EXECUTION COPY
SHORT-TERM CREDIT AGREEMENT
DATED AS OF AUGUST 10, 1998
among
BALL CORPORATION,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
and
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
AS SYNDICATION AGENT
and
LEHMAN COMMERCIAL PAPER INC.,
AS DOCUMENTATION AGENT
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I: DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1.3 Currency Equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE II: THE REVOLVING LOAN FACILITIES . . . . . . . . . . . . . . . . . . . . 28
2.1. [Reserved].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.2 Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.3 Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.4 Rate Options for all Advances. . . . . . . . . . . . . . . . . . . . . . 31
2.5 Optional Payments; Mandatory Prepayments . . . . . . . . . . . . . . . . 31
(A) Optional Payments . . . . . . . . . . . . . . . . . . . . . . . . . 31
(B) Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . 31
2.6 Reduction of Revolving Loan Commitments. . . . . . . . . . . . . . . . . 32
2.7 Method of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.8 Method of Selecting Types and Interest Periods for Advances. . . . . . . 32
2.9 Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . . . . . 33
2.10 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Advances . . . . . . . . . . . . . . . . 33
(A) Right to Convert. . . . . . . . . . . . . . . . . . . . . . . . . . 33
(B) Automatic Conversion and Continuation . . . . . . . . . . . . . . . 33
(C) No Conversion Post-Default or Post-Unmatured Default. . . . . . . . 33
(D) Borrowing/Conversion/Continuation Notice. . . . . . . . . . . . . . 33
2.11 Default Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.12 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.13 Evidence of Debt, Telephonic Notices. . . . . . . . . . . . . . . . . . 34
2.14 Promise to Pay; Interest and Commitment Fees; Interest
Payment Dates; Interest and Fee Basis; Taxes; Loan and
Control Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(A) Promise to Pay. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(B) Interest Payment Dates. . . . . . . . . . . . . . . . . . . . . . . 35
(C) Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(D) Interest and Fee Basis; Applicable Floating Rate Margins;
Applicable Eurodollar Margins and Applicable Commitment Fee
Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(E) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(F) Control Account . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(G) Entries Binding . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.15 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions. . . . . . . . . . . . . . . . . . 42
2.16 Lending Installations . . . . . . . . . . . . . . . . . . . . . . . . . 42
ii
SECTION PAGE
2.17 Non-Receipt of Funds by the Administrative Agent. . . . . . . . . . . . 42
2.18 Termination Date; Extension of Termination Date . . . . . . . . . . . . 43
2.19 Replacement of Certain Lenders. . . . . . . . . . . . . . . . . . . . . 43
ARTICLE III: THE LETTER OF CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . 44
3.1 Obligation to Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.2 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.3 Types and Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.4 Conditions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.5 Procedure for Issuance of Letters of Credit. . . . . . . . . . . . . . . 45
3.6 Letter of Credit Participation . . . . . . . . . . . . . . . . . . . . . 46
3.7 Reimbursement Obligation . . . . . . . . . . . . . . . . . . . . . . . . 46
3.8 Cash Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.9 Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.10 Issuing Bank Reporting Requirements.. . . . . . . . . . . . . . . . . . 47
3.11 Indemnification; Exoneration. . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE IV: CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . 49
4.1 Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.2 Changes in Capital Adequacy Regulations. . . . . . . . . . . . . . . . . 50
4.3 Availability of Types of Advances. . . . . . . . . . . . . . . . . . . . 50
4.4 Funding Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 50
4.5 Lender Statements; Survival of Indemnity . . . . . . . . . . . . . . . . 51
ARTICLE V: CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.1 Initial Advances and Letters of Credit . . . . . . . . . . . . . . . . . 51
5.2 Each Advance and Letter of Credit. . . . . . . . . . . . . . . . . . . . 53
ARTICLE VI: REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . 54
6.1 Organization; Corporate Powers . . . . . . . . . . . . . . . . . . . . . 54
6.2 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.3 No Conflict; Governmental Consents . . . . . . . . . . . . . . . . . . . 55
6.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.5 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . 56
6.6 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(A) Tax Examinations. . . . . . . . . . . . . . . . . . . . . . . . . . 57
(B) Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.7 Litigation; Loss Contingencies and Violations. . . . . . . . . . . . . . 57
6.8 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
iii
SECTION PAGE
6.9 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.10 Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . 59
6.11 Securities Activities . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.12 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.13 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.14 Assets and Properties . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.15 Statutory Indebtedness Restrictions . . . . . . . . . . . . . . . . . . 60
6.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.17 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.18 Reynolds Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.19 Environmental Matters.. . . . . . . . . . . . . . . . . . . . . . . . . 61
6.20 Other Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.21 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.22 Year 2000 Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.23 Foreign Employee Benefit Matters. . . . . . . . . . . . . . . . . . . . 63
ARTICLE VII: COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.1 Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(A) Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . 63
(B) Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . 64
(C) Lawsuits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
(D) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
(E) ERISA Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
(F) Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(G) Other Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 67
(H) Other Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(I) Environmental Notices . . . . . . . . . . . . . . . . . . . . . . . 68
(J) Other Information . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.2 Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 68
(A) Corporate Existence, Etc. . . . . . . . . . . . . . . . . . . . . . 68
(B) Corporate Powers; Conduct of Business . . . . . . . . . . . . . . . 68
(C) Compliance with Laws, Etc.. . . . . . . . . . . . . . . . . . . . . 68
(D) Payment of Taxes and Claims; Tax Consolidation. . . . . . . . . . . 68
(E) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
(F) Inspection of Property; Books and Records; Discussions. . . . . . . 69
(G) ERISA Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . 69
(H) Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . 70
(I) Environmental Compliance. . . . . . . . . . . . . . . . . . . . . . 70
(J) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 70
(K) Additional Guarantors/Pledge of Capital Stock. . . . . . . . . . . . 70
(L) Year 2000 Issues. . . . . . . . . . . . . . . . . . . . . . . . . . 71
iv
SECTION PAGE
(M) Foreign Employee Benefit Compliance . . . . . . . . . . . . . . . . 71
(N) Foreign Governmental Consents and Approvals . . . . . . . . . . . . 72
7.3 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
(A) Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
(B) Sales of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(C) Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(D) Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
(E) Guarantied Obligations. . . . . . . . . . . . . . . . . . . . . . . 77
(F) Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . 78
(G) Conduct of Business; Restrictions on Excluded Subsidiaries;
Subsidiaries; Acquisitions. . . . . . . . . . . . . . . . . . . . . 79
(H) Transactions with Shareholders and Affiliates . . . . . . . . . . . 81
(I) Restriction on Fundamental Changes. . . . . . . . . . . . . . . . . 81
(J) Sales and Leasebacks. . . . . . . . . . . . . . . . . . . . . . . . 81
(K) Margin Regulations. . . . . . . . . . . . . . . . . . . . . . . . . 82
(L) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
(M) Issuance of Disqualified Stock. . . . . . . . . . . . . . . . . . . 82
(N) Corporate Documents . . . . . . . . . . . . . . . . . . . . . . . . 83
(O) Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
(P) Subsidiary Covenants. . . . . . . . . . . . . . . . . . . . . . . . 83
(Q) Hedging Obligations . . . . . . . . . . . . . . . . . . . . . . . . 83
(R) Other Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 83
(S) Amendment of Receivables Purchase Documents . . . . . . . . . . . . 84
7.4 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . 85
(A) Defined Terms for Financial Covenants . . . . . . . . . . . . . . . 85
(B) Minimum Consolidated Net Worth. . . . . . . . . . . . . . . . . . . 87
(C) Total Debt to EBITDA Ratio . . . . . . . . . . . . . . . . . . . . . 87
(D) Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . . 88
ARTICLE VIII: DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
8.1 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.1 Termination of Revolving Loan Commitments; Acceleration. . . . . . . . . 92
9.2 Defaulting Lender. . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
9.4 Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . 95
ARTICLE X: GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 95
v
SECTION PAGE
10.1 Survival of Representations . . . . . . . . . . . . . . . . . . . . . . 95
10.2 Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . 95
10.3 Performance of Obligations. . . . . . . . . . . . . . . . . . . . . . . 95
10.4 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.6 Several Obligations; Benefits of this Agreement . . . . . . . . . . . . 96
10.7 Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . 96
(A) Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
(B) Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
(C) Waiver of Certain Claims; Settlement of Claims. . . . . . . . . . . 98
(D) Survival of Agreements. . . . . . . . . . . . . . . . . . . . . . . 98
10.8 Numbers of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.9 Accounting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.10 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . 98
10.11 Nonliability of Lenders. . . . . . . . . . . . . . . . . . . . . . . . 98
10.12 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL. . . . . . . . 99
(A) EXCLUSIVE JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . 99
(B) OTHER JURISDICTIONS . . . . . . . . . . . . . . . . . . . . . . . . 99
(C) SERVICE OF PROCESS; VENUE . . . . . . . . . . . . . . . . . . . . . 99
(D) WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . .100
(E) ADVICE OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . .100
10.14 Subordination of Intercompany Indebtedness . . . . . . . . . . . . . .100
10.15 Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . . .101
ARTICLE XI: THE ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . . . . . . . .102
11.1 Appointment; Nature of Relationship . . . . . . . . . . . . . . . . . .102
11.2 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
11.3 General Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . .102
11.4 No Responsibility for Loans, Creditworthiness, Collateral,
Recitals, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
11.5 Action on Instructions of Lenders . . . . . . . . . . . . . . . . . . .103
11.6 Employment of Agents and Counsel. . . . . . . . . . . . . . . . . . . .103
11.7 Reliance on Documents; Counsel. . . . . . . . . . . . . . . . . . . . .103
11.8 The Administrative Agent's Reimbursement and Indemnification. . . . . .103
11.9 Rights as a Lender. . . . . . . . . . . . . . . . . . . . . . . . . . .104
11.10 Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . .104
11.11 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . .104
11.12 Collateral Documents . . . . . . . . . . . . . . . . . . . . . . . . .105
11.13. No Duties Imposed Upon Syndication Agent, Documentation
Agent or Arrangers. . . . . . . . . . . . . . . . . . . . . . . . . .106
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SECTION PAGE
ARTICLE XII: SETOFF; RATABLE PAYMENTS . . . . . . . . . . . . . . . . . . . . . .106
12.1 Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106
12.2 Ratable Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . .106
12.3 Application of Payments . . . . . . . . . . . . . . . . . . . . . . . .106
12.4 Relations Among Lenders . . . . . . . . . . . . . . . . . . . . . . . .108
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . . . .108
13.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . .108
13.2 Participations. . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
(A) Permitted Participants; Effect. . . . . . . . . . . . . . . . . . .109
(B) Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .109
(C) Benefit of Setoff . . . . . . . . . . . . . . . . . . . . . . . . .109
13.3 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
(A) Permitted Assignments . . . . . . . . . . . . . . . . . . . . . . .109
(B) Effect; Effective Date. . . . . . . . . . . . . . . . . . . . . . .110
(C) The Register. . . . . . . . . . . . . . . . . . . . . . . . . . . .110
13.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
13.5 Dissemination of Information. . . . . . . . . . . . . . . . . . . . . .111
ARTICLE XIV: NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
14.1 Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
14.2 Change of Address . . . . . . . . . . . . . . . . . . . . . . . . . . .112
ARTICLE XV: COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
15.1 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
vii
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Revolving Loan Commitments
(Definitions)
EXHIBIT B -- Form of Borrowing/Conversion/Continuation Notice (Section
2.8)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement
(Sections 2.19 and 13.3)
EXHIBIT E -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT F -- List of Closing Documents
(Section 5.1)
EXHIBIT G -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
viii
SCHEDULES
Schedule 1.1.2 -- Permitted Existing Guarantied Obligations (Definitions)
Schedule 1.1.3 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.4 -- Permitted Existing Investments (Definitions)
Schedule 1.1.5 -- Permitted Existing Liens (Definitions)
Schedule 3.1 -- Issuing Banks' Maximum Amounts (Section 3.1)
Schedule 5.1 -- Note Purchase Agreements
Schedule 6.3 -- Conflicts; Governmental Consents (Section 6.3)
Schedule 6.4 -- Pro Forma Financial Statements (Section 6.4(A))
Schedule 6.8 -- Excluded Subsidiaries, Material Foreign Subsidiaries,
Subsidiaries (Definitions, Section 6.8)
Schedule 6.9 -- ERISA
Schedule 6.16 -- Insurance (Sections 6.16 and 7.2(E))
Schedule 6.17 -- Labor Matters; Compensation Agreements
(Section 6.17)
Schedule 6.19 -- Environmental Matters (Section 6.19)
ix
SHORT-TERM CREDIT AGREEMENT
This Short-Term Credit Agreement dated as of August 10, 1998 is entered
into among Ball Corporation, an Indiana corporation, the institutions from
time to time parties hereto as Lenders, whether by execution of this
Agreement or an Assignment Agreement pursuant to SECTION 13.3, The First
National Bank of Chicago, in its capacity as Administrative Agent for itself
and the other Lenders, Bank of America National Trust and Savings
Association, in its capacity as Syndication Agent, and Lehman Commercial
Paper Inc., in its capacity as Documentation Agent. The parties hereto agree
as follows:
ARTICLE I: DEFINITIONS
1.1 CERTAIN DEFINED TERMS. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage of
voting power) of the outstanding Equity Interests of another Person.
"ADMINISTRATIVE AGENT" means First Chicago, in its capacity as
contractual representative for itself and the Lenders pursuant to ARTICLE XI
hereof, and any successor Administrative Agent appointed pursuant to ARTICLE
XI hereof.
"ADVANCE" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by the Lenders to the Borrower of the same Type
and, in the case of Eurodollar Rate Advances, for the same Interest Period.
"AFFECTED LENDER" is defined in SECTION 2.19 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A
Person shall be deemed to control another Person if the controlling Person is
the "beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of greater than ten percent (10%) or more of any class
of voting securities (or other voting interests) of the controlled Person or
possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether through
ownership of Capital Stock, by contract or otherwise.
"AGENTS" means each of the Administrative Agent, the Syndication Agent
and the Documentation Agent.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be reduced from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is One Hundred Fifty Million and 00/100 Dollars ($150,000,000.00).
"AGREEMENT" means this Short-Term Credit Agreement, as it may be
amended, restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in SECTION
6.4(B)(1) hereof, PROVIDED, HOWEVER, that with respect to the calculation of
financial ratios and other financial tests required by this Agreement,
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect as of the date of this Agreement, applied in a manner
consistent with that used in preparing the financial statements referred to
in SECTION 6.4(B)(1) hereof; PROVIDED, FURTHER, HOWEVER, all PRO FORMA
financial statements reflecting Acquisitions shall be prepared in accordance
with the requirements established by the SEC for acquisition accounting for
reporting acquisitions by public companies (whether or not such Acquisitions
are required to be publicly reported).
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Corporate Base Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under SECTION 2.14(C)(I) hereof determined in accordance with
the provisions of SECTION 2.14(D)(II) hereof.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination,
the rate per annum then applicable to Eurodollar Rate Loans which are
Revolving Loans, determined in accordance with the provisions of SECTION
2.14(D)(II) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
which are Revolving Loans, determined in accordance with the provisions of
SECTION 2.14(D)(II) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum equal to the Applicable Eurodollar Margin for Revolving
Loans in effect on such date.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other
fund that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
2
"ARRANGERS" means each of First Chicago Capital Markets, Inc.,
BancAmerica Robertson Stephens, Inc. and Lehman Brothers Inc., in their
respective capacities as arrangers for the loan transaction evidenced by this
Agreement.
