter of the
Company other than the last fiscal quarter in each
fiscal year, consolidated statements of income,
shareholders' equity and cash flows of the Company and
its Subsidiaries for such fiscal quarter and for the
portion of the fiscal year ended at the end of such
fiscal quarter, and the related consolidated balance
sheet as at the end of such fiscal quarter,
accompanied, in each case, by a certificate of a Senior
Officer, which certificate shall state that said
consolidated financial statements fairly present in all
material respects the consolidated financial condition
and results of operations of the Company in accordance
with GAAP (except for footnotes of the type required by
the Securities and Exchange Commission to be included
in quarterly reports on Form 10-Q), consistently
36
42
applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(c) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all
financial statements, reports and proxy statements so
mailed;
(d) promptly upon the filing thereof, copies of
all registration statements (other than any
registration statements on Form S-8 or its equivalent)
and any reports which the Company shall have filed with
the Securities and Exchange Commission;
(e) if and when the Company or any member of the
Controlled Group (i) gives or is required to give
notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any
Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of
the notice of such reportable event given or required
to be given to the PBGC, (ii) receives notice of
complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy
of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan
pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or makes
any amendment to any Plan which has resulted or could
result in the imposition of a Lien or the posting of a
bond or other security, a certificate of a Senior
Officer setting forth details as to such occurrence and
action, if any, which the Company or member of the
Controlled Group is required or proposes to take;
(f) promptly after management of the Company
knows that any Default has occurred and is continuing,
a notice of such Default, describing the same in
reasonable detail; and
(g) from time to time such other information
regarding the financial condition, operations,
37
43
prospects or business of the Company as the
Administrative Agent or any Lender through the
Administrative Agent may reasonably request.
The Company will furnish to each Lender, at the time it
furnishes each set of financial statements pursuant to
paragraph (a) or (b) above, a certificate of a Senior
Officer (i) to the effect that, to the best of his knowledge
after due inquiry, no Default has occurred and is continuing
(or, if any Default has occurred and is continuing,
describing the same in reasonable detail) and (ii) setting
forth in reasonable detail the computations necessary to
determine whether it was in compliance with Sections 9.08 to
9.12, inclusive, and 9.16 hereof as of the end of the
respective fiscal quarter or fiscal year.
9.02 TAXES AND CLAIMS. The Company will pay and
discharge, and will cause each of its Subsidiaries to pay
and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its
income or profits, or upon any property belonging to it,
prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid, might become a Lien upon the
property of the Company or such Subsidiary, PROVIDED that
neither the Company nor such Subsidiary shall be required to
pay any such tax, assessment, charge, levy or claim the
payment of which is being contested in good faith and by
proper proceedings if it maintains adequate reserves with
respect thereto and if such contest, proceedings and
reserves have been described in a certificate of a Senior
Officer delivered to the Lenders.
9.03 INSURANCE. The Company will maintain, and
will cause each of its Subsidiaries to maintain, insurance
with responsible companies in such amounts and against such
risks as is usually carried by companies of established
repute engaged in the same or similar businesses, owning
similar properties, and located in the same general areas as
the Company and its Subsidiaries.
9.04 MAINTENANCE OF EXISTENCE; CONDUCT OF
BUSINESS. The Company will preserve and maintain, and will
cause each of its Subsidiaries to preserve and maintain, its
corporate existence and all of its rights, privileges and
franchises necessary or desirable in the normal conduct of
its business, and will conduct its business in a regular
manner; PROVIDED that nothing herein shall prevent (i) the
merger and dissolution of any Subsidiary of the Company into
the Company so long as the Company is the surviving
corporation, (ii) the merger of any Subsidiary of the
Company into any other Subsidiary of the Company, or (iii)
the sale of any Subsidiary of the Company other than the
following Subsidiaries and their successors: Day-Glo Color
38
44
Corp., an Ohio corporation, Kop-Coat, Inc., an Ohio
corporation, Mameco International, Inc., an Ohio
corporation, Carboline Company, a Delaware corporation,
William Zinsser and Co., Incorporated, a New Jersey
corporation, and Rust-Oleum Corporation, an Illinois
corporation.
9.05 MAINTENANCE OF AND ACCESS TO PROPERTIES.
The Company will keep, and will cause each of its
Subsidiaries to keep, all of its properties necessary in its
business in good working order and condition (having regard
to the condition of such properties at the time such
properties were acquired by the Company or such Subsidiary),
ordinary wear and tear excepted, and proper books of record
and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and
transactions in relation to its business activities, and
will permit representatives of the Lenders to inspect such
properties and, upon reasonable notice and at reasonable
times, to examine and make extracts and copies from the
books and records of the Company and any such Subsidiary.
