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EXHIBIT 99.2
364-DAY REVOLVING CREDIT AGREEMENT
This Agreement is made and entered into this 3rd day of January, 1997
by and among The Sherwin-Williams Company ("Company") whose principal place of
business is located at 101 Prospect Avenue, N.W., Cleveland, Ohio 44115, Texas
Commerce Bank National Association ("TCB"), as Administrative Agent, The Chase
Manhattan Bank ("Chase"), as the Competitive Advance Facility Agent, and the
financial institutions listed on Schedule A hereto together with each of their
successors and assigns (collectively referred to as the "Lenders" and
individually a "Lender").
W I T N E S S E T H:
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WHEREAS, the Lenders have agreed, on the terms and subject to the
conditions contained herein, to make available to the Company the principal
amount of Two Hundred Ninety Million Dollars ($290,000,000) to be used by the
Company for general corporate purposes including, but not limited to, the
acquisition of a portion of the business, assets or stock of Thompson Minwax
Holding Corp. (the "Acquisition"), commercial paper backup, general working
capital, other acquisitions of assets, stock or other ownership interests and
repurchases or redemptions of securities.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ACQUISITION TRANSACTION" shall mean the acquisition of at least ninety percent
(90%) of the issued and outstanding shares of capital stock of Thompson
Minwax Holding Corp.
"ADMINISTRATIVE AGENT" shall mean Texas Commerce Bank National Association or
any successor Lender appointed by the Company and approved by the
holders of fifty-one percent (51%) by amount of the Commitments.
"ALTERNATE BASE RATE" shall mean the higher of: (i) the rate of interest in
effect for any given day as publicly announced from time to time by the
Administrative Agent as its "prime rate" and (ii) the Federal Funds
Rate plus 50 basis points. Any change by the Administrative Agent of
its "prime rate" shall take effect at the opening of business on the
day specified in the public announcement of such change.
"ALTERNATE BASE RATE LOAN" shall mean a Loans bearing interest at the Alternate
Base Rate.
"BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which New
York banks are open for the transaction of business.
"COMMITMENT" shall mean the obligation of each Lender to make Loans, under
Section 2.1A up to the amount set opposite the name of such Lender as
set forth on such Lender's signature page hereto (or such lesser amount
as shall be determined pursuant to Section 2.5 hereof).
"COMMITMENT PERIOD" shall mean the period which commences on the Effective Date
and terminates on the Termination Date.
"COMPETITIVE ADVANCE FACILITY AGENT" shall mean The Chase Manhattan Bank.
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"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive Loan in
accordance with Section 2.1C.
"COMPETITIVE BID RATE" shall mean, with respect to any Competitive Bid, the
Competitive Libor Rate or the Fixed Rate, as applicable, offered by the
Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request by the Company for Competitive
Bids in accordance with Section 2.1C.
"COMPETITIVE BORROWING" shall mean a borrowing by the Company in response to a
Competitive Bid Request.
"COMPETITIVE LIBOR INTEREST PERIOD" shall mean a period of one, two, three, six
or, if available to all of the Lenders, twelve months (as selected by
the Company) commencing on the applicable borrowing date of each
Competitive Libor Loan hereunder; provided, however, that no
Competitive Libor Interest Period shall end after the Termination Date.
"COMPETITIVE LIBOR LOAN" shall mean a Competitive Loan bearing interest at a
rate based on LIBOR.
"COMPETITIVE LIBOR RATE" shall mean, with respect to a Competitive LIBOR Loan,
LIBOR plus the applicable margin specified by the Lender making such
Competitive Loan in its Competitive Bid.
"COMPETITIVE LOAN" shall mean a Loan made pursuant to Section 2.1C.
"COMPETITIVE NOTE" shall mean a Note or Notes executed and delivered pursuant to
Section 2.1C.
"CONSOLIDATED NET WORTH" shall mean the excess of the net book value of the
assets of the Company and its Consolidated Subsidiaries over all of
their liabilities (other than Subordinated Indebtedness), as determined
on a consolidated basis in accordance with generally accepted
accounting principles as applied by the Company in the calculation of
such amount in the Company's then most recent financial statements
furnished to its stockholders, plus the aggregate value of all treasury
stock purchased after the Effective Date (at cost) by the Company (to
the extent that the aggregate value of such treasury stock for purposes
of this calculation does not exceed Two Hundred Fifty Million Dollars
($250,000,000)). The calculation of Consolidated Net Worth shall
exclude any amounts which would otherwise be required to be included
therein as a result of the future adoption by the Financial Accounting
Standards Board of any policy, statement, rule or regulation requiring
the Company to record an accumulative liability on its Financial
Report(s).
"CONSOLIDATED SUBSIDIARY" shall mean, at any particular time, every Subsidiary
which is consolidated in the Company's financial statements contained
in its then most recent Financial Report.
"DEBT" shall mean, collectively, all indebtedness at any one time outstanding
hereunder and owed by the Company to the Lenders pursuant to this
Agreement and includes the principal of and interest on all Notes and
each conversion, extension, renewal or refinancing thereof in whole or
in part, the Facility Fees and any prepayment premium due under Section
2.1A(x).
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"DOLLARS" or "$" shall mean any lawful currency of the United States of America.
"EFFECTIVE DATE" shall mean January 3, 1997.
"EUROCURRENCY" shall mean any freely transferrable and convertible currency on
deposit outside the country of issuance.
"EVENT OF DEFAULT" shall mean any of the events referred to in Article VII
hereof.
"FACILITY FEE" shall mean the sum to be paid by the Company to the
Administrative Agent on behalf of each Lender on the last Banking Day
of each calendar quarter prior to the termination of the Commitments
and the repayment of the outstanding Loans, calculated, for each day,
as the product of each Lender's Commitment (or, after the termination
of such Commitments, each Lender's outstanding Loans), on such day, and
during the Commitment Period, and upon the termination of the
Commitments, calculated, for each day, as the product of each Lender's
Commitment, on such day and five (5) basis points.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Banking
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Banking Day, the rate for such day shall be the arithmetic mean, as
determined by the Administrative Agent, of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York time) on such day by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent.
"FINANCIAL REPORT" shall mean the annual or periodic report prepared in
accordance with generally accepted accounting principles, except as
otherwise indicated therein, filed by the Company with the Securities
and Exchange Commission (or any governmental body or agency succeeding
to the functions of such Commission) on Form 10-K or 10-Q pursuant to
the Securities Exchange Act of 1934 ("Exchange Act"), as then in effect
(or any comparable forms under similar Federal statutes then in force),
and the most recent financial statements furnished by the Company to
its stockholders (which annual financial statements shall be certified
by the Company's independent certified public accountants).
"FIXED RATE LOANS" shall mean a Competitive Loan bearing interest at a Fixed
Rate.
"FIXED RATE" shall mean, with respect to any Competitive Loan (other than a
Competitive Libor Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive
Bid.
"INTEREST ADJUSTMENT DATE" shall mean the last day of each LIBOR Interest
Period.
"LIBOR" shall mean the average (rounded upward to the nearest 1/16 of 1%) of
the per annum rates at which deposits in immediately available funds in
Dollars for the number of months in the relevant LIBOR Interest Period
and in the amount of the LIBOR Loan or Competitive Libor Loan to be
disbursed or to remain outstanding during such LIBOR Interest Period,
as the case may be, are offered to the Administrative Agent or the
Competitive Advance Facility Agent, as the case may be, by the
Reference Lenders in the London Interbank Eurodollar market, determined
as of 11:00 a.m. London time, two (2)
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London Banking Days prior to the beginning of the relevant LIBOR
Interest Period pertaining to a LIBOR Loan or Competitive Libor Loan
hereunder, as appropriately adjusted by dividing such average rate by
1.00 minus the applicable Reserve Percentage then in effect.
"LIBOR INTEREST PERIOD" shall mean a period of one, two, three, six or, if
available to the Lenders, twelve months (as selected by the Company)
commencing on the applicable borrowing date of each LIBOR Loan or
Competitive Libor Loan hereunder; provided, however, that if any such
period would be affected by a reduction in Commitments as provided in
Section 2.5, prepayment as provided in Section 3.5 or maturity of a
LIBOR Loan or Competitive Libor Loan as provided in Sections 2.1A or
2.1C, such period shall end on such date; and provided further that no
such LIBOR Interest Period shall end after the Termination Date.
"LIBOR LOAN" shall mean a Loan bearing interest at a rate based on LIBOR.
"LOAN" shall mean the indebtedness of the Company with respect to each advance
of funds by a Lender hereunder.
"LONDON BANKING DAY" shall mean a day, other than a Saturday or Sunday, on
which banks are open for business in London, England and New York, New
York quoting deposit rates for Dollar deposits.
"MAJORITY LENDERS" shall mean Lenders with an aggregate of sixty-six and
two-thirds percent (66 2/3%) or more of the Commitments (or, if the
Commitments have been terminated, outstanding Loans) on the relevant
date.
"MARGIN" shall mean seventeen and one-half (17 1/2) basis points.
"MATERIAL" shall mean the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) or more of
Consolidated Net Worth.
"MONEY MARKET NOTE" shall mean a Note or Notes executed and delivered pursuant
to Section 2.1B.
"MONEY MARKET RATE" shall mean, with respect to any period of days selected by
the Company commencing on the applicable borrowing date for a Money
Market Rate Loan, the rate of interest per annum quoted by any Lender
to the Company for such Money Market Rate Loan.
"MONEY MARKET RATE LOAN" shall mean a Loan with an interest rate equal to the
Money Market Rate and as otherwise defined in Section 2.1B.
"NOTE" or "NOTES" shall mean a note or notes executed and delivered pursuant
to Sections 2.1A, 2.1B or 2.1C.
"NOTICE" shall mean a notice given pursuant to Section 10.5.
"OTHER FEES" shall mean the annual administration fee to be paid by the
Company to TCB and the auction administration fee to be paid by the
Company to Chase pursuant to the Fee Letter ("Fee Letter") dated
November 12, 1996 by and among the Company, TCB, Chase
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and Chase Securities, Inc.
"OUTSTANDING MAJORITY LENDERS" shall mean Lenders with an aggregate of sixty-six
and two-thirds percent (66 2/3%) or more of the principal amount of
Loans on the relevant date.
"PERCENTAGE" shall mean, as to any Lender (as set forth on such Lender's
signature page hereof), the percentage of such Lender's share of the
total Commitments of all Lenders; provided that if the Commitments are
terminated or reduced pursuant to this Agreement, then "Percentage"
shall mean the percentage of such Lender's share of the total
Commitments of all Lenders immediately prior to the termination or
after the reduction of Commitments (giving effect to any subsequent
assignments pursuant to Section 10.9).
"PLAN" shall mean any employee pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA"), sponsored and maintained by the
Company, any Consolidated Subsidiary, or any member of a controlled
group of corporations, as the term "controlled group of corporations"
is defined in Section 1563 of the Internal Revenue Code of 1986, as
amended, of which the Company or any Consolidated Subsidiary is a part,
for employees thereof.
"POSSIBLE DEFAULT" shall mean an event, condition or thing known to the Company
which constitutes, or which with the lapse of any applicable grace
period or the giving of notice or both would constitute, any Event of
Default and which has not been appropriately waived by the Lenders in
writing or fully corrected prior to becoming an Event of Default.
"REFERENCE LENDER" shall mean Chase or any successor Lender appointed by the
Company, and satisfactory to the holders of fifty-one percent (51%) by
amount of the Commitments or Loans, as the case may be, at any time,
upon thirty (30) days prior written notice to the Lenders, to act as
the Reference Lender pursuant to the terms of this Agreement.
"REGULATORY CHANGE" shall mean, as to any Lender, any change in United States
federal, state or foreign laws or regulations or the adoption or making
of any interpretations, directives, guidelines or requests of or under
any United States federal, state or foreign laws, treaties or
regulations, in each case, enacted after the Effective Date (whether or
not having the force of law) by any court or governmental authority
charged with the interpretation or administration thereof.
"RELATED WRITING" shall mean any assignment, mortgage, security agreement,
subordination agreement, financial statement, audit report or other
writing furnished by the Company or any of its officers to the Lenders
pursuant to or otherwise in connection with this Agreement.
"REPORTABLE EVENT" shall mean a reportable event as that term is defined in
Title IV of ERISA except actions of general applicability by the
Secretary of Labor under Section 110 of ERISA.
"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 reserve requirement (including, but not limited to, any
margin reserve requirement and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) which
is imposed on (a)
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commercial time deposits having an original maturity of one (1) year or
less and which is applicable to the class of banks of which the
Administrative Agent is a member; or (b) a Lender with respect to
liabilities or assets consisting of or including Eurocurrency funds or
deposits, as the case may be.
"REVOLVING CREDIT LOAN" shall mean a Loan evidenced by a Revolving Credit Note.
"REVOLVING CREDIT NOTE" shall mean a Note evidencing a Loan described in Section
2.1A.
"SUBORDINATED INDEBTEDNESS" shall mean an indebtedness which has been
subordinated (by written terms or agreement being in form and substance
reasonably satisfactory to the holders of fifty-one percent (51%) by
amount of the Commitments) in favor of the prior payment in full of the
Company's Debt to the Lenders.
"SUBSIDIARY" shall mean an existing or future corporation(s), the majority of
the outstanding capital stock or voting power, or both, of which is (or
upon the exercise of all outstanding warrants, options and other rights
would be) owned at the time in question by the Company or by another
such corporation(s) or by any combination of the Company and such
corporation(s).