"ASSET PURCHASE AGREEMENT" is defined in the definition of "Reynolds
Acquisition" below.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including, without limitation, by way of a sale-leaseback transaction and
including, without limitation, the sale or other transfer of any of the
Equity Interests of any Subsidiary of such Person).
"ASSIGNMENT AGREEMENT" shall mean an assignment and acceptance agreement
entered into in connection with an assignment pursuant to SECTION 13.3 hereof
in substantially the form of EXHIBIT D.
"AUTHORIZED OFFICER" means any of the President, any Vice President, the
Chief Financial Officer or the Treasurer of the Borrower acting singly.
"BALL CANADA" means Ball Packaging Products Canada, Inc., a corporation
organized under the federal Laws of Canada, together with its successors and
assigns, including a debtor-in-possession on behalf of Ball Canada.
"BALL CAPITAL CORP." means Ball Capital Corp., a Delaware corporation,
together with its successors and assigns, including a debtor-in-possession on
behalf of Ball Capital Corp.
"BALL CORPORATE GROUP" means the Borrower, each of its Subsidiaries, the
Excluded Subsidiaries and the members of the FTB Group.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan)
in respect of which the Borrower or any other member of the Controlled Group
is, or within the immediately preceding six (6) years was, an "employer" as
defined in Section 3(5) of ERISA.
"BMBCC" means Ball Metal Beverage Container Corp., a Colorado
corporation.
"BORROWER" means Ball Corporation, an Indiana corporation, together with
its successors and permitted assigns, including a debtor-in-possession on
behalf of the Borrower.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.8
hereof.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than
a Saturday or Sunday) on which banks are open for business in Chicago,
Illinois and New York, New York and on which dealings in Dollars are
3
carried on in the London interbank market and (ii) for all other purposes a
day (other than a Saturday or Sunday) on which banks are open for business in
Chicago, Illinois and New York, New York.
"CANADIAN CREDIT FACILITY" means that certain Letter Agreement, dated as
of May 21, 1998, by and among Ball Canada, the Borrower, and Royal Bank of
Canada as in effect on the Closing Date, and as the same may be modified and
restated pursuant to the terms of that certain Commitment Letter and Term
Sheet, dated July 16, 1998, by and among Ball Canada the Borrower and Royal
Bank of Canada.
"CANADIAN SUBORDINATION AGREEMENT" means that certain Subsidiary
Subordination Agreement, dated as of August 10, 1998, by and among Ball
Canada and the Borrower, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"CAPITAL EXPENDITURES" is defined in SECTION 7.4(A) hereof.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets
of, the issuing Person.
"CAPITALIZED LEASE" is defined in SECTION 7.4(A) hereof.
"CAPITALIZED LEASE OBLIGATIONS" is defined in SECTION 7.4(A) hereof.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances
and floating rate certificates of deposit issued by any commercial bank
organized under the laws of the United States, any state thereof or the
District of Columbia, any foreign bank, or its branches or agencies (fully
protected against currency fluctuations for any such deposits with a term of
more than ten (10) days); (iii) shares of money market, mutual or similar
funds having assets in excess of $100,000,000 and the investments of which
are limited to investment grade securities (i.e., securities rated at least
Baa by Moody's Investors Service, Inc. or at least BBB by Standard & Poor's
Ratings Group) and repurchase agreements with respect thereto; and (iv)
commercial paper of United States and foreign banks and bank holding
companies and their subsidiaries and United States and foreign finance,
commercial, industrial or utility companies which, at the time of
acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by Moody's Investors Services, Inc.; PROVIDED that the
maturities of such Cash Equivalents shall not exceed 365 days.
"CASH FLOW PERIOD" means the twelve-month period from January 1, 1999
through the end of the Borrower's fiscal year ending December 31, 1999 and,
thereafter, as separate periods, each fiscal year of the Borrower.
4
"CHANGE IN CAPITAL ADEQUACY" is defined in SECTION 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934), becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of fifty percent (50%) or more of the Voting
Stock of the Borrower;
(b) a majority of the members of the board of directors of the
Borrower cease to be Continuing Directors;
(c) the Borrower consolidates with or merges into another corporation
or conveys, transfers or leases all or substantially all of its property to
any Person, or any corporation consolidates with or merges into the
Borrower, in either event pursuant to a transaction in which the
outstanding Capital Stock of the Borrower is reclassified or changed into
or exchanged for cash, securities or other property;
(d) except as otherwise permitted under the terms of this Agreement,
the Borrower shall cease to own and control, directly or indirectly, at
least (i) such percentage of the economic and voting rights of the Capital
Stock of each of its Domestic Incorporated Subsidiaries and Material
Foreign Subsidiaries (other than FTB) as is owned as of the Closing Date or
such later date as such Person became a Domestic Incorporated Subsidiary or
Material Foreign Subsidiary, as applicable, or (ii) ninety percent (90%) of
the economic and voting rights of the Capital Stock of FTB;
(e) any "Change of Control" (as such term is defined in the Senior
Note Indenture) shall have occurred; or
(f) any "Change of Control" (as such term is defined in the
Subordinated Note Indenture) shall have occurred.
"CLOSING DATE" means the date on which the initial Revolving Loans are
advanced hereunder.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, or any successor statute.
"COLI INDEBTEDNESS" of any Person shall mean, with respect to any
Company Owned Life Insurance Program in which such Person is a participant,
Indebtedness of such Person consisting of (i) loans to such Person under life
insurance policies taken or made against the available cash surrender values
of such policies, which loans are made pursuant to the contract terms of life
insurance policies issued in connection with a Company Owned Life Insurance
Program or (ii) other obligations for borrowed money of such Person, if and
only if the proceeds of such obligations are used solely to pay
5
policy premiums on life insurance policies issued in connection with a
Company Owned Life Insurance Program.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by the Borrower or any of its Subsidiaries in or upon
which a security interest is granted to the Administrative Agent, for the
benefit of the Holders of Secured Obligations under the Pledge Agreements or
under any of the other Loan Documents.
"COLLATERAL DOCUMENTS" means all agreements, instruments and documents
executed in connection with this Agreement that are intended to create or
evidence Liens to secure the Secured Obligations, including, without
limitation, the Pledge Agreements, together with all agreements and documents
referred to therein or contemplated thereby.
"COMPANY OWNED LIFE INSURANCE PROGRAM" means a life insurance program in
which the Borrower is a participant, pursuant to which the Borrower is the
owner of whole life policies insuring the lives of certain of its employees.
"CONSOLIDATED ASSETS" means, for any Person, the total assets of such
Person and its Subsidiaries on a consolidated basis, but excluding therefrom
all items that are treated as intangibles under Agreement Accounting
Principles.
"CONSOLIDATED NET INCOME" is defined in SECTION 7.4(A) hereof.
"CONSOLIDATED NET WORTH is defined in SECTION 7.4(A) hereof.
"CONTAMINANT" means any waste, pollutant, contaminant, hazardous
substance, toxic substance, hazardous waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, as defined in, or used in,
Environmental, Health or Safety Requirements of Law.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Borrower who (i) was a member of such
Board of Directors on the Closing Date or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to
which that Person is a party or by which it or any of its properties is
bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Borrower;
(iii) a member
6
of the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Borrower, any corporation described in CLAUSE (i) above or
any partnership or trade or business described in CLAUSE (ii) above; or (iv)
any other Person which is required to be aggregated with the Borrower or any
of its Subsidiaries pursuant to regulations promulgated under Section 414(o)
of the Code.
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such Person
(i) ninety percent (90%) or more of the total Equity Interests or other
ownership interests of which (other than directors' qualifying shares) shall
at the time be owned by such Person or by one or more wholly-owned
Subsidiaries of such Person and (ii) of which such Person possesses, directly
or indirectly, the power to direct or cause the direction of the management
or policies, whether through the ownership of voting securities, by agreement
or otherwise.
"CORPORATE BASE RATE" means the corporate base rate of interest
announced by First Chicago from time to time, changing when and as said
corporate base rate changes.
"CURE LOAN" is defined in SECTION 9.2(iii) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if foreclosure,
distraint, sale or other similar proceedings shall not have been commenced)
which are being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance
with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens
imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with respect
to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment insurance
or other types of social security benefits or to secure the performance of
bids, tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; PROVIDED that (A) all such
Liens do not in the aggregate materially detract from the value of the
Borrower's or such Subsidiary's assets or property taken as a whole or
materially impair the use thereof in the operation of the businesses taken
as a whole, and (B) all Liens securing bonds to stay judgments or in
connection with appeals do not secure at any time an aggregate amount
exceeding $10,000,000;
7
(iv) Liens arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of real property which do not in any case materially detract from the value
of the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments, writs
or warrants of attachment, or similar process against the Borrower or any
of its Subsidiaries which do not constitute a Default under SECTION 8.1(h)
hereof; and
(vi) any interest or title of the lessor in the property subject to
any operating lease entered into by the Borrower or any of its Subsidiaries
in the ordinary course of business.
"DEFAULT" means an event described in ARTICLE VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is 91 days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOCUMENTATION AGENT" means Lehman Commercial Paper Inc., in its
capacity as documentation agent for the loan transaction evidenced by this
Agreement, together with its successors and assigns.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States.
"DOLLAR AMOUNT" of any currency other than Dollars at any date shall
mean the equivalent amount of Dollars, calculated on the basis of the then
applicable Exchange Rate.
"DOMESTIC INCORPORATED SUBSIDIARY" means a Subsidiary of the Borrower
organized under the laws of a jurisdiction located in the United States of
America.
"EBITDA" is defined in SECTION 7.4(A) hereof.
"ENVIRONMENTAL AUDIT" means the Phase I and Phase II Environmental
Property Assessment reports dated between February 12, 1998, and June 16,
1998 prepared for the Borrower by McLaren Hart, and listed in SCHEDULE 6.19.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state, provincial
and local laws or regulations relating to or addressing pollution or
protection of the environment, or protection of worker health or safety,
8
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 ET SEQ., the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 ET SEQ.,
and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 ET SEQ., in each case including any amendments thereto, any successor
statutes, and any regulations or guidance promulgated thereunder, and any
state, provincial or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental Authority
for (a) any liability under Environmental, Health or Safety Requirements of
Law, or (b) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a Contaminant.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, the "Industrial Site Recovery Act,"
NJSA 13:1K-6 ET SEQ., the "Responsible Property Transfer Act," 765 ILCS 90/1
ET SEQ., or similar laws.
"EQUIPMENT" means all of the Borrower's and its Subsidiaries' present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade
fixtures, (ii) other tangible personal property (other than the Borrower's
and its Subsidiaries' Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection
therewith, and any substitutions therefor and replacements, products and
proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires)
any rules or regulations promulgated thereunder.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan for
any specified Interest Period, either (i) the rate of interest per annum
equal to the rate for deposits in U.S. Dollars with a maturity approximately
equal to such Interest Period which appears on Telerate Page 3750 as of 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period or (ii) if no such rate of interest appears on Telerate Page 3750 for
such specified Interest Period, the rate of interest per annum equal to the
rate for deposits in U.S. Dollars with a maturity occurring immediately
before or immediately after such specified Interest Period, whichever is
higher, as determined by the Administrative Agent from Telerate Page 3750 at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or (iii) if no such rate of interest appears on
Telerate Page 3750 for any specified Interest Period, the rate of interest
per annum equal to the rate at which deposits in U.S. Dollars are offered by
First Chicago to first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such
9
Interest Period, in the approximate amount of the Revolving Loan Pro Rata
Share of First Chicago of such Eurodollar Rate Loan and having a maturity
approximately equal to such Interest Period, in each case, as adjusted for
Reserves. The term "Telerate Page 3750" means the display designated as
"Page 3750" on the Associated Press-Dow Jones Telerate Service (or such other
page as may replace Page 3750 on the Associated Press-Dow Jones Telerate
Service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association interest rate settlement rates for U.S. Dollars). Any
Eurodollar Base Rate determined on the basis of the rate displayed on
Telerate Page 3750 in accordance with the foregoing provisions of this
subparagraph shall be subject to corrections, if any, made in such rate and
displayed by the Associated Press-Dow Jones Telerate Service within one hour
of the time when such rate is first displayed by such service.
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Loan for the
relevant Interest Period, the Eurodollar Base Rate applicable to such Interest
Period PLUS the Applicable Eurodollar Margin. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"EXCESS CASH FLOW" means, for any Cash Flow Period, an amount equal to the
Borrower's and its Subsidiaries' consolidated:
(i) EBITDA for such period,
MINUS (ii) foreign, federal, state and local taxes paid in cash for
such period,
MINUS (iii) Capital Expenditures paid in cash during such period,
MINUS (iv) cash dividends paid by the Borrower during such period to
the extent permitted under SECTION 7.3(F) hereof and
payable in compliance with applicable corporate law,
MINUS (v) Interest Expense paid in cash during such period,
MINUS (vi) scheduled amortization of the principal portion of the
"Term Loans" (as defined under the Long-Term Credit
Agreement) and of the principal portion of all other
Indebtedness of the Borrower and its Subsidiaries paid in
cash during such period,
MINUS (vii) for the Cash Flow Periods ending on December 31, 1999,
December 31, 2000 and December 31, 2001, the cash portion
of Rationalization Costs in an amount not to exceed
$70,000,000 in the aggregate for the period commencing on
the
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Closing Date through and including December 31, 2001
only to the extent such Rationalization Costs are not
reflected on the Borrower's consolidated income statement
as prepared in accordance with Agreement Accounting
Principles,
MINUS (viii) voluntary prepayments of the principal portion of the
"Term Loans" (as defined under the Long-Term Credit
Agreement), in each case calculated in accordance with
Agreement Accounting Principles.
All such amounts shall be calculated assuming that the Borrower and its
Subsidiaries have conducted their respective business in the ordinary course and
in accordance with past practices; PROVIDED, that (without duplication) there
shall be excluded from the calculation of Excess Cash Flow all amounts related
to the FTB Group.
"EXCHANGE RATE" means, the rate at which any currency other than Dollars
may be exchanged into Dollars, calculated on the basis of the arithmetical mean
of the buy and sell spot rates of exchange as quoted in the electronic media
publication of Bloomberg L.P. for such other currency at or about 11:00 a.m.
(Chicago time), on such date of determination for the purchase of Dollars with
such other currency for delivery two (2) Business Days later; PROVIDED, HOWEVER,
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Borrower may with the consent of the Administrative Agent
use any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error. For purposes of this
agreement, the applicable Exchange Rate shall be determined (x) for any
Investment, as of the date of incurrence thereof, (y) for any sale of assets, as
of the date of the consummation of the transaction pursuant to which such sale
of assets shall occur, and (z) in all other cases, as of such date of
determination.
