EXHIBIT 10.18
CREDIT AGREEMENT
among
NORTH AMERICAN TIMBER CORP.
THE LENDERS NAMED HEREIN
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
COMMERZBANK AG,
NEW YORK BRANCH,
as Documentation Agent,
THE CHASE MANHATTAN BANK and CITIBANK, N.A.,
as Co-Syndication Agents
and
BANC OF AMERICA SECURITIES LLC,
Sole Book Manager and Sole Lead Arranger,
$1,000,000,000
Dated as of July 22, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms. 1
1.02 Computation of Time Periods. 14
1.03 Accounting Matters 14
1.04 Certain Terms 14
ARTICLE 2 AMOUNTS AND TERMS OF THE LOANS
2.01 Committed Loans. 14
2.02 Procedure for Committed Borrowings 15
2.03 Bid Borrowings 16
2.04 Procedure for Bid Borrowings 16
2.05 Evidence of Indebtedness 18
2.06 Optional Reduction of the Commitments 18
2.07 Repayment 19
2.08 Optional Prepayments 19
2.09 Interest 19
2.10 Default Interest 20
2.11 Continuation and Conversion Elections for Committed
Loans. 20
ARTICLE 3 THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility 21
3.02 Issuance, Amendment and Renewal of Letters of Credit 23
3.03 Role of the Issuing Bank. 24
3.04 Obligations Absolute. 25
3.05 Cash Collateral Pledge 26
3.06 Letter of Credit Fees. 26
3.07 International Standby Practices. 26
ARTICLE 4 FEES; PAYMENTS; TAXES
4.01 Fees. 27
4.02 Computation of Interest, Fees. 27
4.03 Payments by the Company. 28
4.04 Payments by the Lenders 28
4.05 Taxes 29
4.06 Sharing of Payments, Etc. 33
ARTICLE 5 CHANGES IN CIRCUMSTANCES; ETC.
5.01 Eurodollar Rate Protection 33
5.02 Additional Interest on Eurodollar Loans. 33
5.03 Increased Costs. 34
5.04 Illegality 34
5.05 Capital Adequacy. 34
5.06 Funding Losses. 34
5.07 Funding; Certificates of Lenders. 35
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5.08 Change of Lending Office; Limitation on Increased Costs 36
5.09 Replacement of Lenders 36
ARTICLE 6 REPRESENTATIONS AND WARRANTIES
6.01 Corporate Existence; Compliance with Law. 36
6.02 Corporate Power; Authorization 37
6.03 Enforceable Obligations. 37
6.04 Taxes 38
6.05 Financial Matters 38
6.06 Litigation 38
6.07 Subsidiaries 38
6.08 Liens 38
6.09 No Burdensome Restrictions; No Defaults. 38
6.10 Investment Company Act; Public Utility Holding Company
Act 39
6.11 Margin Regulations. 39
6.12 Environmental Matters. 39
6.13 Labor Matters 40
6.14 ERISA Plans. 40
6.15 Y2K Review 40
6.16 Swap Obligations 41
6.17 Full Disclosure 41
ARTICLE 7 CONDITIONS PRECEDENT
7.01 Conditions Precedent to the First Loan 41
7.02 Additional Conditions Precedent to the First Loan 42
7.03 Conditions Precedent to Each Committed Loan and
Letter of Credit 42
7.04 Conditions Precedent to Each Bid Borrowing. 43
ARTICLE 8 AFFIRMATIVE COVENANTS
8.01 Application of Proceeds 43
8.02 Compliance with Laws, Etc. 43
8.03 Payment of Taxes, Etc. 43
8.04 Maintenance of Insurance 44
8.05 Preservation of Corporate Existence, Etc. 44
8.06 Access 44
8.07 Keeping of Books 44
8.08 Maintenance of Properties, Etc. 44
8.09 Financial Statements. 44
8.10 Reporting Requirements. 45
8.11 ERISA Plans 45
8.12 Environmental Compliance; Notice 45
8.13 New Subsidiaries. 46
ARTICLE 9 NEGATIVE COVENANTS
9.01 Liens, Etc. 46
9.02 Sale-Leaseback Transactions. 48
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9.03 Mergers, Etc. 48
9.04 Transactions with Affiliates. 49
9.05 Accounting Changes. 49
9.06 Margin Regulations. 49
9.07 Negative Pledges, Etc 49
9.08 Leverage Ratio 49
ARTICLE 10 EVENTS OF DEFAULT
10.01 Events of Default 49
10.02 Remedies. 51
ARTICLE 11 THE AGENT
11.01 Appointment. 52
11.02 Delegation of Duties 52
11.03 Liability of Agent 52
11.04 Reliance by Agent 53
11.05 Notice of Default 53
11.06 Credit Decision. 53
11.07 Indemnification 54
11.08 Agent in Individual Capacity 54
11.09 Successor Agent 54
11.10 Documentation, Co-Syndication, Managing Agents 55
ARTICLE 12 MISCELLANEOUS
12.01 Notices, Etc. 55
12.02 Amendments, Etc. 55
12.03 No Waiver; Remedies 56
12.04 Costs and Expenses 56
12.05 Indemnity 57
12.06 Right of Set-off. 58
12.07 Binding Effect 58
12.08 Assignments, Participations, Etc. 58
12.09 Confidentiality 60
12.10 Survival 60
12.11 Severability 60
12.12 Headings 61
12.13 No Third Parties Benefited. 61
12.14 Governing Law 61
12.15 Execution in Counterparts 61
12.16 ENTIRE AGREEMENT 61
12.17 WAIVER OF JURY TRIAL 61
SCHEDULES
Schedule Description
- -------- -----------
iii
1.01(a) Commitments; Commitment Percentages
1.01(b) Lending Offices
6.02(d) Corporate Power; Authorizations
6.12 Environmental Matters
6.13 Labor Matters
6.14 ERISA
9.01 Existing Liens
EXHIBITS
Exhibit Description
- ------- -----------
2.02(a) Form of Notice of Borrowing
2.04(a) Form of Competitive Bid Request
2.05(b) Form of Promissory Note (Committed Loans)
2.05(c) Form of Promissory Note (Bid Loans)
2.11(b) Form of Notice of Conversion/Continuation
7.01(c) Form of Parent Guaranty
7.01(d) Form of Opinion of Counsel for the Company
7.01(e) Form of Contribution Agreement
7.02(d) Form of Officer's Closing Certificate
8.09(c) Form of Compliance Certificate
8.13(a) Form of Subsidiary Guaranty
12.08(b) Form of Assignment and Assumption Agreement
iv
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of July 22, 1999 among NORTH
AMERICAN TIMBER CORP., a Delaware corporation (the "Company"), the various
LENDERS that are, or may from time to time become, party hereto (the "Lenders")
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative
agent for the Lenders (in such capacity, the "Agent"), COMMERZBANK AG, NEW YORK
BRANCH, as Documentation Agent, and THE CHASE MANHATTAN BANK and CITIBANK, N.A.,
as Co-Syndication Agents.
WHEREAS, the Company has obtained commitments from the Lenders,
pursuant to which the Lenders are willing to make loans to the Company and to
provide certain other credit facilities to the Company (including a competitive
bid facility) in a maximum aggregate principal amount at any one time
outstanding not to exceed $1,000,000,000, on the terms and subject to the
conditions set forth herein;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms. As used in this Agreement and in any
Schedules and Exhibits to this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Adjusted Reference Rate" means the fluctuating interest rate per annum
equal to the higher of (a) the sum of the Federal Funds Rate plus 1/2% and (b)
the rate of interest (the "Reference Rate") publicly announced from time to time
by Bank of America at its executive offices, as its reference rate or prime
rate. The Reference Rate is a rate set by Bank of America based upon various
factors, including Bank of America's cost and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below the Reference Rate. Any change in
the Reference Rate shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Affiliate" means, with respect to any Person, any Subsidiary of such
Person and any other Person which, directly or indirectly, controls, or is
controlled by, or is under common control with, such Person (excluding any
trustee under, or any committee with responsibility for administering, any
Plan). A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power:
(a) to vote 10% or more of the securities having ordinary
voting power for the election of directors of such other Person; or
(b) to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" means Bank of America in its capacity as administrative agent
for the Lenders, together with any successor thereto in such capacity.
"Agent-Related Persons" means Bank of America and any successor agent
arising under Section 11.09 and any successor letter of credit issuing bank
hereunder, together with their respective
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Affiliates (including, in the case of Bank of America, the Arranger), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Tranche A Commitments" means the aggregate amount of the
Tranche A Commitments of all the Lenders as in effect from time to time.
"Aggregate Tranche B Commitments" means the aggregate amount of the
Tranche B Commitments of all the Lenders as in effect from time to time.
"Agreement" means this Credit Agreement.
"Arranger" means Banc of America Securities LLC.
"Assignee" means any Person which becomes a party to this Agreement
pursuant to Section 12.08.
"Available Tranche A Commitments" means, at any time, the excess, if
any, of the Aggregate Tranche A Commitments in effect at such time over the sum
of (a) the aggregate principal amount of all Tranche A Loans then outstanding,
plus (b) the aggregate principal amount of all Tranche A Bid Loans then
outstanding, plus (c) the outstanding Tranche A L/C Obligations.
"Available Tranche B Commitments" means, at any time, the excess, if
any, of the Aggregate Tranche B Commitments in effect at such time over the sum
of (a) the aggregate principal amount of all Tranche B Loans then outstanding,
plus (b) the aggregate principal amount of all Tranche B Bid Loans then
outstanding, plus (c) the outstanding Tranche B L/C Obligations.
"Bank of America" means Bank of America National Trust and Savings
Association, a national banking association and its successors by merger and
permitted assigns.
"Base Rate" has the meaning specified in Section 2.04(a)(iv).
"Base Rate Bid Loan" means any Bid Loan that bears interest at a rate
determined with reference to a Base Rate.
"Bid Borrowing" means an extension of credit hereunder consisting of
one or more Bid Loans made to the Company on the same day by one or more
Lenders.
"Bid Loan" means either a Tranche A Bid Loan or a Tranche B Bid Loan.
"Borrowing" means a Bid Borrowing or a Committed Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City, New York, or San Francisco,
California, are authorized or required by law to close and, if the applicable
Business Day relates to any Eurodollar Loan, means such a day on which dealings
are carried on in the London interbank market.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Agent, for the benefit of the Agent, the Issuing Bank and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent and the Issuing
Bank (which documents are hereby consented to by the Lenders). Derivatives of
such term shall have corresponding meaning. The Company hereby grants the Agent,
for the benefit of the Agent, the Issuing
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Bank and the Lenders, a security interest in all such cash and deposit account
balances. Cash collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Closing Date" means the date on which all the conditions precedent set
forth in Sections 7.01 and 7.02 shall have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means for any Lender, either its Tranche A Commitment or
Tranche B Commitment, as applicable.
"Commitments" means, for any Lender, the sum of its Tranche A
Commitment and Tranche B Commitment.
"Commitment Percentage" means, as to any Lender at any time, the
percentage of the aggregate Commitments represented by such Lender's Commitment
at such time, as set forth on Schedule 1.01(a), as such percentage may be
modified from time to time in accordance with Notices of Assignment delivered
hereunder pursuant to Section 12.08.
"Committed Borrowing" means an extension of credit hereunder consisting
of Tranche A Loans or Tranche B Loans (but not both) of the same type made on
the same day by the Lenders ratably according to their respective Commitment
Percentages and, in the case of Eurodollar Loans, having the same Interest
Periods.
"Committed Loan" means a Tranche A Loan or a Tranche B Loan by a Lender
to the Company pursuant to Section 2.01 and may be in the form of a a Eurodollar
Loan or a Reference Rate Loan, each of which shall be a "type" of Committed
Loan.
"Company" has the meaning specified in the introduction to this
Agreement.
"Competitive Bid" means an offer by a Lender to make a Bid Loan in
accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning specified in Section 2.04(a).
"Contractual Obligation" means, with respect to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument to
which such Person is a party or by which it or any of its property is subject.
"Contribution Agreement" means the Contribution Agreement of even date
herewith between the Parent and each of its Subsidiaries (including the Company)
now or hereafter parties to the Subsidiary Guaranty or the "Subsidiary Guaranty"
as defined in the Georgia-Pacific Agreement.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which,
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together with the Company, are treated as a single employer under Section 414(b)
or 414(c) of the Code or Section 4001 of ERISA.
"Debt Rating" means, on any date, the rating of the Parent's senior
unsecured long-term Indebtedness, as most recently publicly announced by Moody's
and S&P, whichever is higher; provided, however, that if only one such rating is
available, the applicable interest rate or fee to be determined based on such
rating shall be determined solely by reference to such one rating.
"Default" means any event or condition which, with the giving of notice
or the lapse of time, or both, would become an Event of Default.
"Dollar" and "$" mean lawful money of the United States of America.
"EBITDA" means, as of the end of any Measurement Period, the sum of the
following, calculated for the Parent and its Subsidiaries on a consolidated
basis: (a) net income (or net loss) for such period, plus (b) all amounts
treated as expenses for depreciation, interest and the non-cash amortization of
intangibles of any kind to the extent included in the determination of such net
income (or loss), plus (c) cost of timber harvested by the Company (to the
extent it represents depletion) to the extent included in the determination of
such net income (or loss), plus (d) all accrued taxes on or measured by income
to the extent included in the determination of such net income (or loss);
provided, however, that net income (or loss) shall be computed for these
purposes without giving effect to extraordinary cash gains or non-recurring,
non-cash items.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $250,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $250,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary; and (d) any other Person approved in writing by the
Company, the Agent, and the Issuing Bank.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974,
together with the regulations thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Loan" means any Committed Loan that bears interest at a
rate determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means the maximum reserve percentage of
any Lender (expressed as a decimal) in effect on the date LIBOR for any Interest
Period is determined under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
4
to liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 10.01.
"Federal Funds Rate" means, 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 Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate".
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fee Letter" means the letter agreement dated the Closing Date between
the Company and Bank of America regarding the payment of certain fees.
"Fixed Rate" means a fixed annual percentage rate.
"Fixed Rate Bid Loan" means any Bid Loan that bears interest determined
with reference to a Fixed Rate.
"Form 1001" has the meaning specified in Section 4.05(f)(i)(B).
"Form 4224" has the meaning specified in Section 4.05(f)(i)(A).
"Form W-8" has the meaning specified in Section 4.05(f)(i)(B).
"Form W-9" has the meaning specified in Section 4.05(f)(i)(A).
"Funded Indebtedness" means, for any day, the sum of (i) all
Indebtedness for Borrowed Money of the Company and its consolidated Subsidiaries
outstanding on such day plus (ii) the aggregate capital invested as of such day
by Persons other than the Company and its consolidated Subsidiaries in
receivables and other accounts sold to such Persons by the Company and its
consolidated Subsidiaries, excluding receivables and other accounts sold in
connection with the sale of a business or the sale of the assets and/or
operations generating such receivables and other accounts.
"GAAP" means, as of any date of determination, generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the accounting profession) or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession.
"Georgia-Pacific Agreement" means the Credit Agreement, dated as of the
date hereof, by and among the Parent, Bank of America, and the Lenders.
5
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any central bank thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Material" means:
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq., as in
effect from time to time;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance, or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Indebtedness" of any Person means, without duplication, the
consolidated Indebtedness for Borrowed Money of such Person and guaranties of
indebtedness of others provided by such Person, all as determined in accordance
with GAAP consistent with the accounting principles applied in the preparation
of the financial statements referred to in Section 6.05(a).
"Indebtedness for Borrowed Money" of any Person means, without
duplication,
(a) all indebtedness of such Person for borrowed money,
including the Company's Premium Equity Participating Security Units,
whether or not treated as indebtedness under GAAP, until such time as
they are converted into common stock of the Company;
(b) all obligations of such Person issued or assumed as the
deferred purchase price of property or services other than bank
overdrafts and trade accounts payable arising in the ordinary course of
business consistent with past practices;
(c) all obligations of such Person evidenced by notes, bonds,
debentures, commercial paper or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses;
(d) all indebtedness of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies
of the seller or creditor under such agreement in the event of default
are limited to repossession or sale of such property);
(e) all rental obligations of such Person under leases
capitalized under GAAP as disclosed in the financial statements
delivered pursuant to Section 8.09; and
(f) all indebtedness of such Person or of others referred to
in paragraphs (a) through (e) secured by (or for which the holder of
such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness.
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"Indemnified Party" has the meaning specified in Section 12.05(a).
"Interest Payment Date" means (a) (i) with respect to any Eurodollar
Loan, the last day of each Interest Period applicable to such Eurodollar Loan
and, with respect to any Interest Period of six months' duration, the date which
falls three months after the beginning of such Interest Period, and (ii) with
respect to any Reference Rate Loan, the last Business Day of each calendar
quarter and (b) with respect to any Bid Loan, the maturity date or dates
specified by the Company in the relevant Competitive Bid Request.
"Interest Period" means, with respect to any Eurodollar Loan, the
period commencing on the Business Day such Eurodollar Loan is disbursed or
continued as a Eurodollar Loan or on the date on which a Reference Rate Loan or
any portion thereof is converted into a Eurodollar Loan and ending on the date
one, two, three or six months thereafter, as selected by the Company in its
Notice of Borrowing or Notice of Conversion/Continuation; provided that:
(a) in the case of the continuation of a Eurodollar Loan
pursuant to Section 2.11, the Interest Period applicable after the
continuation of such Loan shall commence on the last day of the
preceding Interest Period;
(b) if any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would
be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day;
(c) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(d) no Interest Period for any Eurodollar Loan shall extend
beyond the Tranche A Termination Date, in the case of a Borrowing of
Tranche A Loans, or the Tranche B Termination Date, in the case of a
Borrowing of Tranche B Loans.
"Investments" means all investments, whether by acquisition of stock or
indebtedness, or by loan, advance, transfer of property, capital contribution or
otherwise.
"Investments in Unrestricted Subsidiaries" means Investments made by
the Company or by any Restricted Subsidiary in Unrestricted Subsidiaries, net of
Investments made by Unrestricted Subsidiaries in the Company or any Restricted
Subsidiary. If any corporation which becomes a Restricted Subsidiary after the
date of this Agreement shall, at the time it becomes a Restricted Subsidiary,
have any Investments in an Unrestricted Subsidiary, such Investments shall be
deemed to be Investments made by the Company in such Unrestricted Subsidiary at
the time such corporation becomes a Restricted Subsidiary, in the amount at
which such Investments are then carried on the books of such corporation. If any
corporation shall become an Unrestricted Subsidiary after the date of this
Agreement, the Investments of the Company and its Restricted Subsidiaries in
such corporation shall be deemed to be Investments made at the time such
corporation becomes an Unrestricted Subsidiary, in the amount at which such
Investments are then carried on the books of the Company and its Restricted
Subsidiaries.
"Issuance Date" has the meaning specified in subsection 3.01(a).