"TERMINATION DATE" shall mean 12:01 a.m. New York time on such date which is
three hundred sixty-four (364) days from the Effective Date; provided,
however, the Company may within ninety (90) days prior to the
Termination Date, by notice to the Administrative Agent, make written
requests to the Lenders to extend the scheduled Termination Date for an
additional period of three hundred sixty-four (364) days. The
Administrative Agent shall give prompt written notice to each Lender of
the receipt of such request. Each Lender shall make a determination not
more than sixty (60) nor less than fifty-five (55) days prior to the
Termination Date whether it will extend the Termination Date as
requested; provided, however, the failure by any Lender to make a
timely response to the Company's request for an extension shall be
deemed to constitute a refusal by such Lender to extend the Termination
Date. If, in response to a request for an extension of the Termination
Date one or more Lenders fail to agree to the requested extension
("Disapproving Lenders"), then the Company may elect to either (a)
continue this Agreement at the same level of Commitments by replacing
each of the Disapproving Lenders in accordance with Section 2.5, or (b)
provided the requested extension is approved by at least fifty-one
percent (51%) of the Lenders with Commitments hereunder (including for
purposes hereof any replacement Lender(s) which may replace a
Disapproving Lender ("Approving Lenders")), extend and continue this
Agreement at a lower aggregate amount equal to the Commitments held by
the Approving Lenders. In any such case, (i) the Termination Date
relating to the Commitments held by the Disapproving Lenders shall
remain as then in effect with repayment of any Notes held by such
Disapproving Lenders being due on their due date and the termination of
their respective Commitments on the Termination Date, and (ii) the
Termination Date relating to the Commitments held by the Approving
Lenders shall be extended by an additional period of three hundred
sixty-four (364) days.
"TRANSACTIONS" shall mean the execution, delivery and performance by the Company
of this Agreement, the borrowings contemplated hereunder and the
Acquisition Transaction.
"VOTING STOCK" shall mean stock of a corporation of a class or classes having
general voting power under ordinary circumstances to elect a majority
of the board of directors, managers
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or trustees of such corporation (irrespective of whether or not the
stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" shall mean each Consolidated Subsidiary
all of whose outstanding stock, other than directors' qualifying
shares, shall at the time be owned by the Company and/or by one or more
Wholly-Owned Consolidated Subsidiaries.
"FIVE YEAR FACILITY" shall mean the Five Year Revolving Credit Agreement of
even date herewith by and among the Company as borrower, TCB as
Administrative Agent, Chase as the Competitive Advance Facility Agent
and certain or all of the Lenders.
Any accounting term not specifically defined in this Article shall have
the meaning ascribed thereto by generally accepted accounting principles in
effect as of the date of the Company's then most recent Financial Reports unless
otherwise indicated.
The foregoing definitions shall be applicable to the singular and
plural of such defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
SECTION 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms and conditions of
this Agreement each Lender will participate to the extent hereinafter
provided in making Loans to the Company in such aggregate amounts as the
Company shall request; provided, however, that in no event shall the
aggregate principal amount of all Loans outstanding under this Agreement
during the Commitment Period be in excess of the Commitments which, on the
date hereof, total Two Hundred Ninety Million Dollars ($290,000,000), and
provided further that the principal amount of such Loans, together with the
principal amount of Loans under the Five Year Facility, shall not exceed
Eight Hundred Thirty Million Dollars ($830,000,000) for any Loans made in
relation to the Acquisition Transaction.
A. REVOLVING CREDIT LOANS
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(i) BORROWING RIGHTS AND RESTRICTIONS: Subject to the terms and
conditions of this Agreement, during the Commitment Period
each Lender will make a Loan or Loans to the Company, pursuant
to this Section 2.1A, in such amount or amounts as the Company
may request from time to time but not exceeding in aggregate
principal amount, at any one time outstanding hereunder, the
Commitment of such Lender. Subject to the provisions of this
Agreement, the Company shall be entitled under this Paragraph
A to borrow funds, repay the same in whole or in part, and
reborrow hereunder at any time and from time to time during
the Commitment Period. Each Loan made under this Paragraph A
shall be made pro-rata according to the Lenders' respective
Commitments.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1A up to the total of all the Commitments by
means of any combination of:
(a) Alternate Base Rate Loans which shall be payable on
their respective due dates and shall be drawn down in
aggregate amounts of not less than Five Million
Dollars ($5,000,000) or any greater amount evenly
divisible by
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One Million Dollars ($1,000,000); and
(b) LIBOR Loans, which shall be payable on the last day
of the relevant LIBOR Interest Period and shall be
drawn down in aggregate amounts of not less than Five
Million Dollars ($5,000,000) or any greater amount
evenly divisible by One Million Dollars ($1,000,000).
(iii) PROCEDURE FOR BORROWING: The procedure for borrowing under
this Section 2.1A shall be as follows:
(a) Each such borrowing shall be made upon the Company's
written notice ("Notice") to the Administrative Agent
(which Notice must be received by the Administrative
Agent prior to 11:00 a.m. New York time three (3)
London Banking Days prior to the requested borrowing
date in the event of a LIBOR Loan and by 11:00 a.m.
New York time on the same Banking Day of the proposed
date of such borrowing in the event of an Alternate
Base Rate Loan). The Notice shall specify:
(1) the amount of such borrowing;
(2) the requested borrowing date which shall be
a Banking Day or a London Banking Day, as
the case may be;
(3) the type of Loan(s) comprising such
borrowing; and
(4) the duration of the LIBOR Interest Period
for any LIBOR Loan(s) and the maturity date
of any Alternate Base Rate Loan(s) (which in
either case shall not be later than the
Termination Date).
(b) The Administrative Agent shall promptly notify each
Lender of (i) its receipt of a Notice of borrowing,
(ii) the amount of each Lender's pro-rata share of
such borrowing; and (iii) the name of the Company's
bank, the Company's account number and American
Banking Association routing number of the bank at
which the Company's account is maintained and to
which such pro-rata shares shall be routed.
(c) Each Lender's pro-rata share of each Revolving Credit
Loan shall be delivered by each such Lender to the
Company not later than 3:00 p.m. New York time on the
requested borrowing date, time being of the essence,
in immediately available Dollars by wire transfer to
an account of the Company designated by the Company,
from time to time in writing to the Administrative
Agent, with the account number and American Banking
Association routing number of the bank at which such
account is maintained.
(iv) INTEREST RATES: The Company shall pay interest on Revolving
Credit Loans:
(a) at the Alternate Base Rate on the unpaid principal
amount of Alternate Base Rate Loans outstanding from
time to time from the date of receipt of funds by the
Company until paid, payable on the last Banking Day
of each calendar quarter and on the maturity date,
computed on the basis of a 365
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or 366 day year as the case may be; and
(b) at LIBOR plus the applicable Margin (converted to
percentage points) on the unpaid principal amount of
LIBOR Loans outstanding from time to time from the
date on which funds are received by the Company until
paid (computed on the basis of a year having 360 days
calculated on the basis of the actual number of days
elapsed), payable (a) on the last day of the LIBOR
Interest Period or (b) every three (3) months in the
event any such LIBOR Interest Period exceeds three
(3) months.
(v) PAYMENTS ON REVOLVING CREDIT NOTES, ETC.: All payments of
principal and interest shall be made to the Administrative
Agent in immediately available funds for the account of the
Lenders by no later than 3:00 p.m. (New York time) on the
applicable payment date. The Administrative Agent shall
promptly distribute to each Lender its ratable share of the
principal and interest received by it for the account of such
Lender. Each Lender shall endorse each Revolving Credit Note
held by it or otherwise make appropriate book entries
evidencing each payment of principal made thereon, it being
understood, however, that any Lender's failure to record
appropriate information on the grid(s) attached to any such
Note shall in no way affect the obligation of the Company
under this Agreement or under any such Note. Whenever any
payment to be made hereunder, including without limitation,
any payment to be made on any Note, shall be stated to be due
on a day which is not a Banking Day, such payment may be made
on the next Banking Day (but in any event not later than its
maturity date) and such extension of time shall in each case
be included in the computation of the interest payable on such
Note. Notwithstanding the previous sentence, in the case of
any LIBOR Loan, if the next Banking Day is in a month other
than the month the payment was originally due, such payment
may be made on the immediately preceding Banking Day and such
reduction of time shall in each case be considered in the
computation of the interest payable on such Note.
(vi) REVOLVING CREDIT NOTES: The obligation of the Company to repay
the Alternate Base Rate Loans and the LIBOR Loans made by each
Lender and to pay interest thereon shall be evidenced by
non-negotiable Revolving Credit Notes of the Company
substantially in the form of Schedule B hereto, with
appropriate insertions, dated the date of execution thereof by
the Company and payable to the order of such Lender on the
maturity date of such Loan, in the principal amount indicated
thereon. The principal amount of the Alternate Base Rate Loans
and the LIBOR Loans made by each Lender under this Section
2.1A and all prepayments thereof and the applicable dates with
respect thereto shall be recorded by such Lender from time to
time on the grid(s) attached to such Note or by appropriate
book entry. The aggregate unpaid amount of Alternate Base Rate
Loans and LIBOR Loans set forth on the grid(s) attached to
each Revolving Credit Note shall be rebuttable presumptive
evidence of the principal amount owing and unpaid on such
Note, it being understood, however, that any Lender's failure
to so record appropriate information on the grid(s) attached
to its respective Revolving Credit Note shall in no way affect
the obligations of the Company under this Agreement or such
Note.
(vii) INTEREST ON LATE PAYMENTS: If any Revolving Credit Note shall
not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by
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operation of any provision or acceleration of maturity therein
or herein contained, the principal thereof and the accrued and
unpaid interest thereon shall bear interest, until paid, at a
rate per annum which shall be 1.1 times the Alternate Base
Rate from time to time in effect.
(viii) LOAN REFINANCINGS: If any Revolving Credit Loan is not repaid
when due, unless otherwise directed by the Company, and
provided no Event of Default exists, (and the Commitment
Period has not terminated), the Lenders shall refinance such
Loans with Alternate Base Rate Loans unless otherwise provided
in this Agreement. Such automatic Loans shall be deemed to
have repaid the principal in full of each prior Loan such that
no Event of Default would exist.
(ix) CONVERSION: At the Company's option, the Company may at any
time or from time to time, except if an Event of Default
exists, convert a LIBOR Loan or an Alternate Base Rate Loan to
any one of the other types of Loans; provided, however, in the
case of LIBOR Loans any such conversion may only be made on
the Interest Adjustment Date applicable thereto. Such
conversion shall not be deemed to be a prepayment. The
provisions of this subsection shall apply with respect to
voluntary conversions or conversions required hereunder. The
Company, through the Administrative Agent, shall give written
or telephonic notice to the Banks of each conversion by 11:00
a.m., New York time (a) on the date of such conversion if such
conversion is to Alternate Base Rate Loans, and (b) at least
two (2) London Banking Days prior to the date of such
conversion if such conversion is to LIBOR Loans. Each such
notice shall be effective upon receipt by the relevant Lender
and shall specify the date and amount of such conversion, the
type of Loans to be converted and the type of Loans to be
converted into. Each conversion shall be in an aggregate
amount of not less than Five Million Dollars ($5,000,000) or
any greater amount evenly divisible by One Million Dollars
($1,000,000).
(x) PREPAYMENT.
(a) As to Alternate Base Rate Loans, the Company shall
have the right at any time or from time to time, upon
one (1) Banking Days' prior written notice to the
Administrative Agent, without the payment of any
premium or penalty to prepay on a pro-rata basis, all
or any part of the principal amount of the Revolving
Credit Notes then outstanding as designated by the
Company plus interest accrued on the amount so
prepaid to the date of such prepayment.
(b) As to LIBOR Loans, the Company shall have the right
at any time or from time to time, upon four (4)
London Banking Days' prior written notice to the
Administrative Agent, to prepay on a pro-rata basis,
all or any part of the principal amount of the
Revolving Credit Notes then outstanding as designated
by the Company, plus interest accrued on the amount
so prepaid to the date of such prepayment. If LIBOR,
as determined as of 11:00 a.m. London time three (3)
London Banking Days prior to the date of prepayment
(hereinafter "Prepayment LIBOR"), shall be lower than
the last LIBOR previously determined for the LIBOR
Loan(s), with respect to which prepayment is intended
to be made (hereinafter "Last LIBOR"), then the
Company shall promptly pay each of the Lenders, in
immediately available funds, a prepayment premium
measured by a rate (the
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"Prepayment Premium Rate") which shall be equal to
the difference between the Last LIBOR and the
Prepayment LIBOR. In determining the Prepayment
LIBOR, the Company shall apply a rate equal to LIBOR
(for a deposit approximately equal to the amount of
such prepayment) which would be applicable to a LIBOR
Interest Period commencing on the date of such
prepayment and having a duration equal to the LIBOR
Interest Period described in Article I hereof with a
length closest to the remaining duration of the
actual LIBOR Interest Period during which such
prepayment is to be made. The Prepayment Premium Rate
shall be applied to all or such part of the principal
amount of the Revolving Credit Notes as related to
the LIBOR Loans to be prepaid, and the prepayment
premium shall be computed for the period commencing
with the date on which said prepayment is to be made
to that date which coincides with the last day of the
LIBOR Interest Period previously established when the
LIBOR Loans, which are to be prepaid, were made. Each
prepayment of a LIBOR Loan shall be in the aggregate
principal sum of not less than One Million Dollars
($1,000,000). Notwithstanding the above, no
prepayment premium shall be due and owing by the
Company if the Company makes such payment on the
Interest Adjustment Date applicable to the Loan being
paid. In the event the Company fails to borrow or
convert into a proposed LIBOR Loan subsequent to the
delivery to the Lenders of the notice of the proposed
date, aggregate amount and initial LIBOR Interest
Period of such Loan, but prior to the draw down of
funds thereunder, such failure to borrow or convert
shall be treated as a prepayment subject to such
prepayment premium.