"EXCLUDED SUBSIDIARY" means, each Subsidiary of the Borrower identified on
SCHEDULE 6.8 as an Excluded Subsidiary; PROVIDED, that each such Subsidiary
shall be an Excluded Subsidiary only if (i) each such Subsidiary is in existence
solely for the purposes of being a "name-holding" entity, (ii) each such
Subsidiary engages in no business, (iii) each such Subsidiary has no
liabilities, and (iv) the aggregate of the assets (including capitalization) of
all such Subsidiaries shall not exceed $5,000,000.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FINANCING" means, with respect to any Person, the issuance or sale by such
Person of any Equity Interests, or any Indebtedness consisting of debt
securities of such Person pursuant to a registered offering or private
placement.
11
"FIRST CHICAGO" means The First National Bank of Chicago, in its individual
capacity, and its successors.
"FIXED CHARGE COVERAGE RATIO" is defined in SECTION 7.4(D) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal to
the Alternate Base Rate for such day, changing as and when the Alternate Base
Rate changes, PLUS the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears interest
at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as defined
in Section 3(3) of ERISA which is maintained or contributed to for the benefit
of the employees of the Borrower, any of its Subsidiaries or any members of its
Controlled Group and is not covered by ERISA pursuant to ERISA Section 4(b)(4).
"FOREIGN INCORPORATED SUBSIDIARY" means a Subsidiary of the Borrower which
is not a Domestic Incorporated Subsidiary.
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Borrower or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Borrower, any of its Subsidiaries or any
member of its Controlled Group, (ii) is not covered by ERISA pursuant to
Section 4(b)(4) of ERISA, and (iii) under applicable local law, is required to
be funded through a trust or other funding vehicle.
"FOREIGN SUBSIDIARY INVESTMENT" means the sum of (a) all intercompany loans
made on or after the Closing Date from either the Borrower or any Domestic
Incorporated Subsidiary to any Foreign Incorporated Subsidiary (other than Ball
Canada pursuant to the Manufacturing Supply Agreement and the FTB Group);
(b) all Investments made on or after the Closing Date by either the Borrower or
any Domestic Incorporated Subsidiary in any Foreign Incorporated Subsidiary
(other than Ball Canada pursuant to the Manufacturing Supply Agreement and the
FTB Group); and (c) an amount equal to the net benefit derived by the Foreign
Incorporated Subsidiaries (other than Ball Canada pursuant to the Manufacturing
Supply Agreement and the FTB Group) resulting from any non-arms length
transactions between the Borrower and/or any Domestic Incorporated Subsidiary,
on the one hand, and such Foreign Incorporated Subsidiaries (other than Ball
Canada pursuant to the Manufacturing Supply Agreement and the FTB Group), on the
other hand.
"FTB" means FTB Packaging Limited, a Hong Kong corporation, and its
successors and assigns.
12
"FTB GROUP" means FTB and each of its Subsidiaries, including, without
limitation, MCP and each of its Subsidiaries and joint ventures.
"GOVERNMENTAL ACTS" is defined in SECTION 3.11(a) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, provincial, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted with
conscious indifference to or the complete disregard of consequences. Gross
Negligence does not mean the absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act. If the term "gross negligence"
is used with respect to any Agent, any Arranger or any Lender or any indemnitee
in any of the other Loan Documents, it shall have the meaning set forth herein.
"GUARANTIED OBLIGATION", as applied to any Person, means any Contractual
Obligation, contingent or otherwise, of that Person (i) guaranteeing, directly
or indirectly, in any manner (including, without limitation, letters of credit
and reimbursement agreements in respect thereof) Indebtedness of another
including, without limitation, any Contractual Obligations arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness, or
any security therefor, or to provide funds for the payment or discharge thereof
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or (ii) to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received (all such
Contractual Obligations under this CLAUSE (ii) being "SUPPORT OBLIGATIONS");
PROVIDED, HOWEVER, notwithstanding anything herein to the contrary, any
Contractual Obligation of a Person relating to a take-or-pay obligation or
supply contract of such Person shall not constitute a Guarantied Obligation.
"GUARANTORS" means each Domestic Incorporated Subsidiary (other than Ball
Capital Corp.) as of the Closing Date, and each other Domestic Incorporated
Subsidiary which becomes a party to the Subsidiary Guaranty pursuant to the
terms of SECTIONS 7.2(K) or 7.3(G), and in each case its successors and assigns.
"GUARANTY AGREEMENT" means that certain Guaranty Agreement of the Borrower
dated as of June 15, 1989 Re: $44,938,000 8.46% Guaranteed ESOP Notes, Series A,
due June 15, 1999 and $25,062,000 8.83% Guaranteed ESOP Notes, Series B, due
December 15, 2001.
"HEDGING AGREEMENTS" is defined in SECTION 7.3(Q) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate
13
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any of the foregoing.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall include (i) each Lender in respect of
its Loans, (ii) the Issuing Bank in respect of Reimbursement Obligations, (iii)
the Agents, the Lenders, the Swing Line Bank and the Issuing Bank in respect of
all other present and future obligations and liabilities of the Borrower or any
of its Subsidiaries of every type and description arising under or in connection
with this Agreement or any other Loan Document, (iv) each Indemnitee in respect
of the obligations and liabilities of the Borrower to such Person hereunder, (v)
each Lender (or affiliate thereof), in respect of all Hedging Obligations of the
Borrower or any of its Subsidiaries to such Lender (or such affiliate) as
exchange party or counterparty under any Hedging Agreement, and (vi) their
respective successors, transferees and assigns.
"INDEBTEDNESS" of any Person means, without duplication, such Person's (a)
obligations for borrowed money (other than the COLI Indebtedness), (b)
obligations representing the deferred purchase price of property or services
(other than accounts payable arising in the ordinary course of such Person's
business payable on terms customary in the trade), (c) obligations, whether or
not assumed, secured by Liens or payable out of the proceeds or production from
property or assets now or hereafter owned or acquired by such Person, (d)
obligations which are evidenced by notes, acceptances or other instruments, (e)
Capitalized Lease Obligations, (f) Guarantied Obligations, (g) obligations with
respect to letters of credit, (h) Off-Balance Sheet Liabilities and (i)
Disqualified Stock as provided in SECTION 7.3(M). The amount of Indebtedness of
any Person at any date shall be without duplication (i) the outstanding balance
at such date of all unconditional obligations as described above and the maximum
liability of any such Guarantied Obligations at such date and (ii) in the case
of Indebtedness of others secured by a Lien to which the property or assets
owned or held by such Person is subject, the lesser of the fair market value at
such date of any asset subject to a Lien securing the Indebtedness of others and
the amount of the Indebtedness secured. In the case of Ball Capital Corp.,
Indebtedness shall include the unrecovered investment of purchasers of
Receivables from Ball Capital Corp. pursuant to the Receivables Purchase
Documents, and such Indebtedness shall be deemed to be funded Indebtedness for
purposes of SECTION 7.1(G).
"INDEMNIFIED MATTERS" is defined in SECTION 10.7(B) hereof.
"INDEMNITEES" is defined in SECTION 10.7(B) hereof.
"INITIAL ADJUSTMENT DATE" is defined in SECTION 2.14(D)(ii) hereof.
"INTERCOMPANY INDEBTEDNESS" is defined in SECTION 10.14 hereof.
"INTEREST EXPENSE" is defined in SECTION 7.4(A) hereof.
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a period
of one (1), two (2), three (3) or six (6) months or such other period as the
Borrower may request and the Lenders, in their
14
discretion, shall agree to, commencing on a Business Day selected by the
Borrower pursuant to this Agreement; PROVIDED, HOWEVER, notwithstanding
anything in this Agreement to the contrary and only at the Administrative
Agent's sole option, for the period from the Closing Date to the earlier of
(y) the date that is 90 days after the Closing Date and (z) the date upon
which the Arrangers confirm that the loan syndication process has been
completed (the "SYNDICATION PERIOD"), "Interest Period" means, with respect
to a Eurodollar Rate Loan, a period of seven (7) days, provided that during
the Syndication Period all Interest Periods shall end on the same day. Other
than during the Syndication Period, such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three
or six months thereafter (or as agreed); PROVIDED, HOWEVER, that if there is
no such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest
Period shall end on the next succeeding Business Day, PROVIDED, HOWEVER, that
if said next succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without limitation,
goods in transit, wheresoever located, whether now owned or hereafter acquired
by the Borrower or any of its Subsidiaries, which are held for sale or lease,
furnished under any contract of service or held as raw materials, work in
process or supplies, and all materials used or consumed in the business of the
Borrower or any of its Subsidiaries, and shall include all right, title and
interest of the Borrower or any of its Subsidiaries in any property the sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by the Borrower or any of its
Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person and (ii) any loan, advance (other
than deposits with financial institutions available for withdrawal on demand,
prepaid expenses, accounts receivable, advances to employees and similar items
made or incurred in the ordinary course of business) or capital contribution by
that Person to any other Person, including all Indebtedness to such Person
arising from a sale of property by such Person other than in the ordinary course
of its business; PROVIDED, HOWEVER, notwithstanding anything herein to the
contrary, any Contractual Obligation of a Person relating to a take-or-pay
obligation or supply contract of such Person shall not constitute an Investment
by such Person in the other party to such contract.
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
"ISSUING BANKS" means First Chicago; Bank of America National Trust and
Savings Association; ABN AMRO Bank, N.V.; Bank of Tokyo -- Mitsubishi Ltd.,
Chicago Branch; Wachovia Bank; and any other Lender which, at the Borrower's
request, agrees, in each such Lender's sole discretion, to become an Issuing
Bank for the purpose of issuing Letters of Credit, and their respective
successors and assigns, in each case in such Lender's separate capacity as an
issuer of Letters of Credit pursuant to ARTICLE III hereof. The designation of
any Lender as an Issuing Bank after the date hereof shall be subject to the
prior written consent of the Administrative Agent.
15
"LATASA" means Latas de Alumino, S.A., a corporation organized under the
laws of Brazil.
"LATASA ACQUISITION" means the Acquisition of the "Latasa Assets" (as
defined in the Asset Purchase Agreement).
"L/C DOCUMENTS" is defined in SECTION 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter of
Credit.
"L/C INTEREST" is defined in SECTION 3.6 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the sum of
(i) the aggregate of the amount then available for drawing under each of the
Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, and (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time.
"LENDERS" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or Agent, any
office, branch, subsidiary or affiliate of such Lender or Agent.
"LETTER OF CREDIT" means the letters of credit to be issued by the Issuing
Banks pursuant to SECTION 3.1 hereof.
"LEVERAGE RATIO" is defined in SECTION 7.4(C) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance made pursuant to SECTION 2.2 hereof and in the case of the Swing Line
Bank, any Swing Line Loan made pursuant to SECTION 2.3 hereof, and collectively
all Revolving Loans and Swing Line Loans, whether made or continued as or
converted to Floating Rate Loans or Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in SECTION 2.13(a) hereof.
"LOAN DOCUMENTS" means this Agreement, the L/C Documents, the Collateral
Documents, the Subsidiary Guaranty, the Canadian Subordination Agreement and all
other documents, instruments and agreements executed in connection therewith or
contemplated thereby, as the same may be amended, restated or otherwise modified
and in effect from time to time.
16
"LONG-TERM CREDIT AGREEMENT" means that certain Long-Term Credit Agreement,
dated as of August 10, 1998 among the borrower, the agents, the arrangers and
the financial institutions from time to time parties thereto as lenders, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"MANUFACTURING SUPPLY AGREEMENT" means that certain Manufacturing Supply
Agreement, dated as of January 1, 1994, by and between Ball Canada and Ball
Metal Packaging Sales Corp., a Colorado corporation and successor by assignment
to the Borrower, as amended, restated, supplemented and otherwise modified as of
the date hereof.
"MARGIN STOCK" shall have the meaning ascribed to such term in Regulation
U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties, results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under the Loan Documents,
or (c) the ability of the Lenders or the Agents to enforce the Obligations or
their rights with respect to the Collateral.
"MATERIAL FOREIGN SUBSIDIARY" means (i)Ball Canada, (ii) FTB (but not any
other member of the FTB Group), (iii) upon the consummation of the Latasa
Acquisition, Latasa and (iv) any other direct or indirect Foreign Incorporated
Subsidiary of the Borrower (but not any member of the FTB Group other than FTB),
the Consolidated Assets (directly and together with its Subsidiaries) of which
are, at any time, greater than $50,000,000.
"MATERIAL SUBSIDIARY" means any Domestic Incorporated Subsidiary or
Material Foreign Subsidiary.
"MCP" means M.C. Packaging (Hong Kong) Limited, a Hong Kong corporation,
and its successors and assigns.
"MINORITY INTEREST" shall mean owning or holding less than a majority of
the outstanding Voting Stock of any Person.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any member of the
Controlled Group.
"NET CASH PROCEEDS" means, with respect to any Asset Sale or Financing by
any Person, (a) cash (freely convertible into Dollars) received by such Person
or any Subsidiary of such Person from such Asset Sale (including cash received
as consideration for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale) or Financing, after (i)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (ii) payment of all brokerage commissions and other fees and expenses
related to such Asset Sale or Financing, and (iii) all amounts used to repay
Indebtedness secured by a Lien on any asset disposed of in such Asset Sale or
which is or may be required (by the express terms of the instrument governing
such Indebtedness) to be repaid
17
in connection with such Asset Sale (including payments made to obtain or
avoid the need for the consent of any holder of such Indebtedness) or
Financing consisting of Permitted Refinancing Indebtedness; and (b) cash
payments in respect of any Indebtedness, Equity Interest or other
consideration received by such Person or any Subsidiary of such Person from
such Asset Sale upon receipt of such cash payments by such Person or such
Subsidiary.
"NEW SUBSIDIARY" is defined in SECTION 7.3(G) hereof.
"NON PRO RATA LOAN" is defined in SECTION 9.2 hereof.
"NOTICE OF ASSIGNMENT" is defined in SECTION 13.3(B) hereof.
"OBLIGATIONS" means all Loans, Letters of Credit, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower to any
Agent, any Lender, any affiliate of any Agent or any Lender, the Swing Line
Bank, any Arranger, any Issuing Bank, or any Indemnitee, of any kind or nature,
present or future, arising under this Agreement, the L/C Documents, the
Collateral Documents or any other Loan Document, whether or not evidenced by any
note, guaranty or other instrument, 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 includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and any
other sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
including, without limitation, under the Receivables Purchase Documents, (b) any
liability of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (c) any liability of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, including,
without limitation, the Synthetic Leases, or (d) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person and its Subsidiaries.
"OTHER TAXES" is defined in SECTION 2.14(E)(ii) hereof.
"PARTICIPANTS" is defined in SECTION 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each fiscal quarter of the
Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in SECTION 7.3(G)(iii) hereof.
"PERMITTED ADDITIONAL SUBORDINATED INDEBTEDNESS" is defined in SECTION
7.3(A)(vii) hereof.
18
"PERMITTED EXISTING GUARANTIED OBLIGATIONS" means the Guarantied
Obligations of the Borrower and its Subsidiaries identified as such on SCHEDULE
1.1.2 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Borrower
and its Subsidiaries identified as such on SCHEDULE 1.1.3 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower and
its Subsidiaries identified as such on SCHEDULE 1.1.4 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower and
its Subsidiaries identified as such on SCHEDULE 1.1.5 to this Agreement,
together with Liens on the assets of the Borrower and its Subsidiaries arising
out of the replacement, extension or renewal of any Permitted Existing Lien,
upon or in the same property and securing the same amount of Indebtedness, in
each case, in connection with any Permitted Refinancing Indebtedness incurred in
respect of the original Indebtedness secured thereby.