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"Issue" means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means Bank of America in its capacity as issuer of one
or more Letters of Credit hereunder.
"Lender" has the meaning specified in the introduction to this
Agreement and includes each Lender listed on the signature pages hereof and each
Assignee. References to the "Lenders" shall include Bank of America in its
capacity as Issuing Bank; for purposes of clarification only, to the extent that
Bank of America may have any rights or obligations in addition to those of the
Lenders due to its status as Issuing Bank, its status as such will be
specifically referenced.
"Lending Office" means, with respect to any Lender, (a) in the case of
a Committed Loan, the office or offices of such Lender specified as its
"Domestic Lending Office" or "Eurodollar Lending Office", as the case may be,
opposite its name on Schedule 1.01(b) or in the applicable Notice of Assignment,
or such other office or offices of such Lender as such Lender may from time to
time specify to the Company and the Agent and (b) in the case of a Bid Loan, the
office of such Lender notified by such Lender to the Company as its Lending
Office with respect to such Bid Loan or, if such Lender fails to so notify the
Company, such Lender's Domestic Lending Office.
"L/C Advance" means each Lender's participation in any L/C Borrowing in
accordance with its Commitment Percentage.
"L/C Amendment Application" means an application form for amendment of
outstanding standby letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of standby
letters of credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made.
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and
the commitment of the Lenders severally to participate in, Letters of Credit
from time to time Issued or outstanding under Article 3, in an aggregate amount
not to exceed on any date the amount of $150,000,000, as the same shall be
reduced as a result of a reduction in the L/C Commitment pursuant to Section
2.06. The L/C Commitment is a part of the combined Commitments, rather than a
separate, independent commitment.
"L/C Obligations" means at any time the sum of Tranche A L/C
Obligations and Tranche B L/C Obligations.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Bank's standard-form
documents for Letter of Credit Issuances.
"Letter of Credit" means any Tranche A Letter of Credit or Tranche B
Letter of Credit.
"LIBOR" means, for any Interest Period:
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(a) the rate of interest per annum (carried out to the fifth decimal
point) equal to the rate determined by the Agent to be the offered rate that
appears on the page of the Telerate Screen that displays an average British
Bankers Association Interest Settlement Rate (such page currently being page
number 3750) for deposits in dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period; or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease to
be available, the rate per annum (carried to the fifth decimal place) equal to
the rate determined by the Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest
Settlement Rate for deposits in dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period; or
(c) in the event the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by the Agent as the
rate of interest at which dollar deposits (for delivery on the first day of such
Interest Period) in same-day funds in the approximate amount of the applicable
Committed Loan and with a term equivalent to such Interest Period would be
offered by its London Branch to major banks in the offshore dollar market at
their request at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period.
"Lien" means any mortgage, security interest, pledge or lien.
"Loan" means a loan by a Lender to the Company pursuant to Article 2 or
Article 3 in the form of a Committed Loan, a Bid Loan, or an L/C Advance.
"Loan Documents" means this Agreement, the Subsidiary Guaranty, the
Parent Guaranty, the Contribution Agreement, the L/C Related Documents, and any
promissory note issued pursuant hereto.
"Loan Parties" means, collectively, the Company and each other Person
(other than the Agent and the Lenders) who is a party to a Loan Document.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business or properties of the Company and its
Subsidiaries taken as a whole or (b) the legality, validity or enforceability of
any Loan Document.
"Measurement Period" means a period consisting of four consecutive
fiscal quarters of the Company and ending on the last day of the most recently
completed fiscal quarter of the Company.
"Moody's" means Moody's Investors Services, Inc. or any successor to
the rating agency business thereof.
"Net Tangible Assets" means, at any date, the aggregate amount of
assets, including the amount of any receivables or other accounts of the Company
and its Subsidiaries sold in connection with any receivables sale transaction
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities, (b) any item representing Investments in
Unrestricted Subsidiaries and
9
(c) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expenses and other like intangibles, all of the foregoing as set forth on
the then most recent consolidated balance sheet of the Company and its
Subsidiaries and computed in accordance with GAAP.
"Net Worth" means, at any date, the excess of Total Assets at such date
over Total Liabilities at such date.
"Notice of Assignment" has the meaning specified in Section 12.08(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Conversion/Continuation" has the meaning specified in
Section 2.11(b).
"Obligations" means all Loans, L/C Obligations and other Indebtedness,
advances, debts, liabilities, obligations, covenants and duties owing by the
Company, or any other Loan Party to any Lender, the Agent, any Affiliate of any
Lender or the Agent or any Indemnified Party, of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other instrument, but
in each case only as arising under or in connection with this Agreement or under
or in connection with any other Loan Document, whether or not for the payment of
money, whether arising by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term "Obligations"
includes all interest, charges, expenses, fees, attorneys' fees and
disbursements (including the allocated cost of in-house counsel) and any other
sum chargeable to the Company, or any other Loan Party under or in connection
with this Agreement or any other Loan Document.
"Other Taxes" has the meaning specified in Section 4.05(b).
"Parent" means Georgia-Pacific Corporation.
"Parent Guaranty" has the meaning specified in Section 7.01(c).
"Participant" has the meaning specified in Section 12.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Company or any corporation, trade, or business that is, along with the Company,
a member of its Controlled Group, may have liability, including a reasonable
possibility of liability due to having been a substantial employer within the
meaning of Section 4063 of ERISA at any time during the preceding five years, or
by reason of being deemed to be a contributing sponsor under Section 4069 of
ERISA.
"Permitted Liens" means the Liens permitted or required by Section
9.01.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments or assets held or reasonably
anticipated by such Person, or
10
changes in the value of securities issued by such Person in conjunction with a
securities repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view".
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means each Pension Plan or Welfare Plan, and any other employee
benefit plan (within the meaning of Section 3(3) of ERISA) sponsored or
maintained by the Company or any Subsidiary of the Company.
"Principal Property" means any mill, manufacturing plant, manufacturing
facility or timberlands, owned by the Company and/or one or more Restricted
Subsidiaries and located within the continental United States of America;
provided, however, that the term "Principal Property" shall not include (a) any
such mill, plant, facility or timberlands or portion thereof (i) which is
financed by obligations issued by a State, a Territory or a possession of the
United States of America or any political subdivision of any of the foregoing,
or the District of Columbia, the interest on which is excludable from gross
income of the holders thereof pursuant to the provisions of Section 103(a)(1)
(but only if by reason of Section 103(b)(4)(E) or (F)) of the Internal Revenue
Code of 1954, as amended (or any predecessor or successor to such provision) as
in effect at the time of the issuance of such obligations, or (ii) which in the
opinion of the Company's Board of Directors is not of material importance to the
total business conducted by the Company and the Restricted Subsidiaries,
considered as a whole; or (b) any timberlands designated by the Company's Board
of Directors as being held primarily for development and/or sale rather than for
the production of timber; or (c) any minerals or mineral rights.
"Principal Subsidiary" means any Subsidiary of the Company having
assets constituting at least 10% of the Company's consolidated assets.
"Reference Rate" has the meaning specified in the definition of
Adjusted Reference Rate.
"Reference Rate Loan" means any Loan that bears interest at a rate
determined with reference to the Adjusted Reference Rate.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" has the meaning specified in Section 5.09.
"Required Lenders" means at any time Lenders having 51% or more of the
Commitments and, if the Commitments have been terminated, Lenders holding 51% or
more of the then aggregate unpaid principal amount of the Loans made by the
Lenders.
"Requirement of Law" means, as to any Person, the charter and by-laws
or other organization or governing documents of such Person, and any law, rule
or regulation including the requirements of Environmental Laws and ERISA, the
Securities Act of 1933, the Securities Exchange Act of 1934, Regulations T, U
and X of the Federal Reserve Board or any order, decree or other determination
of an arbitrator or a court or other Governmental Authority applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer" means, with respect to any Person, the Chief
Executive Officer, the President, any Vice-Chairman or any of the Vice
Presidents or the Treasurer of such Person or, with
11
respect to financial matters, the Chief Financial Officer, the Executive Vice
President-Finance and Chief Financial Officer or the Vice President and
Treasurer of such Person.
"Restricted Subsidiary" means any Subsidiary of the Company (a)
substantially all of the property of which is located within the continental
United States of America and (b) which itself, or together with the Company
and/or one or more other Restricted Subsidiaries, owns a Principal Property.
"Sale-Leaseback Transaction" has the meaning specified in Section 9.02.
"S&P" means Standard & Poor's or any successor to the rating agency
business thereof.
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors (or others performing a
comparable function) of such corporation is at the time directly or indirectly
owned by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person.
"Subsidiary Guaranty" means a guaranty in the form attached as Exhibit
8.13(a).
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined by the Agent
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Lender).
"Taxes" has the meaning specified in Section 4.05(a).
"Total Assets" means, at any date, without duplication, the total
consolidated assets of the Company and its Subsidiaries, as determined in
accordance with GAAP.
"Total Liabilities" means, at any date, without duplication, the total
consolidated liabilities of the Company and its Subsidiaries, determined in
accordance with GAAP.
"Tranche A Bid Loan" means a Loan made by a Lender to the Company
pursuant to subsection 2.03(a) and may be a Base Rate Bid Loan or a Fixed Rate
Bid Loan.
"Tranche A Commitment" means for each Lender, as the context may
require, (a) the amount in dollars set forth on Schedule 1.01(a) opposite the
name of such Lender under the heading "Tranche A Commitments" or as otherwise
set forth in any Notice of Assignment, as such amount may be reduced pursuant to
Section 2.06 or as a result of one or more assignments pursuant to Section
12.08; or (b) the
12
obligation of such Lender to extend credit to the Company hereunder in the
amount specified in the immediately preceding clause (a).
"Tranche A L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Tranche A Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Tranche A Letters of
Credit, including all outstanding L/C Borrowings made on account of Tranche A
Letters of Credit.
"Tranche A Letter of Credit" means any letter of credit Issued by the
Issuing Bank pursuant to Article 3 and allocated in the Company's request
therefor to the Tranche A Commitments.
"Tranche A Loan" has the meaning set forth in subsection 2.01(a).
"Tranche A Termination Date" means July 20, 2000.
"Tranche B Bid Loan" means a Loan made by a Lender to the Company
pursuant to subsection 2.03(b) and may be a Base Rate Bid Loan or a Fixed Rate
Bid Loan.
"Tranche B Commitment" means for each Lender, as the context may
require (a) the amount in dollars set forth on Schedule 1.01(a) opposite the
name of such Lender under the heading "Tranche B Commitments" or as otherwise
set forth in any Notice of Assignment, as such amount may be reduced pursuant to
Section 2.06 or as a result of one or more assignments pursuant to Section
12.08; or (b) the obligation of such Lender to extend credit to the Company
hereunder in the amount specified in the immediately preceding clause (b).
"Tranche B L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Tranche B Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Tranche B Letters of
Credit, including all outstanding L/C Borrowings made on account of Tranche B
Letters of Credit.
"Tranche B Letter of Credit" means any letter of credit Issued by the
Issuing Bank pursuant to Article 3 and allocated in the Company's request
therefor to the Tranche B Commitments.
"Tranche B Loan" has the meaning set forth in Section 2.01(b).
"Tranche B Termination Date" means July 22, 2004.
"Unrestricted Subsidiary" means any Subsidiary of the Company other
than a Restricted Subsidiary.
"Utilization Fee" has the meaning specified in Section 4.01(a).
"Value" means, with respect to a Sale-Leaseback Transaction, as of any
particular time, the amount equal to the greater of (a) the net proceeds of the
sale or transfer of the property leased pursuant to such Sale-Leaseback
Transaction or (b) the fair value in the opinion of the Board of Directors of
the Company of such property at the time of entering into such Sale-Leaseback
Transaction, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
"Welfare Plan" means a "welfare plan", as such term is defined in
Section (3)(1) of ERISA.
13
1.02 Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding."
1.03 Accounting Matters. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP, and all financial statements
referred to in Sections 8.09(a) and (b) shall be prepared in accordance with
GAAP; provided, however, that all computations determining compliance with
Article 8 shall use accounting principles consistent with those applied in the
preparation of the financial statements of the Company referred to in Section
6.05(a). The parties hereto agree that to the extent that any change in GAAP
affects the calculation of the financial covenant contained herein, the Agent
(at the direction of the Required Lenders) and the Company shall negotiate in
good faith to amend such financial covenant to account for such changes in GAAP.
1.04 Certain Terms. The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole, including the Exhibits and Schedules
hereto, and not to any particular Article, Section, paragraph or clause in this
Agreement. The word "including" when used herein is not intended to be exclusive
and means "including, without limitation." References herein to an Article,
Section, paragraph or clause shall refer to the appropriate Article, Section,
paragraph or clause in this Agreement.
Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
ARTICLE 2
AMOUNTS AND TERMS OF THE LOANS
2.01 Committed Loans.
(a) Tranche A Loans. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make one or more Committed
Loans to the Company on any Business Day during the period commencing on the
Closing Date and ending on the Business Day next preceding the Tranche A
Termination Date (each such loan, a "Tranche A Loan"), in an aggregate principal
amount at any time outstanding which does not exceed such Lender's Tranche A
Commitment; provided, however, that after giving effect to any Committed
Borrowing of Tranche A Loans, (i) the aggregate principal amount of all Tranche
A Loans then outstanding, plus (ii) the aggregate principal amount of all
Tranche A Bid Loans then outstanding, plus (iii) the outstanding Tranche A L/C
Obligations shall not exceed the Aggregate Tranche A Commitments. Any principal
amount of the Tranche A Loans which is repaid or prepaid by the Company may be
reborrowed within the limitations set forth in this Section 2.01(a).
(b) Tranche B Loans. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make one or more Committed
Loans to the Company on any Business Day during the period commencing on the
Closing Date and ending on the Business Day next preceding the Tranche B
Termination Date (each such loan, a "Tranche B Loan"), in an aggregate principal
amount at any time outstanding which does not exceed such Lender's Tranche B
Commitment.; provided,
14
however, that after giving effect to any Committed Borrowing of Tranche B Loans,
(i) the aggregate principal amount of all Tranche B Loans then outstanding, plus
(ii) the aggregate principal amount of all Tranche B Bid Loans then outstanding,
plus (iii) the outstanding Tranche B L/C Obligations shall not exceed the
Aggregate Tranche B Commitments. Any principal amount of the Tranche B Loans
which is repaid or prepaid by the Company may be reborrowed within the
limitations set forth in this Section 2.01(b).
2.02 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made on notice, delivered by the
Company to the Agent not later than 12:00 noon (New York City time) at least (i)
four Business Days prior to the date of such proposed Borrowing, in the case of
Eurodollar Loans, and (ii) one Business Day prior to the date of such proposed
Borrowing, in the case of Reference Rate Loans. Each such notice of a Committed
Borrowing (a "Notice of Borrowing") shall be irrevocable and shall be delivered
by facsimile, in substantially the form of Exhibit 2.02(a), specifying therein:
(i) the date of such Borrowing, which shall be a Business Day;
(ii) the amount of such Borrowing which, in the case of a
Borrowing of Eurodollar Loans, shall be in the amount of $20,000,000 or
an integral multiple of $10,000,000 in excess thereof and, in the case
of a Borrowing of Reference Rate Loans, shall be in the amount of
$10,000,000 or an integral multiple of $5,000,000 in excess thereof and
shall not, in any case, exceed the unused Aggregate Tranche A
Commitments or Aggregate Tranche B Commitments, as applicable, set
forth in Section 2.01(a) or (b), respectively, on the date such
Borrowing is made (after giving effect to each payment and prepayment
made on such date);
(iii) whether such Borrowing is to be of Tranche A Loans or
Tranche B Loans;
(iv) whether such Borrowing is to be comprised of Eurodollar
Loans or Reference Rate Loans; and
(v) if such Borrowing is to be comprised of Eurodollar Loans,
the duration of the initial Interest Period applicable to such Loans.
If the Notice of Borrowing shall fail to specify the duration of the initial
Interest Period for any Committed Borrowing comprised of Eurodollar Loans, such
Interest Period shall be one month.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Lender thereof and of the amount of such Lender's share of such
Borrowing determined on the basis of such Lender's Commitment Percentage. Each
Lender shall make available to the Agent the amount of its ratable share of such
Borrowing in the manner and at the time set forth in Section 4.04(a).
(c) After giving effect to any Committed Borrowing, there shall not be
more than seven different Interest Periods in effect.
(d) Unless any applicable condition specified in Article 7 has not been
satisfied or waived, the Agent will make the funds received from the Lenders
promptly available to the Company by crediting the account of the Company on the
books of Bank of America, or such other account as shall have been specified by
the Company, with the aggregate of the amounts made available to the Agent by
the Lenders and in like funds as received by the Agent.
15
2.03 Bid Borrowings.
(a) In addition to Committed Borrowings pursuant to Section 2.01, each
Lender severally agrees that the Company may, as set forth in Section 2.04, from
time to time on any Business Day during the period commencing on the Closing
Date and ending on the Business Day next preceding the Tranche A Termination
Date request the Lenders to submit offers to make Tranche A Bid Loans to the
Company; provided, however, that the Lenders may, but shall have no obligation
to, submit such offers and the Company may, but shall have no obligation to,
accept any such offers; and provided, further, that at no time shall (a)(i) the
aggregate principal amount of all Tranche A Bid Loans made by all Lenders then
outstanding plus (ii) the aggregate principal amount of all Tranche A Loans then
outstanding plus (iii) the outstanding Tranche A L/C Obligations exceed (b) the
Aggregate Tranche A Commitments.
(b) In addition to Committed Borrowings pursuant to Section 2.01, each
Lender severally agrees that the Company may, as set forth in Section 2.04, from
time to time on any Business Day during the period commencing on the Closing
Date and ending on the Business Day next preceding the Tranche B Termination
Date request the Lenders to submit offers to make Tranche B Bid Loans to the
Company; provided, however, that the Lenders may, but shall have no obligation
to, submit such offers and the Company may, but shall have no obligation to,
accept any such offers; and provided, further, that at no time shall (a)(i) the
aggregate principal amount of all Tranche B Bid Loans made by all Lenders then
outstanding plus (ii) the aggregate principal amount of all Tranche B Loans then
outstanding plus (iii) the outstanding Tranche B L/C Obligations exceed (b) the
Aggregate Tranche B Commitments.