9.06 COMPLIANCE WITH APPLICABLE LAWS. The
Company will comply, and will cause each of its Subsidiaries
to comply, with the requirements of all applicable laws,
rules, regulations and orders of any governmental body or
regulatory authority (including, without limitation, all
Environmental Laws), a breach of which would have a Material
Adverse Effect, except where contested in good faith and by
proper proceedings.
9.07 LITIGATION. The Company will promptly give
to the Administrative Agent (which shall promptly notify
each Lender) notice in writing of all litigation and of all
proceedings of which it is aware before any courts,
arbitrators or governmental or regulatory agencies affecting
the Company or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
9.08 LEVERAGE RATIO. The Company will not permit
Indebtedness of the Company and its Subsidiaries, determined
on a consolidated basis, on any date to exceed 60% of the
sum of such Indebtedness and consolidated shareholders'
equity of the Company and its Subsidiaries on such date.
9.09 INTEREST COVERAGE RATIO. The Company will
not permit the ratio, calculated as at the end of each
fiscal quarter ending after the Closing Date for the four
fiscal quarters then ended, of EBIT for such period to
Interest Expense for such period to be less than 3:1.
39
45
9.10 MERGERS, ASSET DISPOSITIONS, ETC. The
Company will not (i) consolidate or merge with or into any
other Person or (ii) sell, lease or otherwise transfer,
directly or indirectly, in one transaction or a series of
related transactions, all or substantially all of its
business or assets; PROVIDED that the Company may merge with
another Person if (A) the Company is the corporation
surviving such merger and (B) immediately after giving
effect to such merger, no Default shall have occurred and be
continuing.
9.11 LIENS. The Company will not, and will not
permit any of its Subsidiaries to, create or suffer to exist
any Lien upon any property or assets, now owned or hereafter
acquired, securing any Indebtedness or other obligation,
except:
(i) Liens existing on the Closing Date and
securing Indebtedness in an aggregate principal amount
not exceeding $4,000,000;
(ii) Liens existing on other assets at the date
of acquisition thereof or which attach to such assets
concurrently with or within 90 days after the
acquisition thereof, securing Indebtedness incurred to
finance the acquisition thereof in an aggregate
principal amount at any time outstanding not exceeding
$10,000,000;
(iii) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Subsidiary of the Company or is merged or consolidated
with or into the Company or one of its Subsidiaries and
not created in contemplation of such event;
(iv) any Lien arising out of the refinancing,
extension, renewal or refunding of any Indebtedness
secured by any Lien permitted by any of the foregoing
clauses of this Section 9.11, PROVIDED that such
Indebtedness is not increased and is not secured by any
additional assets;
(v) other Liens arising in the ordinary course of
the business of the Company or such Subsidiary which
are not incurred in connection with the borrowing of
money or the obtaining of advances or credit, do not
secure any obligation in an amount exceeding
$10,000,000 and do not materially detract from the
value of its property or assets or materially impair
the use thereof in the operation of its business; and
(vi) Liens not otherwise permitted by the foregoing
clauses of this Section 9.11 securing
40
46
Indebtedness in an aggregate principal or face amount
at any date not to exceed $10,000,000.
9.12 INVESTMENTS. The Company will not, and will
not permit any of its Subsidiaries to, make or permit to
remain outstanding any advances, loans or other extensions
of credit or capital contributions (other than prepaid
expenses in the ordinary course of business) to (by means of
transfers of property or assets or otherwise), or purchase
or own any stocks, bonds, notes, debentures or other
securities of, any Person (all such transactions being
herein called "INVESTMENTS"), except: (i) operating deposit
accounts; (ii) Liquid Investments; (iii) subject to Section
9.13 hereof, Investments in accounts and notes receivable
acquired in the ordinary course of business as presently
conducted; (iv) Investments existing on the Closing Date in
Subsidiaries, and Investments after the Closing Date by
First Colonial Insurance Company, a wholly-owned Subsidiary
of the Company, in the ordinary course of its business; (v)
Investments not otherwise permitted by the foregoing clauses
of this Section 9.12 in Subsidiaries of the Company and in
Persons which become Subsidiaries of the Company as the
result of such Investments; (vi) Investments not otherwise
permitted by the foregoing clauses of this Section 9.12 in
joint ventures in an aggregate amount not to exceed
$25,000,000; and (vii) Investments not otherwise permitted
by the foregoing clauses of this Section 9.12 in an
aggregate amount not to exceed $5,000,000.