"PERMITTED FOREIGN SUBSIDIARY INVESTMENT AMOUNT" means the sum of (i)
$25,000,000 PLUS (ii) Investments in Foreign Incorporated Subsidiaries made in
compliance with SECTION 7.3(D)(xv).
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in SECTION 7.3(A)(xii)
hereof.
"PERMITTED RECEIVABLES TRANSFER" means (i) a sale or other transfer by Ball
Metal Food Container Corp., a Delaware corporation, Ball Plastic Container
Corp., a Colorado corporation, and BMBCC to Ball Capital Corp. of "Receivables"
and "Related Security" under and as such terms are defined in the Receivables
Sale Agreement, in accordance with the terms of the Receivables Sale Agreement
and/or (ii) a sale by Ball Capital Corp. to purchasers in accordance with the
terms of the Receivables Purchase Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness (other than the Subordinated Notes)
permitted by this Agreement that (i) does not exceed the aggregate principal
amount (plus accrued interest and any applicable premium and associated fees and
expenses) of the Indebtedness being replaced, renewed, refinanced or extended,
(ii) does not have a Weighted Average Life to Maturity at the time of such
replacement, renewal, refinancing or extension that is less than the Weighted
Average Life to Maturity of the Indebtedness being replaced, renewed, refinanced
or extended, (iii) does not rank at the time of such replacement, renewal,
refinancing or extension senior to the Indebtedness being replaced, renewed,
refinanced or extended, and (iv) does not contain terms (including, without
limitation, terms relating to security, amortization, interest rate, premiums,
fees, covenants, subordination, events of default and remedies) materially less
favorable to the Borrower and its Subsidiaries, taken as a whole, or to the
Lenders, taken as a whole, than those applicable to the Indebtedness being
replaced, renewed, refinanced or extended.
"PERSON" means any individual, corporation, firm, enterprise, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company or other entity
19
of any kind, or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means an employee benefit plan as defined in Section 3(3) of ERISA
in respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means each of (a) those certain Pledge Agreements of
even date herewith executed by the Borrower in favor of the Administrative
Agent, (b) that certain Share Security Deed of even date herewith executed by
the Borrower in favor of the Administrative Agent, (c) that certain Pledge
Agreement of even date herewith executed by Ball Packaging Corp., a Colorado
corporation, in favor of the Administrative Agent, (d) that certain Pledge
Agreement of even date herewith executed by Ball Glass Container Corporation, a
Delaware corporation, in favor of the Administrative Agent, (e) that certain
Pledge Agreement of even date herewith executed by BMBCC, in favor of the
Administrative Agent, (f) that certain Pledge Agreement of even date herewith
executed by Ball Technologies Holdings Corp., a Colorado corporation, in favor
of the Administrative Agent, (g) that certain Pledge Agreement of even date
herewith executed by Ball Aerospace & Technologies Corp., a Delaware
corporation, in favor of the Administrative Agent, (h) that certain Pledge
Agreement of even date herewith executed by RCAL Cans, Inc., a Delaware
corporation, in favor of the Administrative Agent and (i) each other Pledge
Agreement executed pursuant to the terms of SECTION 7.2(K), in each case, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"PRELIMINARY FINANCIALS" is defined in SECTION 2.14(D)(ii) hereof.
"PRELIMINARY FINANCIAL COMPLIANCE CERTIFICATE" is defined in SECTION
2.14(D)(ii) hereof.
"PRELIMINARY FINANCIAL PACKAGE" is defined in SECTION 2.14(D)(ii) hereof.
"PRO RATA SHARE" means, with respect to any Lender, the percentage obtained
by dividing (A) such Lender's Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement)
by (B) the Aggregate Revolving Loan Commitment at such time; PROVIDED, HOWEVER,
if all of the Revolving Loan Commitments are terminated pursuant to the terms of
this Agreement, then "Pro Rata Share" means the percentage obtained by dividing
(x) the sum of (A) such Lender's Revolving Loans, PLUS (B) such Lender's share
of the obligations to purchase participations in Swing Line Loans and Letters of
Credit, by (y) the sum of (A) the aggregate outstanding amount of all Revolving
Loans, PLUS (B) the aggregate outstanding amount of all Swing Line Loans and all
Letters of Credit.
"PURCHASERS" is defined in SECTION 13.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
20
"RATIONALIZATION COST" means any cash rationalization cost with respect to
the Reynolds Acquisition as evidenced by the reduction of the relevant balance
sheet liability of the Borrower in accordance with Agreement Accounting
Principles.
"RECEIVABLE(S)" means and includes all of the Borrower's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Borrower and its
Subsidiaries to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods
which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit; PROVIDED, HOWEVER, that Receivables that are
transferred to Ball Capital Corp. pursuant to a Permitted Receivables Transfer
shall be deemed not to be Receivables hereunder, until such time, if any, as any
such Receivables are repurchased by or otherwise transferred to Ball Metal Food
Container Corp., Ball Plastic Container Corp., and BMBCC pursuant to the terms
of the Receivables Sale Agreement or otherwise.
"RECEIVABLES PURCHASE AGREEMENT" means that certain Receivables Purchase
Agreement dated as of December 29, 1997, among Ball Capital Corp., as seller,
the Borrower, as servicer, Old Line Funding Corp., a Delaware corporation, as
buyer, and Royal Bank of Canada, as agent, as such agreement may be amended,
restated or otherwise modified from time to time in accordance with the terms
hereof, or any replacement or substitution therefor.
"RECEIVABLES PURCHASE DOCUMENTS" means the Receivables Sale Agreement and
the Receivables Purchase Agreement.
"RECEIVABLES SALE AGREEMENT" means that certain Originator Purchase
Agreement dated as of December 29, 1997, between Ball Metal Food Container
Corp., a Delaware corporation, Ball Plastic Container Corp., a Colorado
corporation, and BMBCC and Ball Capital Corp., pursuant to which Ball Metal Food
Container Corp., a Delaware corporation, Ball Plastic Container Corp., a
Colorado corporation, and BMBCC shall sell to Ball Capital Corp. all of its
"Receivables" and "Related Security" (as such terms are defined therein), as
such agreement may be amended, restated or otherwise modified from time to time
in accordance with the terms hereof, or any replacement or substitution
therefor.
"REGISTER" is defined in SECTION 13.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks and nonbank, nonbroker lenders for the purpose of
purchasing or carrying Margin Stock.
21
"REGULATION X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in SECTION 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including the movement of Contaminants through or in the
air, soil, surface water or groundwater.
"REMEDIAL ACTION" means any action required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) perform pre-remedial studies and investigations and post
remedial care.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property but does not include any
amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in SECTION 2.19 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs, PROVIDED, HOWEVER, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the aggregate,
are greater than fifty percent (50%); PROVIDED, HOWEVER, that, if any of the
Lenders shall have failed to fund its Revolving Loan Pro Rata Share of any
Revolving Loan requested by the Borrower, or any Swing Line Loan as requested by
the Administrative Agent, which such Lenders are obligated to fund under the
terms of this Agreement and any such failure has not been cured, then for so
long as such failure continues, "REQUIRED LENDERS" means Lenders (excluding all
Lenders whose failure to fund their respective Revolving Loan Pro Rata Shares of
such Revolving Loans or Swing Line Loans has not been so cured) whose Pro Rata
Shares represent greater than fifty percent (50%) of the aggregate Pro Rata
Shares of such Lenders; PROVIDED FURTHER, HOWEVER, that, if the Revolving Loan
Commitments have been terminated pursuant to the terms of this Agreement,
"REQUIRED LENDERS" means Lenders (without regard to such Lenders' performance of
their respective obligations hereunder) whose aggregate ratable shares (stated
as a percentage) of the aggregate outstanding principal balance of all Loans and
L/C Obligations are greater than fifty percent (50%).
22
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act of 1933, the Securities Exchange Act of
1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor), with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Rate Loans is determined or category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED INVESTMENT" means any Investment other than an Investment
permitted by SECTION 7.3(D) (other than CLAUSE (xii) thereof).
"RESTRICTED PAYMENT" means (i) any dividend or other distribution, direct
or indirect, on account of any Equity Interests of the Borrower now or hereafter
outstanding, except a dividend payable solely in the Borrower's Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Borrower now or hereafter outstanding, other than in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a Subsidiary of
the Borrower) of other Equity Interests of the Borrower (other than Disqualified
Stock), (iii) any redemption, purchase, retirement, defeasance, prepayment or
other acquisition for value, direct or indirect, of any Indebtedness prior to
the stated maturity thereof, other than the Obligations and other than with the
proceeds of Permitted Refinancing Indebtedness, and (iv) any Restricted
Investment.
"RESTRICTED SUBSIDIARY" is defined in SECTION 10.14 hereof.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the amount
by which the Aggregate Revolving Loan Commitment at such time exceeds the
Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) the outstanding principal amount of the Revolving Loans at such time, PLUS
(ii) the outstanding principal amount of the Swing Line Loans at such time, PLUS
(iii) the L/C Obligations at such time.
"REVOLVING LOAN" is defined in SECTION 2.2(a) hereof.
23
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of such
Lender to make Revolving Loans and to purchase participations in Letters of
Credit not exceeding the amount set forth on EXHIBIT A to this Agreement
opposite its name thereon under the heading "Revolving Loan Commitment" or on
Schedule 1 of the assignment and acceptance by which it became a Lender, as such
amount may be modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable assignment and acceptance.
"REVOLVING LOAN PRO RATA SHARE" means, with respect to any Lender, the
percentage obtained by dividing (A) the then aggregate amount of such Lender's
Revolving Loan Commitment (as adjusted from time to time in accordance with the
provisions of this Agreement) by (B) the Aggregate Revolving Loan Commitment at
such time; PROVIDED, HOWEVER, if all of the Revolving Loan Commitments are
terminated pursuant to the terms of this Agreement, then "Revolving Loan Pro
Rata Share" means the percentage obtained by dividing (x) the sum of (A) such
Lender's Revolving Loans, PLUS (B) such Lender's share of the obligations to
purchase participations in Swing Line Loans and Letters of Credit, by (y) the
sum of (A) the aggregate outstanding amount of all Revolving Loans, PLUS (B) the
aggregate outstanding amount of all Swing Line Loans and all Letters of Credit.
"REVOLVING LOAN TERMINATION DATE" means August 8, 1999, or any subsequent
date to which the Revolving Loan Termination Date may have been extended
pursuant to the terms of SECTION 2.18.
"REYNOLDS" means Reynolds Metals Company, a Delaware corporation.
"REYNOLDS ACQUISITION" means the acquisition by the Borrower and certain of
its Subsidiaries of certain of the assets and liabilities of the aluminum
beverage-can manufacturing business of Reynolds and its Affiliates on the terms
and conditions set forth in that certain Asset Purchase Agreement ("ASSET
PURCHASE AGREEMENT") dated as of April 22, 1998, as amended through the Closing
Date, by and among the Borrower, BMBCC and Reynolds.
"REYNOLDS ACQUISITION DOCUMENTS" means the Asset Purchase Agreement and all
other documents, instruments and agreements entered into by the Borrower or any
of its Subsidiaries in connection with the Reynolds Acquisition.
"REYNOLDS GROUP" is defined in SECTION 6.4(B).
"RISK-BASED CAPITAL GUIDELINES" is defined in SECTION 4.2.
"SEC" means the Securities and Exchange Commission and any Person
succeeding to the functions thereof.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and (ii) all
Hedging Obligations owing under Hedging Agreements to any Lender or any
Affiliate of any Lender.
24
"SENIOR NOTE INDENTURE" means that certain Indenture dated as of August 10,
1998, between the Borrower and The Bank of New York, as Trustee, as amended,
supplemented or modified in accordance with SECTION 7.3(R) hereof.
"SENIOR NOTES" means those certain Senior Notes due 2006, issued by the
Borrower in the aggregate principal amount of $300,000,000 pursuant to the
Senior Note Indenture, as amended, supplemented or modified in accordance with
SECTION 7.3(R) hereof, which term shall include and shall constitute the notes
issued in exchage therefor as contemplated by the Senior Note Indenture.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group that is not a Multiemployer Plan.
"SOLVENT" shall mean, when used with respect to any Person, that at the
time of determination:
(i) the fair value of its assets (both at fair valuation and at
present fair saleable value) is equal to or in excess of the total amount
of its liabilities, including, without limitation, contingent liabilities;
and
(ii) it is then able and expects to be able to pay its debts as they
mature; and
(iii) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can reasonably be expected to become an actual or
matured liability.
"SUBORDINATED INDEBTEDNESS" means, (i) the Subordinated Notes and (ii) any
Permitted Additional Subordinated Indebtedness.
"SUBORDINATED NOTE INDENTURE" means that certain Indenture dated as of
August 10, 1998, between the Borrower and The Bank of New York, as Trustee, as
amended, supplemented or modified in accordance with SECTION 7.3(R) hereof.
"SUBORDINATED NOTES" means those certain Senior Subordinated Notes due
2008, issued by the Borrower in the aggregate principal amount of $250,000,000
pursuant to the Subordinated Note Indenture, as amended, supplemented or
modified in accordance with SECTION 7.3(R) hereof, which term shall include and
shall constitute the notes issued in exchage therefor as contemplated by the
Subordinated Note Indenture.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding Voting Stock of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, or (ii) any
25
partnership, association, joint venture or similar business organization more
than 50% of the Voting Stock of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower and any references to
Subsidiaries of the Borrower shall not include: (a) any member of the FTB
Group or (b) any Excluded Subsidiary.
"SUBSIDIARY GUARANTY" means the Guarantee Agreement of even date herewith
entered into by each of the Guarantors in favor of the Administrative Agent, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"SUPPORT OBLIGATIONS" is defined in the definition of "GUARANTIED
OBLIGATIONS".
"SWING LINE BANK" means First Chicago or any other Lender as a successor
Swing Line Bank.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to make
Swing Line Loans up to a maximum principal amount of $15,000,000 at any one time
outstanding.
"SWING LINE LOAN" means a Loan made available to the Borrower by the Swing
Line Bank pursuant to SECTION 2.3 hereof.
"SYNDICATION AGENT" means Bank of America National Trust and Savings
Association, in its capacity as syndication agent for the loan transaction
evidenced by this Agreement, together with its successors and assigns.
"SYNDICATION PERIOD" is defined in the definition of "Interest Period".
"SYNTHETIC LEASES" means each of (i) that certain Participation Agreement,
dated as of September 27, 1996, among Ball Plastic Container Corp., and Ball
1996-A Equipment Trust, the guarantors parties thereto, the certificate
purchasers parties thereto, Royal Bank of Canada, as agent, and PNC Bank, Ohio,
National Association, as bank and certificate trustee, and the Lease Agreement
related thereto, (ii) that certain Participation Agreement, dated as of
September 27, 1996, among Ball Aerospace & Technologies Corp., as lessee, Lease
Plan North America, Inc., as lessor, ABN AMRO Bank N.V., Chicago Branch, as
participant, and ABN AMRO Bank N.V., Chicago Branch, as agent, and the Master
Lease related thereto, and (iii) that certain Participation Agreement, dated as
of November 15, 1996, among Ball Plastic Container Corp., as lessee, Lease Plan
North America, Inc., as lessor, ABN AMRO Bank N.V., Chicago Branch, as agent and
participant, and the Master Lease related thereto, in each case, as amended as
of the date hereof.