2.04 Procedure for Bid Borrowings.
(a) The Company may request a Bid Borrowing hereunder by delivering to
the Agent by facsimile not later than 11:00 a.m. (New York City time) at least
(i) four Business Days prior to the date of the proposed Borrowing, in the case
of a request for Base Rate Bid Loans, and (ii) two Business Days (or, in the
event the Company desires that Competitive Bids be furnished on the date of the
proposed Bid Borrowing, one Business Day) prior to the date of the proposed Bid
Borrowing in the case of a request for Fixed Rate Bid Loans, a solicitation for
Bid Loans (a "Competitive Bid Request"), in substantially the form of Exhibit
2.04(a) specifying therein:
(i) the date of such Bid Borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Bid Borrowing, which shall
be a minimum amount of $10,000,000 in excess thereof and shall not, in
the case of a Tranche A Bid Borrowing, exceed the Available Tranche A
Commitments on the date such proposed Borrowing is made (after giving
effect to each payment and prepayment made on such date) or, in the
case of a Tranche B Bid Borrowing, exceed the Available Tranche B
Commitments on the date such proposed Borrowing is made (after giving
effect to each payment and prepayment made on such date);
(iii) the maturity date or dates for the partial or complete
repayment of each Bid Loan to be made as part of such Bid Borrowing
(none of which shall occur after the Tranche B Termination Date) and,
in the case of each partial repayment, the amount thereof;
(iv) whether the Bid Loans requested are Tranche A Bid Loans
or Tranche B Bid Loans, and whether the Bid Loans requested are Base
Rate Bid Loans or Fixed Rate Bid Loans and, in the case of Base Rate
Bid Loans, the basis of calculation of such interest rate (the "Base
Rate") to be used by the Lenders in determining the rate or rates of
interest to be offered by them; and
16
(v) any other terms to be applicable to such Bid
Borrowing (including the extent to which terms similar to Section 4.05
shall be applicable to such Bid Borrowing).
The Agent shall promptly notify each Lender of its receipt of a Competitive Bid
Request by sending such Lender by facsimile a copy of such Competitive Bid
Request.
(b) (i) Each Lender may, in response to a Competitive Bid Request, at
its option, irrevocably submit a Competitive Bid containing an offer to make one
or more Bid Loans at a rate or rates of interest specified by such Lender in its
sole discretion. Each Competitive Bid must be submitted to the Company before
10:00 a.m. (New York City time) (A) three Business Days prior to the date of the
proposed Bid Borrowing, in the case of a request for Base Rate Bid Loans, and
(B) one Business Day prior to the date of the proposed Bid Borrowing (or, in the
event the Company desires that Competitive Bids be furnished on the date of the
proposed Bid Borrowing, on the date of such proposed Borrowing), in the case of
a request for Fixed Rate Bid Loans.
(ii) Each Competitive Bid (which shall be by telephone,
promptly confirmed in writing) shall specify:
(A) the minimum amount of each Bid Loan for which
such Competitive Bid is being made (which shall be at least
$5,000,000) and the maximum amount thereof (which may exceed
such Lender's Tranche A Commitment or its Tranche B
Commitment);
(B) the rate or rates of interest per annum offered
for each Bid Loan, which, in the case of a Base Rate Bid Loan,
shall be expressed as a margin to be added to, or subtracted
from, the Base Rate specified by the Company in its Bid
Request; and
(C) the applicable Lending Office of the quoting
Lender.
(iii) Any Competitive Bid may be disregarded if it:
(A) does not specify all of the information required
by Section 2.04(b)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than, or in addition to,
those set forth in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in Section
2.04(b)(i).
(c) Not later than 11:00 a.m. (New York City time) three Business Days
prior to the date of the proposed Bid Borrowing, in the case of a Borrowing of
Base Rate Bid Loans, and 11:00 a.m. (New York City time) one Business Day prior
to the date of the proposed Bid Borrowing (or, in the event the Company desires
that Competitive Bids be furnished on the date of the proposed Bid Borrowing, on
the date of such proposed Borrowing), in the case of a Borrowing of Fixed Rate
Bid Loans, the Company shall either
(i) cancel such Bid Borrowing by giving the Agent and the
Lenders notice thereof (which notice may be given by telephone and
confirmed in writing by facsimile) or
17
(ii) accept one or more of the offers made by any Lender or
Lenders pursuant to Section 2.04(b), in its sole discretion, by giving
notice (which notice may be given by telephone, confirmed in writing by
facsimile) to such Lenders of the amount of each Bid Loan (which amount
shall be equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Company by such Lender
for such Bid Loan pursuant to Section 2.04(b)) to be made by each such
Lender as part of such Bid Borrowing, and reject any remaining offers
made by giving the Lenders notice (which notice may be given by
telephone, confirmed in writing by facsimile) to that effect; provided,
however, that to the extent that the Company elects to accept one or
more Competitive Bids submitted by Lenders for a given Interest Period,
the Company shall accept such Competitive Bids on the basis of
ascending interest rates; and, provided, further, that in the event the
Company does not, before the time stated above, either cancel the
proposed Bid Borrowing pursuant to Section 2.04(c)(i) or accept one or
more of the offers pursuant to this Section 2.04(c)(ii), such Bid
Borrowing shall be deemed cancelled and provided, further, that in the
event the Company accepts one or more of the offers pursuant to this
Section 2.04(c)(ii) but does not expressly reject the remaining offers,
such offers shall be deemed rejected. The Company shall promptly notify
the Agent of the date and amount of any proposed Bid Borrowing.
(d) For purposes of Sections 2.01, 2.06 and 4.01(a), each outstanding
Bid Loan shall be deemed to utilize the Tranche A Commitments of each Lender, in
the case of Tranche A Bid Loans, or the Tranche B Commitments of each Lender, in
the case of Tranche B Bid Loans, whether or not such Lender has made such Bid
Loan, by an amount equal to such Lender's Commitment Percentage times the amount
of such Bid Loan.
2.05 Evidence of Indebtedness.
(a) Each Lender, with respect to amounts payable to it hereunder, and
the Agent, with respect to all amounts payable hereunder in respect of Committed
Borrowings, shall maintain on its books in accordance with its usual practice,
loan accounts and control accounts, respectively, setting forth each Committed
Loan and, in the case of each Lender having made a Bid Loan, each such Bid Loan,
the applicable interest rate and the amounts of principal, interest and other
sums paid and payable by the Company from time to time hereunder with respect
thereto; provided, however, that the failure by any Lender to record any such
amount on its books shall not affect the obligations of the Company with respect
thereto. In the case of any dispute, action or proceeding relating to any amount
payable hereunder, the entries in each such account shall be prima facie
evidence of such amount, absent manifest error. In case of any discrepancy
between the entries in the Agent's books and any Lender's books, such Lender's
books shall be considered correct in the absence of manifest error.
(b) Notwithstanding the foregoing, if any Lender shall so request for
purposes of Section 12.08(a)(iii), the obligation to repay the Committed Loans
shall also be evidenced by a promissory note in the form of Exhibit 2.05(b).
(c) The obligation to repay a Bid Loan shall also, if so requested by
the Lender making such Bid Loan in its Competitive Bid, be evidenced by a
promissory note in the form of Exhibit 2.05(c).
2.06 Optional Reduction of the Commitments. The Company shall have the
right, upon at least four Business Days' prior notice to the Agent (which notice
shall be irrevocable), at any time permanently to terminate the remaining
Commitments in whole or reduce ratably in part the unused portions of the
Commitments of the Lenders, allocated between Tranche A Commitments or Tranche B
Commitments, as the Company may elect; provided, however, that each partial
reduction shall be in the aggregate amount of $20,000,000 or an integral
multiple of $10,000,000 in excess thereof. No reduction
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in the Commitments shall reduce the L/C Commitment until the aggregate
Commitments are reduced to $150,000,000, after which each reduction in the
Commitments shall reduce the L/C Commitment dollar for dollar. The Agent shall
promptly notify each Lender of its receipt of any notice under this Section
2.06.
2.07 Repayment.
(a) The Committed Loans. The Company agrees to repay to the Agent for
the account of the Lenders the outstanding principal amount of all Tranche A
Loans on the Tranche A Termination Date. The Company agrees to repay to the
Agent for the account of the Lenders the outstanding principal amount of all
Tranche B Loans on the Tranche B Termination Date.
(b) The Bid Loans. The Company agrees to repay to each Lender which has
made a Bid Loan on the maturity date of such Bid Loan (as each such maturity
date shall have been specified by the Company in the applicable Competitive Bid
Request pursuant to Section 2.04(a)(iii)) the unpaid principal amount of such
Bid Loan then due and payable (each such amount being as specified for such date
in such Competitive Bid Request pursuant to Section 2.04(a)(iii)).
2.08 Optional Prepayments.
(a) Subject to Section 5.06(a), the Company may, upon (i) at least four
Business Days' prior notice to the Agent, in the case of a prepayment of
Eurodollar Loans, and (ii) at least one Business Day's prior notice to the
Agent, in the case of a prepayment of Reference Rate Loans, stating the proposed
date and aggregate principal amount of the prepayment, prepay, ratably among the
Lenders in accordance with their Commitment Percentages, the outstanding
principal amount of the Committed Loans, in whole or in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid.
(b) Each partial prepayment of Committed Loans shall, in the case of
Eurodollar Loans, be in the aggregate principal amount of $20,000,000 or an
integral multiple of $10,000,000 in excess thereof, and, in the case of
Reference Rate Loans, be in the aggregate principal amount of $10,000,000 or an
integral multiple of $5,000,000 in excess thereof; provided, however, that, if
the aggregate amount of Eurodollar Loans comprised in the same Committed
Borrowing would be reduced as a result of any voluntary prepayment to an amount
less than $20,000,000, such Eurodollar Loans shall automatically convert into
Reference Rate Loans on the last day of the then current Interest Period.
(c) If a notice of prepayment is given, such notice shall be
irrevocable and the principal amount stated in such notice, together with
accrued interest thereon and any amount payable pursuant to Section 5.06(a),
shall be due and payable on the date specified in such notice. The Agent shall
promptly notify each Lender of its receipt of any notice of prepayment under
this Section 2.08.
(d) Bid Loans may not be prepaid.
2.09 Interest.
(a) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the date when made until paid in full, at the
option of the Company, as set forth in its Notice of Borrowing or in its Notice
of Conversion/Continuation,
(i) if such Loan is a Reference Rate Loan, at a rate per annum
equal to the Adjusted Reference Rate; or
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(ii) if such Loan is a Eurodollar Loan, at a rate per annum
equal to the sum of (A) LIBOR plus (B) the applicable margin, as
follows:
Applicable Margin
Debt on Eurodollar Loans
Moody's Rating S&P Tranche A Loans/Tranche B Loans
------- ------ --- -------------------------------
Baal or higher or BBB+ or higher 0.525% / 0.500%
Baa2 or BBB 0.625% / 0.600%
Baa3 or BBB- 0.725% / 0.700%
Bal or BB+ 1.075% / 1.050%
Ba2 or lower and BB or lower 1.275% / 1.250%
provided, however, that if at any time no Debt Rating is available, the
applicable margin shall be 1.275% per annum for Tranche A Loans and 1.250% per
annum for Tranche B Loans.
(b) Any change in the applicable margin due to a change in the
applicable Debt Rating shall be effective on the effective date of such change
in the applicable Debt Rating and shall apply to all Eurodollar Loans that are
outstanding at any time during the period commencing on the effective date of
such change in applicable Debt Rating and ending on the date immediately
preceding the effective date of the next such change in applicable Debt Rating.
In the event of a split rating, the higher rating will apply; if the Debt
Ratings are split by more than one level, one level above the lower rating will
apply.
(c) Accrued interest shall be paid on each Interest Payment Date (and,
after maturity, on demand), on the date of repayment or prepayment of any
Committed Loan on the amount repaid or prepaid and, in the case of any Reference
Rate Loan, on each date such Loan is converted into a Eurodollar Loan.
(d) The Company shall pay to each Lender which has made a Bid Loan
interest on the unpaid principal amount of such Bid Loan from the date when made
until paid in full, on each Interest Payment Date (and, after maturity, on
demand), at the rate of interest specified by such Lender in its Competitive Bid
pursuant to Section 2.04(b)(ii)(B).
2.10 Default Interest. During the continuation of any Event of Default
pursuant to Section 10.01(a), the Company shall pay interest (after as well as
before judgment to the extent permitted by law) on the principal amount of all
Committed Loans outstanding and on all other Obligations of the Company due and
unpaid (other than Bid Loans), at a rate per annum which is determined by
increasing the interest rate then in effect by 2% per annum for the principal
amount of the Eurodollar Loans outstanding and at a rate per annum equal to the
Adjusted Reference Rate plus 2% for any other Obligation due hereunder (other
than Bid Loans).
2.11 Continuation and Conversion Elections for Committed Loans.
(a) The Company may upon irrevocable written notice to the Agent:
(i) elect to convert, on any Business Day, all or any portion
of outstanding Reference Rate Loans (in the aggregate amount of
$20,000,000 or an integral multiple of $10,000,000 in excess thereof)
into Eurodollar Loans;
(ii) elect to convert, on the last day of any Interest Period
therefor, all or any portion of outstanding Eurodollar Loans comprising
the same Borrowing (in the aggregate amount of
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$10,000,000 or an integral multiple of $5,000,000 in excess thereof)
into Reference Rate Loans; or
(iii) elect to continue, on the last day of any Interest
Period therefor, any Eurodollar Loans;
provided, however, that if the aggregate amount of outstanding Eurodollar Loans
comprised in the same Borrowing would be reduced as a result of any conversion
of part thereof to Reference Rate Loans to an amount less than $20,000,000, such
Eurodollar Loans shall automatically convert into Reference Rate Loans on the
last day of the Interest Period on which such conversion occurs.
(b) The Company shall deliver a notice of conversion or continuation (a
"Notice of Conversion/Continuation"), in substantially the form of Exhibit
2.11(b), to the Agent not later than 12:00 noon (New York City time) (i) four
Business Days prior to the proposed date of conversion or continuation, if the
Committed Loans or any portion thereof are to be converted into or continued as
Eurodollar Loans, and (ii) one Business Day prior to the proposed date of
conversion, if the Committed Loans or any portion thereof are to be converted
into Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be irrevocable and shall be
made by facsimile, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Committed Loans to be
converted or continued;
(iii) whether such Committed Loans are Tranche A Loans or
Tranche B Loans; and
(iv) the duration of the applicable Interest Period if
such Committed Loans are Eurodollar Loans.
(c) If, on the fourth Business Day prior to the expiration of any
Interest Period applicable to Eurodollar Loans, the Company shall have failed to
select a new Interest Period to be applicable to such Eurodollar Loans, the
Company shall be deemed to have elected to convert such Eurodollar Loans into
Reference Rate Loans effective as of the last day of such Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the Agent
shall promptly notify each Lender thereof. All conversions and continuations
shall be made ratably among the Lenders based on their Commitment Percentages of
the Committed Loans with respect to which such notice was given.
(e) Notwithstanding any other provision contained in this Agreement,
after giving effect to any conversion or continuation of any Committed Loans,
there shall not be more than seven different Interest Periods for Committed
Loans in effect.
ARTICLE 3
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein (i) the Issuing Bank
agrees, (A) from time to time on any Business Day during the period from the
Closing Date to the Tranche A Termination
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Date to issue Tranche A Letters of Credit for the account of the Company, and to
amend or renew Tranche A Letters of Credit previously issued by it, in
accordance with subsections 3.02(c) and 3.02(d), (B) from time to time on any
Business Day during the period from the Closing Date to the Tranche B
Termination Date to issue Tranche B Letters of Credit for the account of the
Company, and to amend or renew Tranche B Letters of Credit previously issued by
it, in accordance with subsections 3.02(c) and 3.02(d), and (C) to honor drafts
under the Letters of Credit; and (ii) the Lenders severally agree to purchase an
irrevocable and unconditional participation in each Letter of Credit Issued for
the account of the Company; provided, that the Issuing Bank shall not be
obligated to Issue, and no Lender shall be obligated to participate in, any
Letter of Credit if as of the date of Issuance of such Letter of Credit (the
"Issuance Date"), after giving effect to any requested Loans, (A) (1) the
aggregate principal amount of all Tranche A Loans then outstanding plus (2) the
aggregate principal amount of all Tranche A Bid Loans then outstanding plus (3)
the outstanding Tranche A L/C Obligations exceeds the Aggregate Tranche A
Commitments; (B) (1) the aggregate principal amount of all Tranche B Loans then
outstanding plus (2) the aggregate principal amount of all Tranche B Bid Loans
then outstanding plus (3) the outstanding Tranche B L/C Obligations exceeds the
Aggregate Tranche B Commitments; or (C) the total amount of L/C Obligations
exceeds the L/C Commitment. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) The Issuing Bank is under no obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from, the Issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Bank with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the
Issuing Bank is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Bank in good faith deems material to
it;
(ii) the Issuing Bank has received written notice from any
Lender, the Agent or the Company, on or prior to the Business Day prior
to the requested date of Issuance of such Letter of Credit, that one or
more of the applicable conditions contained in Article 7 is not then
satisfied;
(iii) the expiry date of any requested Letter of Credit is (A)
more than one year after the date of Issuance, unless the Required
Lenders have approved such expiry date in writing, (B) after the
Tranche A Termination Date, in the case of a Tranche A Letter of
Credit, unless all of the Lenders have approved such expiry date in
writing, or (C) after the Tranche B Termination Date, in the case of a
Tranche B Letter of Credit, unless all of the Lenders have approved
such expiry date in writing;
(iv) the expiry date of any requested Letter of Credit is
prior to the maturity date of any financial obligation to be supported
by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuing Bank, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuing Bank;
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(vi) any standby Letter of Credit is for the purpose of
supporting the Issuance of any Letter of Credit by any other Person; or
(vii) such Letter of Credit is in a face amount less than
$100,000 or is denominated in a currency other than dollars.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the Company received by the Issuing Bank (with a copy sent by the
Company to the Agent) at least four days (or such shorter time as the Issuing
Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of issuance. Each such request for issuance of a Letter of Credit
shall be by facsimile, confirmed immediately in an original writing, in the form
of an L/C Application, and shall specify in form and detail satisfactory to the
Issuing Bank: (i) the proposed date of issuance of the Letter of Credit (which
shall be a Business Day); (ii) the face amount of the Letter of Credit; (iii)
the expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; (vii) whether such Letter of Credit should be allocated to the
Tranche A Commitments or the Tranche B Commitments; and (viii) such other
matters as the Issuing Bank may require.
(b) At least two Business Days prior to the Issuance of any Letter of
Credit, the Issuing Bank will confirm with the Agent (by telephone or in
writing) that the Agent has received a copy of the L/C Application or L/C
Amendment Application from the Company and, if not, the Issuing Bank will
provide the Agent with a copy thereof. Unless the Issuing Bank has received
notice on or before the Business Day immediately preceding the date the Issuing
Bank is to issue a requested Letter of Credit from the Agent (i) directing the
Issuing Bank not to issue such Letter of Credit because such issuance is not
then permitted under subsection 3.01(b)(iii) as a result of the limitations set
forth in clauses (A) through (C) thereof or subsection 3.01(b)(ii); or (ii) that
one or more conditions specified in Article 7 are not then satisfied; then,
subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue a Letter of Credit for the account of the Company in
accordance with the Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and prior
to the Tranche A Termination Date (in the case of Tranche A Letters of Credit)
or the Tranche B Termination Date (in the case of Tranche B Letters of Credit),
the Issuing Bank will, upon the written request of the Company received by the
Issuing Bank (with a copy sent by the Company to the Agent) at least five days
(or such shorter time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of amendment, amend any Letter
of Credit issued by it. Each such request for amendment of a Letter of Credit
shall be made by facsimile, confirmed immediately in an original writing, made
in the form of an L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be amended; (ii)
the proposed date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as the Issuing Bank may require. The Issuing Bank shall be under no
obligation to amend any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its amended form under
the terms of this Agreement; or (B) the beneficiary of any such letter of Credit
does not accept the proposed amendment to the Letter of Credit. The Agent will
promptly notify the Banks of the receipt by it of any L/C Application or L/C
Amendment Application.