9.13 TRANSACTIONS WITH AFFILIATES. Except as
expressly permitted by this Agreement the Company will not,
and will not permit any of its Subsidiaries to, directly or
indirectly: (i) make any Investment in an Affiliate of the
Company (other than a Subsidiary of the Company);
(ii) transfer, sell, lease, assign or otherwise dispose of
any assets to an Affiliate of the Company (other than a
Subsidiary of the Company); (iii) merge into or consolidate
with or purchase or acquire assets from an Affiliate of the
Company (other than a Subsidiary of the Company); or
(iv) enter into any other transaction directly or indirectly
with or for the benefit of an Affiliate of the Company
(including, without limitation, Guaranties and assumptions
of obligations of an Affiliate of the Company); PROVIDED
that (a) any Affiliate of the Company who is an individual
may serve as a director, officer or employee of the Company
and receive reasonable compensation or indemnification in
connection with his or her services in such capacity; and
(b) any transaction entered into by the Company or a
Subsidiary of the Company with an Affiliate of the Company
which is not a Subsidiary of the Company providing for the
leasing of property, the rendering or receipt of services or
the purchase or sale of inventory and other assets in the
ordinary course of business must be for a monetary or
41
47
business consideration which would be substantially as
advantageous to the Company or such Subsidiary as the
monetary or business consideration which would obtain in a
comparable arm's length transaction with a Person not an
Affiliate of the Company.
9.14 LINES OF BUSINESS. The Company and its
Subsidiaries, taken as a whole, shall not engage to any
substantial extent in any line or lines of business activity
other than present or related product lines.
9.15 ENVIRONMENTAL MATTERS. The Company will
promptly give to the Lenders notice in writing of any
complaint, order, citation, notice or other written
communication from any Person with respect to, or if the
Company becomes aware after due inquiry of, (i) the
existence or alleged existence of a violation of any
applicable Environmental Law or Environmental Liability at,
upon, under or within any property now or previously owned,
leased, operated or used by the Company or any of its
Subsidiaries or any part thereof, or due to the operations
or activities of the Company, any Subsidiary on or in
connection with such property or any part thereof (including
receipt by the Company or any Subsidiary of any notice of
the happening of any event involving the Release of a
reportable quantity under any applicable Environmental Law
or cleanup of any Hazardous Substance), (ii) any Release on
such property or any part thereof in a quantity that is
reportable under any applicable Environmental Law, (iii) the
commencement of any cleanup pursuant to or in accordance
with any applicable Environmental Law of any Hazardous
Substances on or about such property or any part thereof and
(iv) any pending or threatened proceeding for the
termination, suspension or non-renewal of any permit
required under any applicable Environmental Law, in each
case which individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect.
9.16. LEASE PAYMENTS. Neither the Company nor
any of its Subsidiaries will incur or assume (whether
pursuant to a Guaranty or otherwise) any liability for
rental payments under a lease with a lease term (as defined
in Financial Accounting Standards No. 13 of the Financial
Accounting Standards Board, as in effect on the date hereof)
if (i) such lease is of an asset previously owned by the
Company or any of its Subsidiaries and (ii) after giving
effect thereto, the aggregate amount of minimum lease
payments that the Company and its Subsidiaries have so
incurred or assumed (excluding payments in respect of a
lease (whether now or hereafter existing) of Rust-Oleum
Corporation's corporate headquarters located in Vernon
Hills, Illinois) will exceed, on a consolidated basis,
$5,000,000 for any calendar year under all such leases.
42
48
Section 10. DEFAULTS.