B. MONEY MARKET RATE LOANS
-----------------------
(i) BORROWING RESTRICTIONS: Subject to the terms and conditions of
this Agreement, during the Commitment Period each Lender may
make (but is not obligated to make) a Money Market Rate Loan
to the Company in such amount or amounts as the Company may
from time to time request, provided that the sum of the total
Loans outstanding under Sections 2.1A and 2.1B plus the
aggregate principal amount of outstanding Competitive Loans at
any time shall not exceed the Commitments which, as of the
date hereof, total Two Hundred Ninety Million Dollars
($290,000,000) Subject to the provisions of this Agreement,
the Company shall be entitled under this Paragraph B to borrow
funds, repay the same in whole or in part and reborrow
hereunder at any time and from time to time from any Lender
making Money Market Rate Loans to the Company. The
Administrative Agent shall not be involved, in its capacity as
such agent, in any borrowing(s) by the Company under this
Section 2.1B; provided, however, the Administrative Agent
shall be advised by the Company of each such borrowing
hereunder. The procedures for any such Loan shall be as agreed
upon by the Company and each Lender making a Loan under this
Paragraph B.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1B from any Lender that agrees to make such a
Loan, an amount not to exceed the total of all Commitments in
amounts of not less than Five Million Dollars ($5,000,000) or
any greater amount evenly divisible by One Million Dollars
($1,000,000).
(iii) INTEREST RATES: The Company shall pay interest on the unpaid
principal
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amount of any Money Market Rate Loan outstanding from time to
time from the date on which funds are received by the Company
until paid, at the Money Market Rate. Except as may be
otherwise agreed by the Company and the Lender making a Money
Market Rate Loan, interest shall be payable at the maturity of
such Loan and shall be computed on the basis of a 365 or 366
day year, as the case may be.
(iv) MONEY MARKET NOTES: The obligation of the Company to repay
Money Market Rate Loans and to pay interest thereon, shall be
evidenced by a Money Market Note substantially in the form of
Schedule C hereto, dated the date of execution thereof by the
Company and payable to the order of the applicable Lender in
accordance with the terms and conditions of such Money Market
Note.
(v) PAYMENT: All payments of principal and interest due on Money
Market Rate Loans shall be paid by the Company directly to any
Lender making a Money Market Rate Loan to the Company. Any
such Loans hereunder shall be paid on the date specified in
the applicable Money Market Note.
(vi) INTEREST ON LATE PAYMENTS: If any Money Market Note shall not
be paid at maturity, whether such maturity occurs by reason of
lapse of time or by operation of any provision of acceleration
of maturity therein contained, the principal thereof and the
unpaid interest thereon shall bear interest, until paid, at a
rate per annum which shall be 1.1 times the Alternate Base
Rate from time to time in effect.
C. COMPETITIVE BID LOANS
(i) BORROWING RIGHTS AND RESTRICTIONS: Subject to the terms and
conditions of this Agreement, during the Commitment Period the
Company may request Competitive Bids and may (but shall not
have any obligation to) accept Competitive Bids and borrow
Competitive Loans provided that the sum of the total Loans
outstanding under Sections 2.1A and 2.1B plus the aggregate
principal amount of outstanding Competitive Loans at any time
shall not exceed the Commitments which, on the date hereof,
total Two Hundred Ninety Million Dollars ($290,000,000).
Subject to the provisions of this Agreement, the Company may,
if a Competitive Bid is submitted by a Lender, borrow funds
under this Paragraph C, repay the same in whole or in part,
and reborrow hereunder at any time and from time to time
during the Commitment Period.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1C up to the principal amount of the
Commitments which, on the date hereof, total Two Hundred
Ninety Million Dollars ($290,000,000) by means of any
combination of:
(a) Fixed Rate Loans which shall be payable on their
respective due dates and shall be drawn down in
aggregate amounts of not less than Five Million
Dollars ($5,000,000) or any greater amount evenly
divisible by One Million Dollars ($1,000,000); and
(b) Competitive Libor Loans which shall be payable on the
last date of their Competitive Libor Interest Period
and shall be drawn down in aggregate amounts of not
less than Five Million Dollars ($5,000,000) or any
greater
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amount evenly divisible by One Million Dollars
($1,000,000).
(iii) PROCEDURE FOR BORROWING: The procedure for borrowing under
this Section 2.1C shall be as follows:
(a) Each such borrowing shall be made by Notice to the
Competitive Advance Facility Agent (which Notice must
be received by the Competitive Advance Facility Agent
prior to 11:00 a.m. New York time four (4) London
Banking Days prior to the requested borrowing date in
the event of a Competitive Libor Loan and by 11:00
a.m. New York time one Banking Day prior to the
proposed date of such borrowing in the event of a
Fixed Rate Loan). Such Notice shall specify:
(1) the amount of such borrowing;
(2) the requested borrowing date which shall be
a Banking Day or a London Banking Day, as
the case may be;
(3) the type of Loan(s) comprising such
borrowing; and
(4) the duration of the Competitive Libor
Interest Period for any Competitive Libor
Loan and the maturity date of any Fixed Rate
Loan(s).
(b) The Competitive Advance Facility Agent shall promptly
notify each Lender of (i) its receipt of a request
for a Competitive Loan thereby inviting the Lenders
to submit Competitive Bids. Any such notice shall
identify the name of the Company's bank, the
Company's account number and American Banking
Association routing number of the bank at which the
Company's account is maintained and to which the
proceeds from any Competitive Loan shall be routed.
(c) Each Lender may (but shall not have any obligation
to) make one or more Competitive Bids to the Company
in response to a Competitive Bid Request. Each
Competitive Bid by a Lender must be in a form
approved by the Competitive Advance Facility Agent
and must be received by the Competitive Advance
Facility Agent by telecopy, in the case of a
Competitive Libor Loan, not later than 10:00 a.m.,
New York time, three (3) London Banking Days before
the proposed date of such Competitive Borrowing, and
in the case of an Fixed Rate Loan, not later than
10:00 a.m., New York time, on the proposed date of
such Competitive Borrowing. Competitive Bids that do
not conform substantially to the form approved by the
Competitive Advance Facility Agent may be rejected by
the Competitive Advance Facility Agent, and the
Competitive Advance Facility Agent shall notify the
applicable Lender as promptly as practicable. Each
Competitive Bid shall be in aggregate amounts of not
less than Five Million Dollars ($5,000,000) or any
greater amount evenly divisible by One Million
Dollars ($1,000,000) and may equal the entire
principal amount of the Competitive Borrowing
requested by the Company. Each Competitive Bid shall
specify (i) the Competitive Bid Rate(s) at which the
Lender is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form
of a
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decimal to no more than four decimal places) and (ii)
in the case of a Competitive Libor Loan, the
Competitive Libor Interest Period applicable to
each such Loan and the last day thereof.
(d) The Competitive Advance Facility Agent shall promptly
notify the Company by telecopy of the Competitive Bid
Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that
made such Competitive Bid.
(e) Subject only to the provisions of this paragraph, the
Company may accept or reject any Competitive Bid. The
Company shall notify the Competitive Advance Facility
Agent by telephone, confirmed by telecopy in a form
approved by the Competitive Advance Facility Agent,
whether and to what extent it has decided to accept
or reject each Competitive Bid, in the case of a
Competitive Libor Loan, not later than 11:00 a.m.,
New York time, three (3) London Banking Days before
the date of the proposed Competitive Borrowing, and
in the case of a Fixed Rate Loan, not later than
11:00 a.m., New York time, on the proposed date of
the Competitive Borrowing; provided that (i) the
failure of the Company to give such notice shall be
deemed to be a rejection of each Competitive Bid,
(ii) the Company shall not accept a Competitive Bid
made at a particular Competitive Bid Rate if the
Company rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of
the Competitive Bids accepted by the Company shall
not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Company may
accept Competitive Bids at the same Competitive Bid
Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro-rata in accordance with the
amount of each such Competitive Bid, and (v) except
as otherwise provided in clause (iv) above, no
Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum
principal amount of Five Million Dollars ($5,000,000)
or any greater amount evenly divisible by One Million
Dollars ($1,000,000); provided further that if a
Competitive Loan must be in an amount less than Five
Million Dollars ($5,000,000) because of the
provisions of clause (iv) above, such Competitive
Loan may be for a minimum of One Million Dollars
($1,000,000) or any integral multiple thereof, and in
calculating the pro-rata allocation of acceptances of
portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to clause (iv) the
amounts shall be rounded to integral multiples of One
Million Dollars ($1,000,000) in a manner determined
by the Company.
(f) The Competitive Advance Facility Agent shall promptly
notify each bidding Lender by telecopy whether or not
its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and
each successful bidder will thereupon become bound,
subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(g) If the Competitive Advance Facility Agent shall elect
to submit a Competitive Bid in its capacity as a
Lender, it shall submit such Competitive
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Bid directly to the Company at least one quarter of
an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids
to the Competitive Advance Facility Agent pursuant to
paragraph (b) of this Section.
(iv) INTEREST RATES: Interest shall accrue at the Competitive Bid
Rate specified in the applicable Competitive Bid, unless
otherwise agreed by the Lender submitting such Competitive Bid
and the Company.
(v) PAYMENTS ON COMPETITIVE NOTES: All payments of principal and
interest shall be made to the Competitive Advance Facility
Agent in immediately available funds for the account of the
Lenders by no later than 3:00 p.m. (New York time) on the
applicable payment date which date shall be specified on the
applicable Competitive Note. The Competitive Advance Facility
Agent shall promptly distribute to each Lender the principal
and interest received by it for the account of such Lender.
Each Lender having made a Competitive Loan hereunder shall
endorse each Competitive Note held by it or otherwise make
appropriate book entries evidencing each payment of principal
made thereon, it being understood, however, that any Lender's
failure to record appropriate information on the grid(s)
attached to any such Note shall in no way affect the
obligation of the Company under this Agreement or under any
such Note. Whenever any payment to be made hereunder,
including without limitation, any payment to be made on any
Note, shall be stated to be due on a day which is not a
Banking Day, or a London Banking Day as the case may be, such
payment shall be made on the next Banking Day (but in any
event not later than its maturity date) and such extension of
time shall in each case be included in the computation of the
interest payable on such Note. Notwithstanding the previous
sentence, in the case of any Competitive Libor Loan, if the
next London Banking Day is in a month other than the month the
payment was originally due, such payment may be made on the
immediately preceding London Banking Day and such reduction of
time shall in each case be considered in the computation of
the interest payable on such Note.
(vi) COMPETITIVE NOTES: The obligation of the Company to repay the
Fixed Rate Loans and the Competitive Libor Loans made by any
Lender and to pay interest thereon shall be evidenced by
non-negotiable Competitive Notes of the Company substantially
in the form of Schedule D hereto, with appropriate insertions,
dated the date of execution thereof by the Company and payable
to the order of such Lender on the maturity date of such Loan,
in the principal amount indicated thereon. The principal
amount of the Fixed Rate Loans and the Competitive Libor Loans
made by each Lender under this Section 2.1C and all
prepayments thereof and the applicable dates with respect
thereto shall be recorded by such Lender from time to time on
the grid(s) attached to such Note or by appropriate book
entry. The aggregate unpaid amount of Fixed Rate Loans and
Competitive Libor Loans set forth on the grid(s) attached to
each Competitive Note shall be rebuttable presumptive evidence
of the principal amount owing and unpaid on such Note, it
being understood, however, that any Lender's failure to so
record appropriate information on the grid(s) attached to its
respective Competitive Note shall in no way affect the
obligations of the Company under this Agreement or such Note.
(vii) PREPAYMENT: The Company shall not have any right to prepay any
Competitive Loan without the prior consent of the Lender
having made such Loan.
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SECTION 2.2. CONDITIONS TO CERTAIN LOANS OR CONVERSIONS. The obligation or
right of each Lender to make any of the Loans or to convert any of the Loans
described in Sections 2.1A, 2.1B or 2.1C hereunder is conditioned, in the
case of each borrowing or conversion hereunder, upon:
(i) the fact that no Possible Default or Event of Default shall
then exist or immediately after such Loan is made would exist;
and
(ii) the fact that the representations and warranties contained in
Article IV hereof shall be true and correct in all material
respects with the same force and effect as if made on and as
of the date of such borrowing or conversion.
Each borrowing or conversion by the Company hereunder shall be deemed
to be a representation and warranty by the Company as of the date of such
borrowing or conversion as to the facts specified in Sections 2.2 (i) and
(ii) above.
SECTION 2.3. FACILITY FEE. The Company agrees to pay to each Lender a Facility
Fee, for the period from and including the date of this Agreement until the
Commitments have terminated and the outstanding Loans have been repaid. The
first payment of the Facility Fee shall be made no later than March 31, 1997
for the period January 3, 1997 to March 31, 1997. All payments of the
Facility Fee shall be made to the Administrative Agent in immediately
available funds for the account of the Lenders by no later than 3:00 p.m.
(New York time) on the applicable payment date. The Administrative Agent
shall promptly distribute to each Lender its ratable share of the Facility
Fee received by it for the account of such Lender.
SECTION 2.4. COMPUTATION OF FACILITY FEES. Facility Fees shall be computed for
the actual number of days elapsed on the basis of a 360 day year.
SECTION 2.5. TERMINATION OF COMMITMENTS AND RIGHT OF SUBSTITUTION.
(i) The Company may at any time or from time to time terminate in
whole or ratably in part the Commitments of all of the Lenders
to an amount not less than the aggregate principal amount of
the Loans then outstanding under this Agreement, by giving the
Lenders and the Administrative Agent not less than two (2)
Banking Days' notice of the aggregate amount of such
termination (which shall not be less than Five Million Dollars
($5,000,000) or any greater amount evenly divisible by One
Million Dollars ($1,000,000)) and such Lender's proportionate
amount of such termination. If the Company terminates in whole
the Commitments of the Lenders, on the effective date of such
termination (provided the Company has prepaid in full the
unpaid principal balance, if any, of the Notes outstanding
together with all accrued and unpaid interest, if any,
Facility Fees accrued and unpaid, and any applicable
prepayment premiums) all of the Notes outstanding shall be
delivered to the Company marked "Cancelled". Any termination
of the Commitments shall be irrevocable during the remainder
of the Commitment Period.