"TAX ALLOCATION AGREEMENT" means the State Tax Sharing Agreement among the
Borrower and its Subsidiaries, dated as of December 1, 1990, as amended,
modified, supplemented or restated from time to time in compliance with the
terms of this Agreement.
"TAXES" is defined in SECTION 2.14(E)(i) hereof.
26
"TERMINATION DATE" means the earlier of (a) the Revolving Loan Termination
Date, and (b) the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to SECTION 2.6 hereof or the Revolving Loan Commitments
pursuant to SECTION 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Borrower or any member of the Controlled Group; (iii)
the imposition of an obligation on the Borrower or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which would constitute grounds
under Section 4042 of ERISA (other than subparagraph (a)(4) of such Section) for
the termination of, or the appointment of a trustee to administer, any Benefit
Plan; (vi) that a foreign governmental authority shall appoint or institute
proceedings to appoint a trustee to administer any Foreign Pension Plan in place
of the existing administrator; or (vii) the partial or complete withdrawal of
the Borrower or any member of the Controlled Group from a Multiemployer Plan or
Foreign Pension Plan.
"THIRD-PARTY PAYMENTS" is defined in SECTION 7.3(F)(iii) hereof.
"TOTAL DEBT" is defined in SECTION 7.4(a) hereof.
"TRANSACTION COSTS" means the fees, costs and expenses payable by the
Borrower or any of its Subsidiaries in connection with the execution, delivery
and performance of the Transaction Documents, the issuance of the Senior Notes
and the Subordinated Notes, the extinguishment of term Indebtedness existing
immediately prior to the Closing Date, and the consummation of the Reynolds
Acquisition.
"TRANSACTION DOCUMENTS" means the Loan Documents, the Reynolds Acquisition
Documents, and the documents executed in connection with the Subordinated Notes
and the Senior Notes.
"TRANSFEREE" is defined in SECTION 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate Loan
or a Eurodollar Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans, the
amount (if any) by which the present value of all vested nonforfeitable benefits
under all Single Employer Plans exceeds the fair market value of all such Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans, and (ii) in the case of Multiemployer Plans, the
withdrawal liability that would be incurred by the Controlled Group if all
members of the Controlled Group completely withdrew from all Multiemployer
Plans.
27
"UNMATURED DEFAULT" means an event which, but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"VOTING STOCK" means stock or similar interests of any class or classes
(however designated), the holders of which are generally and ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
Persons performing similar functions) of a corporation or other Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED SUBSIDIARY" means any member of the Ball Corporate Group 100%
of the Capital Stock and other Equity Interests of which is directly or
indirectly owned by the Borrower (other than director's qualifying shares).
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated costs,
problems and uncertainties associated with the inability of certain computer
applications and imbedded systems to effectively handle data, including dates,
prior to, on and after January 1, 2000, as it affects the business, operations,
and financial condition of such Person, and such Person's customers, suppliers
and vendors.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms. Any accounting terms used in this
Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with Agreement Accounting Principles.
1.2 REFERENCES. Any references to Subsidiaries of the Borrower set forth
herein shall (i) with respect to representations and warranties which deal with
historical matters be deemed to include the Borrower and its Subsidiaries,
together with the businesses acquired pursuant to the Reynolds Acquisition; and
(ii) shall not in any way be construed as consent by any Agent or any Lender to
the establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
1.3 CURRENCY EQUIVALENTS. If at the time of determination of any amount
hereunder, such amount shall be in a currency other than U.S. Dollars, such
amount shall be deemed to be equal to the Dollar Amount thereof.
ARTICLE II: THE REVOLVING LOAN FACILITIES
2.1. [RESERVED].
2.2 REVOLVING LOANS. (a) Upon the satisfaction of the conditions
precedent set forth in SECTIONS 5.1 and 5.2, as applicable, from and including
the date of this Agreement and prior to the
28
Termination Date, each Lender severally and not jointly agrees, on the terms
and conditions set forth in this Agreement, to make revolving loans to the
Borrower from time to time, in Dollars, in an amount not to exceed such
Lender's Revolving Loan Pro Rata Share of Revolving Credit Availability at
such time (each individually, a "REVOLVING LOAN" and, collectively, the
"REVOLVING LOANS"); PROVIDED, HOWEVER, at no time shall the Revolving Credit
Obligations exceed the Aggregate Revolving Loan Commitment. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Termination Date. The Revolving
Loans made on the Closing Date or on or before the third (3rd) Business Day
thereafter shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurodollar Rate Loans in
the manner provided in SECTION 2.10 and subject to the other conditions and
limitations therein set forth, set forth in this ARTICLE II and set forth in
the definition of Interest Period. Revolving Loans made after the third
(3rd) Business Day after the Closing Date shall be, at the option of the
Borrower, selected in accordance with SECTION 2.10, either Floating Rate
Loans or Eurodollar Rate Loans. On the Termination Date, the Borrower shall
repay in full the outstanding principal balance of the Revolving Loans. Each
Advance under this SECTION 2.2 shall consist of Revolving Loans made by each
Lender ratably in proportion to such Lender's respective Revolving Loan Pro
Rata Share.
(b) BORROWING/CONVERSION/CONTINUATION NOTICE. The Borrower shall deliver
to the Administrative Agent a Borrowing/Conversion/Continuation Notice, signed
by it, in accordance with the terms of SECTION 2.8. The Administrative Agent
shall promptly notify each Lender with a Revolving Loan Commitment greater than
zero of such request.
(c) MAKING OF REVOLVING LOANS. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under SECTION 2.8 in respect of
Revolving Loans, the Administrative Agent shall notify each Lender with a
Revolving Loan Commitment greater than zero by telex or telecopy, or other
similar form of transmission, of the requested Revolving Loan. Each Lender with
a Revolving Loan Commitment greater than zero shall make available its Revolving
Loan in accordance with the terms of SECTION 2.7. The Administrative Agent will
promptly make the funds so received from the Lenders available to the Borrower
at the Administrative Agent's office in Chicago, Illinois on the applicable
Borrowing Date and shall disburse such proceeds in accordance with the
Borrower's disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to deposit
the amount described above with the Administrative Agent on the applicable
Borrowing Date shall not relieve any other Lender of its obligations hereunder
to make its Revolving Loan on such Borrowing Date.
2.3 SWING LINE LOANS. (a) AMOUNT OF SWING LINE LOANS. Upon the
satisfaction of the conditions precedent set forth in SECTION 5.1 and 5.2, as
applicable, from and including the date of this Agreement and prior to the
Termination Date, the Swing Line Bank agrees, on the terms and conditions set
forth in this Agreement, to make swing line loans to the Borrower from time to
time, in Dollars, in an amount not to exceed the Swing Line Commitment (each,
individually, a "SWING LINE LOAN" and collectively, the "SWING LINE LOANS");
PROVIDED, HOWEVER, at no time shall the Revolving Credit Obligations exceed the
Aggregate Revolving Loan Commitment; and PROVIDED, FURTHER, that at no time
shall the sum of (a) the outstanding amount of the Swing Line Loans, PLUS (b)
the outstanding amount of Revolving Loans made by the Swing Line Bank pursuant
to SECTION 2.2 (after giving effect to any concurrent repayment of Loans),
exceed the Swing Line Bank's Revolving Loan Commitment at
29
such time. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow Swing Line Loans at any time prior to the Termination Date.
(b) BORROWING/CONVERSION/CONTINUATION NOTICE. The Borrower shall deliver
to the Administrative Agent and the Swing Line Bank a
Borrowing/Conversion/Continuation Notice, signed by it, not later than 1:00 p.m.
(Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which date shall be a Business Day and which may be
the same date as the date the Borrowing/Conversion/Continuation Notice is
given), (ii) the aggregate amount of the requested Swing Line Loan which shall
be an amount not less than $1,000,000 and (iii) instructions for the
disbursement of the proceeds of such Swing Line Loan. The Swing Line Loans
shall at all times be Floating Rate Loans. The Administrative Agent shall
promptly notify the Swing Line Bank of such request.
(c) MAKING OF SWING LINE LOANS. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under SECTION 2.3(b) in respect of
Swing Line Loans, the Administrative Agent shall notify the Swing Line Bank by
telex or telecopy, or other similar form of transmission, of the requested Swing
Line Loan. Not later than 3:00 p.m. (Chicago time) on the applicable Borrowing
Date, the Swing Line Bank shall make available its Swing Line Loan, in funds
immediately available in Chicago, Illinois to the Administrative Agent at its
address specified pursuant to ARTICLE XIV. The Administrative Agent will
promptly make the funds so received from the Swing Line Bank available to the
Borrower on the Borrowing Date at the Administrative Agent's aforesaid address
and shall disburse such funds in accordance with the Borrower's disbursement
instructions set forth in the related Borrowing/Conversion/Continuation Notice.
(d) REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth Business Day after the Borrowing
Date for such Swing Line Loan. The Borrower may at any time pay, without
penalty or premium, all outstanding Swing Line Loans or, in a minimum amount of
$1,000,000 and increments of $100,000 in excess thereof, any portion of the
outstanding Swing Line Loans, upon notice to the Administrative Agent and the
Swing Line Bank. In addition, the Administrative Agent (i) may at any time in
its sole discretion with respect to any outstanding Swing Line Loan, or (ii)
shall on the fifth Business Day after the Borrowing Date of any Swing Line Loan,
require each Lender (including the Swing Line Bank) to make a Revolving Loan in
the amount of such Lender's Revolving Loan Pro Rata Share of such Swing Line
Loan, for the purpose of repaying such Swing Line Loan. Not later than 2:00
p.m. (Chicago time) on the date of any notice from the Administrative Agent to
the Lenders received pursuant to this SECTION 2.3(d), each Lender shall make
available its required Revolving Loan or Revolving Loans, in funds immediately
available in Chicago, Illinois to the Administrative Agent at its address
specified pursuant to ARTICLE XIV. Revolving Loans made pursuant to this
SECTION 2.3(d) shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurodollar Rate Loans in the
manner provided in SECTION 2.10 and subject to the other conditions and
limitations therein set forth and set forth in this ARTICLE II. Unless a Lender
shall have notified the Swing Line Bank, prior to its making any Swing Line
Loan, that any applicable condition precedent set forth in SECTIONS 5.1 and 5.2
had not then been satisfied, such Lender's obligation to make Revolving Loans
pursuant to this SECTION 2.3(d) to repay Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute and shall not be affected by
any circumstances, including, without limitation, (A) any set-off, counterclaim,
30
recoupment, defense or other right which such Lender may have against the
Administrative Agent, the Swing Line Bank or any other Person, (B) the
occurrence and continuance of a Default or Unmatured Default, (C) any adverse
change in the condition (financial or otherwise) of the Borrower, or (D) any
other circumstance, happening or event whatsoever. In the event that any Lender
fails to make payment to the Administrative Agent of any amount due under this
SECTION 2.3(d), the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives such payment
from such Lender or such obligation is otherwise fully satisfied. In addition
to the foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this SECTION 2.3(d), such Lender
shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Termination Date, the Borrower shall repay in full the outstanding principal
balance of the Swing Line Loans.
2.4 RATE OPTIONS FOR ALL ADVANCES. The Swing Line Loans shall be Floating
Rate Loans at all times. The Revolving Loans may be Floating Rate Loans or
Eurodollar Rate Loans, or a combination thereof, selected by the Borrower in
accordance with SECTION 2.10; PROVIDED, HOWEVER, notwithstanding anything herein
to the contrary, the Borrower may not without the Administrative Agent's consent
select, convert or continue any Loans as Eurodollar Rate Loans during the
Syndication Period; and, PROVIDED, FURTHER, that, in the event that the
Administrative Agent consents to the selection, conversion or continuation of
any Loans as Eurodollar Rate Loans during the Syndication Period, the Borrower
may not select Interest Periods for Eurodollar Rate Advances made during the
Syndication Period which exceed seven (7) days and all Interest Periods with
respect to all such Eurodollar Rate Advances made, converted or continued during
the Syndication Period shall be required to expire on the same date. The
Borrower may select, in accordance with SECTION 2.10, Rate Options and Interest
Periods applicable to portions of the Revolving Loans; PROVIDED that there shall
be no more than twelve (12) Interest Periods in effect with respect to all of
the Loans at any time.
2.5 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.
(A) OPTIONAL PAYMENTS. The Borrower may from time to time and at any time
repay or prepay, without penalty or premium all or any part of outstanding
Floating Rate Advances. Eurodollar Rate Advances may be voluntarily repaid or
prepaid prior to the last day of the applicable Interest Period, subject to the
indemnification provisions contained in SECTION 4.4, PROVIDED, that the Borrower
may not so prepay Eurodollar Rate Advances unless it shall have provided at
least one (1) Business Day's prior written notice to the Administrative Agent of
such prepayment. Voluntary prepayments of the Revolving Loans shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount.
(B) MANDATORY PREPAYMENTS.
31
(i) MANDATORY PREPAYMENTS OF REVOLVING LOANS. If at any time and for any
reason the Revolving Credit Obligations are greater than the Aggregate Revolving
Loan Commitment, the Borrower shall immediately make a mandatory prepayment of
the Revolving Credit Obligations in an amount equal to such excess.
(ii) Subject to the preceding provisions of this SECTION 2.5(B), all of
the mandatory prepayments made under this SECTION 2.5(B) shall be applied first
to the applicable Floating Rate Loans and to any Eurodollar Rate Loans maturing
on such date and then to subsequently maturing Eurodollar Rate Loans in order of
maturity.
2.6 REDUCTION OF REVOLVING LOAN COMMITMENTS. The Borrower may permanently
reduce the Aggregate Revolving Loan Commitment in whole, or in part ratably
among the Lenders, in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount (unless the Aggregate Revolving
Loan Commitment is reduced in whole), upon at least one (1) Business Day's
written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction; PROVIDED, HOWEVER, that the amount of the
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
outstanding principal amount of the outstanding Revolving Credit Obligations.
All accrued commitment fees due and payable pursuant to SECTION 2.15(c) shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Revolving Loans hereunder.
2.7 METHOD OF BORROWING. Not later than 2:00 p.m. (Chicago time) on each
Borrowing Date, each Lender shall make available its Revolving Loan, in funds
immediately available in Chicago to the Administrative Agent at its address
specified pursuant to ARTICLE XIV.
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Administrative Agent irrevocable notice in
substantially the form of EXHIBIT B hereto (a "BORROWING/CONVERSION/CONTINUATION
NOTICE") not later than 11:00 a.m. (Chicago time) (a) on or before the Borrowing
Date of each Floating Rate Advance and (b) three Business Days before the
Borrowing Date for each Eurodollar Rate Advance, specifying: (i) the Borrowing
Date (which shall be a Business Day) of such Advance; (ii) the aggregate amount
of such Advance; (iii) the Type of Advance selected; and (iv) in the case of
each Eurodollar Rate Advance, the Interest Period applicable thereto. Each
Floating Rate Advance and all Obligations other than Loans shall bear interest
from and including the date of the making of such Advance, in the case of Loans,
and the date such Obligation is due and owing in the case of such other
Obligations, to (but not including) the date of repayment thereof at the
Floating Rate, changing when and as such Floating Rate changes. Changes in the
rate of interest on that portion of any Advance maintained as a Floating Rate
Loan will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Rate Advance shall bear interest from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined as applicable
to such Eurodollar Rate Advance; PROVIDED, that the Eurodollar Rate applicable
to any Eurodollar Rate Advance shall change when and as the Applicable
Eurodollar Rate Margin changes.