10.01 EVENTS OF DEFAULT. If one or more of the
following events (herein called "EVENTS OF DEFAULT") shall
occur and be continuing:
(a) default in the payment of (i) any principal
of any Loan when due or of (ii) any interest on any
Loan or other amount payable hereunder within five
Business Days after the due date thereof; or
(b) the Company or any of its Subsidiaries shall
default in the payment when due of any principal of or
interest on Indebtedness having an aggregate
outstanding principal amount of at least $20,000,000
(other than the Loans); or any event or condition shall
occur which results in the acceleration of the maturity
of any such Indebtedness or enables (or, with the
giving of notice or lapse of time or both, would
enable) the holder of any such Indebtedness or any
Person acting on such holder's behalf to accelerate the
maturity thereof; or
(c) any representation or warranty made or deemed
made by the Company or any Subsidiary in any Basic
Document or in any certificate furnished to any Lender
or the Administrative Agent pursuant to the provisions
of any Basic Document, shall prove to have been false
or misleading in any material respect as of the time
made or furnished; or
(d) (i) the Company shall default in the
performance of any of its obligations under Section
2.07 or Sections 9.08 through 9.13 and 9.16 hereof; or
(ii) the Company or any Subsidiary shall default in the
performance of any of its other obligations in any
Basic Document, and such default described in this
subclause (ii) shall continue unremedied for a period
of 30 days after notice thereof to the Company by the
Administrative Agent or any Lender (through the
Administrative Agent); or
(e) the Company or any of its Significant
Subsidiaries shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts
become due; or
(f) the Company or any of its Significant
Subsidiaries shall (i) apply for or consent to the
appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or
of all or a substantial part of its property, (ii) make
a general assignment for the benefit of its creditors,
43
49
(iii) commence a voluntary case under the Bankruptcy Code, (iv) file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code, or (vi) take any corporate or partnership
action for the purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the application
or consent of the Company or any of its Significant Subsidiaries in any
court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of such Person or of all or any
substantial part of its assets, or (iii) similar relief in respect of such
Person under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 90 days; or an order for relief against such
Person shall be entered in an involuntary case under the Bankruptcy Code;
or
(h) a final judgment or judgments for the payment of money shall be
rendered by a court or courts against the Company or any of its
Subsidiaries in excess of $25,000,000 in the aggregate (excluding any
amount of such judgment as to which an Acceptable Insurer has acknowledged
liability), and the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be
procured, within 10 days from the date of entry thereof, or the Company or
such Subsidiary shall not, within said period of 10 days, or such longer
period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal;
or
(i) the Company or any member of the Controlled Group shall fail to
pay when due an amount or amounts aggregating in excess of $20,000,000 for
which it shall have become liable under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded Liabilities
in excess of $20,000,000 shall be filed under Title IV of ERISA by the
Company or any member of the Controlled Group, any plan administrator
44
50
or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer, any Plan or
Plans having aggregate Unfunded Liabilities in excess
of $20,000,000; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Plan or Plans having aggregate
Unfunded Liabilities in excess of $20,000,000 must be
terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or
more Multiemployer Plans which could cause the Company
or one or more members of the Controlled Group to incur
a current payment obligation in excess of $20,000,000;
or
(j) (i) as a result of one or more transactions
after the date of this Agreement, any "person" or
"group" of persons shall have "beneficial ownership"
(within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended, and the
applicable rules and regulations thereunder) of 20% or
more of the outstanding common stock of the Company; or
(ii) without limiting the generality of the foregoing,
during any period of 12 consecutive months, commencing
after the date of this Agreement, individuals who at
the beginning of such 12-month period were directors of
the Company shall cease for any reason to constitute a
majority of the board of directors of the Company;
THEREUPON: the Administrative Agent may (and, if directed
by the Majority Lenders, shall) by notice to the Company
(a) declare the Commitments terminated (whereupon the
Commitments shall be terminated) and/or (b) declare the
principal amount then outstanding of and the accrued
interest on the Loans and commitment fees and all other
amounts payable hereunder and under the Notes to be
forthwith due and payable, whereupon such amounts shall be
and become immediately due and payable, without other
notice, presentment, demand, protest or other formalities of
any kind (all of which are hereby expressly waived by the
Company); PROVIDED that in the case of the occurrence of an
Event of Default with respect to the Company referred to in
clause (f) or (g) of this Section 10.01, the Commitments
shall be automatically terminated and the principal amount
then outstanding of and the accrued interest on the Loans
and commitment fees and all other amounts payable hereunder
and under the Notes shall be and become automatically and
immediately due and payable, without notice (including,
without limitation, notice of intent to accelerate),
presentment, demand, protest or other formalities of any
45
51
kind, all of which are hereby expressly waived by the
Company. Each Lender hereby agrees that, unless so
requested by the Administrative Agent with the consent of
the Majority Lenders, it shall not take or cause to be taken
any action to declare the Commitments terminated or to
declare payable or collect the amounts referred to above
that is independent from any action taken or to be taken by
the Administrative Agent, unless such action is taken in
connection with an Event of Default described in clause (a),
(e), (f) or (g) of this Section 10.01.
Section 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT, POWERS AND IMMUNITIES. Each
Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent hereunder and under
the Notes with such powers as are specifically delegated to
the Administrative Agent by the terms hereof and thereof,
together with such other powers as are reasonably incidental
thereto. The Administrative Agent (which term as used in
this Section 11 shall include reference to its affiliates
and its and its affiliates' officers, directors, employees
and agents): (a) shall have no duties or responsibilities
except those expressly set forth in this Agreement and the
Notes, and shall not by reason of this Agreement or any Note
be a trustee for any Lender; (b) shall not be responsible to
the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or the Notes, or in
any certificate or other document referred to or provided
for in, or received by any of them under, this Agreement or
any the Notes, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement
or any Note or any other document referred to or provided
for herein or therein or for any failure by the Company or
any of its Subsidiaries or any other Person to perform any
of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection
proceedings hereunder or under any Note except to the extent
requested by the Majority Lenders, and (d) shall not be
responsible for any action taken or omitted to be taken by
it hereunder or under any Note or any other document or
instrument referred to or provided for herein or therein or
in connection herewith or therewith, except for its own
gross negligence or willful misconduct. The Administrative
Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable
care.