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(ii) The Company may at any time or from time to time terminate or
reduce the Commitment of any Lender hereunder to an amount not
less than the aggregate principal amount of the Loans then
outstanding held by such Lender under this Agreement:
(a) immediately if such Lender satisfies any of the
criteria for insolvency described in Section 7.5
hereof; or
(b) upon not less than two (2) Banking Days' notice to
such Lender and the Administrative Agent if the
Company, in its sole discretion, elects to terminate
the Commitment of such Lender for any reason
including, but not limited to, the default of such
Lender under the terms of this Agreement.
(iii) In the event the Commitment of any Lender is terminated by the
Company, the Company shall replace such Lender with a
successor Lender or banks (including any Lender or Lenders
which is a party to this Agreement with the consent of such
Lender or Lenders) with a Commitment not to exceed the
Commitment of the terminated Lender(s); provided that such
successor Lender shall, pursuant to a written instrument in
form and substance satisfactory to the Company, effectively
agree to become a party hereto and a "Lender" hereunder and be
bound by the terms hereof.
(iv) In the event of a default of any Lender under the terms of
this Agreement, the Company's election to terminate the
Commitment of such Lender shall not act as a waiver of any
other remedies which the Company may have for such default.
(v) The termination of the Commitment of any Lender pursuant to
Section 2.5(ii) shall not affect the Commitments or the
obligations of all remaining Lenders under this Agreement.
(vi) After any termination or reduction of the Commitments as
described in this Section 2.5, the Facility Fees payable
hereunder shall be calculated upon the Commitments of the
Lenders as so reduced.
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR LOANS AND
FIXED RATE LOANS
SECTION 3.1. RESERVES OR DEPOSIT REQUIREMENTS, ETC. If at any time after the
Effective Date any Regulatory Change shall impose, modify or deem applicable
any reserve and/or special deposit requirement (other than reserves: (a)
included in the Reserve Percentage, the effect of which is reflected in the
interest rate(s) of the LIBOR Loan(s) or Competitive Libor Loan(s) in
question or (b) attributable to requirements imposed by the Board of
Governors of the Federal Reserve System on any Lender as a result of the
failure of any such Lender to maintain necessary current capitalization or
financial conditions imposed thereby) against assets held by, or deposits
in or for the account of any Loans by any Lender, and the result of the
foregoing is to increase the cost to such Lender of making or maintaining
LIBOR Loans or Competitive Libor Loans, as the case may be, or reduce the
amount of principal or interest received by such Lender with respect to
LIBOR Loans or Competitive Libor Loans, then upon demand by such Lender the
Company shall pay to such Lender from time to time on Interest Adjustment
Dates with respect to such Loans, as additional consideration hereunder,
additional amounts sufficient to fully
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compensate and indemnify such Lender for such increased cost or reduced
amount, provided that such additional cost or reduced amount were allocable
to such LIBOR Loans or Competitive Libor Loans.
A certificate as to the increased cost or reduced amount (hereinafter
in this Section 3.1 collectively called "Increased Costs") as a result of any
event mentioned in this Section 3.1, setting forth the calculations therefor,
shall be promptly submitted by such Lender to the Company for its review. The
Company shall pay such Increased Costs for such period of time prior to the
date such certificate is received by the Company during which such
Regulatory Change, by its terms, applies retroactively to any period of time
prior to the date such Regulatory Change became effective. In addition, the
Company shall pay such Increased Costs incurred by a Lender on and after the
date such certificate is received by the Company unless, and until, the
Company, notwithstanding any other provision of this Agreement,
(i) upon at least three (3) Banking Days' prior written notice to
such Lender, prepays the affected LIBOR Loans in full or
converts all LIBOR Loans to Alternate Base Rate Loans
regardless of the LIBOR Interest Period thereof, or
(ii) terminates the Commitment of such Lender pursuant to Section
2.5 (provided that the Company shall pay such Increased Costs
on any LIBOR Loans from such Lender which remain outstanding).
Each Lender will notify the Company as promptly as practicable of the
existence of any event which will likely require the payment by the Company
of any such additional amount under this Section.
SECTION 3.2. CHANGES IN TAX LAWS. In the event that by reason of any Regulatory
Change of the jurisdiction where the office of the Lender making a Loan is
located, (i) any Lender shall, with respect to this Agreement or any
transaction under this Agreement, be subject to any tax, levy, impost,
charge, fee, duty, deduction or withholding of any kind whatsoever (other
than any tax imposed upon the total net income of such Lender or imposed on
or calculated with respect to the value of the assets of such Lender) or
(ii) any change shall occur in the taxation of any Lender with respect to
any Loan and the interest payable thereon (other than any change which
affects, and to the extent that it affects, the taxation of the total net
income of such Lender or imposed on or calculated with respect to the value
of the assets of such Lender), and if any such measures or any other similar
measure shall result in an increase in the cost to such Lender of making or
maintaining any Loan or in a reduction in the amount of principal, interest
or Facility Fee receivable by such Lender in respect thereof, then such
Lender shall promptly notify the Company stating the reasons therefor.
A certificate as to any such increased cost or reduced amount
(hereinafter in this Section 3.2 collectively called "Increased Taxes") as a
result of any event mentioned in this Section 3.2, setting forth the
calculations therefor, shall be submitted by such Lender to the Company for
its review. The Company shall pay such Increased Taxes for such period of
time prior to the date such certificate is received by the Company during
which such Regulatory Change, by its terms, applies retroactively to any
period of time prior to the date such Regulatory Change became effective.
In addition, the Company shall pay such Increased Taxes incurred by such
Lender on and after the date such certificate is received by the Company
unless and until the Company, notwithstanding any other provision of this
Agreement,
(i) upon at least three (3) Banking Days' prior written notice to
such Lender and the
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Administrative Agent, prepays the affected Loans in full, or
(ii) terminates the Commitment of such Lender pursuant to Section
2.5 hereof (provided that the Company shall pay such Increased
Costs on any Loans from such Lender which remain outstanding).
If any Lender receives such additional consideration from the Company
pursuant to this Section 3.2 and thereafter obtains the benefits of any
refund, deduction or credit for any taxes or other amounts on account of
which such additional consideration has been paid, such Lender shall pay to
the Company its allocable share thereof and shall reimburse the Company to
the extent, but only to the extent, that such Lender shall have actually
received a refund of such taxes or other amounts together with any interest
thereon or an effective net reduction in taxes or other governmental
charges (including any taxes imposed on or measured by the total net income
of such Lender) of the United States or any state or subdivision thereof by
virtue of any such deduction or credit, after first giving effect to all
other deductions and credits otherwise available to such Lender. If, at the
time any audit of such Lender's income tax return by any taxing agency is
completed, such Lender determines, based on such audit, that it was not
entitled to the full amount of any refund reimbursed to the Company as
aforesaid or that its net income taxes are not reduced by a credit or
deduction for the full amount of taxes reimbursed to the Company as
aforesaid, the Company, upon demand of such Lender, will promptly pay to
such Lender the amount so refunded to which such Lender was not so
entitled, or the amount by which the net income taxes of such Lender were
not so reduced, as the case may be. The provisions of this Section 3.2 and
Section 3.1 shall survive the termination of this Agreement.
SECTION 3.3. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE.
In the event the Majority Lenders shall have determined, in good faith and
reasonably, that Dollar deposits of the relevant amount for the relevant
LIBOR Interest Period for LIBOR Loans are not available to the Lenders in
the London Interbank Eurodollar market or that, by reason of circumstances
affecting such market, adequate and reasonable means do not exist for
ascertaining LIBOR then (i) any notice of new LIBOR Loans (or conversion of
Revolving Credit Loans to LIBOR Loans) previously given by the Company and
not yet borrowed (or converted, as the case may be) shall be deemed a
notice to make Alternate Base Rate Loans unless the Company notifies the
Administrative Agent to the contrary, and (ii) the Company shall be
obligated either to prepay or to convert any outstanding LIBOR Loans on the
last day of the then current LIBOR Interest Period or Periods with respect
thereto.
SECTION 3.4. INDEMNITY. Without limitation of any other provisions of this
Article III, the Company hereby agrees to indemnify and hold harmless each
of TCB, Chase and CSI and each Lender from and against all costs, expenses
(including fees, charges and disbursements of counsel) and liabilities
resulting from any litigation or other proceedings (regardless of whether
TCB, Chase, CSI or any Lender is a party thereto), related to or arising
out of the Transactions contemplated hereby, except to the extent such
costs, expenses and liabilities result from the wilful misconduct or gross
negligence of the party seeking indemnification as determined by a court of
competent jurisdiction, excluding consequential, incidental or special
damages. A certificate as to any such loss or expense shall be promptly
submitted by TCB, Chase or CSI and any such Lender to the Company for its
review and shall be paid by the Company in the absence of manifest error.
SECTION 3.5. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time any
Regulatory Change shall make it unlawful for any Lender to fund, refinance,
continue or convert into any LIBOR Loans which it is committed to make
hereunder with moneys obtained
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in the London Interbank Eurodollar market, the Commitment of such Lender to
fund, refinance, continue or convert into LIBOR Loans shall, upon the
happening of such event, be suspended for the duration of such illegality
and such Lender shall by written notice to the Company and the
Administrative Agent declare that its Commitment with respect to such Loans
has been so suspended and, if and when such illegality ceases to exist,
such suspension shall cease and such Lender shall similarly notify the
Company and the Administrative Agent. If any such change shall make it
unlawful for any Lender to continue in effect the funding in the London
Interbank Eurodollar market of any LIBOR Loan previously made by it
hereunder, such Lender shall, upon the happening of such event, notify the
Company and the other Lenders thereof in writing stating the reasons
therefor and the Company shall, on the earlier of (i) the last day of the
then current LIBOR Interest Period or (ii) if required by such law,
regulation or interpretation, on such date as shall be specified in such
notice, either convert all LIBOR Loans to Alternate Base Rate Loans or
prepay all LIBOR Loans to the Lenders in full. Any such prepayment or
conversion shall not be subject to the prepayment premiums prescribed in
Section 2.1A(x) hereof. Any requests for a LIBOR Loan not funded pursuant
to this Section shall be deemed to have been a request for an Alternate
Base Rate Loan.
SECTION 3.6. FUNDING. Each Lender may, but shall not be required to, make LIBOR
Loans and Competitive Libor Loans with funds obtained outside the United
States.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 4.1. CORPORATE EXISTENCE. The Company is a corporation duly organized
and in good standing under the laws of the State of Ohio.
SECTION 4.2. AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by the Company of this Agreement, the Notes and Related
Writings are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not and will not
contravene or conflict with any provision of applicable law or any
applicable final judgement in effect or of the Amended Articles of
Incorporation or Regulations of the Company or of any agreement for
borrowed money or other material agreement binding upon the Company. The
Company has duly executed and delivered this Agreement.
SECTION 4.3. VALIDITY AND BINDING NATURE. This Agreement is, and the Notes when
duly executed and delivered will be, legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their
respective terms.
SECTION 4.4. LITIGATION AND LIENS. To the best of the Company's knowledge, no
litigation or proceeding is pending which would, if successful, have a
Material adverse impact on the financial condition of the Company and the
Consolidated Subsidiaries taken as a whole, which is not already reflected
in the Company's Financial Reports delivered to the Lenders prior to the
date of this Agreement. The Internal Revenue Service has not alleged any
Material default by the Company in the payment of any tax or threatened to
make any Material assessment in respect thereof which would have or
reasonably could have a Material adverse impact on the financial condition
of the Company and the Consolidated Subsidiaries, taken as a whole.
SECTION 4.5. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary has incurred any Material accumulated funding deficiency within
the meaning of ERISA and the regulations thereunder. No Reportable Event
has occurred with respect to any Plan which would
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have a Material adverse financial impact on the Company or any of its
Consolidated Subsidiaries, taken as a whole. The Pension Benefit Guaranty
Corporation, established under ERISA, has not asserted that the Company or
any Consolidated Subsidiary has incurred any Material liability in
connection with any Plan. No Material lien has been attached and no person
has threatened to attach such a lien on any property of the Company and any
Consolidated Subsidiary as a result of the Company's or any Consolidated
Subsidiary's failure to comply with ERISA.
SECTION 4.6. ENVIRONMENTAL MATTERS. To the best of the Company's knowledge, the
Company and each Subsidiary is in substantial compliance with all
applicable existing laws and regulations (other than laws and regulations
the validity or applicability of which are being contested by the Company
or a Subsidiary, as the case may be, in good faith by appropriate
proceedings diligently prosecuted) relating to environmental control in all
jurisdictions where the Company or any Subsidiary is presently doing
business and the Company and each Subsidiary (to the extent applicable to
its operations) is in substantial compliance with the Occupational Safety
and Health Act of 1970 and all rules, regulations and applicable orders
thereunder (other than rules, regulations and orders the validity or
applicability of which are being contested by the Company or a Subsidiary,
as the case may be, in good faith by appropriate proceedings diligently
prosecuted).
SECTION 4.7. FINANCIAL REPORTS. The Financial Reports of the Company and the
Consolidated Subsidiaries, furnished to each Lender prior to the date of
this Agreement or from time to time pursuant to this Agreement shall be
true and complete, prepared in accordance with generally accepted
accounting principles, except as stated therein, and fairly present the
Company's and its Consolidated Subsidiaries' financial condition and the
results of their operations, as of the date, and for the period encompassed
by such Financial Reports. Since the dates of the Company's most recent
Financial Reports until the date of this Agreement there has been no
material adverse change in the consolidated financial condition of the
Company and the Consolidated Subsidiaries taken as a whole.
SECTION 4.8. REGULATION U. Neither the Company nor any of its Consolidated
Subsidiaries is generally engaged in the business of purchasing or selling
margin stock or extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System). Each of the Lenders represents
and warrants to the Company that it is not relying on and will not rely on
any margin stock (as described above) in determining whether to extend or
maintain credit under this Agreement.
SECTION 4.9. GOVERNMENT REGULATION. Neither the Company nor any of its
Consolidated Subsidiaries is registered or is required to be registered as
a public utility under the Public Utility Holding Company Act of 1935 or as
an investment company under the Investment Company Act of 1940.