32
2.9 MINIMUM AMOUNT OF EACH ADVANCE. Each Advance (other than an Advance
to repay Swing Line Loans pursuant to SECTION 2.3(d) or a Reimbursement
Obligation pursuant to SECTION 3.7) shall be in the minimum amount of $5,000,000
(and in multiples of $1,000,000 if in excess thereof), PROVIDED, HOWEVER, that
any Floating Rate Advance may be in the amount of the unused Aggregate Revolving
Loan Commitment.
2.10 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND
CONTINUATION OF ADVANCES.
(A) RIGHT TO CONVERT. The Borrower may elect from time to time, subject
to the provisions of SECTION 2.4 and this SECTION 2.10, to convert all or any
part of a Loan of any Type into any other Type or Types of Loans; PROVIDED that
any conversion of any Eurodollar Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(B) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as
Eurodollar Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have given the
Administrative Agent notice in accordance with SECTION 2.10(D) requesting that,
at the end of such Interest Period, such Eurodollar Rate Loans continue as a
Eurodollar Rate Loan.
(C) NO CONVERSION POST-DEFAULT OR POST-UNMATURED DEFAULT. Notwithstanding
anything to the contrary contained in SECTION 2.10(A) or SECTION 2.10(B), no
Loan may be converted into or continued as a Eurodollar Rate Loan (except with
the consent of the Required Lenders) when any Default or Unmatured Default has
occurred and is continuing.
(D) BORROWING/CONVERSION/CONTINUATION NOTICE. The Borrower shall give the
Administrative Agent irrevocable notice, in substantially the form of a
Borrowing/Conversion/Continuation Notice, of each conversion of a Floating Rate
Loan into a Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan not
later than 11:00 a.m. (Chicago time) three Business Days prior to the date of
the requested conversion or continuation, specifying: (1) the requested date
(which shall be a Business Day) of such conversion or continuation; (2) the
amount and Type of the Loan to be converted or continued; and (3) the amount of
Eurodollar Rate Loan(s) into which such Loan is to be converted or continued and
the duration of the Interest Period applicable thereto.
2.11 DEFAULT RATE. After the occurrence and during the continuance of a
Default, at the option of the Administrative Agent or at the direction of the
Required Lenders, the interest rate(s) applicable to the Obligations and the
fees payable under SECTION 3.9 with respect to Letters of Credit shall be
increased by two percent (2.0%) per annum above the Floating Rate or Eurodollar
Rate, as applicable, or, if such increase results in the violation of applicable
usury law, shall be increased to the maximum interest rate allowed under such
usury law.
2.12 METHOD OF PAYMENT. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Administrative
33
Agent at the Administrative Agent's address specified pursuant to ARTICLE
XIV, or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent to the Borrower, by (x) 1:00
p.m. (Chicago time) with respect to each Swing Line Loan and (y) 12:00 noon
(Chicago time) with respect to all other Loans, in each case, on the date
when due and shall be made ratably among the Swing Line Banks and the
Lenders, as applicable (unless such amount is not to be shared ratably in
accordance with the terms hereof). Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered
promptly by the Administrative Agent to such Lender in the same type of funds
which the Administrative Agent received at its address specified pursuant to
ARTICLE XIV or at any Lending Installation specified in a notice received by
the Administrative Agent from such Lender. The Borrower authorizes the
Administrative Agent to charge the account of the Borrower maintained with
First Chicago for each payment of principal, interest and fees as it becomes
due hereunder.
2.13 EVIDENCE OF DEBT, TELEPHONIC NOTICES.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to SUBSECTIONS
(a) or (b) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(d) Any Lender may request that the Revolving Loans made by it each be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note for such Loans payable to
the order of such Lender and in a form approved by the Administrative Agent and
consistent with the terms of this Agreement. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to SECTION 13.3) be represented by one or more promissory
notes in such form payable to the order of the payee named therein.
(e) The Borrower authorizes the Lenders and the Administrative Agent to
extend, convert or continue Advances, effect selections of Types of Advances and
to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be an Authorized
Officer acting on behalf of the Borrower. The Borrower agrees to deliver
promptly to the Administrative Agent a written confirmation of each telephonic
notice signed by an
34
Authorized Officer of the Borrower. If the written confirmation differs in
any material respect from the action taken by the Administrative Agent and
the Lenders, the records of the Administrative Agent and the Lenders shall
govern absent manifest error. In case of disagreement concerning such
notices, if the Administrative Agent has recorded telephonic borrowing
notices, such recordings will be made available to the Borrower upon the
Borrower's request therefor.
2.14 PROMISE TO PAY; INTEREST AND COMMITMENT FEES; INTEREST PAYMENT DATES;
INTEREST AND FEE BASIS; TAXES; LOAN AND CONTROL ACCOUNTS.
(A) PROMISE TO PAY. The Borrower unconditionally promises to pay when due
the principal amount of each Loan and all other Obligations incurred by it, and
to pay when due all unpaid interest accrued thereon, in accordance with the
terms of this Agreement and the other Loan Documents.
(B) INTEREST PAYMENT DATES. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, on any date on which the Floating Rate Loan is
prepaid, whether due to acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurodollar Rate Loan shall
be payable on the last day of its applicable Interest Period, on any date on
which the Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise,
and at maturity. Interest accrued on each Eurodollar Rate Loan having an
Interest Period longer than three months shall also be payable on the last day
of each three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in arrears
(i) on the last day of each calendar month, commencing on the first such day
following the incurrence of such Obligation, (ii) upon repayment thereof in full
or in part, and (iii) if not theretofore paid in full, at the time such other
Obligation becomes due and payable (whether by acceleration or otherwise).
(C) COMMITMENT FEES. (i) The Borrower shall pay to the Administrative
Agent, for the account of the Lenders in accordance with their Revolving Loan
Pro Rata Shares, from and after the Closing Date until the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole, a commitment
fee accruing at the rate of the Applicable Commitment Fee Percentage, on the
average daily closing amount (as of 2:00 p.m. (Chicago time)) by which (A) the
Aggregate Revolving Loan Commitment in effect from time to time exceeds (B) the
Revolving Credit Obligations (excluding the outstanding principal amount of the
Swing Line Loans) in effect from time to time. All such commitment fees payable
under this CLAUSE (C) shall be payable quarterly in arrears on the last day of
each fiscal quarter of the Borrower occurring after the Closing Date (with the
first such payment being calculated for the period from the Closing Date and
ending on September 30, 1998), and, in addition, on the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole.
(ii) The Borrower agrees to pay to the Administrative Agent for the sole
account of the Agents and the Arrangers (unless otherwise agreed between the
Administrative Agent, the other Agents and the Arrangers and any Lender) the
fees set forth in the letter agreement between the Agents, the Arrangers and the
Borrower, dated April 22, 1998, payable at the times and in the amounts set
forth therein.
35
(iii) The Borrower agrees to pay to the Administrative Agent for its sole
account the fees set forth in the letter agreement between the Administrative
Agent and the Borrower, dated April 22, 1998, payable at the times and in the
amounts set forth therein.
(D) INTEREST AND FEE BASIS; APPLICABLE FLOATING RATE MARGINS; APPLICABLE
EURODOLLAR MARGINS AND APPLICABLE COMMITMENT FEE PERCENTAGE.
(i) Interest on Floating Rate Loans and the commitment fee payable under
SECTION 2.14(C) shall be calculated for actual days elapsed on the basis of a
365/366-day year. All other interest and fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest shall be payable for the
day an Obligation is incurred but not for the day of any payment on the amount
paid if payment is received prior to 2:00 p.m. (Chicago time) at the place of
payment. If any payment of principal of or interest on a Loan or any payment of
any other Obligations shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(ii) The Applicable Floating Rate Margins, Applicable Eurodollar Margins
and Applicable Commitment Fee Percentage shall be determined from time to time
by reference to the table set forth below, on the basis of the then applicable
Leverage Ratio as described in this SECTION 2.14(D)(ii):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
APPLICABLE
COMMITMENT
APPLICABLE FLOATING APPLICABLE EURODOLLAR FEE
RATE MARGINS MARGINS PERCENTAGE
----------------------------------------------
REVOLVING LOANS REVOLVING LOANS
LEVERAGE RATIO
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Greater than or
equal to 4.75 to 0.75% 1.75% 0.325%
1.0
- --------------------------------------------------------------------------------
Greater than or
equal to 4.25 to 0.50% 1.50% 0.325%
1.0 and less
than 4.75 to
1.0
- --------------------------------------------------------------------------------
Greater than or
equal to 3.75 to 0.25% 1.25% 0.250%
1.0 and less
than 4.25 to 1.0
- --------------------------------------------------------------------------------
36
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
APPLICABLE
COMMITMENT
APPLICABLE FLOATING APPLICABLE EURODOLLAR FEE
RATE MARGINS MARGINS PERCENTAGE
----------------------------------------------
REVOLVING LOANS REVOLVING LOANS
LEVERAGE RATIO
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Greater than or
equal to 3.25 to 0.00% 1.00% 0.250%
1.0 and less
than 3.75 to 1.0
- --------------------------------------------------------------------------------
Greater than or
equal to 2.75 to 0.00% .875% 0.200%
1.0 and less
than 3.25 to 1.0
- --------------------------------------------------------------------------------
Less than 2.75
to 1.0 0.00% .750% 0.150%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
For purposes of this SECTION 2.14(D)(ii), the Leverage Ratio shall be determined
as of the last day of each fiscal quarter based upon (a) for Total Debt, Total
Debt as of the last day of each such fiscal quarter; and (b) for EBITDA, the
actual amount for the four-quarter period ending on such day, calculated, with
respect to Permitted Acquisitions, on a PRO FORMA basis using historical audited
and reviewed unaudited financial statements obtained from the seller, broken
down by fiscal quarter in the Borrower's reasonable judgment. Except as
provided in CLAUSE (iii) below, upon receipt of (x)(i) the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of each fiscal quarter
for each fiscal year and the related consolidated statements of income,
stockholder's equity and cash flows of the Borrower and its Subsidiaries for
such fiscal quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter, together with consolidating
schedules, in form and substance sufficient to calculate the financial covenants
set forth in SECTIONS 7.3(A) through (G), 7.3(L), 7.3(T) and 7.4; and (ii) the
consolidating balance sheet of the Borrower and its Subsidiaries as at the end
of such period and the related consolidating statements of income of the
Borrower and its Subsidiaries for such fiscal quarter and for the period from
the beginning of the then current fiscal year to the end of such fiscal quarter,
in each case, prepared in a manner consistent with past practice (collectively,
the "PRELIMINARY FINANCIALS"), and (y) a compliance certificate signed by the
chief financial officer or treasurer of the Borrower substantially in the form
of EXHIBIT H attached hereto and made a part hereof, which demonstrates
compliance with the provisions of SECTION 7.4 (a "PRELIMINARY FINANCIAL
COMPLIANCE CERTIFICATE", and together with the Preliminary Financials, the
"PRELIMINARY FINANCIAL PACKAGE") for each quarter of each fiscal year, the
Applicable Floating Rate Margins, Applicable Eurodollar Margins and Applicable
Commitment Fee Percentage shall be adjusted, such adjustment being effective
five (5) Business Days following the Administrative Agent's receipt of such
Preliminary Financial Package (the "INITIAL ADJUSTMENT DATE"); PROVIDED, that,
if upon receipt of the
37
Borrower's financial statements delivered pursuant to SECTION 7.1(A)(i) for
the first three quarters of each fiscal year and pursuant to SECTION
7.1(A)(ii) for the fourth quarter of each fiscal year, such financial
statements indicate that the Leverage Ratio as of such fiscal quarter end or
fiscal year end, as applicable, was higher or lower, as applicable, than the
Leverage Ratio set forth in the Preliminary Financial Compliance Certificate
for such fiscal quarter or fiscal year, as applicable, then an appropriate
adjustment to the Applicable Floating Rate Margins, Applicable Eurodollar
Margins and Applicable Commitment Fee Percentage shall be made (x) in the
case of an adjustment upward, retroactively to the Initial Adjustment Date
and the Borrower shall pay adjusted interest and commitment fees to the
Administrative Agent for the account of the applicable Lenders for the period
from the effective date of such initial adjustment based upon such
Preliminary Financial Compliance Certificate to the date of such subsequent
adjustment based upon such financial statements, such payment to be made not
later than five (5) Business Days following delivery of such financial
statements, and (y) in the case of an adjustment downward, retroactively to
the Initial Adjustment Date, and an appropriate reduction to the Applicable
Floating Rate Margins, Applicable Eurodollar Margins and Applicable
Commitment Fee Percentage for the next succeeding fiscal quarter shall be
made such that the Borrower shall pay adjusted interest and commitment fees
to the Administrative Agent for the account of the applicable Lenders for
such next succeeding fiscal quarter in an amount equal to (i) the then due
and payable interest and commitment fees for such next succeeding fiscal
quarter MINUS (ii) the excess payment made during the period from the
effective date of such initial adjustment based upon such Preliminary
Financial Compliance Certificate to the date of such subsequent adjustment
based upon such financial statements; PROVIDED, FURTHER, that if the Borrower
shall not have timely delivered its financial statements in accordance with
SECTION 7.1(A)(i) or SECTION 7.1(A)(ii), as applicable, then commencing on
the date upon which such financial statements should have been delivered and
continuing until such financial statements are actually delivered, it shall
be assumed for purposes of determining the Applicable Floating Rate Margins,
Applicable Eurodollar Margins and Applicable Commitment Fee Percentage that
the Leverage Ratio was greater than 4.75 to 1.0.
(iii) Notwithstanding anything herein to the contrary, from the Closing
Date to but not including the later of (i) the fifth Business Day following
receipt of a Preliminary Financial Package in respect of the fiscal quarter
ending December 31, 1998 and (ii) the six month anniversary of the Closing Date,
the Applicable Floating Rate Margin, Applicable Eurodollar Margin and Applicable
Commitment Fee Percentage shall be determined as though the Leverage Ratio is
greater than 4.75 to 1.00. The Applicable Floating Rate Margins, Applicable
Eurodollar Margins and Applicable Commitment Fee Percentage shall be initially
adjusted based upon the Preliminary Financial Package in respect of the fiscal
quarter ending December 31, 1998, such initial adjustment being effective on the
later of (i) five (5) Business Days following the Administrative Agent's receipt
of such Preliminary Financial Package and (ii) the six month anniversary of the
Closing Date; PROVIDED, that, if upon receipt of the Borrower's audited
financial statements delivered pursuant to SECTION 7.1(A)(ii) for the fiscal
year ending December 31, 1998, such audited financial statements indicate that
the Leverage Ratio for the fiscal quarter ending December 31, 1998 was higher
than the Leverage Ratio set forth in the Preliminary Financial Compliance
Certificate for such fiscal quarter, then an appropriate adjustment to the
Applicable Floating Rate Margins, Applicable Eurodollar Margins and Applicable
Commitment Fee Percentage shall be made retroactively to the applicable Initial
Adjustment Date and the Borrower shall pay adjusted interest and commitment fees
to the Administrative Agent for the account of the applicable Lenders for the
period from such Initial Adjustment Date based upon such Preliminary
38
Financial Compliance Certificate to the date of such subsequent adjustment
based upon the audited financial statements, such payment to be made not
later than five (5) Business Days following the delivery of such audited
financial statements.