23
(d) The Issuing Bank and the Lenders agree that, while a Letter of
Credit is outstanding and prior to the Tranche A Termination Date (in the case
of Tranche A Letters of Credit) or the Tranche B Termination Date (in the case
of Tranche B Letters of Credit), at the option of the Company and upon the
written request of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least five days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole discretion) prior to
the proposed date of notification of renewal, the Issuing Bank shall be entitled
to authorize the renewal of any Letter of Credit issued by it. Each such request
for renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment Application,
and shall specify in form and detail satisfactory to the Issuing Bank: (i) the
Letter of Credit to be renewed; (ii) the proposed date of notification of
renewal of the Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of the Letter of Credit; and (iv) such other matters as the
Issuing Bank may require. The Issuing Bank shall be under no obligation so to
renew any Letter of Credit if: (A) the Issuing Bank would have no obligation at
such time to issue or amend such Letter of Credit in its renewed form under the
terms of this Agreement; or (B) the beneficiary of any such Letter of Credit
does not accept the proposed renewal of the Letter of Credit. If any outstanding
Letter of Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that such Letter of
Credit shall not be renewed, and if at the time of renewal the Issuing Bank
would be entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this subsection 3.02(d) upon the request of the Company but the
Issuing Bank shall not have received any L/C Amendment Application from the
Company with respect to such renewal or other written direction by the Company
with respect thereto, the Issuing Bank shall (unless such renewal would cause
the expiry date thereof to extend beyond the Tranche A Termination Date, in the
case of a Tranche A Letter of Credit, or the Tranche B Termination Date, in the
case of a Tranche B Letter of Credit) nonetheless be permitted to allow such
Letter of Credit to renew, and the Company and the Lenders hereby authorize such
renewal, and, accordingly, the Issuing Bank shall be deemed to have received an
L/C Amendment Application from the Company requesting such renewal.
(e) The Issuing Bank may, at its election (or as required by the Agent
at the direction of the Required Lenders), deliver any notices of termination or
other communications to any Letter of Credit beneficiary or transferee, and take
any other action as necessary or appropriate, at any time and from time to time,
in order to cause the expiry date of such Letter of Credit to be a date not
later than the Tranche A Termination Date, in the case of a Tranche A Letter of
Credit, or in order to cause the expiry date of such Letter of Credit to be a
date not later than the Tranche B Termination Date, in the case of a Tranche B
Letter of Credit.
(f) This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent, concurrently or
promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true and
complete copy of each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
3.03 Role of the Issuing Bank.
(a) Each Lender and the Company agree that, in paying any drawing under
a Letter of Credit, the Issuing Bank shall not have any responsibility to obtain
any document (other than any sight draft and certificates expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.
24
(b) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Issuing Bank shall be liable to any Lender for:
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders (including the Required Lenders, as applicable);
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the Issuing Bank, shall be liable or responsible for any of the
matters described in subsections 3.04(a) through (g); provided, however,
anything in such clauses to the contrary notwithstanding, that the Company may
have a claim against the Issuing Bank, and the Issuing Bank may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Bank's willful misconduct or gross negligence
or the Issuing Bank's willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.04 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(a) any lack of validity or enforceability of this Agreement or any
L/C-Related Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Company in respect of any
Letter of Credit or any other amendment or waiver of or any consent to departure
from all or any of the L/C-Related Documents;
(c) the existence of any claim, set-off, defense or other right that
the Company may have at any time against any beneficiary or any transferee of
any Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction;
(d) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit;
(e) any payment by the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of any Letter of Credit; or any payment made by the Issuing Bank under any
Letter of Credit to any Person purporting to be a trustee in
25
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding;
(f) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Company in respect of any
Letter of Credit; or
(g) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company or a
guarantor.
3.05 Cash Collateral Pledge. Upon the request of the Agent or the
Required Lenders, (a) if the Issuing Bank has honored any full or partial
drawing request on any Letter of Credit and such drawing has resulted in an L/C
Borrowing hereunder, (b) if, as of the Tranche A Termination Date, any Tranche A
Letters of Credit may for any reason remain outstanding and partially or wholly
undrawn, or (c) if, as of the Tranche B Termination Date, any Tranche B Letters
of Credit may for any reason remain outstanding and partially or wholly undrawn,
then, the Company shall immediately Cash Collateralize the L/C Obligations in an
amount equal to such L/C Obligations.
3.06 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of each of the
Lenders a letter of credit fee with respect to the Tranche A Letters of Credit
equal to the applicable margin above LIBOR then in effect under Section 2.09 for
Tranche A Eurodollar Loans for each day such Tranche A Letters of Credit are
outstanding, computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter and based upon Tranche A Letters of Credit outstanding
for that quarter as calculated by the Agent. The Company shall pay to the Agent
for the account of each of the Lenders a letter of credit fee with respect to
the Tranche B Letters of Credit equal to the applicable margin above LIBOR then
in effect under Section 2.09 for Tranche B Eurodollar Loans for each day such
Tranche B Letters of Credit are outstanding, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter and based upon Tranche
B Letters of Credit outstanding for that quarter as calculated by the Agent.
Such letter of credit fees shall be due and payable quarterly in arrears on the
last Business Day of each calendar quarter during which Letters of Credit are
outstanding, commencing on the first such quarterly date to occur after the
Closing Date, through the Tranche B Termination Date (or such later date upon
which the outstanding Letters of Credit shall expire), with the final payment to
be made on the Tranche A Termination Date (or such later expiration date), in
the case of Tranche A Letters of Credit and on the Tranche B Termination Date
(or such later expiration date), in the case of Tranche B Letters of Credit.
(b) The Company shall pay to the Issuing Bank a letter of credit
fronting fee for each Letter of Credit Issued by the Issuing Bank equal to
0.125% of the face amount (or increased face amount, as the case may be) of such
Letter of Credit. Such Letter of Credit fronting fee shall be due and payable on
each date of Issuance of a Letter of Credit.
(c) The Company shall pay to the Issuing Bank from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the Issuing Bank relating to standby
letters of credit as from time to time in effect.
3.07 International Standby Practices. The International Standby
Practices as published by the International Chamber of Commerce most recently at
the time of issuance of any Letter of Credit shall (unless otherwise expressly
provided in the Letters of Credit) apply to the Letters of Credit.
26
ARTICLE 4
FEES; PAYMENTS; TAXES
4.01 Fees.
(a) Utilization Fee. The Company shall pay to the Agent for the account
of each Lender a utilization fee ("Utilization Fee") on the actual daily
aggregate principal amount of such Lender's Committed Loans then outstanding
hereunder with respect to each day on which the principal amount of all
Committed Loans then outstanding is equal to or exceeds 33% of the aggregate
Commitments (each such day a "Utilization Fee Day"). Such fee shall be computed
with respect to each Utilization Fee Day at a rate equal to 0.125% per annum,
and shall accrue with respect to each Utilization Fee Day occurring on and after
the Closing Date to the later to occur of (A) the Tranche B Termination Date and
(B) the date on which all Loans and interest thereon are paid in full and the
Commitments hereunder terminated, and, to the extent accrued during such period,
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter (commencing on September 30, 1999) through the later to occur
of (X) the Tranche B Termination Date and (Y) the date on which all Loans, L/C
Obligations and interest thereon are paid in full and the Commitments hereunder
terminated, with the final payment to be made on the latest to occur of such
dates.
(b) Facility Fee.
(i) The Company agrees to pay to the Agent for the account of
each Lender, a facility fee from the Closing Date until the Tranche B
Termination Date at a rate per annum times the Tranche A Commitment and
the Tranche B Commitment of such Lender (regardless of utilization
thereof) as follows:
Debt Rating Facility Fee
----------- ------------
Moody's S&P Tranche A / Tranche B
------- --- ---------------------
Baal or higher or BBB+ or higher 0.100% / 0.125%
Baa2 or BBB 0.125% / 0.150%
Baa3 or BBB- 0.150% / 0.175%
Bal or BB+ 0.175% / 0.200%
Ba2 or lower and BB or lower 0.225% / 0.250%
provided, however, that if at any time no Debt Rating is available, the
facility fee shall be 0.225% per annum for Tranche A Commitments and
0.250% per annum for Tranche B Commitments. In the event of a split
rating, the higher rating will apply; if the Debt Ratings are split by
more than one level, one level above the lower rating will apply.
(ii) The facility fee shall be payable (A) quarterly in
arrears on the last Business Day of each calendar quarter, commencing
with the calendar quarter ending on September 30, 1999, (B) on any date
of reduction or termination of the Commitments and (C) on the Tranche B
Termination Date.
(c) Agency Fee. The Company agrees to pay to the Agent for its account
an agency fee in such amounts and at such times as are set forth in the Fee
Letter.
4.02 Computation of Interest, Fees.
27
(a) All computations of interest payable in respect of Reference Rate
Loans shall be made on the basis of a year of 365 days or 366 days, as the case
may be, and actual days elapsed. All computations of interest in respect of
Eurodollar Loans and Bid Loans and all computations of fees under this Agreement
shall be made on the basis of a year of 360 days and actual days elapsed.
Interest and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Company and
the Lenders in the absence of manifest error. The Agent, upon determining LIBOR
for any Interest Period, shall promptly notify the Company and the Lenders
thereof.
4.03 Payments by the Company.
(a) The Company shall make each payment hereunder not later than 1:00
p.m. (New York City time) on the day when due (i) in respect of any Committed
Loan, to the Agent or (ii) in respect of any Bid Loan, to the Lender which made
such Bid Loan, without defense, setoff or counterclaim, in dollars and in
immediately available funds to such account in the continental United States of
America as the Agent shall specify from time to time by notice to the Company
or, in the case of a Bid Loan made by a Lender, to the Lending Office of such
Lender. The Agent will promptly after receiving any payment in respect of any
Committed Loan from the Company cause to be distributed like funds to the
Lenders ratably based on their Commitment Percentages (other than amounts
payable to any Lender or any amounts payable pursuant to Section 3.05, 4.02,
4.03, 4.04, 4.05 or 4.06) for the account of their respective Lending Offices.
Any payment which is received by the Agent later than 1:00 p.m. (New York City
time), as confirmed by Federal Reserve wire number, shall be deemed to have been
received on the immediately succeeding Business Day.
(b) Whenever any payment of a Committed Loan (and, unless otherwise
stated in the relevant Competitive Bid Request, a Bid Loan) shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that if such extension would cause payment of principal of or
interest on Eurodollar Loans to be made in the next calendar month, such payment
shall be made on the immediately preceding Business Day.
(c) Unless the Agent shall have received notice from the Company prior
to the date on which any payment is due to the Lenders hereunder that the
Company will not make such payment in full, the Agent may assume that the
Company has made such payment in full to the Agent on such date, and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Company shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand the excess of the
amount distributed to such Lender over the amount, if any, paid by the Company
for the account of such Lender, together with interest thereon at the Federal
Funds Rate, for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the Agent; provided, however,
that if any Lender shall fail to repay such amount within three Business Days
after demand therefor, such Lender shall, from and after such third Business Day
until payment is made to the Agent, pay interest thereon at a rate per annum
equal to the sum of the Adjusted Reference Rate plus 1%.
4.04 Payments by the Lenders.
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(a) Not later than 12:00 noon (New York City time) on the date of each
proposed Committed Borrowing, each Lender shall make available to the Agent to
such account as the Agent shall specify from time to time in immediately
available funds for the account of the Company, the amount of such Lender's
Commitment Percentage of such Borrowing.
(b) Unless the Agent shall have received notice from a Lender at least
one Business Day prior to the date of any proposed Committed Borrowing that such
Lender will not make available to the Agent for the account of the Company, the
amount of such Lender's Commitment Percentage of such Borrowing, the Agent may
assume that such Lender has made such amount available to the Agent on the date
of such Borrowing, and the Agent may, in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made such full amount available to the Agent,
and the Agent in such circumstances makes available to the Company such amount,
such Lender shall, within two Business Days following the date of such
Borrowing, make such amount available to the Agent, together with interest
thereon for each day from and including the date of such Borrowing, at a rate
per annum equal to the Federal Funds Rate. If such amount is so made available,
such payment to the Agent shall constitute such Lender's Committed Loan on the
date of such Borrowing for all purposes of this Agreement. If such amount is not
made available to the Agent within two Business Days following the date of such
Borrowing, the Agent shall notify the Company of such failure to fund, and, on
the third Business Day following the date of such Borrowing, the Company shall
pay to the Agent such amount, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
Nothing contained in this Section 4.04(b) shall relieve any Lender which has
failed to make available its Commitment Percentage of any Committed Borrowing
hereunder from its obligation to do so in accordance with the terms hereof.
(c) The failure of any Lender to make any Committed Loan on the date of
any Committed Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make a Committed Loan on the date of such Borrowing pursuant
to the provisions contained herein, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
the date of any Committed Borrowing.
(d) If the Company accepts one or more of the offers made by any Lender
or Lenders pursuant to Section 2.04(c)(ii), each such Lender which is to make a
Bid Loan as part of any Bid Borrowing shall before 12:00 noon (New York City
time) on the date of such proposed Bid Borrowing (or before 2:00 p.m. (New York
City time) on the date of such Bid Borrowing in the case of a Fixed Rate Bid
Loan) make available to the Company at such Lender's Lending Office such
Lender's portion of such Bid Borrowing in immediately available funds. The
Company will promptly notify the Agent of the total amount of Bid Loans made in
connection with such Bid Borrowing, each date on which all or any part of such
Bid Loans shall mature and the principal amount which shall mature on each such
date, and the Agent will, in turn, promptly notify each Lender of the amount of
such Bid Borrowing and the relevant maturity date or dates of the Bid Loans
comprised in such Bid Borrowing.
4.05 Taxes.
(a) Subject to Section 4.05(g), any and all payments by the Company to
the Agent for its account and for the account of any Lender under this Agreement
(other than on account of a Bid Loan, except to the extent otherwise specified
as being applicable to any such Bid Loan) shall be made free and clear of, and
without deduction or withholding for, any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto incurred in connection with any Borrowing pursuant to this
Agreement, excluding (i) such taxes (including income taxes or franchise taxes
or branch profit taxes) as are imposed on or measured by such Lender's or the
Agent's, as the case
29
may be, net income and (ii) such taxes as are imposed by a jurisdiction other
than the United States of America or any political subdivision thereof and that
would not have been imposed but for the existence of a connection between such
Lender or the Agent and the jurisdiction imposing such taxes (other than a
connection arising principally by reason of this Agreement) (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes or any other sales, excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement (other than on account of a Bid Loan, except to the extent otherwise
specified as being applicable to any such Bid Loan) or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) Subject to Section 4.05(g), the Company agrees to indemnify and
hold harmless each Lender and the Agent for the full amount of Taxes or Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 4.05) paid by such Lender or the Agent, as the case
may be, and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted; provided, however, that each
Lender and the Agent agree to contest in good faith in cooperation with the
Company any Taxes or Other Taxes that such Lender or the Agent, as the case may
be, in consultation with the Company has determined have been incorrectly
asserted. This indemnification shall be made within 30 days from the date such
Lender or the Agent, as the case may be, makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, then, subject to Section 4.05(g),
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05), such
Lender or the Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes under this Section 4.05, the Company will furnish to the
Agent, for the account of each Lender receiving a payment from which Taxes or
Other Taxes were deducted, the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment reasonably satisfactory
to the Agent.
(f) Each Lender that is other than a United States Person as defined in
the Code hereby agrees that:
(i) it shall, no later than the Closing Date (or, in the case
of a Lender which becomes a party hereto pursuant to Section 12.08
after the Closing Date, the date upon which such Lender becomes a party
hereto) deliver to the Agent (two (2) originals) and to the Company
(one (1) original):
30
(A) if its Lending Office is located in the United
States of America, accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor thereto
("Form 4224") and Internal Revenue Service Form W-9 or any
successor thereto ("Form W-9"), and/or
(B) if its Lending Office is located outside the
United States of America, accurate and complete signed
originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001") and Internal Revenue Service
Form W-8 or any successor thereto ("Form W-8");
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such Lending Office or Offices under this Agreement
free from withholding of United States Federal income tax;
(ii) if at any time such Lender changes its Lending Office or
Offices or selects an additional Lending Office, it shall, at the same
time or reasonably promptly thereafter but only to the extent the forms
previously delivered by it hereunder are no longer effective, deliver
to the Agent (two originals) and to the Company (one original) in
replacement for the forms previously delivered by it hereunder:
(A) if such changed or additional Lending Office is
located in the United States of America, accurate and complete
signed originals of Form 4224 and Form W-9; or
(B) otherwise, accurate and complete signed originals
of Form 1001 and Form W-8,
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such changed or additional Lending Office under this
Agreement free from withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time and, as provided above, any event
mentioned in clause (ii)) requiring a change in the most recent Form
4224, Form W-9, Form 1001 or Form W-8 previously delivered by such
Lender and if no change in law shall have occurred since the date of
delivery of such most recent form that would make the delivery of
replacement forms hereunder unlawful, deliver to the Agent (two
originals) and to the Company (one original) accurate and complete
signed originals of Form 4224 and Form W-9 or Form 1001 and Form W-8
(or any successor forms) in replacement for the forms previously
delivered by such Lender; and
(iv) it shall, promptly upon the request of the Company to
that effect, deliver to the Agent and the Company such other accurate
and complete forms or similar documentation as may be required from
time to time by any applicable law, treaty, rule or regulation in order
to establish such Lender's tax status for withholding purposes or may
otherwise be appropriate to eliminate or minimize any Taxes on payments
under this Agreement.