SECTION 4.10. TAXES. The Company and its Consolidated Subsidiaries have filed
all United States federal income tax returns and all other material tax
returns which are required to have been filed by them (subject to any
available extensions) and have paid all taxes indicated as due on such
returns except for any such taxes being contested by the Company or a
Subsidiary, as the case may be, in good faith by appropriate proceedings
diligently prosecuted (the Company having made adequate and reasonable
provision for all material taxes not yet due and payable), if any, and all
material assessments, if any.
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SECTION 4.11. DEFAULTS. No Possible Default or Event of Default exists which
would have or reasonably could have a Material adverse impact on the
financial condition of the Company and the Consolidated Subsidiaries, taken
as a whole.
ARTICLE V. OPENING COVENANTS
Prior to or concurrently with the execution and delivery of this
Agreement, the Company shall furnish to each Lender, and with regard to
Section 5.6, the Administrative Agent, copies of the following:
SECTION 5.1. RESOLUTIONS. Certified copies of the resolutions of the Board of
Directors of the Company evidencing approval of the execution of this
Agreement.
SECTION 5.2. LEGAL OPINION. A favorable opinion of counsel for the Company as to
the matters referred to in Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.8 and 4.9 of
this Agreement and such other matters as the Lenders may reasonably
request.
SECTION 5.3. CERTIFICATE OF INCUMBENCY. A certificate of the secretary or
assistant secretary of the Company certifying the names of the officers of
the Company authorized to sign this Agreement, and the Notes, together with
the true signatures of such officers.
SECTION 5.4. FINANCIAL REPORTS. The Financial Reports of the Company and the
Consolidated Subsidiaries, dated December 31, 1995, previously furnished to
each Lender, are true and complete, have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
those used by the Company and the Consolidated Subsidiaries during the
Company's 1995 fiscal year, except as stated therein, and fairly present
the Company's and the Consolidated Subsidiaries' financial condition as of
that date and the results of their operations for the period then ended.
Since that date there has been no material adverse change in the Company's
and the Consolidated Subsidiaries' financial condition, properties or
business taken as a whole.
SECTION 5.5. GOVERNMENTAL APPROVALS. In connection with the Acquisition
Transaction, the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder, shall have expired or been terminated,
all requisite governmental and material third parties' consents, approvals
and/or filings pursuant to applicable laws shall be obtained and/or filed
including, but not limited to, any such approvals and/or filings pursuant
to the Illinois Responsible Property Transfer Act, 745 I.C.L.S sections
90/1 et seq. and the New Jersey Industrial Site Recovery Act, N.J.S.A.
13:12K-6 et seq. and any rules or regulations promulgated under either of
them. In addition, no statute, rule or regulation shall be in effect which
prohibits the consummation of the Acquisition Transaction and no order of
any competent court shall be in effect or threatened which prohibits the
consummation of the Acquisition Transaction.
SECTION 5.6. GOOD STANDING. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Company, the authorization
of the Acquisition Transaction and any other legal matters relating to the
Company and this Agreement, all in form and substance satisfactory to the
Administrative Agent and its counsel.
ARTICLE VI. COVENANTS
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Until the later of (i) the expiration of the Commitments or (ii) all
obligations of the Company hereunder and under the Notes are satisfied and
paid in full, the Company agrees that, unless at any time the Majority
Lenders shall otherwise expressly agree in writing:
SECTION 6.1. INSURANCE. The Company will (a) maintain insurance to such extent
and against such hazards and liabilities as is commonly maintained by
companies similarly situated, and (b) upon any Lender's written request,
furnish to such Lender such information about the Company's and its
Consolidated Subsidiaries' insurance as such Lender may from time to time
reasonably request, which information shall be prepared in form and detail
reasonably satisfactory to such Lender.
SECTION 6.2. FINANCIAL REPORTS. The Company will furnish to the Administrative
Agent and each Lender:
(i) within sixty (60) days after the end of each of the first
three quarter-annual periods of each of its fiscal years (and,
in any event, in each case as soon as available), the
quarterly Financial Report of the Company and the Consolidated
Subsidiaries as at the end of that period, prepared on a
consolidated basis;
(ii) within ninety (90) days after the end of each of its fiscal
years (and, in any event, in each case as soon as available),
the annual Financial Report of the Company and the
Consolidated Subsidiaries for that year prepared on a
consolidated basis;
(iii) within sixty (60) days after the end of each of its quarterly
accounting periods and within ninety (90) days after the end
of its annual accounting period, a statement signed by a
financial officer of the Company reflecting compliance with
Section 6.3 hereof and to the effect that no Event of Default
has occurred and is continuing or, if there is any such event,
describing it and the steps being taken, if any, to cure such
event;
(iv) promptly after filing with the Securities and Exchange
Commission, any Form 8-K or Schedule 13D filings applicable to
the Company (or any successor forms or schedules promulgated
by the Securities and Exchange Commission from time to time
which encompass the matters currently addressed in Form 8-K
and Schedule 13D);
(v) written notice of any change in the rating assigned to the
Company's senior unsecured long-term debt by Moodys or S&P
within thirty (30) days of such change; and
(vi) such other financial information regarding the Company as any
Lender may reasonably request.
SECTION 6.3. NET WORTH. The Company will not permit Consolidated Net Worth at
any time to fall below Eight Hundred Million Dollars ($800,000,000).
SECTION 6.4. REGULATIONS U AND X. The Company will not nor will it permit any
Subsidiary to take any action that would result in any non-compliance of
the Loans with Regulations U and X of the Board of Governors of the Federal
Reserve System. The Company's use of proceeds of any borrowings under this
Agreement will not cause a violation of Regulations U or X.
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SECTION 6.5. MERGER AND SALE OF ASSETS. The Company will not merge or
consolidate with nor permit any Consolidated Subsidiary to merge or
consolidate with any other corporation or sell, lease or transfer or
otherwise dispose of all or, during any twelve (12) month period, a
substantial part of its assets to any person or entity (except as otherwise
provided herein); provided, however, if no Possible Default, Event of
Default or Change of Control (as such term is hereinafter defined) shall
then exist or immediately thereafter will begin to exist:
(i) Any Consolidated Subsidiary may merge with (a) the Company
(provided that the Company shall be the continuing or
surviving corporation) or (b) any one or more other
Consolidated Subsidiaries provided that either the continuing
or surviving corporation shall be a Wholly-Owned Consolidated
Subsidiary, or after giving effect to any merger pursuant to
this sub-clause (b), the Company and/or one or more
Wholly-Owned Consolidated Subsidiaries shall own not less than
the same percentage of the outstanding Voting Stock of the
continuing or surviving corporation as the Company and/or one
or more Wholly-Owned Consolidated Subsidiaries owned of the
merged Consolidated Subsidiary immediately prior to such
merger,
(ii) Any Consolidated Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to (a) the Company, (b)
any Wholly-Owned Consolidated Subsidiary or (c) any
Consolidated Subsidiary of which the Company and/or one or
more Wholly-Owned Consolidated Subsidiaries shall own not less
than the same percentage of Voting Stock as the Company and/or
one or more Wholly-Owned Consolidated Subsidiaries then own of
the Consolidated Subsidiary making such sale, lease, transfer
or other disposition,
(iii) The Company may sell the stock or assets of any Consolidated
Subsidiary if such sale or other disposition is determined by
the board of directors of the Company to be in the best
interests of the Company and such sale is for a consideration
which represents the fair value (as determined in good faith
by the board of directors of the Company) thereof at the time
of such sale of such stock or assets,
(iv) The Company may merge with any other corporation, provided
that the Company shall be the surviving corporation,
(v) The Company or any Consolidated Subsidiary may sell all or any
part of the assets of any of its divisions or operations if
such sale or other disposition is determined by the board of
directors of the Company and/or such Consolidated Subsidiary,
as the case may be, to be in the best interests of the Company
and/or such Consolidated Subsidiary, as the case may be, and
such sale is for a consideration which represents the fair
value (as determined in good faith by the board of directors
of the Company) thereof at the time of such sale or other
disposition of such assets, and
(vi) The Company or any Subsidiary may sell or transfer all or any
part of the assets of any of its divisions or operations to
any Subsidiary.
In the event there occurs a Change of Control of the Company, the
Commitments of the Lenders will immediately terminate and the outstanding
Loans will become immediately due and payable. For purposes of this
paragraph, a "Change of Control" shall occur if:
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(a) there shall be consummated (i) any consolidation or merger
of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the
Company's common stock would be converted into cash,
securities or other property, other than a merger of the
Company in which the holders of the Company's common stock
immediately prior to the merger have substantially the same
proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (ii) any sale,
lease, exchange or transfer (in one transaction or a series of
related transactions) of fifty percent (50%) or more of the
assets or earning power of the Company;
(b) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act, as amended, other than the
Company or any employee benefit or stock ownership plan
sponsored by the Company, or any person or entity organized,
appointed or established by the Company for or pursuant to the
terms of any such Plan, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing [twenty percent (20%)
or more of the combined voting power of the Company's then
outstanding securities ordinarily (and apart from rights
accruing in special circumstances) having the right to vote in
the election of directors, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases
or otherwise; or
(c) during any period of two (2) consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Company and any new director
whose election by such Board of Directors or nomination for
election by the Company's shareholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of such
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof.
Notwithstanding subparagraph (a) through (c) above,
with respect to the transactions set forth in subparagraphs
(a) and (b) above, a Change of Control shall not be deemed to
have occurred if any such transaction (i) is approved by a
vote of at least two-thirds (2/3) of the directors and (ii) at
the time of such vote, at least two-thirds (2/3) of the
directors then in office were members of the Board of
Directors of the Company immediately prior to such
transaction.
SECTION 6.6. NOTICE. Until the Termination Date, the Company will cause its
treasurer, or in his absence another representative of the Company
designated by the treasurer, to promptly notify the Lenders and the
Administrative Agent whenever any Material Possible Default may occur or
any warranty made in Article IV hereof or elsewhere in this Agreement or in
any Related Writing may for any reason cease in any Material respect to be
true and complete.
SECTION 6.7. LIENS. The Company will not and will not permit any Consolidated
Subsidiary to create, assume or suffer to exist any lien upon any of its
property or assets (hereinafter "Properties") whether now owned or
hereafter acquired without effectively providing that any borrowings under
this Agreement shall be secured equally and ratably with all other
indebtedness thereby secured; provided that this Section shall not apply to
the following:
(i) liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings diligently
prosecuted,
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(ii) other liens incidental to the conduct of its business or the
ownership of its Properties which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate
materially detract from the value of its Properties or
materially impair the use thereof in the operation of its
business,
(iii) liens on Properties of a Consolidated Subsidiary to secure
obligations of such Consolidated Subsidiary to the Company or
another Consolidated Subsidiary,
(iv) liens on Properties of the Company and/or its Consolidated
Subsidiaries existing on the date hereof,
(v) any lien existing on any Properties of any corporation at the
time it becomes a Consolidated Subsidiary, existing prior to
the time of acquisition upon any Properties acquired by the
Company or any Consolidated Subsidiary through purchase,
merger, consolidation or otherwise, whether or not assumed by
the Company or such Consolidated Subsidiary,
(vi) any lien placed upon any asset other than real property
(hereinafter in this subparagraph (vi) "Asset") at the time of
acquisition by the Company or any Consolidated Subsidiary to
secure all or a portion of or to secure indebtedness incurred
prior to, at the time of, or (in the case of any Asset
acquired with the intent to obtain subsequent financing
thereof secured by a lien) within one (1) year after the
acquisition of such Asset for the purpose of financing all or
a portion of the purchase price thereof, provided that any
such lien shall not encumber any other Properties of the
Company or such Consolidated Subsidiary,
(vii) any lien placed upon any real property now owned or hereafter
acquired by the Company or any of its Subsidiaries securing
indebtedness in an amount up to eighty percent (80%) of the
fair market value of such real property,
(viii) liens in favor of the United States of America or any
department or agency thereof, or in favor of any state
government or political subdivision thereof, or in favor of a
prime contractor under a government contract of the United
States, or of any state government or any political
subdivision thereof, and, in each case, resulting from
acceptance of partial, progress, advance or other payments in
the ordinary course of business under government contracts of
the United States, or of any state government or any political
subdivision thereof, or subcontracts thereunder,
(ix) liens created, assumed or existing in connection with a
tax-free financing,
(x) any lien renewing, extending or refunding any lien permitted
by clauses (iv), (v), (vi), (vii), (viii) and (ix) above,
provided that the principal amount secured is not materially
increased, and such lien is not extended to other Properties,
and
(xi) liens other than those permitted by clauses (i) through (x)
above, provided that the aggregate amount of all indebtedness
secured by liens permitted by this clause (xi) shall not at
any time exceed fifteen percent (15%) of Consolidated Net
Worth.
SECTION 6.8. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary will incur any Material accumulated funding deficiency within
the meaning of ERISA and the
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regulations thereunder, or any Material liability to the Pension Benefit
Guaranty Corporation or any successor thereto in connection with any Plan.
The Company will furnish to the Lenders as soon as possible and in any
event within thirty (30) days after the Company or such Consolidated
Subsidiary knows or has reason to know that any Material Reportable Event
with respect to any Plan has occurred a statement of the chief financial
officer of the Company or such Consolidated Subsidiary setting forth
details as to such Reportable Event and the action which the Company or
such Consolidated Subsidiary proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to the
Pension Benefit Guaranty Corporation (or any successor thereto) if a copy
of such notice is available to the Company or such Consolidated Subsidiary.
SECTION 6.9. NOTICE OF DEFAULT. The Company will, and will cause each
Consolidated Subsidiary to, give prompt notice in writing to each Lender,
the Administrative Agent and the Competitive Advance Facility Agent of the
occurrence of any Possible Default, Event of Default or Change of Control
and of any other development, financial or otherwise, with respect to which
there is a significant probability of a Material adverse impact on
Consolidated Net Worth or on the Company's ability to repay the Notes.