(E) TAXES.
(i) Except as otherwise provided herein, any and all payments by the
Borrower hereunder shall be made free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings or any liabilities with respect thereto including
those arising after the date hereof as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or determination of
a Governmental Authority or any change in the interpretation or application
thereof by a Governmental Authority but excluding, in the case of each
Lender and each Agent, such taxes (including, without limitation, income
taxes, franchise taxes and branch profit taxes) as are imposed on or
measured by such Lender's or Agent's, as the case may be, income by the
United States of America or any political subdivision thereof or any
Governmental Authority of the jurisdiction under the laws of which such
Lender or Agent, as the case may be, is organized or maintains a Lending
Installation (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings, and liabilities applicable to this Agreement, the
other Loan Documents, the Revolving Loan Commitments, the Loans or the
Letters of Credit being hereinafter referred to as "TAXES"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under the other Loan Documents to any Lender
or Agent that has fully complied with all provisions of SECTION 2.14(E)(vi)
and has delivered a certificate described in SECTION 2.14(E)(vi)(a) or (c),
(i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this SECTION 2.14(E)) such Lender or Agent
(as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make
such deductions, and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law. If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any other
Loan Documents to any Lender or Agent that has not fully complied with all
provisions of SECTION 2.14(E)(vi) or has complied with such provisions by
delivering a certificate described in SECTION 2.14(E)(vi)(b), (i) the sum
payable shall not be increased as a result of any required deductions, (ii)
the Borrower shall make such deductions, and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. If a withholding tax of the
United States of America or any other Governmental Authority shall be or
become applicable (y) after the date of this Agreement, to such payments by
the Borrower made to the Lending Installation or any other office that a
Lender may claim as its Lending Installation, or (z) after such Lender's
selection and designation of any other Lending Installation, to such
payments made to such other Lending Installation, such Lender shall use
reasonable efforts to make, fund and maintain its Loans through another
Lending Installation of such Lender in another jurisdiction so as to reduce
the Borrower's liability hereunder, if the making, funding or maintenance
of such Loans through such other Lending Installation of such Lender does
not, in the good faith judgment of
39
such Lender, otherwise adversely affect such Loans, or obligations under
the Revolving Loan Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
goods and services tax, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the other Loan Documents, the Revolving Loan Commitments, the
Loans or the Letters of Credit (hereinafter referred to as "OTHER TAXES").
(iii) The Borrower indemnifies each Lender and Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any Governmental Authority on amounts payable
under this SECTION 2.14(E)) paid by such Lender or Agent (as the case may
be) and any liability (including penalties, interest, and out-of-pocket
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within thirty (30) days after the date such Lender or Agent
(as the case may be) makes written demand therefor. A certificate as to
any additional amount payable to any Lender or Agent under this
SECTION 2.14(E) submitted to the Borrower and the Administrative Agent (if
a Lender is so submitting) by such Lender or Agent shall show in reasonable
detail the amount payable and the calculations used to determine such
amount and shall, absent manifest error, be final, conclusive and binding
upon all parties hereto. With respect to such deduction or withholding for
or on account of any Taxes and to confirm that all such Taxes have been
paid to the appropriate Governmental Authorities, the Borrower shall
promptly (and in any event not later than thirty (30) days after receipt)
furnish to each Lender and Agent such certificates, receipts and other
documents as may be required (in the judgment of such Lender or Agent) to
establish any tax credit to which such Lender or Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes
or Other Taxes by the Borrower, the Borrower shall furnish to the
Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 2.14(E) shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of Credit
and the termination of this Agreement and shall continue to survive until
the expiration of the applicable statute of limitations for collection of
the relevant Tax or Other Tax.
(vi) Each Lender and Agent that is not created or organized under the
laws of the United States of America or a political subdivision thereof
shall deliver to the Borrower and the Administrative Agent on or before the
Closing Date, or, in the case of any Person that becomes a Lender or an
Agent after the date hereof, on or before the date on which such Person
becomes a Lender or an Agent, as applicable, after the date hereof, a true
and accurate certificate executed in duplicate by a duly authorized officer
of such Lender or Agent, in a form satisfactory to the Borrower and the
Administrative Agent, to the effect that such Lender or
40
Agent is eligible under the provisions of an applicable tax treaty
concluded by the United States of America or other exemption (in which
case the certificate shall be accompanied by two executed copies of Form
1001 of the IRS or successor applicable form) or under Section 1442 of
the Code (in which case the certificate shall be accompanied by two
copies of Form 4224 of the IRS or successor applicable form) or, if such
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, two completed signed copies of IRS Form W-8 or W-9 or successor
applicable form, to receive payments of interest hereunder without
deduction or withholding of United States federal income tax. Each such
Lender and Agent further agrees to deliver to the Borrower and the
Administrative Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender or
Agent substantially in a form satisfactory to the Borrower and the
Administrative Agent, before or promptly upon the occurrence of any
event requiring a change in the most recent certificate previously
delivered by it to the Borrower and the Administrative Agent pursuant to
this SECTION 2.14(E)(vi). Further, each Lender or Agent which delivers
a certificate accompanied by Form 1001 of the IRS covenants and agrees
to deliver to the Borrower and the Administrative Agent within fifteen
(15) days prior to January 1, 1999, and every third (3rd) anniversary of
such date thereafter on which this Agreement is still in effect, another
such certificate and two accurate and complete original signed copies of
Form 1001 (or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder to establish an exemption
from or reduction in the rate of withholding), and each Lender or Agent
that delivers a Form W-8 or W-9 as prescribed above or a certificate
accompanied by Form 4224 of the IRS covenants and agrees to deliver to
the Borrower and the Administrative Agent within fifteen (15) days prior
to the beginning of each subsequent taxable year of such Lender or Agent
during which this Agreement is still in effect, another such Form W-8 or
W-9 or another such certificate and two accurate and complete original
signed copies of IRS Form 4224 (or any successor form or forms required
under the Code or the applicable regulations promulgated thereunder to
establish an exemption from withholding). Each such certificate shall
certify as to one of the following:
(a) that such Lender or Agent is eligible to receive
payments of interest hereunder without deduction or withholding
of United States of America federal income tax;
(b) that such Lender or Agent is not eligible to receive
payments of interest hereunder without deduction or withholding
of United States of America federal income tax as specified
therein but is capable of recovering the full amount of any such
deduction or withholding from a source other than the Borrower
and will not seek any such recovery from the Borrower; or
(c) that, as a result of the adoption of or any change in
any law, treaty, rule, regulation, guideline or determination of
a Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority after the date
such Lender became a party hereto, such Lender is not eligible to
receive payments of interest hereunder without deduction or
withholding of United States of America federal income tax as
specified therein and that it is
41
not capable of recovering the full amount of the same from a source
other than the Borrower.
Each Lender and Agent shall promptly furnish to the Borrower and the
Administrative Agent such additional documents as may be reasonably
required by the Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender.
(F) CONTROL ACCOUNT. The Register maintained by the Administrative Agent
pursuant to SECTION 13.3(C) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Advance made hereunder, the type of Loan
comprising such Advance and any Interest Period applicable thereto, (ii) the
effective date and amount of each Assignment Agreement delivered to and accepted
by it and the parties thereto pursuant to SECTION 13.3, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (iv) the amount of any sum received by the
Administrative Agent from the Borrower hereunder and each Lender's share
thereof, and (v) all other appropriate debits and credits as provided in this
Agreement, including, without limitation, all fees, charges, expenses and
interest.
(G) ENTRIES BINDING. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error,
unless the Borrower objects to information contained in the Register and each
Loan Account within thirty (30) days of the Borrower's receipt of such
information.
2.15 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND AGGREGATE
REVOLVING LOAN COMMITMENT REDUCTIONS. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing/Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Administrative Agent
will notify each Lender of the interest rate applicable to each Eurodollar Rate
Loan promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.16 LENDING INSTALLATIONS. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation. Each Lender may, by written or facsimile notice to the
Administrative Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.17 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated
42
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower, as the case
may be, has not in fact made such payment to the Administrative Agent, the
recipient of such payment shall, on demand by the Administrative Agent, repay
to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Administrative Agent until the
date the Administrative Agent recovers such amount at a rate per annum equal
to (i) in the case of payment by a Lender, the Federal Funds Effective Rate
for such day or (ii) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan.
2.18 TERMINATION DATE; EXTENSION OF TERMINATION DATE. (i) This Agreement
shall be effective until the Termination Date. Notwithstanding the termination
of this Agreement, until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied, all
financing arrangements among the Borrower and the Lenders shall have been
terminated (other than under Hedging Agreements or other agreements with respect
to Hedging Obligations) and all of the Letters of Credit shall have expired,
been canceled or terminated, all of the rights and remedies under this Agreement
and the other Loan Documents shall survive.
(ii) The Aggregate Revolving Loan Commitment shall expire on the
Termination Date. Within the period beginning 59 days and ending 30 days before
the then effective Termination Date, the Borrower may request in writing that
the Termination Date be extended for an additional period of 364 days, including
the then effective Termination Date as one of the days in the calculation of
days elapsed. Within 30 days after such request (such 30th day being the
"Consent Date"), each Lender may, in its sole discretion, agree to such
extension to a new Termination Date not more than 364 days following such
Consent Date by giving written notice of such agreement to the Borrower and the
Administrative Agent (and the failure to provide such notice shall be deemed to
be a decision not to extend). The Revolving Loan Commitment of each Lender that
declines to extend with respect to the Aggregate Revolving Loan Commitment may,
at the option of the Borrower, be replaced in accordance with SECTION 13.3 (but
only to the extent a replacement Lender is then available) or the Aggregate
Revolving Loan Commitment reduced. The Required Lenders must agree to any
extension with respect to the Termination Date for any such extension to become
effective.
2.19 REPLACEMENT OF CERTAIN LENDERS. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Revolving Loan Pro Rata Share of
any Advance requested by the Borrower, or to fund a Revolving Loan in order to
repay Swing Line Loans pursuant to SECTION 2.3(d), which such Lender is
obligated to fund under the terms of this Agreement and which failure has not
been cured, (ii) requested compensation from the Borrower under SECTIONS
2.14(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other additional costs
incurred by such Lender which are not being incurred generally by the other
Lenders, (iii) delivered a notice pursuant to SECTION 4.3 claiming that such
Lender is unable to extend Eurodollar Rate Loans to the Borrower for reasons not
generally applicable to the other Lenders or (iv) has invoked SECTION 10.2,
then, in any such case, the Borrower or the Administrative Agent may make
written demand on such Affected Lender (with a copy to the Administrative Agent
in the case of a demand by the Borrower and a copy to the Borrower in the case
of a demand by the Administrative Agent) for the Affected Lender to assign, and
such Affected Lender shall use commercially reasonable efforts to assign
pursuant to one or more duly executed Assignment Agreements five (5) Business
Days after the date of such demand, to one or more financial institutions
43
that comply with the provisions of SECTION 13.3(A) which the Borrower or the
Administrative Agent, as the case may be, shall have engaged for such purpose
("REPLACEMENT LENDER"), all of such Affected Lender's rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, its Revolving Loan Commitment, all Loans owing to it, all of its
participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit hereunder) in accordance with
SECTION 13.3. The Administrative Agent agrees, upon the occurrence of such
events with respect to an Affected Lender and upon the written request of the
Borrower, to use its reasonable efforts to obtain the commitments from one or
more financial institutions to act as a Replacement Lender. The
Administrative Agent is authorized to execute one or more of such assignment
agreements as attorney-in-fact for any Affected Lender failing to execute and
deliver the same within five (5) Business Days after the date of such demand.
Further, with respect to such assignment the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected
Lender hereunder or under any other Loan Document, including, without
limitation, the aggregate outstanding principal amount of the Loans owed to
such Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under SECTIONS 2.14(E), 4.1, and 4.2 with respect
to such Affected Lender and compensation payable under SECTION 2.14(C) in the
event of any replacement of any Affected Lender under CLAUSE (ii) or CLAUSE
(iii) of this SECTION 2.19; PROVIDED that upon such Affected Lender's
replacement, such Affected Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of SECTIONS 2.14(E), 4.1, 4.2, 4.4,
and 10.7 accrued with respect to the period prior to the date such Affected
Lender is replaced, as well as to any fees accrued through the date of such
assignment for its account hereunder and not yet paid, and shall continue to
be obligated under SECTION 11.8. Upon the replacement of any Affected Lender
pursuant to this SECTION 2.19, the provisions of SECTION 9.2 shall continue
to apply with respect to Borrowings which are then outstanding with respect
to which the Affected Lender failed to fund its Revolving Loan Pro Rata
Share, and which failure has not been cured.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 OBLIGATION TO ISSUE. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of
the Borrower herein set forth, each Issuing Bank hereby agrees to issue upon
Borrower's request, for the account of the Borrower or any Guarantor through
such Issuing Bank's branches as it and the Borrower may jointly agree, one or
more Letters of Credit in accordance with this ARTICLE III, from time to time
during the period, commencing on the date hereof and ending on the Business Day
prior to the Termination Date; PROVIDED, HOWEVER, that no Issuing Bank shall
have any obligation to issue any Letter of Credit if, after taking into account
such issuance, the aggregate L/C Obligations outstanding under Letters of Credit
issued by such Issuing Bank would exceed the amount set forth on SCHEDULE 3.1
opposite such Issuing Bank's name. SCHEDULE 3.1 may be updated at any time and
from time to time by the Administrative Agent in connection with the addition of
any Issuing Bank.
3.2 [RESERVED].
3.3 TYPES AND AMOUNTS. No Issuing Bank shall have any obligation to and
no Issuing Bank shall:
44
(i) issue any Letter of Credit if on the date of issuance,
before or after giving effect to the Letter of Credit requested
hereunder, (a) the Revolving Credit Obligations at such time would
exceed the Aggregate Revolving Loan Commitment at such time, or (b)
the aggregate outstanding amount of the L/C Obligations would exceed
$100,000,000; or
(ii) issue any Letter of Credit which has an expiration date
later than the Revolving Loan Termination Date.
3.4 CONDITIONS. In addition to being subject to the satisfaction of the
conditions contained in SECTIONS 5.1 and 5.2, the obligation of an Issuing Bank
to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) the Borrower shall have delivered or caused the applicable
Guarantor applicant to deliver to the applicable Issuing Bank at such
times and in such manner as such Issuing Bank may reasonably
prescribe, a request for issuance of such Letter of Credit in
substantially the form of EXHIBIT C hereto, duly executed applications
for such Letter of Credit, and such other customary documents,
instructions and agreements as may be required pursuant to the terms
thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C Documents"), and the
proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
(ii) as of the date of issuance of such Letter of Credit, no
order, judgment or decree of any court, arbitrator or Governmental
Authority shall purport by its terms to enjoin or restrain the
applicable Issuing Bank from issuing such Letter of Credit and no law,
rule or regulation applicable to such Issuing Bank and no request or
directive (whether or not having the force of law) from a Governmental
Authority with jurisdiction over such Issuing Bank shall prohibit or
request that such Issuing Bank refrain from the issuance of Letters of
Credit generally or the issuance of that Letter of Credit.