11.02 RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including any
thereof by telephone, telex, telegram or cable) believed by
46
52
it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative
Agent. As to any matters not expressly provided for by this
Agreement or the Notes, the Administrative Agent shall in
all cases be fully protected in acting, or in refraining
from acting, hereunder and thereunder in accordance with
instructions signed by the Majority Lenders and such
instructions of the Majority Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of
the Lenders.
11.03 DEFAULTS. The Administrative Agent shall
not be deemed to have knowledge of the occurrence of a
Default (other than the non-payment of principal of or
interest on Loans or commitment fees) unless the
Administrative Agent has received notice from a Lender or
the Company specifying such Default and stating that such
notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders (and shall give each
Lender prompt notice of each such non-payment). The
Administrative Agent shall (subject to Section 11.07 hereof)
take such action with respect to such Default as shall be
directed by the Majority Lenders, provided that, unless and
until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem
advisable in the best interests of the Lenders.
11.04 RIGHTS AS A LENDER. With respect to its
Commitment and the Loans made by it, Chase in its capacity
as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent, and
the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may (without
having to account therefor to any Lender) accept deposits
from, lend money to and generally engage in any kind of
banking, trust or other business with the Company (and any
of its Affiliates) as if it were not acting as the
Administrative Agent and the Administrative Agent may accept
fees and other consideration from the Company (in addition
to the agency fees and arrangement fees heretofore agreed to
between the Company, the Administrative Agent) for services
in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
47
53
11.05 INDEMNIFICATION. The Lenders agree to
indemnify the Administrative Agent (to the extent not
reimbursed under Section 12.03 or 12.04 hereof, but without
limiting the obligations of the Company under said Sections
12.03 and 12.04), ratably in accordance with their
respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any other
Basic Document or any other documents contemplated by or
referred to herein or therein or the transactions
contemplated hereby or thereby (including, without
limitation, the costs and expenses which the Company is
obligated to pay under Sections 12.03 and 12.04 hereof but
excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any
such other documents, PROVIDED that no Lender shall be
liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party
to be indemnified.
11.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND
OTHER LENDERS. Each Lender agrees that it has,
independently and without reliance on the Administrative
Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own
credit analysis of the Company and decision to enter into
this Agreement and that it will, independently and without
reliance upon the Administrative Agent or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis
and decisions in taking or not taking action under this
Agreement or its Note or Notes. The Administrative Agent
shall not be required to keep itself informed as to the
performance or observance by the Company or any other Person
of this Agreement or any of the other Basic Documents or any
other document referred to or provided for herein or therein
or to inspect the properties or books of the Company or any
other Person. Except for notices, reports and other
documents and information expressly required to be furnished
to the Lenders by the Administrative Agent hereunder or
under the Notes, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit
or other information concerning the affairs, financial
condition or business of the Company or any other Person (or
any of their affiliates) which may come into the possession
of the Administrative Agent.
48
54
11.07 FAILURE TO ACT. Except for action
expressly required of the Administrative Agent hereunder and
under any Note, the Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to
its satisfaction by the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all
liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
11.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE
AGENT. Subject to the appointment and acceptance of a
successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company and the
Administrative Agent may be removed at any time with or
without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the
right to appoint a successor Administrative Agent reasonably
acceptable to the Company. If no successor Administrative
Agent shall have been so appointed by the Majority Lenders
and shall have accepted such appointment within 30 days
after the retiring Administrative Agent's giving of notice
of resignation or the Majority Lenders' removal of the
retiring Administrative Agent (the "NOTICE DATE"), then the
retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent reasonably
acceptable to the Company. Any successor Administrative
Agent shall be (i) a Lender or (ii) if no Lender has
accepted such appointment within 40 days after the Notice
Date, a bank which has an office in New York, New York with
a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was
acting as the Administrative Agent.
11.09 CO-AGENTS. Neither National City Bank nor
The First National Bank of Chicago shall have any
responsibility, obligation or liability under this Agreement
in its capacity as a Co-Agent.
49
55
Section 12. MISCELLANEOUS.
12.01 WAIVER. No failure on the part of the
Administrative Agent or any Lender to exercise and no delay
in exercising, and no course of dealing with respect to, any
right, power or privilege under this Agreement or the Notes
shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege thereunder
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The
remedies provided in this Agreement and the Notes are
cumulative and not exclusive of any remedies provided by
law.