SECTION 6.10. CONDUCT OF BUSINESS. The Company will, and will cause each
Consolidated Subsidiary to, carry on and conduct its business in
substantially the same manner as it is presently conducted and to do all
things necessary to remain duly incorporated, validly existing and in good
standing as a corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
SECTION 6.11. TAXES. The Company will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental charges
and levies upon it or its income, profits or property, except those which
are being contested in good faith by appropriate proceedings.
SECTION 6.12. COMPLIANCE WITH LAWS. The Company will use its best good faith
efforts to comply and to cause each Subsidiary to comply with all such laws
and regulations (other than laws and regulations the validity or
applicability of which are being contested by the Company or a Subsidiary,
as the case may be, in good faith by appropriate proceedings diligently
prosecuted) which may be legally imposed in the future in jurisdictions in
which the Company or any Subsidiary may then be doing business.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default":
SECTION 7.1. NON-PAYMENT OF NOTES, INTEREST, FACILITY FEE OR OTHER FEES. If the
principal on any Note shall not be paid in full when due and payable and
shall remain unpaid for a period of three (3) consecutive Banking Days, or
London Banking Days, as the case may be and/or any interest due on any Note
or any Facility Fee or Other Fee shall not be paid within five (5) Banking
Days after written notice thereof to the Company from the Lender (or the
Administrative Agent or Competitive Advance Facility Agent, as the case may
be) to whom such amount(s) are owed.
SECTION 7.2. COVENANTS. If the Company shall fail or omit to perform and observe
any agreement or other provision (other than those referenced in Section
7.1 hereof) contained or referred to in this Agreement or in any Related
Writing that is on the Company's part to be complied with, and such failure
or omission, is not fully corrected within thirty (30) days after
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the giving of written notice thereof to the Company by no less than
fifty-one percent (51%) of the Lenders acting as a whole.
SECTION 7.3. WARRANTIES. If any representation, warranty or statement made in or
pursuant to this Agreement or any Related Writing or any other information
furnished by the Company to the Lenders or any other holder of any Note,
shall be false or erroneous in any respect which would have or reasonably
could have a Material adverse impact on the financial condition of the
Company and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.4. CROSS DEFAULT. If the Company or any of its Consolidated
Subsidiaries (i) defaults in the payment of principal or interest due and
owing upon any other Material obligation for borrowed money beyond any
period of grace provided with respect thereto or (ii) defaults in the
performance of any other agreement, term or condition contained in any
agreement under which such obligation is created, and any such default is
not waived by the holders of such agreement or instrument, and if the
effect of such unwaived default would (a) accelerate the maturity of such
indebtedness or permit the holder thereof to cause such indebtedness to
become due prior to its stated maturity and (b) have or reasonably could
have a Material adverse impact on the Company and the Consolidated
Subsidiaries, taken as a whole.
SECTION 7.5. TERMINATION OF OPERATIONS, BANKRUPTCY OR INSOLVENCY. If the Company
or a Consolidated Subsidiary representing in excess of ten percent (10%) of
total consolidated assets of the Company and the Consolidated Subsidiaries
shall (i) discontinue business (except as permitted under Section 6.5
hereof) or (ii) generally not pay (or admit in writing its inability to
pay) its debts as such debts become due, or (iii) make a general assignment
for the benefit of creditors, or (iv) apply for or consent to the
appointment of a receiver, a custodian, a trustee, an interim trustee or a
liquidator of all or a substantial part of its assets, or (v) be
adjudicated an insolvent debtor or have entered against it an order for
relief under Title 11 of the United States Code, as the same may be amended
from to time to time, or (vi) file a voluntary petition in bankruptcy or
file a petition or an answer seeking reorganization or an arrangement with
creditors or seeking to take advantage of any other law (whether federal or
state) relating to relief of debtors, or admit (by answer, by default or
otherwise) the substantive allegations of a petition filed against it in
any bankruptcy, reorganization, insolvency or other comparable proceeding
(whether federal or state) relating to relief of debtors, or (vii) suffer
or permit to continue unstayed and in effect for sixty (60) consecutive
days any judgment, decree or order entered by a court of competent
jurisdiction, which approves a petition seeking its reorganization or
appoints a receiver, custodian, trustee, interim trustee or liquidator of
all or a substantial part of its assets.
ARTICLE VIII. EFFECT OF DEFAULT
SECTION 8. EFFECT OF EVENT OF DEFAULT. If any Event of Default described in
Section 7.5 hereof shall occur, the Commitments (if they have not already
been terminated) shall immediately terminate and all Notes shall
automatically become immediately due and payable, without notice. If any
other Event of Default shall occur and shall not have been remedied within
an allowable time period referred to in this Agreement, then the Majority
Lenders may terminate the Commitments (if they have not already been
terminated) and the Outstanding Majority Lenders may declare that all Notes
shall become immediately due and payable. The Majority Lenders and the
Outstanding Majority Lenders shall promptly notify the Company in writing
of any such declaration. The effect as an Event of Default of any event
described in Section 7.1 or 7.5 hereof may be waived only by the written
concurrence of the holders of one hundred percent (100%) of the
Commitments, or in the event there are no Commitments, by one hundred
percent (100%) of
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the holders of outstanding Notes. The effect as an Event of Default of any
other event described in Sections 7.2, 7.3 or 7.4 may be waived by the
holders of fifty-one percent (51%) by amount of the Commitments.
ARTICLE IX. THE ADMINISTRATIVE AGENT AND COMPETITIVE ADVANCE
FACILITY AGENT
The Lenders hereby authorize (a) Texas Commerce Bank National
Association and TCB hereby agrees to act as Administrative Agent, and (b)
The Chase Manhattan Bank and Chase hereby agrees to act as the Competitive
Advance Facility Agent, for the Lenders in respect of this Agreement upon
the terms and conditions set forth elsewhere in this Agreement, and upon
the following terms and conditions:
SECTION 9.1. APPOINTMENT AND AUTHORIZATION. Each Lender hereby irrevocably
appoints and authorizes the Administrative Agent and the Competitive
Advance Facility Agent to exercise such powers hereunder as are delegated
to the Administrative Agent and the Competitive Advance Facility Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. Notwithstanding anything in this Agreement to the contrary, or in
a Related Writing, neither the Administrative Agent nor the Competitive
Advance Facility Agent shall have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent or the
Competitive Advance Facility Agent have or be deemed to have any fiduciary
relationship with any Lender. Neither the Administrative Agent, the
Competitive Advance Facility Agent nor any of its or their directors,
officers, attorneys or employees shall be liable for any action taken or
omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.
SECTION 9.2. NOTE HOLDERS. The Administrative Agent and the Competitive Advance
Facility Agent, as the case may be, may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with
it signed by such payee and in form satisfactory to the Administrative
Agent or the Competitive Advance Facility Agent, as the case may be.
SECTION 9.3. CONSULTATION WITH COUNSEL. Each of the Competitive Advance Facility
Agent and the Administrative Agent may consult with legal counsel selected
by it (including in-house counsel) and shall not be liable for any
reasonable action taken or suffered in good faith by it in accordance with
the written opinion of external counsel, issued before such action is taken
or suffered.
SECTION 9.4. DOCUMENTS. Neither the Competitive Advance Facility Agent nor the
Administrative Agent shall be under a duty to examine into or pass upon the
validity, effectiveness, genuineness or value of this Agreement, the Notes,
any Related Writing furnished pursuant hereto or in connection herewith or
the value of any collateral obtained hereunder, and each of the Competitive
Advance Facility Agent and the Administrative Agent shall be entitled to
assume that the same are valid, effective and genuine and what they purport
to be.
SECTION 9.5. ADMINISTRATIVE AGENT, COMPETITIVE ADVANCE FACILITY AGENT AND THEIR
AFFILIATES. With respect to the Loans made hereunder, each of the
Competitive Advance Facility Agent and the Administrative Agent shall have
the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not the Administrative Agent or the Competitive
Advance Facility Agent, and the Administrative Agent and the Competitive
Advance Facility Agent and their affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Company or
any Subsidiary or affiliate of
29
30
the Company.
SECTION 9.6. KNOWLEDGE OF DEFAULT. It is expressly understood and agreed that
each of the Administrative Agent and the Competitive Advance Facility Agent
shall be entitled to assume that no Possible Default or Event of Default
has occurred and is continuing, unless the Administrative Agent or the
Competitive Advance Facility Agent, as the case may be, has actual
knowledge of such fact or has been notified by a Lender that such Lender
considers that a Possible Default or Event of Default has occurred and is
continuing and specifying the nature thereof.
30
31
SECTION 9.7. ACTION BY ADMINISTRATIVE AGENT, COMPETITIVE ADVANCE FACILITY AGENT.
So long as the Administrative Agent or the Competitive Advance Facility
Agent, as the case may be, shall be entitled, pursuant to Section 9.6
hereof, to assume that no Possible Default or Event of Default shall have
occurred and be continuing, each of the Competitive Advance Facility Agent
and the Administrative Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it by, or with respect to taking or refraining from taking any
action or actions which it may be able to take under or in respect of, this
Agreement. Neither the Competitive Advance Facility Agent nor the
Administrative Agent shall incur any liability under or in respect of this
Agreement by action upon any notice, certificate, warranty or other paper
or instrument reasonably believed by it to be genuine or authentic or to be
signed by the proper party or parties, or with respect to anything which it
may do or refrain from doing in the reasonable exercise of its judgment, or
which the Administrative Agent or the Competitive Advance Facility Agent
reasonably believes to be necessary or desirable in the premises.
SECTION 9.8. INDEMNIFICATION. The Lenders agree to indemnify each of the
Competitive Advance Facility Agent and the Administrative Agent (to the
extent not reimbursed by the Company), ratably according to the respective
principal amounts of their Commitments from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, reasonable out of pocket costs and expenses (including reasonable
external counsel costs), expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against either
the Competitive Advance Facility Agent or the Administrative Agent in any
action taken or omitted by the Administrative Agent or the Competitive
Advance Facility Agent with respect to this Agreement, provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's or the Competitive
Advance Facility Agent's gross negligence or willful misconduct or from any
action taken or omitted by the Administrative Agent or the Competitive
Advance Facility Agent in any capacity other than as agent under this
Agreement.
SECTION 9.9. SUCCESSOR. The Company may select a successor or alternate
Administrative Agent and/or Competitive Advance Facility Agent with the
approval of the holders of fifty-one percent (51%) by amount of the
Commitments or Loans, as the case may be.
ARTICLE X. MISCELLANEOUS
SECTION 10.1. LENDERS' INDEPENDENT INVESTIGATION. Each Lender, by its signature
to this Agreement, acknowledges and agrees that it has made and shall
continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of the Company and any Subsidiary in
connection with the extension of credit hereunder, and agrees that no other
Lender, the Administrative Agent or the Competitive Advance Facility Agent
has any duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect
thereto whether coming into its possession before the making of the first
Loans or at any time or times thereafter.
SECTION 10.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of dealing
on the part of any Lender or the holder of any Note in exercising any
right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are
cumulative and in addition to any other rights, powers or privileges held
by operation of law, by contract or otherwise.
31
32
SECTION 10.3. AMENDMENTS. Except as otherwise specifically provided herein, no
amendment, modification, termination, or waiver of any provision of this
Agreement or of the Notes (except in the event of a Money Market Note
and/or Competitive Note), nor consent to any variance therefrom, shall be
effective unless the same shall be in writing and signed by the Company and
the Majority Lenders and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
The unanimous consent of the Lenders, shall be required with respect to
(i) the change of maturity of the Notes under Section 2.1A hereto, or the
payment date of interest on Notes pursuant to Section 2.1A, (ii) any change
in the rate of interest on such Notes, or in the rate at which the Facility
Fee referred to in Section 2.3 hereof shall be calculated or in any amount
of principal or interest due on any such Note, or in the manner of pro-rata
application of any payments made by the Company to the Lenders hereunder,
(iii) any change in any percentage voting requirement in this Agreement,
(iv) any change in any date specified in this Agreement for the payment of
principal or interest on any Note under Section 2.1A hereto or for the
payment of any Facility Fee hereunder, (v) any increase in any Lender's
Commitment or Percentage, except pursuant to Section 2.5(iii) hereof, or
any increase in the aggregate of all of the Lenders' Commitments hereunder
or (vi) any change to this Section 10.3. No amendments to the duties or
responsibilities of the Administrative Agent or Competitive Advance
Facility Agent may be made without the prior written consent of the
Administrative Agent or the Competitive Advance Facility Agent, as the case
may be, except as provided in Section 9.9 hereof.
Notice of amendments or consents ratified by the Lenders hereunder
shall immediately be forwarded by the Company to all Lenders. Each Lender
or other holder of a Note shall be bound by any amendment, waiver or
consent obtained as authorized by this Section, regardless of its failure
to agree thereto.
SECTION 10.4. CONFIDENTIALITY. Unless the Company otherwise agrees in writing,
each Lender hereby agrees to keep all Proprietary Information (as defined
below) confidential and not to disclose or reveal any Proprietary
Information to any person or entity other than such Lender's directors,
officers, employees, affiliates, and agents, and then only on a
confidential need-to-know basis; provided, however that a Lender may
disclose Proprietary Information (a) as required by law, rule, regulation,
or judicial process, (b) to its attorneys and accountants, (c) as requested
or required by a state, federal, or foreign authority or examiner
regulating banks or banking, or (d) to actual or potential assignees or
participants as permitted by Section 10.9 hereof who agree to be bound by
the provisions of this Section. For purposes of this Agreement, the term
"Proprietary Information" shall include all information about the Company,
any Subsidiary, or any of their respective affiliates which has been
furnished by the Company, any Subsidiary, or any of their respective
affiliates, whether furnished before or after the date hereof, and
regardless of the manner furnished; provided, however, that Proprietary
Information shall not include information which (x) is or becomes generally
available to the public other than as a result of a disclosure by a Lender
not permitted by this Agreement, (y) was available to a Lender on a
nonconfidential basis prior to its disclosure to such Lender by the
Company, any Subsidiary, or any of their respective affiliates, or (z)
becomes available to a Lender on a nonconfidential basis from a person
and/or entity other than the Company, any Subsidiary, or any of their
respective affiliates who, to the best knowledge of such Lender, is not
otherwise bound by a confidentiality agreement with the Company, any
Subsidiary, or any of their respective affiliates, or, to the best
knowledge of such Lender, is not otherwise prohibited from transmitting the
information to such Lender.