(g) The Company shall not be required to pay any amounts pursuant to
Section 4.05(a), 4.05(b), 4.05(d), or 4.05(i) to any Lender for the account of
any Lending Office of such Lender in respect of any sum payable hereunder:
31
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Lender to comply with its
obligations under Section 3.05(f) in respect of such Lending Office;
(ii) if such Lender shall have delivered to the Agent a Form
4224 and a Form W-9 in respect of such Lending Office pursuant to
Section 4.05(f)(i)(A), 4.05(f)(ii)(A) or 4.05(f)(iii) and such Lender
shall not be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of the payment of such sum
by the Company hereunder for the account of such Lending Office for any
reason other than a change in United States law or regulations or in
the official interpretation of such law or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224 and Form W-9; provided, however,
that if, notwithstanding such change in law, a Lender would be legally
able to provide such other forms or information as would reduce or
eliminate United States withholding taxes applicable to payments made
hereunder, such Lender shall, if requested by the Company, timely
provide such forms or other information to the Company, and the Company
shall not be required to pay any amounts pursuant to Section 4.05(a),
4.05(c) or 4.05(d) to the extent such amount would not have been owed
but for a failure of such Lender to comply with its obligations under
this proviso; or
(iii) if such Lender shall have delivered to the Company a
Form 1001 and a Form W-8 in respect of such Lending Office pursuant to
Section 4.05(f)(i)(B), 4.05(f)(ii)(B) or 4.05(f)(iii) and such Lender
shall not be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of the payment of such sum
by the Company hereunder for the account of such Lending Office for any
reason other than a change in United States law or regulations or any
applicable tax treaty or regulations or in the official interpretation
of any such law, treaty or regulations by any Governmental Authority
charged with the interpretation or administration thereof (whether or
not having the force of law) after the date of delivery of such Form
1001 and Form W-8; provided, however, that if, notwithstanding such
change in law, a Lender would be legally able to provide such other
forms or information as would reduce or eliminate United States
withholding taxes applicable to payments made hereunder, such Lender
shall, if requested by the Company, timely provide such forms or other
information to the Company, and the Company shall not be required to
pay any amounts pursuant to Sections 4.05(a), 4.05(c) or 4.05(d) to the
extent such amount would not have been owed but for a failure of such
Lender to comply with its obligations under this proviso.
(h) Each Lender shall use reasonable efforts to avoid or minimize any
amounts which might otherwise be payable pursuant to this Section 4.05;
provided, however, that such efforts shall not include the taking of any actions
by a Lender that would result in any tax, cost or other expense to such Lender
(other than a tax, cost or expense for which such Lender shall have been
reimbursed or indemnified by the Company pursuant to this Agreement or
otherwise) or any action which would in the reasonable opinion of such Lender
have an adverse effect upon its financial condition, operations, business or
properties.
(i) Each Lender agrees to indemnify the Agent and hold the Agent
harmless for the full amount of any and all present or future Taxes, Other Taxes
and related liabilities (including penalties, interest, additions to tax and
expenses, and any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable to Agent under this Section 4.05(i)) which are imposed on or with
respect to principal, interest or fees payable to such Lender hereunder and
which are not paid by the Company pursuant to this Section 4.05, whether or not
such Taxes, Other Taxes or related liabilities were correctly or legally
asserted. This indemnification shall be made within 30 days from the date the
Agent makes written demand therefor.
32
4.06 Sharing of Payments, Etc. If, other than as provided in Sections
3.05, 4.02, 4.03, 4.04, 4.05 or this 4.06, any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of any Committed Loan made by it or, after the occurrence
and during the continuation of an Event of Default pursuant to Section 10.01(a),
in respect of any Obligation owing to it (including with respect to any Bid
Loan), in excess of its Commitment Percentage of payments on account of the
Committed Loans or, after the occurrence and during the continuation of an Event
of Default pursuant to Section 10.01(a), in excess of its pro rata share of all
Obligations, such Lender shall forthwith purchase from the other Lenders such
participations in the Committed Loans made by them or, after the occurrence and
during the continuation of an Event of Default pursuant to Section 10.01(a), in
all Obligations owing to them, as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of the other Lenders
according to their Commitment Percentages or, after the occurrence and during
the continuation of an Event of Default pursuant to Section 10.01(a), their pro
rata shares of all Obligations then owing to them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase by such Lender from each other Lender shall be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such paying Lender's pro rata share (according to the proportion of (a) the
amount of such paying Lender's required repayment to the purchasing Lender to
(b) the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Company agrees that any Lender so purchasing a
participation from another Lender pursuant to the provisions of this Section
4.06 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Company in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 4.06 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.06 to share in the
benefits of any recovery on such secured claim.
ARTICLE 5
CHANGES IN CIRCUMSTANCES; ETC.
5.01 Eurodollar Rate Protection. If with respect to any Interest Period
for Eurodollar Loans, , either (a) the Agent or the Required Lenders determine
that for any reason adequate and reasonable means do not exist for ascertaining
LIBOR for such Interest Period; or (b) by the first day of such Interest Period,
the Required Lenders notify the Agent that LIBOR for such Interest Period will
not adequately reflect the cost to the Required Lenders of making such
Eurodollar Loans or funding or maintaining their respective Eurodollar Loans for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon the obligations of the Lenders to make or continue Loans as
Eurodollar Loans or to convert Reference Rate Loans into Eurodollar Loans shall
be suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist and any then outstanding
Eurodollar Loans shall at the end of the then current Interest Period for such
Loans be converted into Reference Rate Loans.
5.02 Additional Interest on Eurodollar Loans. The Company shall pay to
each Lender, on demand of such Lender, as long as such Lender shall be required
under regulations of the Federal Reserve Board to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Lender from the date such Eurodollar Loan is made until such principal
amount is paid in full, at a rate per annum equal at all times to the remainder
obtained by subtracting (a) LIBOR for the Interest Period for such
33
Eurodollar Loan from (b) the rate obtained by dividing such LIBOR by a
percentage equal to 100% minus the Eurodollar Reserve Percentage of such Lender
for such Interest Period, payable on each Interest Payment Date for such
Eurodollar Loan.
5.03 Increased Costs. If, due to either (a) the introduction of or any
change (other than any change by way of imposition of or increase in reserve
requirements covered by Section 5.02) in or in the interpretation of any law or
regulation after the date hereof (except to the extent such introduction, change
or interpretation affects Taxes or Other Taxes) or (b) the compliance with any
guideline or request issued after the date hereof (except to the extent such
guideline or request affects Taxes or Other Taxes) from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining any Eurodollar Loans or participating in Letters of
Credit or, in the case of the Issuing Bank, any increase in the cost to the
Issuing Bank of agreeing to issue, issuing or maintaining any Letter of Credit
or of agreeing to make or making, funding or maintaining any unpaid drawing
under any Letter of Credit, then the Company shall, subject to Section 5.08(b),
be liable for, and shall from time to time, upon demand therefor by such Lender
to the Company through the Agent, pay to the Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased costs. For purposes of this Section 5.03, the term "Taxes" shall have
the meaning specified in Section 4.05(a) without regard to the exclusions set
forth in Section 4.05(a).
5.04 Illegality. Notwithstanding any other provision of this Agreement,
if the introduction of any Requirement of Law, or in the interpretation or
administration of any Requirement of Law shall, after the date hereof, make it
unlawful, or any central bank or other Governmental Authority shall assert that
it is unlawful, for any Lender or its applicable Lending Office to make or
continue Committed Loans as Eurodollar Loans or to convert Reference Rate Loans
into Eurodollar Loans, then, on notice thereof and demand therefor by such
Lender to the Company through the Agent, (a) the obligation of such Lender to
make or to continue Committed Loans as Eurodollar Loans or to convert Reference
Rate Loans into Eurodollar Loans shall terminate and (b) the Company shall
forthwith prepay in full all Eurodollar Loans of such Lender then outstanding,
together with interest accrued thereon, either on the last day of the then
current Interest Period applicable to each such Eurodollar Loan if such Lender
may lawfully continue to maintain such Eurodollar Loan to such day, or
immediately if such Lender may not lawfully continue to maintain such Eurodollar
Loan to such day, unless the Company, on or prior to the date on which it would
otherwise be required to prepay such Eurodollar Loan, converts all Eurodollar
Loans of all Lenders then outstanding into Reference Rate Loans.
5.05 Capital Adequacy. In the event that any Lender shall determine
that the compliance with any law, rule or regulation regarding capital adequacy,
or any change therein or in the interpretation or application thereof or
compliance by such Lender (or its Lending Office) or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or other Governmental
Authority, affects or would affect the amount of capital required or expected to
be maintained by such Lender or any corporation controlling such Lender and such
Lender (taking into consideration such Lender's or such corporation's policies
with respect to capital adequacy and such Lender's or such corporation's desired
return on capital) determines that the amount of such capital is increased as a
consequence of such Lender's obligation under this Agreement, then the Company
shall, subject to Section 5.08(b), be liable for and shall from time to time,
upon demand therefor by such Lender through the Agent, pay to the Agent for the
account of such Lender such additional amounts as are sufficient to compensate
such Lender for such increase.
5.06 Funding Losses.
34
(a) If the Company makes any payment or prepayment of principal with
respect to any Eurodollar Loan (including payments made after any acceleration
thereof) or converts any Loan from a Eurodollar Loan to a Reference Rate Loan on
any day other than the last day of an Interest Period applicable thereto, the
Company shall pay to each Lender, upon demand therefor by such Lender, the
amount (if any) by which (i) the present value of the additional interest which
would have been payable on the amount so received had it not been received until
the last day of such Interest Period exceeds (ii) the present value of the
interest which would have been recoverable by such Lender by placing such amount
so received on deposit in the London interbank market for a period starting on
the date on which it was so received and ending on the last day of such Interest
Period. For purposes of determining present value under this Section 5.06(a),
interest amounts shall be discounted at a rate equal to the sum of (A) LIBOR
determined two Business Days before the date on which such principal amount is
received for an amount substantially equal to the amount received and for a
period commencing on the date of such receipt and ending on the last day of the
relevant Interest Period, plus (B) the percentage above LIBOR payable in respect
of such Eurodollar Loan pursuant to Section 2.09(a)(ii).
(b) If the Company fails to prepay, borrow, convert or continue any
Eurodollar Loan after a notice of prepayment, borrowing, conversion or
continuation has been given (or is deemed to have been given) to any Lender, the
Company shall reimburse each Lender, upon demand therefor by such Lender, for
any resulting loss and expense incurred by it, including any loss incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender from third parties to fund any Eurodollar Loan.
(c) If for any reason any Lender receives all or part of the principal
amount of a Bid Loan owed to it prior to the scheduled maturity date thereof,
the Company shall, on demand by such Lender, pay such Lender the amount (if any)
by which (i) the present value of the additional interest which would have been
payable on the amount so received had it not been received until such maturity
date exceeds (ii) the present value of the interest which would have been
recoverable by such Lender by placing such amount so received on deposit in the
London interbank market for a period starting on the date on which it was so
received and ending on such maturity date. For purposes of determining present
value under this Section 5.06(c), interest amounts shall be discounted at a rate
equal to the sum of (A) LIBOR determined two Business Days before the date on
which such principal amount is received for an amount substantially equal to the
amount received and for a period commencing on the date of such receipt and
ending on such maturity date, plus (B) the percentage above LIBOR payable in
respect of Eurodollar Loans constituting Tranche A Loans pursuant to Section
2.09(a)(ii).
5.07 Funding; Certificates of Lenders.
(a) Each Lender may fulfill its obligation to make, continue or convert
Loans into Eurodollar Loans by causing one of its foreign branches or Affiliates
(or an international banking facility created by such Lender) to make or
maintain such Eurodollar Loans; provided, however, that such Eurodollar Loans
shall in such event be deemed to have been made and to be held by such Lender
and the obligation of the Company to repay such Eurodollar Loans shall be to
such Lender for the account of such foreign branch, Affiliate or international
banking facility. In addition, the Company hereby consents and agrees that, for
purposes of any determination to be made pursuant to Sections 5.01, 5.02, 5.03,
5.04 or 5.06, it shall be conclusively assumed that each Lender elected to fund
all Eurodollar Loans by purchasing dollar deposits in the interbank eurodollar
market for its Eurodollar Lending Office.
(b) Any Lender claiming reimbursement or compensation pursuant to
Sections 4.05, 5.02, 5.03, 5.05 and/or 5.06 shall deliver to the Company through
the Agent a certificate setting forth in reasonable detail the basis for
computing the amount payable to such Lender hereunder and such certificate shall
be conclusive and binding on the Company in the absence of manifest error. The
35
Company shall pay to any Lender claiming compensation or reimbursement from the
Company pursuant to Sections 5.02, 5.03, 5.05 or 5.06 the amount requested by
such Lender no later than five Business Days after such demand.
5.08 Change of Lending Office; Limitation on Increased Costs.
(a) Each Lender agrees that upon the occurrence of any event giving
rise to the operation of Section 4.05(c) or (d) or Sections 5.02, 5.03, 5.04 or
5.05 with respect to such Lender, it will use commercially reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
minimize the imposition of any costs and expenses pursuant to such Sections and
to designate a different Lending Office for any Loans affected by such event
with the object of avoiding the consequence of the event giving rise to the
operation of such Section. Nothing in this Section 5.08 shall affect or postpone
any of the obligations of the Company or the right of any Lender provided in
Section 4.05(c) or (d) or Sections 5.02, 5.03, 5.04 or 5.05.
(b) Notwithstanding the provisions of Sections 4.05(c), 4.05(d), 5.02,
5.03 and 5.05, the Company shall only be obligated to compensate any Lender for
any amount arising or occurring during (i) any time or period commencing (A) in
the case of Section 4.05(c) or (d), not more than six months and (B) in the case
of Sections 5.02, 5.03 or 5.05, not more than three months, prior to the date on
which such Lender notifies the Agent and the Company that such Lender proposes
to demand such compensation and (ii) any time or period during which, because of
the unannounced retroactive application of any statute, regulation or other
basis, such Lender could not have known that such amount might arise or accrue.
5.09 Replacement of Lenders. The Company may from time to time for
reasonable cause, as determined by the management of the Company, including
invocation of any provision of this Article 5 by any Lender, designate one or
more banks (any such bank so designated being herein called a "Replacement
Lender") willing, in its or their sole discretion, to purchase all of the
Committed Loans of any one or more Lenders and each such Lender's rights
hereunder (other than any such rights with respect to Bid Loans), without
recourse to or warranty by, or expense to, such Lender for a purchase price
equal to the outstanding principal amount of the Committed Loans payable to such
Lender plus any accrued but unpaid interest on such Committed Loans and accrued
but unpaid Utilization Fees and facility fees in respect of such Lender's
Commitment, if any, and any other amounts payable to such Lender under this
Agreement or any other Loan Document (other than with respect to Bid Loans),
including any amount payable pursuant to Section 5.06 as though such Lender's
Eurodollar Loans were being prepaid on the date of such purchase, and to assume
all the obligations of such Lender hereunder (other than with respect to Bid
Loans), and, upon such purchase, such Lender shall no longer be a party hereto
or have any rights hereunder (except those that pertain to its Bid Loans and
those that survive full payment hereunder) and shall be relieved from all
obligations to the Company hereunder, and the Replacement Lender shall succeed
to the rights and obligations of such Lender hereunder (other than with respect
to Bid Loans).
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to induce the Lenders to extend their Commitments and to make
Loans, the Company represents and warrants to the Lenders and the Agent as
follows:
6.01 Corporate Existence; Compliance with Law. The Company and each
Restricted Subsidiary:
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(a) is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction in which the character of the properties
owned or held under lease by it or the nature of the business transacted by it
requires such qualification except where the failure to be so qualified is not
likely to have a Material Adverse Effect;
(c) has all requisite corporate power and authority to own, pledge,
mortgage, hold under lease and operate its properties and to conduct its
business as now or currently proposed to be conducted; and
(d) is in compliance with all Requirements of Law applicable to it and
its business except for such non-compliance which is not likely to have a
Material Adverse Effect.
6.02 Corporate Power; Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which such Loan Party is
a party:
(a) are within the respective corporate powers of such Loan Party;
(b) have been, or prior to such execution will have been, duly
authorized by all necessary corporate action, including the consent of
shareholders where required;
(c) do not:
(i) contravene the articles or certificate of incorporation or
by-laws of such Loan Party;
(ii) violate any other Requirement of Law;
(iii) conflict with or result in the breach of, or constitute
a default under, any Contractual Obligation of such Loan Party, except
for such conflicts, breaches or defaults which are not likely to have a
Material Adverse Effect and which do not subject any Lender or the
Agent to any criminal liability or any material civil liability; or
(iv) result in the creation or imposition of any Lien upon any
of the property of any Loan Party; and
(d) do not require the consent of, authorization by, approval of or
notice to, or filing or registration with, any Governmental Authority or any
other Person other than (i) as of the Closing Date, those which have been
obtained, made or given and which are fully disclosed on Schedule 6.02(d) and
(ii) those which are not required to be obtained, made or given as of the
Closing Date but which will be obtained, made or given as and when required.
6.03 Enforceable Obligations. This Agreement and each other Loan
Document to which any Loan Party is a party have been duly executed and
delivered by such Loan Party. This Agreement is, and each other Loan Document
when delivered hereunder will be, legal, valid and binding obligations of each
Loan Party, a party thereto, enforceable against each such Loan Party in
accordance with their respective terms except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally.
37
6.04 Taxes. As of the Closing Date, the Company and each Restricted
Subsidiary have filed all federal, state, local and foreign tax returns which
are required to have been filed in any jurisdiction and have paid all taxes
shown to be due thereon or otherwise assessed, to the extent the same have
become due and payable and before they have become delinquent, except for any
taxes and assessments the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which the Company has set aside on its books reserves (adequate in
accordance with, and segregated to the extent required by, GAAP) and the
non-filing or non-payment of which is not likely to have a Material Adverse
Effect.
6.05 Financial Matters.
(a) The consolidated balance sheet of the Company and its Subsidiaries
as of the last day of the fiscal year ended on December 31, 1998, and the
related consolidated statements of income and cash flows of the Company and its
Subsidiaries for such fiscal year, all with reports thereon by Arthur Andersen &
Co., independent public accountants, copies of which have been delivered to the
Agent and each Lender prior to the execution of this Agreement, fairly present
the consolidated financial position of the Company and its Subsidiaries as of
the date of said balance sheet and the consolidated results of their operations
for the period covered by said statements of income and cash flows, and have
been prepared in accordance with GAAP consistently applied in all material
respects by the Company and its Subsidiaries throughout the period involved,
except as set forth in the notes thereto. There are no material liabilities,
contingent or otherwise, of the Company or any Subsidiary not reflected in the
consolidated balance sheet as of December 31, 1998 or in the notes thereto which
are required to be disclosed therein.
(b) Since December 31, 1998, there has been no Material Adverse Effect
and no development which is likely to have a Material Adverse Effect, except as
reflected in the Company's periodic reports filed with the Securities and
Exchange Commission prior to the Closing Date.
(c) There is no material obligation, contingent liability or liability
for taxes, long-term leases or unusual forward or long-term commitments which is
not reflected in the December 31, 1998 consolidated financial statements of the
Company and its Subsidiaries or in the notes thereto which are required by GAAP
to be disclosed therein and no liability reflected in such notes is likely to
have a Material Adverse Effect.