12.02 NOTICES. All notices and other
communications provided for herein (including, without
limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex,
telegraph, telecopy, cable or other writing and telexed,
telecopied, telegraphed, cabled, mailed or delivered to the
intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such
party in a notice to the Company and the Administrative
Agent given in accordance with this Section 12.02. Except
as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when
transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
12.03 EXPENSES, ETC. If an Event of Default
occurs, the Company agrees to pay or reimburse each of the
Lenders and the Administrative Agent for paying all costs
and expenses of each of the Lenders and the Administrative
Agent (including counsels' fees) incurred as a result of
such Event of Default and collection, enforcement,
bankruptcy, insolvency and other proceedings resulting
therefrom.
12.04 INDEMNIFICATION. The Company shall
indemnify the Administrative Agent, the Lenders and each
affiliate thereof and their respective directors, officers,
employees, attorneys and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims or
damages to which any of them may become subject, insofar as
such losses, liabilities, claims or damages arise out of or
result from (i) any actual or proposed use by the Company of
the proceeds of any extension of credit by any Lender
hereunder or breach by the Company of this Agreement or any
other Basic Document, (ii) any Environmental Liabilities or
(iii) any investigation, litigation or other proceeding
50
56
(including any threatened investigation or proceeding)
relating to the foregoing, whether or not the indemnified
Person is a party thereto, and the Company shall reimburse
the Administrative Agent and each Lender, and each affiliate
thereof and their respective directors, officers, employees
and agents, upon demand for any expenses (including legal
fees and fees of engineers, environmental consultants and
similar technical personnel) incurred in connection with any
such investigation or proceeding; but excluding any such
losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the
Person to be indemnified.
12.05 AMENDMENTS, ETC. No amendment or waiver of
any provision of this Agreement or the Notes, nor any
consent to any departure by the Company therefrom, shall in
any event be effective unless the same shall be agreed or
consented to by the Majority Lenders and the Company, and
each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which
given; PROVIDED, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of
the following: (i) increase any Commitment of any of the
Lenders or subject the Lenders to any additional
obligations; (ii) reduce the principal of, or interest on,
any Loan, or any fees hereunder; (iii) postpone any date
fixed for any payment of principal of, or interest on, any
Loan, or any fee hereunder pursuant to Sections 2.03, 4.01
or 4.02 hereof; (iv) change the percentage of any of the
Commitments or of the aggregate unpaid principal amount of
any of the Loans, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action
under this Agreement; or (v) change any provision contained
in Sections 2.07, 6, 12.03 or 12.04 hereof or this Section
12.05 or Section 12.08 hereof. Notwithstanding anything in
this Section 12.05 to the contrary, no amendment, waiver or
consent shall be made with respect to Section 11 without the
consent of the Administrative Agent.
12.06 SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns
except that the Company may not assign its rights or
obligations hereunder or under the Notes without the prior
written consent of all of the Lenders. Each Lender may
assign any Loan or Loans or all or any part of its
Commitment (i) to any affiliate thereof, (ii) to any other
Lender, or (iii) with the consent of the Company and the
Administrative Agent, which consents shall not be
unreasonably withheld, to any other bank or financial
institution or fund; PROVIDED that (x) any assignment shall
not be less than $10,000,000 or, if less, shall constitute
an assignment of all of such Lender's Commitment and Loans
51
57
and (y) the Company shall be deemed to be reasonable in
withholding consent if the assignee is not exempt from
United States withholding taxes. Upon execution by the
assignor and the assignee of an instrument pursuant to which
the assignee assumes such rights and obligations, payment by
such assignee to such assignor of an amount equal to the
purchase price agreed between such assignor and such
assignee and delivery to the Administrative Agent and the
Company of an executed copy of such instrument together with
payment by such assignee to the Administrative Agent of a
processing fee of $2,500, such assignee shall have, to the
extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would have if
it were a Lender hereunder and the assignor shall be, to the
extent of such assignment (unless otherwise provided
therein) released from its obligations under this Agreement.