SECTION 10.5. NOTICES. All notices, requests, demands and other communications
provided
32
33
for hereunder shall be in writing and, if to the Company or a Subsidiary,
mailed or delivered to it, addressed to it at the address of the Company
herein or hereinafter specified, and if to a Lender, mailed or delivered to
it, addressed to the address (as may be amended from time to time) of such
Lender specified on its signature page to this Agreement. All notices,
statements, requests, demands and other communications provided for
hereunder shall be deemed to be given or made when received.
SECTION 10.6. COSTS AND EXPENSES. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses (including reasonable legal
fees for outside counsel) of the Lenders incurred directly as a result of
the enforcement of this Agreement, the Notes and the other instruments and
documents in connection herewith.
SECTION 10.7. OBLIGATIONS SEVERAL. The obligations of the Lenders hereunder are
several and not joint. Nothing contained in this Agreement and no action
taken by the Lenders pursuant hereto shall be deemed to constitute the
Lenders as a partnership, association, joint venture or other entity. No
default by any Lender hereunder shall excuse the other Lenders from any
obligation under this Agreement; but no Lender shall have or acquire any
additional obligation of any kind by reason of such default.
SECTION 10.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and when taken together shall constitute one and the same
agreement.
SECTION 10.9. ASSIGNMENTS AND PARTICIPATIONS.
A. ASSIGNMENTS. Unless the Company otherwise consents in writing, which
consent shall not be unreasonably withheld, no payee or other party in
possession of any Note (including any Lender) shall assign or transfer
any Note or any interest therein to any other person or entity, except
as otherwise permitted under this Section, or negotiate any Note, as
such term is defined in Ohio Revised Code Chapter 1303; provided,
however, no consent from the Company shall be required in the event a
Lender makes any such assignment to an affiliate of such Lender or to
another Lender. Except as otherwise expressly agreed in writing by the
Company, no Lender shall, by reason of the assignment or transfer of
any Note or otherwise, be relieved of any of its obligations hereunder.
Each transferee of any Note shall take such Note subject to the
provisions of this Agreement and to any request made, waiver or consent
given, or other action taken hereunder, prior to such transfer, by each
previous holder of such Note; and the Company shall be entitled to
conclusively assume that the transferee shall thereafter be vested with
all rights and powers under this Agreement of the Lender named as the
payee of the Note which is the subject of such transfer. Nothing herein
shall prohibit any Lender from pledging or assigning any Note to any
Federal Reserve Bank of the United States pursuant to applicable law.
No party in possession of a Note shall be a "Holder" as such term is
defined in Ohio Revised Code Chapter 1303. Notwithstanding any
provision of this Section 10.9 to the contrary, the Company may not
assign or transfer any of its rights or obligations hereunder without
the consent of the holders of one hundred percent (100%) by amount of
the Commitments or Loans, as the case may be.
B. PARTICIPATIONS. Any Lender may grant participations in or to all or any
part of any Loan or Loans held by such Lender and Commitment of such
Lender and the Notes held by such Lender without the consent of the
Company. Except as otherwise expressly agreed in
33
34
writing by the Company, no grant of a participation shall relieve any
Lender of its obligations hereunder. The Company shall be entitled to
deal solely with the Lenders (and their respective assignees) for all
purposes of this Agreement and the Notes, and no holder of a
participation in all or any part of the Loans, Notes or Commitments
shall have any rights under this Agreement and shall not be a Holder of
any Note, as such term is defined in Ohio Revised Code Chapter 1303.
C. DISCLOSURE OF INFORMATION. The Company hereby consents to the
disclosure of any information obtained in connection herewith by any
Lender to any entity which is an assignee or potential assignee or a
participant or potential participant pursuant to Section 10.9A or 10.9B
hereof, it being understood that such Lender shall advise any such
actual or potential assignee or participant of its obligation to keep
confidential any nonpublic information disclosed to it pursuant to this
Section 10.9 and, prior to the disclosure of such information, shall
cause each such actual or potential assignee or participant to execute
a confidentiality agreement containing the confidentiality provisions
set forth in Section 10.4 hereof.
D. SECURITIES LAWS. Each Lender represents that it is the present
intention of such Lender to acquire each Note drawn to its order for
its own account and not with a view to the distribution or sale
thereof.
SECTION 10.10. TAX FORMS. With respect to each Lender which is organized under
the laws of a jurisdiction outside the United States (which claims,
exemption from, or reduction of, United States withholding tax under
Sections 1441 or 1442 of the Internal Revenue Code of 1986, as amended), on
the date of any borrowing, and from time to time thereafter if requested by
the Company or the Administrative Agent, each such Lender shall provide the
Administrative Agent and the Company with the forms prescribed by the
Internal Revenue Service of the United States certifying as to such
Lender's status for purposes of determining exemption from 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 subject to such tax at a rate reduced by an applicable tax
treaty. Unless the Company and the Administrative Agent have received such
forms and such other documents reasonably requested by the Administrative
Agent or the Company indicating that payments hereunder are not subject to
United States withholding tax or are subject to such tax at a rate reduced
by an applicable tax treaty, the Company or the Administrative Agent shall
withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender organized under the laws of a
jurisdiction outside the United States.
SECTION 10.11. ENTIRE AGREEMENT. This Agreement supersedes any prior agreement
or understanding of the parties hereto, and contains the entire agreement
of the parties hereto, with respect to the matters covered hereby; provided
that the indemnification and expense reimbursement provisions of the
Commitment Letter dated November 12, 1996 by and among the Company, TCB,
Chase and Chase Securities, Inc. and the provisions relating to the
administration fees and the auction administration fees in the Fee Letter
referred to therein shall continue in effect notwithstanding the execution
and delivery of this Agreement.
SECTION 10.12. GOVERNING LAW. This Agreement, each of the Notes and any Related
Writing shall be governed by and construed in accordance with the laws of
the State of Ohio and the respective rights and obligations of the Company
and the Lenders shall be governed by Ohio law.
SECTION 10.13. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
34
35
Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement.
SECTION 10.14. PRESS RELEASES. Neither the Administrative Agent nor the
Competitive Advance Facility Agent or any Lender shall issue any press
release regarding this Agreement without the prior written consent of the
Company.
SECTION 10.15. CONSENT TO JURISDICTION. The Company hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New
York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, the
Competitive Advance Facility Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against the
Company or its properties in the courts of any jurisdiction.
The Company hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court
referred to in this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 10.5. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date indicated above.
THE SHERWIN-WILLIAMS COMPANY
By: /s/
---------------------------------
LARRY J. PITORAK
Title: SENIOR VICE PRESIDENT-
FINANCE, TREASURER AND
CHIEF FINANCIAL OFFICER
By: /s/
---------------------------------
CYNTHIA D. BROGAN
Title: VICE PRESIDENT AND ASSISTANT
TREASURER
36
Amount of Percentage of
Commitment Commitments Morgan Guaranty Trust Company of New York
- ---------- -----------
$10,000,000 3.45%
By: /s/
-------------------------------------
Name:
Title:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260
Telephone:
------------------------------
Facsimile:
------------------------------
37
Amount of Percentage of
Commitment Commitments ABN AMRO Bank N.V.
- ---------- ----------- by: ABN AMRO North America, Inc. as agent
$10,000,000 3.45%
By: /s/
-------------------------------------
Name:
Title:
ABN Amro Bank N.V.
by: ABN AMRO North America, Inc. as agent
One PPG Place, Suite 2950
Pittsburgh, PA l5222-5400
Telephone:
-------------------------
Facsimile:
-------------------------
38
Amount of Percentage of
Commitment Commitments Caisse Nationale de Credit Agricole
- ---------- -----------
$6,000,000 2.07%
By: /s/
---------------------------------
Name:
Title:
Caisse Nationale de Credit Agricole
55 East Monroe St., Suite 4700
Chicago, Ill. 60603-5702
Telephone:
--------------------------
Facsimile:
--------------------------
39
Amount of Percentage of
Commitment Commitments The Dai Ichi Kangyo Bank, Ltd.
- ---------- ----------- Chicago Branch
$6,000,000 2.07%
By: /s/
-------------------------------
Name:
Title:
The Dai Ichi Kangyo Bank, Ltd.
Chicago Branch
10 South Wacker Drive - 26th Floor
Chicago, Ill. 60606
Telephone:
------------------------
Facsimile:
------------------------
40
Amount of Percentage of
Commitment Commitments Bank of Montreal
- ---------- -----------
$6,000,000 2.07%
By: /s/
-------------------------------
Name:
Title:
Bank of Montreal
430 Park Avenue
New York, NY 10022
Telephone:
-----------------------
Facsimile:
-----------------------
41
Amount of Percentage of
Commitment Commitments Den Danske Bank
- ---------- -----------
$6,000,000 2.07%
By: /s/
--------------------------------
Name:
Title:
Den Danske Bank
280 Park Avenue
New York, New York 10017-1216
Telephone:
-----------------------
Facsimile:
-----------------------
42
Amount of Percentage of
Commitment Commitments First National Bank of Boston
- ---------- -----------
$6,000,000 2.07%
By: /s/
----------------------------
Name:
Title:
First National Bank of Boston
100 Federal Street, 01-09-05
Boston, MA 02110
Telephone:
---------------------
Facsimile:
---------------------
43
Amount of Percentage of
Commitment Commitments United States National Bank of Oregon
- ---------- -----------
$6,000,000 2.07%
By: /s/
------------------------------------
Name:
Title:
United States National Bank of Oregon
555 SW Oak Street, Suite 400
Portland, OR 97204
Telephone:
------------------------------
Facsimile:
------------------------------
44
Amount of Percentage of
Commitment Commitments The Sumitomo Bank, Limited
- ---------- ----------- Chicago Branch
$6,000,000 2.07%
By: /s/
--------------------------------
Name:
Title:
The Sumitomo Bank, Limited
Chicago Branch
233 South Wacker Drive, Suite 4800
Chicago, IL 60606
Telephone:
-------------------------
Facsimile:
-------------------------
45
Amount of Percentage of
Commitment Commitments National City Bank
- ---------- -----------
$10,000,000 3.45%
By: /s/
-------------------------------
Name:
Title:
National City Bank
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Telephone:
------------------------
Facsimile:
------------------------
46
Amount of Percentage of
Commitment Commitments Wells Fargo Bank, N.A.
- ---------- -----------
$10,000,000 3.45%
By: /s/
------------------------------
Name:
Title:
Wells Fargo Bank, N.A.
707 Wilshire Blvd. - MAC 2818-165
Los Angeles, Calif. 90017
Telephone:
-----------------------
Facsimile:
-----------------------
47
Amount of Percentage of
Commitment Commitments PNC Bank, National Association
- ---------- -----------
$13,000,000 4.48%
By: /s/
---------------------------
Name:
Title:
PNC Bank, National Association
249 Fifth Ave., 2nd Floor
Pittsburgh, PA 15222
Telephone:
----------------------
Facsimile:
----------------------
48
Amount of Percentage of
Commitment Commitments Wachovia Bank of Georgia, N.A.
- ---------- -----------
$10,000,000 3.45%
By: /s/
-----------------------------
Name:
Title:
Wachovia Bank of Georgia, N.A.
191 Peachtree St., N.E.
Atlanta, GA 30303
Telephone:
---------------------
Facsimile:
---------------------
49
Amount of Percentage of
Commitment Commitments SunTrust Bank, Atlanta
- ---------- -----------
$13,000,000 4.48%
By: /s/
-----------------------
Name:
Title:
SunTrust Bank, Atlanta
25 Park Place
Atlanta, GA 30302
Telephone:
---------------------
Facsimile:
---------------------
50
Amount of Percentage of
Commitment Commitments Comerica Bank
- ---------- -----------
$6,000,000 2.07%
By: /s/
----------------------------------------
Name:
Title:
Comerica Bank
One Detroit Center, 500 Woodward Ave. MC3280
Detroit, MI 48226
Telephone:
--------------------------------
Facsimile:
--------------------------------
51
Amount of Percentage of
Commitment Commitments Norddeutsche Landesbank Girozentrale
- ---------- ----------- New York Branch and Cayman Islands Branch
$6,000,000 2.07%
By: /s/
------------------------------------
Name:
Title:
Norddeutsche Landesbank Girozentrale
New York Branch and Cayman Islands Branch
1270 Avenue of the Americas
New York, New York 10020
Telephone:
------------------------------
Facsimile:
------------------------------
52
Amount of Percentage of
Commitment Commitments Banca Commerciale Italiana
- ---------- ----------- Chicago Branch
$6,000,000 2.07%
By: /s/
-------------------------------------
Name:
Title:
Banca Commerciale Italiana
Chicago Branch
150 North Michigan Avenue, Suite 1500
Chicago, Ill. 60601
Telephone:
----------------------------
Facsimile:
----------------------------
53
Amount of Percentage of
Commitment Commitments The Bank of New York
- ---------- -----------
$13,000,000 4.48%
By: /s/
-----------------------------
Name:
Title:
The Bank of New York
One Wall Street
New York, New York 10286
Telephone:
----------------------
Facsimile:
----------------------
54
Amount of Percentage of
Commitment Commitments The First National Bank of Chicago
- ---------- -----------
$13,000,000 4.48%
By: /s/
------------------------------
Name:
Title:
The First National Bank of Chicago
611 Woodward Avenue
Detroit, MI 48226
Telephone:
------------------------
Facsimile:
------------------------
55
Amount of Percentage of
Commitment Commitments The Fuji Bank, Limited
- ---------- -----------
$13,000,000 4.48%
By: /s/
-----------------------------
Name:
Title:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, IL. 60606
Telephone:
-----------------------
Facsimile:
-----------------------
56
Amount of Percentage of
Commitment Commitments The Bank of Tokyo-Mitsubishi, Ltd.