6.06 Litigation. As of the Closing Date, there are no pending or, to
the knowledge of the Company, threatened, actions or proceedings affecting the
Company or any Restricted Subsidiary before any court or other Governmental
Authority or any arbitrator that are likely to have a Material Adverse Effect.
6.07 Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries.
6.08 Liens. As of the Closing Date, there are no Liens of any nature
whatsoever on any properties owned by the Company or any Restricted Subsidiary
other than Permitted Liens.
6.09 No Burdensome Restrictions; No Defaults.
(a) As of the Closing Date, neither the Company nor any Restricted
Subsidiary is a party to any Contractual Obligation the performance of which is
likely to have a Material Adverse Effect.
(b) As of the Closing Date, no provision or provisions of any
applicable Requirement of Law has or is likely to have a Material Adverse
Effect.
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(c) Neither the Company nor any Restricted Subsidiary is in default
under or with respect to any Contractual Obligation which default is likely to
have a Material Adverse Effect.
(d) No Default or Event of Default has occurred and is continuing.
6.10 Investment Company Act; Public Utility Holding Company Act. No
Loan Party is an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended. The making of the Loans by the Lenders, the application of the
proceeds and repayment thereof by the Company and the consummation of the
transactions contemplated by the Loan Documents will not violate any provision
applicable to any Loan Party of (a) the Investment Company Act of 1940, as
amended, or (b) any rule, regulation or order issued by the Securities and
Exchange Commission thereunder.
6.11 Margin Regulations. No part of the proceeds of any Loan will be
used in violation of Regulation T, U, or X of the Federal Reserve Board. After
giving effect to the application of the proceeds of the Loans (including the
Loans to be made on the Closing Date) less than twenty-five percent (25%) of the
assets of the Company, individually and on a consolidated basis with its
Subsidiaries, consists of margin stock. The Company is not engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock. Terms for which meanings are
provided in Regulation U of the Federal Reserve Board or any regulations
substituted therefor, as from time to time in effect, are used in this Section
6.11 with such meanings.
6.12 Environmental Matters. Except as set forth on Schedule 6.12:
(a) all facilities and property (including underlying groundwater)
presently owned or leased by the Company or any of its Subsidiaries have been,
and continue to be, owned or leased by the Company and its Subsidiaries in
material compliance with all Environmental Laws, except for such non-compliance
as is not likely to have a Material Adverse Effect;
(b) there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by the Company or any of its Subsidiaries with respect to any
alleged violation of any Environmental Law which are likely to have a
Material Adverse Effect, or
(ii) claims, complaints, notices or inquiries to the Company
or any of its Subsidiaries regarding potential liability under any
Environmental Law which are likely to have a Material Adverse Effect;
(c) except for Releases of Hazardous Materials which occurred after the
date that the Company or any of its Subsidiaries sold, transferred, assigned or
otherwise disposed of its interests in any previously owned or leased property,
there have been no Releases of Hazardous Materials at, on or under any property
now or previously owned or leased by the Company or any of its Subsidiaries that
are likely to have a Material Adverse Effect;
(d) the Company and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and
39
necessary or desirable for their businesses except for such non-compliance as is
not likely to have a Material Adverse Effect;
(e) (i) no property presently owned or leased by the Company or any of
its Subsidiaries, and (ii) to the best of the knowledge of the Company, no
property previously owned or leased by the Company or any of its Subsidiaries,
is listed or proposed for listing on the National Priorities List pursuant to
CERCLA or on any similar published state list of sites requiring investigation
or clean-up;
(f) to the knowledge of the Company, there are no underground storage
tanks, active or abandoned, including petroleum storage tanks, on or under any
property now or previously owned or leased by the Company or any of its
Subsidiaries that are likely to have a Material Adverse Effect;
(g) neither the Company nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar published
state list or which is the subject of federal, state or local enforcement
actions or other investigations which may lead to claims against the Company or
such Subsidiary for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA, except for such claims which are not
likely to have a Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos present
at any property now or previously owned or leased by the Company or any of its
Subsidiaries that are likely to have a Material Adverse Effect; and
(i) to the knowledge of the Company, no conditions exist at, on or
under any property now or previously owned or leased by the Company or any of
its Subsidiaries which, with the passage of time, or the giving of notice or
both, are likely to have a Material Adverse Effect.
6.13 Labor Matters. Except as set forth on Schedule 6.13, there are no
strikes or other labor disputes or grievances or charges or complaints with
respect to any employee or group of employees pending or, to the knowledge of
the Company, threatened against the Company or any Restricted Subsidiary which
are likely to have a Material Adverse Effect.
6.14 ERISA Plans. During the twelve-consecutive-month period prior to
the Closing Date, no steps have been taken to terminate any Pension Plan (other
than a standard termination as defined in Section 4041(b) of ERISA for which a
commitment to make the terminating Pension Plan sufficient is not required), and
no contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a Lien under Section 302(f) of ERISA. Other than liability for
benefit payments or contributions in the ordinary course, no condition exists or
event or transaction has occurred with respect to any Plan which is likely to
result in the incurrence by the Company or any member of the Controlled Group of
any material liability, fine or penalty. Each Plan complies with the applicable
provisions of ERISA and the Code, except where such non-compliance is not likely
to have a Material Adverse Effect. Except as disclosed on Schedule 6.14, neither
the Company nor any Subsidiary of the Company has any material contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Subtitle B
of Title I of ERISA.
6.15 Y2K Review. On the basis of a comprehensive review and assessment
of the Company's and its Subsidiaries' systems and equipment and due inquiry
made of the Company's and its Subsidiaries' material suppliers, vendors and
customers, the Company's Responsible Officers are of the view that the "Year
2000 problem" (i.e., the inability of computers, as well as embedded microchips
in non-computing devices, to perform properly date-sensitive functions with
respect to certain dates prior to and after
40
December 31, 1999), including costs of remediation, will not result in a
Material Adverse Effect. The Company and its Subsidiaries have developed
feasible contingency plans adequately to ensure uninterrupted and unimpaired
business operation in the event of failure of their own or a third party's
systems or equipment due to the Year 2000 problem, including those of vendors,
customers and suppliers, as well as a general failure of or interruption in its
communications and delivery infrastructure.
6.16 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks associated with
such matters and has not relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into any Swap Contract.
6.17 Full Disclosure. None of the representations or warranties made by
the Company or any Restricted Subsidiary in the Loan Documents as of the date
such representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Restricted Subsidiary in connection with
the Loan Documents (including the offering and disclosure materials delivered by
or on behalf of the Company to the Lenders prior to the Closing Date), contains
any untrue statement of a material fact or omits any material fact required to
be stated therein or otherwise necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading as of the
time when made or delivered.
ARTICLE 7
CONDITIONS PRECEDENT
7.01 Conditions Precedent to the First Loan. The obligation of each
Lender to make its initial Loan and the obligation of the Issuing Bank to Issue
its initial Letter of Credit is subject to the satisfaction of the condition
precedent that the Agent shall have received the following, each, unless
otherwise specified below, dated as of the Closing Date, in form and substance
satisfactory to the Agent and its counsel:
(a) Board Resolutions; Incumbency Certificates. A certificate of the
Secretary or an Assistant Secretary of each Loan Party certifying (i) the
resolutions of the Board of Directors of such Loan Party approving each Loan
Document to which such Loan Party is a party and the transactions contemplated
hereby and thereby, (ii) all documents evidencing other necessary corporate
action, if any, by each Loan Party with respect to each Loan Document and (iii)
the names and signatures of the officers authorized to act with respect to each
Loan Document executed by it, upon which certificate the Agent and each Lender
may conclusively rely until they shall have received a further certificate of
the Secretary or Assistant Secretary of such Loan Party canceling or amending
such prior certificate;
(b) Articles of Incorporation; By-Laws and Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation of each Loan
Party as in effect on the Closing Date, certified (A) by the Secretary
of State of the state of incorporation of such Loan Party as of a date
reasonably close to the Closing Date, and (B) by the Secretary or an
Assistant Secretary of such Loan Party as of the Closing Date, and the
by-laws of each Loan Party, as in effect on the Closing Date, certified
by the Secretary or an Assistant Secretary of such Loan Party as of the
Closing Date; and
41
(ii) a good standing certificate for each Loan Party from the
Secretary of State of the state of incorporation of such Loan Party as
of a date reasonably close to the Closing Date;
(c) Parent Guaranty. A guaranty, duly executed by the Parent, in
substantially the form of Exhibit 7.01(c) (the "Parent Guaranty").
(d) Legal Opinion. A favorable opinion addressed to the Agent and all
Lenders from counsel to the Company, in substantially the form of Exhibit
7.01(d) (which opinion the Company hereby expressly instruct such counsel to
prepare and deliver); and
(e) Contribution Agreement. A duly executed copy of the Contribution
Agreement, in substantially the form of Exhibit 7.01(e) (the "Contribution
Agreement").
7.02 Additional Conditions Precedent to the First Loan. The obligation
of each Lender to make its initial Loan and the obligation of the Issuing Bank
to Issue its initial Letter of Credit is subject to the further conditions
precedent that:
(a) No Material Adverse Effect. Since December 31, 1998, there shall
have been no Material Adverse Effect and no development which is likely to have
a Material Adverse Effect, except as reflected in the Company's periodic reports
filed with the Securities and Exchange Commission prior to the Closing Date.
(b) Margin Regulations. All Loans made by the Lenders shall be in full
compliance with all applicable Requirements of Law, including Regulations T, U
and X of the Federal Reserve Board.
(c) Fees Costs and Expenses. The Company shall have paid all fees
referred to in Section 4.01 to the extent then due and payable and all
reasonable costs and expenses referred to in Section 12.04 (including legal fees
and expenses) and any indemnity pursuant to Section 12.05 which, in each case,
may be then due and payable.
(d) Company Officer's Certificate. The Company shall have delivered to
the Agent a certificate from a Responsible Officer of the Company in
substantially the form of Exhibit 7.02(d) as to the satisfaction of the
conditions set forth in Section 7.02 and to the effect that on the Closing Date,
the representations and warranties contained in Article 6 are correct.
(e) Georgia-Pacific Agreement. All conditions precedent described in
Sections 7.01 and 7.02 of the Georgia-Pacific Agreement shall have been
satisfied.
7.03 Conditions Precedent to Each Committed Loan and Letter of Credit.
The obligation of each Lender to make any Committed Loan (including its initial
Committed Loan) and the obligation of the Issuing Bank to Issue any Letter of
Credit (including the initial Letter of Credit) shall be subject to the further
conditions precedent that:
(a) Notice of Borrowing. The Agent shall have received a Notice of
Borrowing as required by Section 2.02 or in the case of any Issuance of any
Letter of Credit, the Issuing Bank and the Agent shall have received an L/C
Application or L/C Amendment Application, as required under Section 3.02.
(b) Accuracy of Representations; No Default; Etc. The following
statements shall be true on the date of each Committed Loan or Issuance Date, as
the case may be, before and after giving effect thereto:
42
(i) The representations and warranties contained in Article 6
are correct on and (except for representations and warranties relating
solely to a particular point in time and, after the initial Committed
Borrowing, other than under Section 6.05(b)) as of such date as though
made on and as of such date; and
(ii) No Default or Event of Default has occurred and is
continuing or would result from such Committed Loan being made or
Letter of Credit being Issued on such date.
(c) Other Assurances. The Agent shall have received such other
approvals, opinions or documents as any Lender through the Agent may reasonably
request related to the transactions contemplated hereby.
7.04 Conditions Precedent to Each Bid Borrowing. The obligation of each
Lender which is to make a Bid Loan in connection with a Bid Borrowing (including
the initial Bid Borrowing) to make such Bid Loan shall be subject to the further
conditions precedent:
(a) Promissory Notes. If so requested by such Lender, the Company shall
have delivered to such Lender a promissory note in the form of Exhibit 2.05(c)
evidencing the Indebtedness of the Company in respect of such Bid Loan.
(b) Accuracy of Representations; No Default; Etc. The following
statements shall be true on the date of each Bid Borrowing, before and after
giving effect thereto and to the application of the proceeds from the Bid Loans
being made on such date:
(i) The representations and warranties contained in Article 6
are correct on and (except for representations and warranties relating
solely to a particular point in time and other than under Section
6.05(b)) as of such date as though made on and as of such date; and
(ii) No Default or Event of Default has occurred and is
continuing or would result from such Bid Loan being made on such date.
ARTICLE 8
AFFIRMATIVE COVENANTS
The Company agrees that as long as the obligations of the Lenders to
make Loans shall remain in effect or any Letter of Credit remain outstanding and
until all Obligations shall have been paid or performed in full, unless the
Required Lenders shall otherwise consent in writing:
8.01 Application of Proceeds. The Company will apply the proceeds of
the Loans for general corporate purposes.
8.02 Compliance with Laws, Etc. The Company will comply, and cause each
of its Subsidiaries to comply, in all material respects with all applicable
Requirements of Law except for such non-compliance as is being contested in good
faith by appropriate proceedings or is not likely to have a Material Adverse
Effect.
8.03 Payment of Taxes, Etc. The Company will pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, all lawful claims and all taxes, assessments and governmental
charges or levies except where contested in good faith, by proper proceedings,
if adequate reserves therefor have been established on the books of the Company
in
43
accordance with, and to the extent required by, GAAP, or if such non-payment
(individually and in the aggregate with all other such non-payments) is not
likely to have a Material Adverse Effect.
8.04 Maintenance of Insurance. The Company will maintain, and cause
each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company and such Subsidiaries
operate; provided, however, that the Company and its Subsidiaries may
self-insure to the extent that the Company or any such Subsidiary may in its
discretion determine; and provided, further, that the Company may maintain
insurance on behalf of any of its Subsidiaries. Without limiting the generality
of the foregoing, the Company will, and will cause each of its Subsidiaries to,
maintain insurance coverages that are at least substantially the same as the
insurance coverages maintained on the Closing Date.
8.05 Preservation of Corporate Existence, Etc. The Company will
preserve and maintain, and cause each Restricted Subsidiary to preserve and
maintain, its corporate existence, rights (charter and statutory), and
franchises, except as permitted under Section 9.03 or except to the extent that
the failure by the Company or any such Restricted Subsidiary to comply with the
foregoing is not likely to have a Material Adverse Effect.
8.06 Access. The Company will from time to time, during normal business
hours upon reasonable notice, or, if a Default or an Event of Default shall have
occurred and be continuing, at any time upon notice to an officer of the Company
having at least the rank of Vice President, permit the Agent, any Lender and any
agent or representative thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of, the
Company and any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Company and any of its Subsidiaries with any of their respective
officers.
8.07 Keeping of Books. The Company will keep proper books of record and
account, in which full and correct entries, on a consolidated basis for the
Company and its Subsidiaries, shall be made of all financial transactions and
the assets and business of the Company and its Subsidiaries in accordance with
GAAP consistently applied.
8.08 Maintenance of Properties, Etc. The Company will maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its properties in good repair, working order and condition, and from time to
time make or cause to be made all necessary and proper repairs, renewals,
replacements and improvements so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 8.08 shall prevent the Company or any of
its Subsidiaries from discontinuing the maintenance or preservation of any of
its properties if such discontinuance is, in the opinion of the Company,
desirable in the conduct of its business and is not likely to have a Material
Adverse Effect.
8.09 Financial Statements. The Company will furnish to the Agent, with
sufficient copies for the Lenders:
(a) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the Company,
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such quarter and the related statements of income and cash flows for such
quarter and for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter;
44
(b) as soon as available and in any event within 90 days after the end
of each fiscal year of the Company, audited consolidated balance sheets of the
Company and its Subsidiaries as of the end of such year and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for the period commencing at the end of the previous fiscal year and
ending with the end of such year; and
(c) at the same time it furnishes each set of financial statements
pursuant to subsections 8.09(a) and (b), (i) a certificate of a Responsible
Officer of the Company to the effect that no Default or Event of Default has
occurred and is continuing (or if any Default or Event of Default has occurred
and is continuing, describing the same in reasonable detail and the action which
the Company proposes to take with respect thereto) and (ii) a compliance
certificate in substantially the form of Exhibit 8.09(c).
8.10 Reporting Requirements. The Company will furnish to the Agent,
with sufficient copies for the Lenders:
(a) promptly and in any event within three Business Days after the
Company becomes aware of the existence of any Default or Event of Default,
notice by telephone or facsimile specifying the nature of such Default or Event
of Default, which notice, if given by telephone, shall be promptly confirmed in
writing within five Business Days;
(b) promptly after the sending or filing thereof, copies of all reports
which the Company sends to its security holders generally and copies of all
reports and registration statements which the Company or any of its Subsidiaries
files with the Securities and Exchange Commission or any national securities
exchange (including the Company's Quarterly Report on Form 10-Q and Annual
Report on Form 10-K);
(c) promptly but not later than three Business Days after the Company
becomes aware of any change by Moody's or S&P in its Debt Rating, notice by
telephone or facsimile of such change; and
(d) such other information respecting the business, prospects,
properties, operations or condition, financial or otherwise of the Company or
any of its Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
8.11 ERISA Plans. The Company will maintain and operate, and cause each
Subsidiary to maintain and operate, each Plan in material compliance with ERISA
and the Code and all applicable regulations thereunder.
8.12 Environmental Compliance; Notice. The Company will, and will cause
each of its Subsidiaries to:
(a) endeavor to use and operate all of its facilities and properties in
substantial compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in substantial compliance therewith,
and handle all Hazardous Materials in substantial compliance with all applicable
Environmental Laws;
(b) promptly upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties or
compliance with Environmental Laws, evaluate such claims, complaints, notices
and inquiries and forward copies of (i) all such claims, complaints, notices and
inquiries which individually are likely to have a
45
Material Adverse Effect and (ii) all such claims, complaints, notices and
inquiries, arising from a single occurrence which together are likely to have a
Material Adverse Effect, and endeavor to promptly resolve all such actions and
proceedings relating to compliance with Environmental Laws; and
(c) provide such information and certifications which the Agent may
reasonably request from time to time to evidence compliance with this Section
8.12.
8.13 New Subsidiaries. If the Company at any time after the date hereof
acquires, forms, or establishes any Principal Subsidiary or any Subsidiary
becomes a Principal Subsidiary, the Company shall cause any such Principal
Subsidiary to promptly (a) execute and deliver to Agent the Subsidiary Guaranty
and the Contribution Agreement; and (b) provide such evidence of due
authorization, execution, and delivery of such Loan Documents as the Agent or
the Required Lenders may reasonably require.