Upon the consummation of such assignment, the Company shall
make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If such
assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the
effectiveness of the applicable instrument of assumption,
deliver to the Company and the Administrative Agent
certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with
Section 5.08(f). Each Lender may (without the consent of any
other party to this Agreement) sell participations in all or
any part of any Loan or Loans made by it to another bank or
other entity, in which event the participant shall not have
any rights under this Agreement (except as provided in the
next succeeding sentence hereof), or in the case of a Loan,
such Lender's Note (the participant's rights against such
Lender in respect of such participation to be those set
forth in the agreement executed by such Lender in favor of
the participant relating thereto, which agreement shall not
give the participant the right to consent to any
modification, amendment or waiver other than one described
in clause (i), (ii) or (iii) of Section 12.05 hereof). The
Company agrees that each participant shall be entitled to
the benefits of Sections 5.07 and 6 with respect to its
participation; PROVIDED that no participant shall be
entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled
to receive in respect of the amount of the participation
transferred by such transferor Lender to such participant
had no such transfer occurred. Each Lender may furnish any
information concerning the Company and its Subsidiaries in
the possession of such Lender from time to time to assignees
and participants (including prospective assignees and
participants) which have agreed in writing to be bound by
the provisions of Section 12.07 hereof. The Administrative
Agent and the Company may, for all purposes of this
Agreement, treat any Lender as the holder of any Note drawn
52
58
to its order (and owner of the Loans evidenced thereby)
until written notice of assignment or other transfer shall
have been received by them from such Lender.
Notwithstanding anything to the contrary, any Lender may at
any time assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its
obligations hereunder.
12.07 CONFIDENTIALITY. Each Lender agrees to
exercise all reasonable efforts to keep confidential any
information delivered or made available by the Company to it
prior to the end of the term of this Agreement which is
clearly indicated to be confidential information; PROVIDED
that nothing herein shall prevent any Lender from disclosing
such information (i) to any other Lender, (ii) to its
officers, directors, employees, affiliates, agents,
attorneys and accountants who have a need to know such
information in accordance with customary banking practices
and who receive such information having been made aware of
the restrictions set forth in this Section, (iii) upon the
order of any court or administrative agency, (iv) upon the
request or demand of any regulatory agency or authority
having jurisdiction over such Lender, (v) which has been
publicly disclosed, (vi) to the extent reasonably required
in connection with any litigation to which the
Administrative Agent, any Lender, the Company or their
respective affiliates may be a party, (vii) to the extent
reasonably required in connection with the exercise of any
remedy hereunder, (viii) to such Lender's legal counsel and
independent auditors, and (ix) to any actual or proposed
participant or assignee of all or part of its rights
hereunder which has agreed in writing to be bound by the
provisions of this Section 12.07.
12.08 SURVIVAL. The obligations of the Company
under Sections 5.08, 6.01, 6.05, 12.03 and 12.04 hereof and
the obligations of the Lenders under Sections 11.05 and
12.07 shall survive the repayment of the Loans and the
termination of the Commitments.
12.09 CAPTIONS. The table of contents and the
captions and section headings appearing herein are included
solely for convenience of reference and are not intended to
affect the interpretation of any provision of this
Agreement.
12.10 COUNTERPARTS; INTEGRATION. This Agreement
may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument,
and any of the parties hereto may execute this Agreement by
signing any such counterpart. This Agreement constitutes
the entire agreement and understanding among the parties
53
59
hereto and supersedes any and all prior agreements and
understandings, oral and written, relating to the subject
matter hereof (except to the extent specific reference is
made to any such agreement in Section 2.03 hereof).
12.11 GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. THE COMPANY HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW
YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
54
60
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the
day and year first above written.
RPM, INC.
By /S/ Frank C. Sullivan
----------------------------
Title: Vice President -
Chief Financial Officer
Address for Notices:
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
Attention: Frank C. Sullivan,
Vice President -
Chief Financial Officer