- ---------- ----------- Chicago Branch
$13,000,000 4.48%
By: /s/
--------------------------------
Name:
Title:
The Bank of Tokyo-Mitsubishi, Ltd.
Chicago Branch
227 W. Monroe St., Suite 2300
Chicago, IL. 60606
Telephone:
--------------------------
Facsimile:
--------------------------
57
Amount of Percentage of
Commitment Commitments The Bank of Nova Scotia
- ---------- ----------- Atlanta Agency
$13,000,000 4.48%
By: /s/
----------------------------
Name:
Title:
The Bank of Nova Scotia
Atlanta Agency
600 Peachtree St., N.E., Suite 2700
Atlanta, GA 30308
Telephone:
----------------------
Facsimile:
----------------------
58
Amount of Percentage of
Commitment Commitments CIBC, Inc.
- ---------- -----------
$13,000,000 4.48%
By: /s/
-----------------------------
Name:
Title:
CIBC, Inc.
425 Lexington Ave., 6th Floor
New York, New York 10017
Telephone:
-----------------------
Facsimile:
-----------------------
59
Amount of Percentage of
Commitment Commitments Nationsbank, N.A.
- ---------- -----------
$13,000,000 4.48%
By: /s/
-----------------------------
Name:
Title:
Nationsbank, N.A.
100 N. Tryon Street
Charlotte, N.C. 28255
Telephone:
----------------------
Facsimile:
----------------------
60
Amount of Percentage of
Commitment Commitments KeyBank National Association
- ---------- -----------
$13,000,000 4.48%
By: /s/
-----------------------------
Name:
Title:
KeyBank National Association
127 Public Square/Mail Code:OH 01-27-0606
Cleveland, Ohio 44114-1306
Telephone:
--------------------------------
Facsimile:
--------------------------------
61
Amount of Percentage of
Commitment Commitments The Long-Term Credit Bank of Japan, Ltd.
- ---------- ----------- Chicago Branch
$6,000,000 2.07%
By: /s/
----------------------------------
Name:
Title:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
190 South LaSalle St., Suite 800
Chicago, Ill. 60603
Telephone:
------------------------------
Facsimile:
------------------------------
62
Amount of Percentage of
Commitment Commitments First Union National Bank of North Carolina
- ---------- -----------
$13,000,000 4.48%
By: /s/
--------------------------------------
Name:
Title:
First Union National Bank of North Carolina
301 South College St.
Charlotte, NC 28288
Telephone:
--------------------------------
Facsimile:
--------------------------------
63
Amount of Percentage of
Commitment Commitments Mellon Bank, N.A.
- ---------- -----------
$6,000,000 2.07%
By: /s/
--------------------------------
Name:
Title:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, PA 15258-0001
Telephone:
-------------------------
Facsimile:
-------------------------
64
Amount of Percentage of
Commitment Commitments Royal Bank of Canada
- ---------- -----------
$10,000,000 3.45%
By: /s/
-----------------------------
Name:
Title:
Royal Bank of Canada
Financial Square
New York, New York 10005
Telephone:
-----------------------
Facsimile:
-----------------------
65
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$15,000,000 5.17% Texas Commerce Bank National Association
By: /s/
------------------------------------
Name:
Title:
Texas Commerce Bank National Association
707 Travis Street
Houston, Texas 77002
Telephone:
-------------------------------
Facsimile:
-------------------------------
66
The Chase Manhattan Bank,
as the Competitive Advance Facility Agent
By: /s/
------------------------------------
Name:
Title:
The Chase Manhattan Bank
270 Park Avenue, 4th Floor
New York, NY 10017
Telephone:
-----------------------------
Facsimile:
-----------------------------
67
Schedule A
The Bank of New York CIBC, Inc.
One Wall Street 425 Lexington Avenue, 6th Floor
New York, NY 10286 New York, NY 10017
Nationsbank, N.A. First Union National Bank of North Carolina
100 N. Tryon Street 301 South College Street
Charlotte, NC 28255 Charlotte, NC 28288
Morgan Guaranty Trust Company The Bank of Nova Scotia
of New York 600 Peachtree Street N.E., Suite 2700
60 Wall Street Atlanta, GA 30308
New York, NY 10260
The First National Bank of Chicago The Fuji Bank, Limited
611 Woodward Avenue 225 West Wacker Drive, Suite 2000
Detroit, MI 48226 Chicago, IL 60606
The Bank of Tokyo-Mitsubishi, Ltd. Wachovia Bank of Georgia, N.A.
227 W. Monroe Street, Suite 2300 191 Peachtree Street N.E.
Chicago, IL 60606 Atlanta, GA 30303
Key Bank National Association PNC Bank, National Association
127 Public Square 249 Fifth Avenue, 2nd Floor
Mail Code: OH-01-27-0606 Pittsburgh, PA 15222
Cleveland, OH 44114-1306
Royal Bank of Canada SunTrust Bank, Atlanta
Financial Square 25 Park Place
New York, NY 10005 Atlanta GA 30302
The Dai Ichi Kangyo Bank, Ltd. The Sumitomo Bank, Limited
10 South Wacker Drive, 26th Floor 223 South Wacker Drive, Suite 4800
Chicago, IL 60606 Chicago, IL 60606
68
National City Bank Caisse Nationale de Credit Agricole
1900 East Ninth Street 55 East Monroe Street, Suite 4700
Cleveland, OH 44114-3484 Chicago, IL 60603-5702
The Long-Term Credit Bank of Japan, Ltd. Mellon Bank, N.A.
190 South La Salle Street, Suite 800 One Mellon Bank Center
Chicago, IL 60603 Pittsburgh, PA 15258-0001
Wells Fargo Bank, N.A. Comerica Bank
707 Wilshire Blvd., MAC 2818-165 One Detroit Center
Los Angeles, CA 90017 500 Woodward Avenue, MC3280
Detroit, MI 48226
ABN AMRO Bank N.V. The First National Bank of Boston
One PPG Place, Suite 2950 100 Federal Street, 01-09-05
Pittsburgh, PA 15222-5400 Boston, MA 02110
Den Danske Bank Banca Commerciale Italiana
280 Park Avenue 150 North Michigan Avenue, Suite 1500
New York, NY 10017-1216 Chicago, IL 60601
United States National Bank Norddeutsche Landesbank Girozentrale
of Oregon 1270 Avenue of the Americas
555 SW Oak Street, Suite 400 New York, NY 10020
Portland, OR 97204
Bank of Montreal
430 Park Avenue
New York, NY 10022
69
Schedule B
NON-NEGOTIABLE REVOLVING CREDIT NOTE
$________________________ Cleveland, Ohio
Due Date: _______________, 19__
FOR VALUE RECEIVED, the undersigned, THE SHERWIN-WILLIAMS COMPANY
("Borrower") promises to pay to the order of _____________________________
("Lender"), the principal sum of _______________________________ Dollars
($__________) or the aggregate unpaid principal amount of all Loans evidenced by
this Note made by Lender to Borrower pursuant to Paragraph A of Section 2.1 of
the Credit Agreement, whichever is less, in legal tender of the United States of
America on the Due Date indicated above pursuant to that certain Credit
Agreement ("Credit Agreement") dated January 3, 1997 by and among Borrower,
Texas Commerce Bank National Association, as Administrative Agent, The Chase
Manhattan Bank and the Lenders identified on the signature pages to such
Agreement. Capitalized terms used, but not otherwise defined herein, shall have
the meanings ascribed to them in said Credit Agreement.
Borrower promises to pay interest on the unpaid principal amount from
time to time outstanding from the date of such Loan until the payment in full
thereof at the rates per annum which shall be determined in accordance with the
provisions of Paragraph A of Section 2.1 of the Credit Agreement. Said interest
shall be payable on each date provided for in Paragraph A of said Section 2.1;
provided, however, that interest on any principal portion which is not paid when
due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Alternate Base Rate Loans and LIBOR Loans, and payments of principal of any
thereof, will be recorded on the grid(s) attached hereto and made a part hereof
or by appropriate book entry. All Revolving Credit Loans to Borrower pursuant to
the Credit Agreement and all payments on account of principal hereof shall be
recorded by Lender prior to transfer hereof on such grid(s) or by appropriate
book entries, it being understood, however, that Lender's failure to record
appropriate information in the grid(s) attached to this Note shall in no way
affect the obligation of Borrower under the Credit Agreement or this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement, or any Event of
Default under the Credit Agreement the principal hereof and the unpaid interest
thereon shall bear interest, until paid, at a rate per annum which shall be 1.1
times the Alternate Base Rate. All payments of principal of and interest on this
Note shall be made in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement. Reference is made to such Credit Agreement for a description
of other terms and conditions upon which this Note is issued.
THE SHERWIN-WILLIAMS COMPANY
("Borrower")
By:
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Title:
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70
REVOLVING CREDIT NOTE
LOANS AND PRINCIPAL PAYMENTS
----------------------------
Date Amount of Alternate Amount of Amount of Unpaid Principal Balance Name of Person
Base Rate Loan LIBOR Loan Principal Prepaid of Revolving Credit Note Making Notification
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71
Schedule C
NON-NEGOTIABLE MONEY MARKET NOTE
$________________________ Cleveland, Ohio
______________________, 19__
Due Date: ___________________
FOR VALUE RECEIVED, the undersigned, THE SHERWIN-WILLIAMS
COMPANY ("Borrower") promises to pay to the order of ___________________
("Lender"), the principal sum of __________________________ Dollars
($__________) pursuant to Paragraph B of Section 2.1 of the Credit Agreement, in
legal tender of the United States of America on the Due Date indicated above
pursuant to that certain Credit Agreement (as may be amended from time to time,
"Credit Agreement") dated January __, 1997 by and among Borrower, Texas Commerce
Bank National Association, as Administrative Agent, The Chase Manhattan Bank and
the Lenders identified on the signature pages to such Agreement in lawful money
of the United States of America. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the credit agreement
referred to herein.
Borrower promises to pay interest on the unpaid principal amount from
time to time outstanding from the date of such Loan until the payment in full
thereof at the rate of __________ percent (____%) per annum. Said interest shall
be payable on each date provided for in Paragraph B of Section 2.1 of the Credit
Agreement; provided, however, that interest on any principal portion which is
not paid when due shall be payable on demand.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the credit agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be 1.1 times the Alternate Base Rate from time to time in
effect. All payments of principal of and interest on this Note shall be made in
immediately available funds.
This Note is one of the Money Market Notes referred to in the Credit
Agreement. Reference is made to such Credit Agreement for a description of other
terms and conditions upon which this Note is issued.
THE SHERWIN-WILLIAMS COMPANY
("Borrower")
By:
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72
MONEY MARKET NOTE
LOANS AND PRINCIPAL PAYMENTS
----------------------------
Date Amount of Loan Amount of Principal Unpaid Principal Balance Name of Person Making
Prepaid of Money Market Loan Notation
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73
Schedule D
NON-NEGOTIABLE COMPETITIVE BID NOTE
$___________________ Cleveland, Ohio
Due Date: _______________, 19__
FOR VALUE RECEIVED, the undersigned, THE SHERWIN-WILLIAMS COMPANY
("Borrower") promises to pay on the last day of the relevant interest period as
referred to in that certain Credit Agreement ("Credit Agreement") dated January
__, 1997 by and among Borrower, Texas Commerce Bank National Association, Chase
Securities, Inc., The Chase Manhattan Bank and the Lenders identified on the
signature pages to such Agreement, to the order of _____________________________
("Lender"), the principal sum of _______________________________ Dollars
($__________) or the aggregate unpaid principal amount of all Loans evidenced by
this note made by Lender to Borrower pursuant to Paragraph D of Section 2.1 of
the Credit Agreement, whichever is less, in legal tender of the United States of
America pursuant to that certain Credit Agreement (as may be amended from time
to time, "Credit Agreement") dated January __, 1997 by and among Borrower, Texas
Commerce Bank National Association, as Administrative Agent, The Chase Manhattan
Bank and the Lenders identified on the signature pages to such Agreement.
Capitalized terms used, but not otherwise defined herein, shall have the
meanings ascribed to them in said Credit Agreement.
Borrower promises to pay interest on the unpaid principal amount from
time to time outstanding from the date of such Loan until the payment in full
thereof at the rates per annum which shall be determined in accordance with the
provisions of Paragraph C of Section 2.1 of the Credit Agreement. Said interest
shall be payable as provided in the Competitive Bid accepted by the Company
provided, however, that interest on any principal portion which is not paid when
due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Fixed Rate Loans and Competitive Libor Loans, and payments of principal of any
thereof, will be recorded on the grid(s) attached hereto and made a part hereof
or by appropriate book entry. All Competitive Loans to Borrower pursuant to the
Credit Agreement and all payments on account of principal hereof shall be
recorded by Lender prior to transfer hereof on such grid(s) or by appropriate
book entries, it being understood, however, that Lender's failure to record
appropriate information in the grid(s) attached to this Note shall in no way
affect the obligation of Borrower under the Credit Agreement or this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement hereinafter referred
to, or in any Event of Default under the Credit Agreement the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be _________________
This Note is one of the Competitive Notes referred to in the Credit
Agreement. Reference is made to such Credit Agreement for a description of other
terms and conditions upon which this Note is issued.
THE SHERWIN-WILLIAMS COMPANY
("Borrower")
By:
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Title:
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74
COMPETITIVE NOTE
LOANS AND PRINCIPAL PAYMENTS
----------------------------
Amount of Fixed Amount of Amount of Unpaid Principal Balance Name of Person
Date Rate Loan Competitive Principal Prepaid (if of Competitive Note Making Notification
Libor Loan consent obtained)
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75
LOANS AND PRINCIPAL PAYMENTS
----------------------------
Date Amount of Loan Amount of Principal Unpaid Principal Balance Name of Person Making
Prepaid of Money Market Loan Notation
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