ARTICLE 9
NEGATIVE COVENANTS
The Company agrees that as long as the obligations of the Lenders to
make Loans shall remain in effect and until all Obligations shall have been paid
or performed in full, unless the Required Lenders shall otherwise consent in
writing:
9.01 Liens, Etc. The Company shall not create or assume and shall not
permit any Restricted Subsidiary to create or assume, any Lien upon or with
respect to any of its Principal Properties or shares of capital stock or
Indebtedness of any Restricted Subsidiary, whether now owned or hereafter
acquired, without making effective provision, and the Company in such case will
make or cause to be made effective provision, whereby the Obligations shall be
secured by such Lien equally and ratably with any and all other Indebtedness or
obligations thereby secured, so long as such other Indebtedness or obligations
shall be so secured; provided, however, that the foregoing shall not apply to
any of the following:
(a) Liens existing on the Closing Date and set forth on Schedule 9.01;
(b) Liens on any Principal Property acquired, constructed or improved
after the date of this Agreement which are created or assumed contemporaneously
with, or within 120 days after, or pursuant to financing arrangements for which
a firm commitment is made by a bank, insurance company or other lender or
investor (not including the Company or any Restricted Subsidiary) within 120
days after, the completion of such acquisition, construction or improvement to
secure or provide for the payment of any part of the purchase price of such
property or the cost of such construction or improvement, or, in addition to
Liens contemplated by Sections 9.01(c) and 9.01(d), Liens on any Principal
Property existing at the time of acquisition thereof; provided, however, that in
the case of any such acquisition, construction or improvement the Lien shall not
apply to any property theretofore owned by the Company and/or one or more
Restricted Subsidiaries other than, in the case of such construction or
improvement, any theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(c) Liens on property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into or consolidated
with the Company or a Restricted Subsidiary or existing at the time of a sale,
lease or other disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company, or to a Restricted Subsidiary;
(d) Liens on property or shares of capital stock of a corporation
existing at the time such corporation becomes a Restricted Subsidiary;
46
(e) Liens to secure Indebtedness of a Restricted Subsidiary to the
Company or one or more Subsidiaries;
(f) Liens in favor of the United States of America or any State
thereof, or any department, agency or political subdivision of the United States
of America or any State thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of constructing or improving the property subject to such Liens;
(g) Liens on timberlands in connection with an arrangement under which
the Company and/or one or more Restricted Subsidiaries are obligated to cut or
pay for timber in order to provide the lienholder with a specified amount of
money, however determined;
(h) Liens created or assumed in the ordinary course of the business of
exploring for, developing or producing oil, gas or other minerals (including in
connection with borrowings of money for such purposes) on, or on any interest
in, or on any proceeds from the sale of, property acquired or held for the
purpose of exploring for, developing or producing oil, gas or other minerals, or
production therefrom, or proceeds of such production, or material or equipment
located on such property;
(i) Liens in favor of any customer arising in respect of performance
deposits and partial, progress, advance or other payments made by or on behalf
of such customer for goods produced or to be produced or for services rendered
or to be rendered to such customer in the ordinary course of business, which
Liens shall not exceed the amount of such deposits or payments;
(j) Liens on the property of the Company or any Restricted Subsidiary
incurred or pledges and deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance, old-age pensions
and other social security benefits other than in respect of employer plans
subject to ERISA;
(k) Liens pertaining to receivables or other accounts sold by the
Company or any of its Restricted Subsidiaries pursuant to a receivables sale
transaction in favor of the purchaser or purchasers of such receivables or other
accounts;
(l) purchase money liens or purchase money security interests upon or
in any other property acquired by the Company or any Restricted Subsidiary in
the ordinary course of business to secure the purchase price of such property or
to secure Indebtedness incurred solely for the purpose of financing the
acquisition of such property;
(m) extensions, renewals and replacements of Liens referred to in
Section 9.01(a) through (l) or this Section 9.01(m), provided, however, that the
Indebtedness secured thereby shall not exceed the principal amount of the
Indebtedness so secured at the time of such extension, renewal or replacement,
and such extension, renewal or replacement shall be limited to all or part of
the property or assets which secured the Lien extended, renewed or replaced
(plus improvements on such property);
(n) Liens imposed by law, such as workers', materialmen's, mechanics',
warehousemen's, carriers', lessors', vendors' and other similar Liens incurred
by the Company or any Restricted Subsidiary arising in the ordinary course of
business which secure its obligations to any Person;
(o) Liens created by or resulting from any litigation or proceedings
which are being contested in good faith by appropriate proceedings; Liens
arising out of judgments or awards against the Company and/or one or more
Restricted Subsidiaries with respect to which the Company and/or such
47
Restricted Subsidiary or Restricted Subsidiaries are in good faith prosecuting
an appeal or proceedings for review; or Liens incurred by the Company and/or one
or more Restricted Subsidiaries for the purpose of obtaining a stay or discharge
in the course of any legal proceeding to which the Company and/or such
Restricted Subsidiary or Restricted Subsidiaries are a party;
(p) Liens for taxes, assessments or other governmental charges or
levies, either not yet due and payable or to the extent that non-payment thereof
shall be permitted by Section 7.03, landlord's liens on property held under
lease and tenants' rights under leases;
(q) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities of title
incident thereto which do not materially impair the value of any parcel of
property material to the operation of the business of the Company and its
Restricted Subsidiaries taken as a whole or the value of such property for the
purpose of such business; and
(r) Liens arising in connection with Sale-Leaseback Transactions
permitted by Section 9.02.
9.02 Sale-Leaseback Transactions. The Company shall not, and shall not
permit any Restricted Subsidiary to, enter into any arrangement with any Person
providing for the leasing by the Company and/or one or more Restricted
Subsidiaries of any Principal Property (except for temporary leases for a term,
including any renewal thereof, of not more than three years and except for
leases between the Company and one or more Restricted Subsidiaries or between
Restricted Subsidiaries) which property has been or is to be sold or transferred
by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to
such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such
Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur
Indebtedness secured by a Lien on such property without equally and ratably
securing the Obligations pursuant to the provisions of Section 9.01, or (b) the
Company shall apply or cause to be applied an amount equal to the Value of such
Sale-Leaseback Transaction within 120 days of the effective date of any
arrangement (i) to the retirement of Indebtedness for Borrowed Money incurred or
assumed by the Company or any Restricted Subsidiary (other than indebtedness for
borrowed money owed to the Company and/or one or more Restricted Subsidiaries)
which by its terms matures on, or is extendable or renewable at the option of
the obligor to, a date more than 12 months after the date of the incurrence or
assumption of such indebtedness and which is senior in right of payment to, or
ranks pari passu with, the Loans, or (ii) to the purchase of other property
which will constitute "Principal Property" having a fair value in the opinion of
the Board of Directors of the Company at least equal to the Value of such
Sale-Leaseback Transaction, or (c) the Company shall use the net proceeds to
repay Loans hereunder.
Notwithstanding the provisions of Sections 9.01 and 9.02, the Company
and any one or more of its Restricted Subsidiaries may nevertheless create or
assume Liens which would otherwise require securing of the Obligations under
said provisions, and enter into Sale-Leaseback Transactions without compliance
with either Section 9.02(b) or 9.02(c), provided that the aggregate amount of
all such Liens and Sale-Leaseback Transactions permitted by this Section 9.02 at
any time outstanding (as measured by the sum of (a) all Indebtedness secured by
all such Liens then outstanding or to be so created or assumed, but excluding
secured Indebtedness permitted under the exceptions in Section 9.01, and (b) the
Value of all such Sale-Leaseback Transactions then outstanding or to be so
entered into, but excluding such transactions in which indebtedness is retired
or property is purchased or Loans are repaid) shall not exceed 10% of Net
Tangible Assets.
9.03 Mergers, Etc. The Company shall not merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets, whether now owned or hereafter acquired, to any Person; provided,
however, that the Company may merge or consolidate with or into any corporation
(whether or not
48
affiliated with the Company) or convey, transfer, lease or otherwise dispose of
all or substantially all of its assets, to any other corporation (whether or not
affiliated with the Company) authorized to acquire or operate the same, so long
as (a) either (x) in the case of such merger or consolidation, the Company is
the surviving corporation or (y) if either (i) in the case of such merger or
consolidation, if the Company is not the surviving corporation, or (ii) upon any
such conveyance, transfer, lease or other disposition, the surviving or
transferee corporation expressly assumes the due and punctual payment of all
Obligations according to their terms and the due and punctual performance and
observance of all of the covenants and conditions of this Agreement to be
performed by the Company; and (b) after giving effect to such transaction, no
Default or Event of Default exists and the Company or such surviving Person, as
applicable, has demonstrated its compliance with Section 9.08 to the reasonable
satisfaction of the Required Lenders.
9.04 Transactions with Affiliates. The Company shall not enter into or
be a party to, or permit any of its Restricted Subsidiaries to enter into or be
a party to, any transaction with any Affiliate of the Company except (a) as may
be permitted under Sections 9.01, 9.02 or 9.03 or (b) transactions in the
ordinary course of business which are not likely to have a Material Adverse
Effect.
9.05 Accounting Changes. The Company (a) shall not make, or permit any
of its Subsidiaries to make, any significant change in accounting treatment and
reporting practices except as permitted or required by GAAP or the Securities
and Exchange Commission and (b) shall not designate a different fiscal year
other than a fiscal year that ends on the closest Saturday to December 31 of
each year.
9.06 Margin Regulations. The Company shall not use the proceeds of any
Loan in violation of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
9.07 Negative Pledges, Etc. The Company shall not, and shall not permit
any Restricted Subsidiary to, enter into any agreement prohibiting compliance by
the Company with the provisions of the introduction to Section 9.01 or
restricting the ability of the Company or any other Loan Party to amend or
otherwise modify this Agreement or any other Loan Document.
9.08 Leverage Ratio. The Company shall not permit the ratio of (a)
Funded Indebtedness on the last day of any fiscal quarter to (b) EBITDA for the
Measurement Period ending on such date (in each case calculated on a
consolidated basis for the Company and its consolidated Subsidiaries) to be
greater than 4.50 to 1.00.
ARTICLE 10
EVENTS OF DEFAULT
10.01 Events of Default. The term "Event of Default" shall mean any of
the events set forth in this Section 10.01.
(a) Non-Payment. The Company shall (i) fail to pay any principal of any
Loan when the same shall become due and payable; or (ii) fail to pay any
interest on any Loan or fail to pay any fee due under this Agreement within
three Business Days after the same shall become due and payable; or
(b) Representations and Warranties. Any representation or warranty made
by the Company in this Agreement or by any Loan Party in any other Loan Document
or in any certificate, document or financial or other statement delivered at any
time under or in connection with this Agreement or any other Loan Document shall
prove to have been incorrect or untrue in any material respect when made or
deemed made; or
49
(c) Specific Defaults. The Company shall fail to perform or observe any
term, covenant or agreement contained in Sections 8.01, 8.05, 8.06, or 8.10(a)
or Article 9; or
(d) Other Defaults. The Company shall fail to perform or observe any
other term or covenant contained in this Agreement or any Loan Party shall fail
to perform any other term or covenant in any other Loan Document, and such
Default shall continue unremedied for a period of 30 days after the date upon
which written notice thereof shall have been given to the Company by the Agent;
or
(e) Default under Other Agreements. Any default shall occur and be
continuing under the terms applicable to:
(i) any Funded Indebtedness or any Indebtedness or items of
Indebtedness of the Company or any of its Subsidiaries (other than
under this Agreement or any other Loan Document) which Funded
Indebtedness or Indebtedness, as the case may be, has an aggregate
outstanding principal amount of $75,000,000 or more, or
(ii) under one or more Swap Contracts of the Company or any of
its Subsidiaries resulting in aggregate Swap Termination Values of the
Company and its Subsidiaries of $75,000,000 or more and,
in either of the above cases, such default shall:
(A) consist of the failure to pay such Indebtedness
or such net obligations when due (whether at scheduled
maturity, upon early termination, by required prepayment,
acceleration, demand or otherwise) after giving effect to any
applicable grace period; or
(B) result in, or continue unremedied and unwaived
for a period of time sufficient to permit, the acceleration of
such Indebtedness or the early termination of any such Swap
Contract; or
(f) Bankruptcy or Insolvency. The Company or any Restricted Subsidiary
shall:
(i) generally fail to pay, or admit in writing its inability
to pay, its debts as they become due;
(ii) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect;
(iii) seek the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property or consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it;
(iv) make a general assignment for the benefit of creditors;
or
(v) take any corporate action to authorize any of the
foregoing; or
(g) Involuntary Proceedings. An involuntary case or other proceeding
shall be commenced against the Company or any Restricted Subsidiary seeking
liquidation, reorganization or other relief with
50
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any-substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Company or any Restricted Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
(h) Monetary Judgments. One or more judgments or orders for the payment
of money exceeding in the aggregate $75,000,000 shall be rendered against the
Company or any of its Subsidiaries and either (i) enforcement proceedings shall
have been initiated by any creditor upon such judgment or order or (ii) such
judgment or order shall continue unsatisfied or unstayed for a period of 30
days; or
(i) Pension Plans. Any of the following events shall occur with respect
to any Pension Plan:
(i) the institution of any steps by the Company, any member of
its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Company or any such member
could reasonably expect to be required to make a contribution to such
Pension Plan, or could reasonably expect to incur a liability or
obligation to such Pension Plan or the PBGC, in excess of $75,000,000;
or
(ii) a contribution failure occurs with respect to any Pension
Plan which gives rise to a Lien under Section 302(f) of ERISA with
respect to a liability or obligation in excess of $75,000,000; or
(j) Change in Control. The acquisition by any Person or group (within
the meaning of Rule 13d-5 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of either (i)
33-1/3% or more of the outstanding shares of voting stock of the Company or (ii)
the power to direct or cause the direction of the management and policies of the
Company, whether through the ownership of voting securities, by contract or
otherwise; or
(k) Impairment of Certain Documents. Except as otherwise expressly
permitted in any Loan Document, any of the Loan Documents shall terminate or
cease in whole or in part to be the legally valid, binding, and enforceable
obligation of the relevant Loan Party, or such Loan Party or any Person acting
for or on behalf of any Loan Party, contests such validity, binding effect or
enforceability, or purports to revoke any Loan Document; or
(l) Georgia-Pacific Agreement. An "Event of Default" shall exist as
defined in the Georgia-Pacific Agreement.
10.02 Remedies. If any Event of Default shall have occurred and be
continuing:
(a) The Agent shall at the request of, or may with the consent of, the
Required Lenders, declare the Commitments and the commitment of the Issuing Bank
to Issue Letters of Credit to be terminated, whereupon the Commitments and such
commitment shall forthwith be terminated; and/or
(b) The Agent shall at the request of, and may with the consent of, the
Required Lenders, declare an amount equal to the maximum aggregate amount that
is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, which amount the Company shall
51
immediately Cash Collateralize in full, and declare the unpaid principal amount
of all outstanding Loans, all interest accrued and unpaid thereon and all other
Obligations payable hereunder or under any other Loan Document to be immediately
due and payable, whereupon the Loans, all such interest and all such Obligations
shall become and be forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by
the Company; and/or
(c) The Agent shall at the request of, and may with the consent of, the
Required Lenders, exercise all rights and remedies available to it as Agent
under any Loan Document;
provided, however, that upon the occurrence of any Event of Default specified in
Section 10.01(f)(ii) or Section 10.01(g) or in the event of an actual or deemed
entry of an order for relief with respect to the Company or any of its
Subsidiaries under any bankruptcy, insolvency or other similar law now or
hereafter in effect, the Commitments and the commitment of the Issuing Bank to
Issue Letters of Credit shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest accrued thereon and all other
Obligations shall automatically become due and payable without further action of
the Agent or any Lender.
ARTICLE 11
THE AGENT
11.01 Appointment. Each Lender hereby irrevocably appoints, designates
and authorizes the Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities except those expressly set forth
herein or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent. Without limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement with reference to the Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
The Issuing Bank shall act on behalf of the Lenders with respect to any
Letters of Credit Issued by it and the documents associated therewith until such
time and except for so long as the Agent may agree at the request of the
Required Lenders to act for such Issuing Bank with respect thereto; provided,
however, that the Issuing Bank shall have all of the benefits and immunities (i)
provided to the Agent in this Article 11 with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Agent", as used in this Article 11, included the Issuing Bank with respect
to such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to the Issuing Bank.
11.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through its employees,
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
11.03 Liability of Agent. None of the Agent-Related Persons shall be
(a) liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document (except for its own
gross negligence or willful misconduct) or (b) responsible in any manner to
52
any of the Lenders for any recital, statement, representation or warranty made
by the Company or any of its officers contained in this Agreement or by any Loan
Party or any officer of any thereof in any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document or for the value of any collateral or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of the Company or any other Loan
Party to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document or to inspect the
properties, books or records of the Company or any of its Subsidiaries.
11.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, facsimile, or telephone message, statement or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon any advice and
statements of legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Except to the extent expressly provided in
Section 12.02, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or the consent of the Required Lenders and such
request or consent and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans or any
portion thereof.
(b) For purposes of determining compliance with the conditions
specified in Sections 7.01 and 7.02, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Agent responsible for
the transactions contemplated by the Loan Documents shall have received notice
from such Lender prior to the initial Borrowing specifying its objection thereto
and either such objection shall not have been withdrawn by notice to the Agent
to that effect or such Lender shall not have made available to the Agent such
Lender's Commitment Percentage of such Borrowing.
11.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees payable
to the Agent for the account of the Lenders, unless the Agent shall have
received notice from a Lender or the Company referring to this Agreement or any
other Loan Document, describing such Default or Event of Default and stating
that such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as shall
be requested by the Required Lenders in accordance with Article 10; provided,
however, that unless and until the Agent shall have received any such request
from the Required Lenders, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
11.06 Credit Decision. Each Lender expressly acknowledges that no
Agent-Related Person has made any representation or warranty to it and that no
act by the Agent hereinafter taken, including any
53
review of the affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, properties, operations or condition,
financial or otherwise, and creditworthiness of the Company and its Subsidiaries
and made its own decision to enter into this Agreement and extend credit to the
Company hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, properties, operations or condition,
financial or otherwise, and creditworthiness of the Company and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agent hereunder, no Agent-Related Person
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, properties, operations
or condition, financial or otherwise, and creditworthiness of the Company and
its Subsidiaries which may come into the possession of any Agent-Related Person.
11.07 Indemnification. The Lenders agree to indemnify the Agent-Related
Person (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their outstanding Loans, or, if no Loans are outstanding,
their Commitments, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time after the repayment of the Loans and all other Obligations) be imposed on,
incurred by or asserted against any Agent-Related Person in any way relating to
or arising out of this Agreement or any other Loan Document or any document
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any
Agent-Related Person under or in connection with any of the foregoing; provided,
however, that no Lender shall be liable for the payment to any Agent-Related
Person of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from any Agent-Related Person's gross negligence or willful misconduct.
Without limiting the generality of the foregoing, each Lender agrees to
reimburse the Agent-Related Persons promptly upon demand for its ratable share
of any out-of-pocket expenses and reasonable fees of counsel (including the
allocated cost of in-house counsel) incurred by the Agent-Related Person in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiation, legal
proceedings or otherwise) of, or legal advice in respect of its or the Lenders'
rights or responsibilities under, this Agreement, any other Loan Document or any
document contemplated by or referred to herein to the extent that any
Agent-Related Person is not reimbursed for such expenses by or on behalf of the
Company.