Telephone Number: 216-273-5090 or
216-273-8808
Telecopy Number: 216-225-8743
55
61
Commitment: THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
$50,000,000
By /S/ Lawrence Shields
---------------------------
Title: Managing Director
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Lawrence Shields
Telecopy Number: (212) 552-7175
Lending Offices for
all Loans:
The Chase Manhattan Bank
(National Association)
4 Metrotech Center
Brooklyn, New York 11245
Attention: New York Agency
Telex Number: 6720516 CMB NYA UW
62910 CMB UW
Telecopy Number: (718) 242-6411
56
62
Commitment: NATIONAL CITY BANK
$45,000,000
By /S/ Thomas R. Poe
--------------------------
Title: Vice President
Address for Notices:
National City Bank
P.O. Box 5756
Cleveland, Ohio 44101
LOC #2104
Attention: Thomas R. Poe
Telecopy Number: (216) 575-9396
Lending Offices for
all Loans:
National City Bank
P.O. Box 5756
Cleveland, Ohio 44101
LOC #2104
Attention: Connie Djukic
57
63
Commitment: THE FIRST NATIONAL BANK OF CHICAGO
$45,000,000
By /S/ Marguerite Canestraro
----------------------------------
Title: Vice President
Address for Notices:
The First National Bank of Chicago
1301 East Ninth Street, Suite 2150
Cleveland, Ohio 44114-1824
Attention: Marguerite Canestraro
Telecopy Number: (216) 574-9278
Lending Office for
all Loans:
The First National Bank of Chicago
One First National Plaza
Suite 0634
Chicago, Illinois 60670
Attention: Ernest Misiora
Telecopy Number: (312) 732-4840
58
64
Commitment: CREDIT LYONNAIS CHICAGO BRANCH
$35,000,000
By /S/
------------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By /S/
------------------------------
Title: Authorized Signature
Address for Notices:
Credit Lyonnais Chicago Branch
227 W. Monroe Street - Suite 3800
Chicago, Illinois 60606
Attention: Brian Jackson/
Mary Ann Klemm
Telecopy Number: (312) 641-0527
Lending Office for all Loans
other than Eurodollar Loans:
Credit Lyonnais Chicago Branch
227 W. Monroe Street - Suite 3800
Chicago, Illinois 60606
Attention: Rosette Liptak
Telecopy Number: (312) 641-5834
Lending Office for
all Loans:
Credit Lyonnais Cayman
Island Branch
c/o Credit Lyonnais Chicago Branch
227 W. Monroe Street - Suite 3800
Chicago, Illinois 60606
Attention: Rosette Liptak
Telecopy Number: (312) 641-5834
59
65
Commitment: HARRIS TRUST AND SAVINGS BANK
$25,000,000
By /S/ Lori L. Reilly
---------------------------------
Title: Vice President
Address for Notices:
Harris Trust and Savings Bank
111 West Monroe Street
P.O. Box 755
Chicago, Illinois 60690-0755
Attention: Lori Reilly
Telecopy Number: (312) 461-2591
Lending Office for
all Loans:
Harris Trust and Savings Bank
111 West Monroe Street
P.O. Box 755
Chicago, Illinois 60690-0755
Attention: Arlett Hall
Telecopy Number: (312) 461-2591
60
66
Commitment: PNC BANK NATIONAL ASSOCIATION
$25,000,000
By /S/ Julianne S. McKinzie
------------------------------
Title: Vice President
Address for Notices:
PNC Bank, National Association
1375 E. 9th Street, #1250
Cleveland, Ohio 44114
Attention: Julianne S. McKinzie
Telecopy Number: (216) 348-8594
Lending Office for
all Loans:
PNC Bank, National Association
1375 E. 9th Street, #1250
Cleveland, Ohio 44114
Attention: Ludmila Timko
Telecopy Number: (216) 348-8594
61
67
Commitment: SOCIETY NATIONAL BANK
$25,000,000
By /S/
-------------------------------
Title: Jr. Vice President
Address for Notices:
Society National Bank
127 Public Square
Cleveland, Ohio 44113
Attention: Helen France
Telecopy Number: (216) 689-4981
Lending Office for
all Loans:
Society National Bank
127 Public Square
Cleveland, Ohio 44113
Attention: Helen France
Telecopy Number: (216) 689-4981
62
68
Commitment: THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
$25,000,000
By /S/ Jay H. Nilson
----------------------------
Title: Vice President
Address for Notices:
The Boatmen's National Bank
of St. Louis
800 Market Street
P.O. Box 236
St. Louis, Missouri 63166-0236
Attention: Jay H. Nilson
Telecopy Number: (314) 466-6499
Lending Office for
all Loans:
The Boatmen's National Bank
of St. Louis
800 Market Street
P.O. Box 236
St. Louis, Missouri 63166-0236
Attention: Wanda Bailey
Telecopy Number: (314) 466-6499
63
69
Commitment: WACHOVIA BANK OF GEORGIA, N.A.
$ 25,000,000
By /S/ Terry L. Akins
-------------------------------
Title: Senior Vice President
Address for Notices:
Wachovia Bank of Georgia, N.A
191 Peachtree Street, 28th Floor
Atlanta, Georgia 30303
Attention: Katherine Glista
Telecopy Number: (404) 332-6898
Lending Office for
all Loans:
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, 28th Floor
Atlanta, Georgia 30303
Attention: Heidi McLaughlin
Telecopy Number: (404) 332-1118
64
70
TOTAL COMMITMENTS
$ 300,000,000
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Administrative Agent
By: /S/ Lawrence Shields
-----------------------------
Title: Managing Director
Address for Notices:
The Chase Manhattan Bank
(National Association)
4 Metrotech Center, 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Telex Number: 6720516 CMB NYA UW
62910 CMB UW
Telecopy Number: (718) 242-6411
Copy to:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Lawrence Shields
Telecopy Number: (212) 552-7175
65