11.08 Agent in Individual Capacity. Bank of America and its Affiliates
may make loans to, issue, amend, renew (or participate in) letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory or other business with
the Company and its Subsidiaries and their respective Affiliates as though Bank
of America were not the Agent hereunder. With respect to its Loans, Bank of
America shall have the same rights and powers under this Agreement as any Lender
and may exercise the same as though it were not the Agent or the Issuing Bank,
and the terms "Lender" and "Lenders" shall include Bank of America in its
individual capacity.
11.09 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a
54
successor Agent which shall be a commercial bank organized, chartered or
licensed under the laws of the United States of America or of any State thereof
having combined capital and surplus of at least $500,000,000. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment within 30 days after the notice of resignation or the
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, with the consent of the Company which consent shall not be unreasonably
withheld or delayed, appoint a successor Agent, which shall be a commercial bank
organized or chartered under the laws of the United States of America or of any
State thereof having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its future duties and obligations under this Agreement
and the other Loan Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article 11 and Sections 12.04 and
12.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement and the other Loan Documents.
Notwithstanding the foregoing, however, Bank of America may not be removed as
the Agent at the request of the Required Lenders unless Bank of America shall
also simultaneously be replaced as "Issuing Bank" hereunder pursuant to
documentation in form and substance reasonably satisfactory to Bank of America.
11.10 Documentation, Co-Syndication, Managing Agents. None of the
Lenders identified on the facing page or signature pages of this Agreement as a
"Documentation Agent," "Co-Syndication Agent," or "Managing Agent" shall have
any right, power, obligation, liability, responsibility, or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified as "Documentation Agent,"
"Co-Syndication Agent," or "Managing Agent" shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE 12
MISCELLANEOUS
12.01 Notices, Etc. All notices, requests and other communications
provided to any party under this Agreement shall, except as otherwise expressly
specified herein, be in writing (including by facsimile) and mailed by overnight
delivery, transmitted by facsimile or delivered: if to the Company, to its
address specified on the signature pages hereof; if to any Lender, to its
Domestic Lending Office specified opposite its name on Schedule 1.01(b); and, if
to the Agent, to its address specified on the signature pages hereof; or, as to
the Company or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Agent. All such notices and communications shall be
effective, if transmitted by facsimile, when transmitted, or, if mailed by
overnight delivery or delivered, upon delivery, except that (a) notices and
facsimile communications to the Agent pursuant to Articles 2 or 11 shall not be
effective until received by the Agent, (b) any notice by facsimile to the Agent
must be confirmed by telephone or mail, and (c) notices pursuant to Article 3 to
the Issuing Bank shall not be effective until actually received by the Issuing
Bank at the address specified for the "Issuing Bank" on the applicable signature
page hereof.
12.02 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or of any other Loan Document, and no consent to any departure by the
Company or any other Loan Party herefrom or therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders
and, in the case of amendments, the Company, and then any such waiver or consent
55
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that
(a) no amendment, waiver or consent shall, unless in writing and signed
by all the Lenders and, in the case of amendments, the Company, do any of the
following:
(i) increase the Commitments of the Lenders (other than by
assignment); provided, however, that any Lender may increase its own
Commitment without the consent of the other Lenders;
(ii) reduce the principal of, or interest (other than under
Section 2.10) on, the Committed Loans or reduce the amount of any fees
payable hereunder;
(iii) postpone any date fixed for any payment of principal of,
or interest on, the Committed Loans or any fees payable hereunder;
(iv) modify any requirement hereunder that any particular
action be taken by all of the Lenders or by the Required Lenders or
change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which shall be required for the Lenders
or any of them to take any action hereunder;
(v) terminate the Subsidiary Guaranty and/or the Contribution
Agreement or release the Parent Guaranty;
(vi) amend or waive the provisions of Sections 7.01 or 7.02;
or
(vii) amend this Section 12.02;
(b) no amendment, waiver or consent which affects the rights or duties
of the Agent under this Agreement or any other Loan Document shall become
effective unless signed by the Agent in addition to the Required Lenders or all
the Lenders, as the case may be;
(c) No amendment, waiver or consent which affect the rights or duties
of the Issuing Bank under the Agreement or any L/C-Related Document relating to
any Letter of Credit Issued or to be Issued by it shall become effective unless
signed by the Issuing Bank in addition to the Required Lenders or all the
Lenders, as the case may be; and
(d) no amendment, waiver or consent which affects the principal amount,
the rate of interest or the maturity date of any outstanding Bid Loan shall
become effective without the consent of the Agent and the Lender having made
such Bid Loan in addition to the Required Lenders or all the Lenders, as the
case may be.
12.03 No Waiver; Remedies. No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right, remedy, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, remedy,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
12.04 Costs and Expenses. The Company agrees to pay on demand:
56
(a) all out-of-pocket costs and expenses incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents and any other document to be
delivered hereunder or thereunder or in connection with the transactions
contemplated hereby or thereby, including the out-of-pocket expenses and
reasonable fees of counsel for the Agent (including local counsel which may be
retained by the Agent and the allocated cost of in-house counsel) with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents;
(b) all out-of-pocket costs and expenses incurred by the Agent or any
Lender in connection with the preservation of any rights under any Loan Document
or in connection with any restructuring or "work-out" of any of the Obligations
(whether through negotiations, legal proceedings or otherwise), including the
out-of-pocket expenses and reasonable fees of counsel for the Agent (including
the allocated cost of in-house counsel);
(c) all out-of-pocket costs and expenses incurred by the Agent or any
Lender in connection with the enforcement of any of the Obligations, including
the out-of-pocket expenses and reasonable fees of counsel for the Agent or such
Lender (including the allocated cost of in-house counsel);
(d) all out-of-pocket costs and expenses incurred by the Agent in
connection with due diligence, transportation, use of computers, duplication,
search reports and all filing and recording fees; and
(e) to each Lender being replaced pursuant to Section 5.09, the
reasonable out-of-pocket expenses and reasonable fees of counsel (including the
allocated cost of in-house counsel) not exceeding $5,000 in connection with such
replacement.
12.05 Indemnity.
(a) The Company agrees to indemnify and hold harmless the Agent-Related
Persons, and each Lender and each of their Affiliates and all directors,
officers, employees, agents and advisors of all of the foregoing (each, an
"Indemnified Party") from and against any and all claims, actions, proceedings,
suits, damages, losses, liabilities, costs, expenses and disbursements,
including the out-of-pocket expenses and reasonable fees of counsel (including
the allocated cost of in-house counsel) which may be incurred by or asserted
against any Indemnified Party as a result of any investigation, litigation,
suit, action or proceeding (regardless of whether an Indemnified Party is a
party thereto) arising out of, relating to, or in connection with this
Agreement, any other Loan Document or any transaction or proposed transaction
(whether or not consummated) financed or to be financed, in whole or in part,
directly or indirectly, with the proceeds of any Borrowing (other than costs of
the type covered by Section 12.04) or any other transaction contemplated hereby;
except to the extent such claim, damage, loss, liability, cost or expense has
resulted primarily from such Indemnified Party's gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction. Notwithstanding any other provision contained in this Agreement,
this indemnity shall not be limited in any way by the passage of time or the
occurrence of any event.
(b) The Agent, the Arranger and each Lender agree that if any
investigation, litigation, suit, action or proceeding is asserted or threatened
in writing or instituted against it or any other Indemnified Party, or any
remedial, removal or response action is requested of it or any other Indemnified
Party, for which the Agent, the Arranger or any Lender may desire indemnity or
defense hereunder, the Agent, the Arranger or such Lender shall promptly notify
the Company thereof in writing and agree, to the extent appropriate, to consult
with the Company with a view to minimizing the cost to the Company of its
obligations under this Section 12.05. The Company will not be required to pay
the fees and expenses of
57
more than one counsel for the Indemnified Parties unless the employment of
separate counsel has been authorized by the Company, or unless any Indemnified
Party reasonably concludes that there may be defenses available to it which are
not available to the other Indemnified Parties or that there is a conflict
between its interests and those of the other Indemnified Parties.
(c) No action taken by legal counsel chosen by the Agent, the Arranger
or any Lender in defending against any such investigation, litigation, suit,
action or proceeding or requested remedial, removal or response action shall
vitiate or in any way impair the obligations and duties of the Company hereunder
to indemnify and hold harmless each Indemnified Party; provided, however, that
if the Company is required to indemnify any Indemnified Party pursuant hereto,
neither the Agent nor the Arranger nor any Lender will settle or compromise any
such investigation, litigation, suit, action or proceeding without the prior
written consent of the Company (which consent shall not be unreasonably withheld
or delayed) so long as the Company has provided evidence reasonably satisfactory
to the Agent, the Arranger or such Lender that the Company and its Subsidiaries
on a consolidated basis do not at such time have a negative Net Worth.
12.06 Right of Set-off. Upon the occurrence and during the continuation
of any Event of Default, each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits in whatever currency (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the Company against any
and all of the Obligations, whether or not such Lender shall have made any
demand under this Agreement. Each Lender agrees promptly to notify the Company
after any such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section 12.06 are
in addition to any other right or remedy (including any other right of set-off)
which such Lender may have under applicable law or under any Loan Document.
12.07 Binding Effect. This Agreement shall become effective when a
counterpart hereof shall have been executed by the Agent and counterparts hereof
executed by the Company and each Lender shall have been received by the Agent
and notice thereof shall have been given by the Agent to the other parties
hereto and thereafter shall be binding upon and inure to the benefit of the
Company, the Agent and each Lender and their respective successors and assigns;
provided, however, that (a) except as permitted under clause (b) of Section
9.03, the Company may not assign or transfer its rights or obligations hereunder
without the prior written consent of all the Lenders and (b) the rights of
assignment and transfer of the rights and obligations of the Lenders hereunder
are subject to the provisions of Section 12.08.
12.08 Assignments, Participations, Etc.(a) Subject to Sections 12.08(b)
and 12.08(e):
(i) Any Lender may with the prior consent of the Company, the
Agent, and the Issuing Bank (which consents will not be unreasonably
withheld and which consent of the Company shall not be required if a
Default or Event of Default exists) at any time assign to one or more
Eligible Assignees all or any fraction of its Commitment and
outstanding Committed Loans in a minimum amount of $25,000,000 and in
multiples of $1,000,000 in excess thereof or, if its Commitment is less
than $25,000,000, in the amount of its Commitment.
(ii) Any Lender may without the prior consent of the Company
assign to another Lender all or any fraction of its Commitment and
outstanding Committed Loans in a minimum amount of $5,000,000 and in
multiples of $1,000,000 in excess thereof or, if the Commitment is less
than $5,000,000, in the amount of its Commitment.
58
(iii) Any Lender may at any time assign all or any portion of
its rights under this Agreement and any note issued pursuant to Section
2.05 to a Federal Reserve Bank; provided, however, that no such
assignment shall release any Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company under Section
5.09, shall assign to another Eligible Assignee its entire Commitment
and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), no Lender may
assign any Bid Loans made by it hereunder except to another Lender or
to any other Person to which it is also assigning all or a fraction of
its Commitment and outstanding Committed Loans pursuant to Section
12.08(a)(i).
(b) No assignment shall become effective, and the Company and the Agent
shall be entitled to continue to deal solely and directly with each Lender in
connection with the interests so assigned by such Lender to an Assignee, until
(i) such Lender and such Assignee shall have executed an Assignment and
Assumption Agreement substantially in the form of Exhibit 12.08(b) and written
notice of such assignment, payment instructions, addresses, and related
information with respect to such Assignee shall have been given to the Company
and the Agent by such Lender and such Assignee, in substantially the form of
Attachment A to Exhibit 12.08 (a "Notice of Assignment"); (ii) a processing fee
in the amount of $3,500 shall have been paid to the Agent by the assignor Lender
or the Assignee; and (iii) either (A) five Business Days shall have elapsed
after receipt by the Agent of the items referred to in clauses (i) and (ii) or
(B) if earlier, the Agent has notified the assignor Lender and the Assignee of
its receipt of the items mentioned in clauses (i) and (ii) and that it has
acknowledged the assignment by countersigning the Notice of Assignment.
(c) From and after the effective date of any assignment hereunder, (i)
the Assignee thereunder shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to such Assignee by the assignor Lender, shall have the rights and
obligations of a Lender hereunder and under each other Loan Document, and (ii)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned by it to the Assignee, shall be released from its future
obligations hereunder and under each other Loan Document.
(d) Subject to Section 12.08(e), any Lender may at any time sell to one
or more financial institutions or other Persons (each of such Persons being
herein called a "Participant") participating interests in any of the Loans, its
Commitment or other interests of such Lender hereunder; provided, however, that
(i) no participation contemplated in this Section 12.08(d)
shall relieve such Lender from its Commitment or its other obligations
hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible for the
performance of its Commitment and such other obligations;
(iii) the Company, the Agent, and the Issuing Bank shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each
other Loan Document; and
(iv) no Participant, unless such Participant is an Affiliate
of such Lender, shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that
such Lender
59
will not, without such Participant's consent, take any action of the
type described in Section 12.02.
The Company acknowledges and agrees that each Participant, for purposes
of Sections 4.05, 4.06, 5.02, 5.03, 5.05, 5.06 or 12.06, shall be considered a
Lender; provided, however, that for purposes of Sections 4.05, 5.02, 5.03, 5.05
and 5.06, no Participant shall be entitled to receive any payment or
compensation in excess of that to which such Participant's selling Lender would
have been entitled with respect to the amount of such Participant's
participation interest if such Lender had not sold such participation interest.
(e) No assignment (other than an assignment made pursuant to Section
12.08(a)(iii)) or participation of any Committed Loans, or Commitments shall be
effective, and shall instead be null and void, unless it represents an
assignment of or participation in identical percentages of a Lender's
outstanding Tranche A Loans, Tranche B Loans, Tranche A Commitment, Tranche B
Commitment, "Tranche A Loans," "Tranche B Loans," "Tranche A Commitment" and
"Tranche B Commitment" (as those quoted terms are defined in the North American
Timber Agreement).
12.09 Confidentiality. Each Lender agrees that all nonpublic
information provided to it by the Company or by the Agent on behalf of the
Company in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby will be held and treated by such
Lender, its agents, directors, Affiliates, officers and employees in confidence
and further agrees and undertakes that neither it nor any of its Affiliates
shall use any such information for any purpose or in any manner other than
pursuant to the terms contemplated by this Agreement or relating to other
business transactions between the Company and such Lender. Any Lender may
disclose such information (a) at the request of any bank regulatory authority or
in connection with an examination of such Lender by any such authority or
examiner; (b) pursuant to subpoena or other court process; (c) when required to
do so in accordance with the provisions of any applicable law; (d) at the
written request or the express direction of any other agency of any State of the
United States of America or of any other jurisdiction in which such Lender
conducts its business; and (e) to such Lender's independent auditors, counsel
and other professional advisors. Notwithstanding the foregoing, the Company
authorizes each Lender to disclose to any Participant or Assignee and any
prospective Participant or Assignee such financial and other information in such
Lender's possession concerning the Company or its Subsidiaries which has been
delivered to the Lenders pursuant to this Agreement or any other Loan Document
or which has been delivered to the Lenders by the Company in connection with the
Lenders' credit evaluation of the Company and its Subsidiaries prior to entering
into this Agreement; provided that such Participant or Assignee or prospective
Participant or Assignee agrees in writing to such Lender to keep such
information confidential to the same extent as required of the Lenders
hereunder.
12.10 Survival. The obligations of the Company under Sections 4.05,
5.02, 5.03, 5.05, 5.06, 12.04 and 12.05, and the obligations of the Lenders
under Sections 4.05(i) and 11.07, shall in each case survive the repayment of
the Loans and all other Obligations and the termination of this Agreement and
the Commitments; provided, however, that no request for reimbursement pursuant
to such Sections (other than Sections 12.04(b) and (c) and 12.05) may be made
more than six months after the termination of this Agreement and the
Commitments. The representations and warranties made by the Company in this
Agreement and by each Loan Party in each other Loan Document shall survive the
execution and delivery of this Agreement and such other Loan Document.
12.11 Severability. Any provision of this Agreement or any other Loan
Document 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 of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
60
12.12 Headings. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
12.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
12.14 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.15 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
12.16 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY, THE LENDERS AND
THE AGENT AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT
MATTER HEREOF EXCEPT FOR THE FEE LETTER AND ANY PRIOR ARRANGEMENTS MADE WITH
RESPECT TO THE PAYMENT BY THE COMPANY OF (OR ANY INDEMNIFICATION FOR) ANY FEES,
COSTS OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY OR ON BEHALF OF
THE AGENT OR THE LENDERS.
12.17 WAIVER OF JURY TRIAL. EACH OF THE AGENT, THE LENDERS AND THE
COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING
INTO THIS AGREEMENT.
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
NORTH AMERICAN TIMBER CORP.
By: /s/Danny W. Huff
Name:
Title: Vice President and Treasurer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent, Issuing Bank, and as Lender
By: /s/Michael Balok
Name:
Title: Managing Director
COMMERZBANK AG,
NEW YORK BRANCH,
as Documentation Agent
By: /s/Harry P. Yergey
Name:
Title: SVP & Manager
By: /s/Brian J. Campbell
Name:
Title: Vice President
THE CHASE MANHATTAN BANK,
as Co-Syndication Agent
By: /s/ Peter S. Predun
Name:
Title: Vice President
CITIBANK, N.A.,
as Co-Syndication Agent
62
By: /s/David L. Harris
Name:
Title: Vice President
THE BANK OF NEW YORK,
as Managing Agent
By: /s/David C. Siegel
Name:
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/M. R. Marron
Name:
Title: Vice President & Manager
CIBC INC.
By: /s/Nora Q. Catiis
Name:
Title: Executive Director
CIBC World Markets Corp. As Agent
FIRST NATIONAL BANK OF CHICAGO,
as Managing Agent
By: /s/David T. McNeela
Name:
Title: Vice President
HSBC BANK USA,
as Managing Agent
By: /s/Jeremy P. Bollington
Name:
Title: Vice President
63
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By: /s/Masahito Okubo
Name:
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/C. Michael Garrido
Name:
Title: Senior Vice President
SUNTRUST BANK, ATLANTA,
as Managing Agent
By: /s/W. David Wisdom
Name:
Title: Vice President
TORONTO DOMINION (TEXAS), INC.,
as Managing Agent
By: /s/Sheila M. Conley
Name:
Title: Vice President
UBS AG, STAMFORD BRANCH,
as Managing Agent
By: /s/Paul R. Morrison
Name:
Title: Executive Director
By: /s/Andrew N. Taylor
Name:
Title: Associate Director
64
WACHOVIA BANK NA,
as Managing Agent
By: /s/Anne L. Sayles
Name:
Title: Vice President
65