To the extent that any provision of any L/C Document cannot reasonably be
construed to be consistent with this Agreement, requires greater collateral
security or imposes additional obligations not reasonably related to customary
letter of credit arrangements, such provision shall be invalid and this
Agreement shall control.
3.5 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. (a) Subject to the
terms and conditions of this ARTICLE III and provided that the applicable
conditions set forth in SECTIONS 5.1 and 5.2 hereof have been satisfied, the
applicable Issuing Bank shall, on the requested date, issue a Letter of Credit
on behalf of the Borrower or Guarantor, as applicable, in accordance with such
Issuing Bank's usual and customary business practices and, in this connection,
such Issuing Bank may assume that the applicable conditions set forth in
SECTION 5.2 hereof have been satisfied unless it shall have received notice to
the contrary from the Administrative Agent or a Lender or has knowledge that the
applicable conditions have not been met.
45
(b) The applicable Issuing Bank shall give the Administrative Agent
written or telex notice, or telephonic notice confirmed promptly thereafter in
writing, of the issuance of a Letter of Credit, PROVIDED, HOWEVER, that the
failure to provide such notice shall not result in any liability on the part of
such Issuing Bank.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless the
requirements of this SECTION 3.5 are met as though a new Letter of Credit was
being requested and issued.
3.6 LETTER OF CREDIT PARTICIPATION. Immediately upon the issuance of each
Letter of Credit hereunder, each Lender with a Revolving Loan Pro Rata Share
shall be deemed to have automatically, irrevocably and unconditionally purchased
and received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the Borrower
and/or Guarantor, as applicable, in respect thereof, and the liability of such
Issuing Bank thereunder (collectively, an "L/C INTEREST") in an amount equal to
the amount available for drawing under such Letter of Credit multiplied by such
Lender's Revolving Loan Pro Rata Share. Each Issuing Bank will notify each
Lender promptly upon presentation to it of an L/C Draft or upon any other draw
under a Letter of Credit. On or before the Business Day on which an Issuing
Bank makes payment of each such L/C Draft or, in the case of any other draw on a
Letter of Credit, on demand by the Administrative Agent or the applicable
Issuing Bank, each Lender shall make payment to the Administrative Agent, for
the account of the applicable Issuing Bank, in immediately available funds in an
amount equal to such Lender's Revolving Loan Pro Rata Share of the amount of
such payment or draw. The obligation of each Lender to reimburse the Issuing
Banks under this SECTION 3.6 shall be unconditional, continuing, irrevocable and
absolute. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this SECTION 3.6, the
Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied; PROVIDED, HOWEVER, that nothing
contained in this sentence shall relieve such Lender of its obligation to
reimburse the applicable Issuing Bank for such amount in accordance with this
SECTION 3.6.
3.7 REIMBURSEMENT OBLIGATION. The Borrower agrees unconditionally,
irrevocably and absolutely to pay promptly upon demand therefor to the
Administrative Agent, for the account of the Lenders, the amount of each advance
which may be drawn under or pursuant to a Letter of Credit (whether such Letter
of Credit was issued for the account of the Borrower or any Guarantor) or an L/C
Draft related thereto (such obligation of the Borrower to reimburse the
Administrative Agent for an advance made under a Letter of Credit or L/C Draft
being hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect to
such Letter of Credit or L/C Draft). If the Borrower at any time fails to repay
when due a Reimbursement Obligation pursuant to this SECTION 3.7, the Borrower
shall be deemed to have elected to borrow Revolving Loans from the Lenders, as
of the date of the advance giving rise to the Reimbursement Obligation, equal in
amount to the amount of the unpaid Reimbursement Obligation. Such Revolving
Loans shall be made as of the date of the payment giving rise to such
Reimbursement Obligation, automatically, without notice and without any
requirement to satisfy the conditions precedent otherwise applicable to an
Advance of Revolving Loans. Such Revolving Loans shall constitute a Floating
Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, the Borrower fails
46
to repay a Reimbursement Obligation on the day such Reimbursement Obligation
arises and, for any reason, the Lenders are unable to make or have no
obligation to make Revolving Loans, then such Reimbursement Obligation shall
bear interest from and after such day, until paid in full, at the interest
rate applicable to a Floating Rate Advance.
3.8 CASH COLLATERAL. Notwithstanding anything to the contrary herein or
in any application for a Letter of Credit, after the occurrence and during the
continuance of a Default, the Borrower shall, upon the Administrative Agent's
demand, deliver to the Administrative Agent for the benefit of the Lenders and
the Issuing Banks, cash, or other collateral of a type reasonably satisfactory
to the Required Lenders, having a value, as determined by such Lenders, equal to
the aggregate outstanding L/C Obligations. Any such collateral shall be held by
the Administrative Agent in a separate interest bearing account appropriately
designated as a cash collateral account in relation to this Agreement and the
Letters of Credit and retained by the Administrative Agent for the benefit of
the Lenders and the Issuing Banks as collateral security for the Borrower's
obligations in respect of this Agreement and each of the Letters of Credit and
L/C Drafts. Such amounts shall be applied to reimburse the Issuing Banks for
drawings or payments under or pursuant to Letters of Credit or L/C Drafts, or if
no such reimbursement is required, to payment of such of the other Obligations
as the Administrative Agent shall determine. If no Default shall be continuing
all amounts (including interest income), or, to the extent that L/C Obligations
have been paid in full in cash or have otherwise been reduced to $0 amounts
(including interest income) equal to the reduction in such L/C Obligations, in
each case, remaining in any cash collateral account established pursuant to this
SECTION 3.8 which are not to be applied to reimburse an Issuing Bank for amounts
actually paid or to be paid by such Issuing Bank in respect of a Letter of
Credit or L/C Draft, shall be returned to the Borrower (after deduction of the
Administrative Agent's expenses incurred in connection with such cash collateral
account).
3.9 LETTER OF CREDIT FEES. The Borrower agrees to pay (i) on each Payment
Date and on the Termination Date, in arrears, to the Administrative Agent for
the ratable benefit of the Lenders, except as set forth in SECTION 9.2, a letter
of credit fee at a rate per annum equal to the Applicable L/C Fee Percentage on
the average daily outstanding face amount available for drawing under all
Letters of Credit, (ii) on each Payment Date and on the Termination Date, in
arrears, to the Administrative Agent for the sole account of each Issuing Bank,
a letter of credit fronting fee at such percentage rate as may be agreed between
the Borrower or Guarantor, as applicable, and each Issuing Bank on the average
daily outstanding face amount available for drawing under all Letters of Credit
issued by such Issuing Bank, and (iii) to the Administrative Agent for the
benefit of each Issuing Bank, all customary fees and other issuance, amendment,
document examination, negotiation and presentment expenses and related charges
in connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by such Issuing Banks with respect to standby and
commercial Letters of Credit, including, without limitation, standard
commissions with respect to commercial Letters of Credit, payable at the time of
invoice of such amounts.
3.10 ISSUING BANK REPORTING REQUIREMENTS. Each Issuing Bank shall, no
later than the tenth Business Day following the last day of each month, provide
to the Administrative Agent, upon the Administrative Agent's request, schedules,
in form and substance reasonably satisfactory to the Administrative Agent,
showing the date of issue, account party, amount, expiration date and the
reference number of each Letter of Credit issued by it outstanding at any time
during such month and
47
the aggregate amount payable by the Borrower and/or any Guarantor during such
month. In addition, upon the request of the Administrative Agent, each
Issuing Bank shall furnish to the Administrative Agent copies of any Letter
of Credit and any application for or reimbursement agreement with respect to
a Letter of Credit to which the Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent.
Upon the request of any Lender, the Administrative Agent will provide to such
Lender information concerning such Letters of Credit.
3.11 INDEMNIFICATION; EXONERATION. (a) In addition to amounts payable as
elsewhere provided in this ARTICLE III, the Borrower hereby agrees to protect,
indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and
each Lender from and against any and all liabilities and costs which the
Administrative Agent, such Issuing Bank or such Lender may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of the applicable Issuing Bank, as a result of
its Gross Negligence or willful misconduct, or (ii) the failure of the
applicable Issuing Bank to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
DE JURE or DE FACTO Governmental Authority (all such acts or omissions herein
called "GOVERNMENTAL ACTS").
(b) As among the Borrower, the Lenders, the Administrative Agent and the
Issuing Banks, the Borrower assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letters of Credit.
In furtherance and not in limitation of the foregoing, subject to the provisions
of the Letter of Credit applications and Letter of Credit reimbursement
agreements executed by the Borrower or any Guarantor at the time of request for
any Letter of Credit, neither the Administrative Agent, any Issuing Bank nor any
Lender shall be responsible (in the absence of Gross Negligence or willful
misconduct in connection therewith): (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) 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;
(iii) for failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of technical
trade terms; (vi) for any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (vii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Banks and the Lenders, including, without
limitation, any Governmental Acts. None of the above shall affect, impair, or
prevent the vesting of any Issuing Bank's rights or powers under this
SECTION 3.11.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank,
48
the Administrative Agent or any Lender under any resulting liability to the
Borrower or any Guarantor or relieve the Borrower of any of its obligations
hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 3.11 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from the Borrower
(excluding federal taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of taxation of
payments to any Lender in respect of its Loans, its L/C Interests, the
Letters of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Rate Loans) with respect to its Loans, L/C
Interests or the Letters of Credit, or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining the Loans, the L/C Interests or the Letters of
Credit or reduces any amount received by any Lender or any applicable
Lending Installation in connection with Loans or Letters of Credit, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of Loans or L/C Interests
held or interest received by it or by reference to the Letters of Credit,
by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests or Letters of Credit or
to reduce any amount received under this Agreement, then, within 15 days after
receipt by the Borrower of written demand by such Lender pursuant to SECTION
4.5, the Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making,
49
funding and maintaining its Loans, L/C Interests, Letters of Credit and its
Revolving Loan Commitment.
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change in Capital Adequacy" (as defined below),
and (ii) such increase in capital will result in an increase in the cost to such
Lender of maintaining its Loans, L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder, then, within 15 days after receipt by the
Borrower of written demand by such Lender pursuant to SECTION 4.5, the Borrower
shall pay such Lender the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans, its L/C Interests, the
Letters of Credit or its obligation to make Loans hereunder (after taking into
account such Lender's policies as to capital adequacy). "CHANGE IN CAPITAL
ADEQUACY" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
4.3 AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender determines that
maintenance of its Eurodollar Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (ii) the Required Lenders determine that (x)
deposits of a type and maturity appropriate to match fund Eurodollar Rate
Advances are not available or (y) the interest rate applicable to a Type of
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of any occurrence set forth in clause
(i) require any Advances of the affected Type to be repaid.
4.4 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Eurodollar Rate
Advance is not made on the date specified by the Borrower in any
Borrowing/Conversion/Continuation Notice for any reason other than default by
the Lenders, the Borrower agrees to indemnify each Lender upon such Lender's
delivery of written demand therefor to the Borrower in accordance with the terms
of SECTION 4.5 for any reasonable loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Eurodollar Rate Advance. In
connection with any assignment by any
50
Lender of any portion of the Loans made pursuant to SECTION 13.3 and made
during the Syndication Period, the Borrower shall be deemed to have repaid
all outstanding Eurodollar Rate Advances as of such date and reborrowed such
amounts as Floating Rate Advances and the indemnification provisions under
this SECTION 4.4 shall apply.
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Rate Loans to reduce any liability of the Borrower to such Lender
under SECTIONS 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under SECTION 4.3, so long as such designation is not disadvantageous to such
Lender. Each Lender requiring compensation pursuant to SECTION 2.14(E) or to
this ARTICLE IV shall use its best efforts to notify the Borrower and the
Administrative Agent in writing of any Change in Capital Adequacy, law, policy,
rule, guideline or directive giving rise to such demand for compensation not
later than ninety (90) days following the date upon which the responsible
account officer of such Lender knows or should have known of such Change in
Capital Adequacy, law, policy, rule, guideline or directive. Any demand for
compensation pursuant to this ARTICLE IV shall be in writing and shall state the
amount due, if any, under SECTION 4.1, 4.2 or 4.4 and shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount. Such written demand shall be rebuttably presumed correct for all
purposes. Determination of amounts payable under SECTION 4.4 in connection
with a Eurodollar Rate Loan shall be calculated as though each Lender funded its
Eurodollar Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. The
obligations of the Borrower under SECTIONS 4.1, 4.2 and 4.4 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 INITIAL ADVANCES AND LETTERS OF CREDIT. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit or purchase
any participations therein, in each case, on the Closing Date, unless (i) such
initial Loans are made not later than December 31, 1998; (ii) the Subordinated
Notes and Senior Notes have been issued and the Borrower has received the net
proceeds thereof; (iii) the Reynolds Acquisition has been consummated; and (iv)
the Borrower has furnished to the Administrative Agent each of the following,
with sufficient copies for the Lenders, all in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders:
(1) Copies of the Articles of Incorporation (or equivalent
organizational document) of the Borrower, and each of the Guarantors, each
of the Material Foreign Subsidiaries which is a party to any of the Loan
Documents or the Capital Stock of which is subject to a Pledge Agreement,
together with all amendments and a certificate of good standing (in the
case of the Material Foreign Subsidiaries, to the extent applicable), both
certified by the appropriate governmental officer in its respective
jurisdiction of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary of each
of the Borrower, each Guarantor, and each of the Material Foreign
Subsidiaries which is a party to any of the Loan Documents or the Capital
Stock of which is subject to a Pledge Agreement of its
51
respective By-Laws (or equivalent organizational document) and, for each
such Person which is a party to any of the Loan Documents, of its
respective Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender)
authorizing its execution of such Loan Documents;
(3) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each member of the Ball Corporate Group which is a party to
any of the Loan Documents, which shall identify by name and title and bear
the signature of the officers of such Person authorized to sign the Loan
Documents to which it is a party and, in the case of the Borrower, to make
borrowings hereunder, upon which certificate the Lenders shall be entitled
to rely until informed of any change in writing by the Borrower;
(4) A certificate, in form and substance reasonably satisfactory to
the Administrative Agent, signed by the chief financial officer or
treasurer of the Borrower, stating that on the Closing Date all the
representations in this Agreement are true and correct and no Default or
Unmatured Default has occurred and is continuing;
(5) A written opinion of the Borrower's domestic and foreign counsel,
addressed to the Agents, the Arrangers and the Lenders, substantially in
the form of EXHIBIT E hereto;
(6) Evidence reasonably satisfactory to the Administrative Agent that
(i) all conditions precedent to the consummation of the Reynolds
Acquisition (other than the failure to obtain the consents of Paco, Inc.
and Independent Beverage Corporation to the consummation of the Reynolds
Acquisition) have been satisfied or waived with the approval of the Agents
(such approval not to be unreasonably withheld), (ii) the Reynolds
Acquisition shall have been consummated in accordance with the Asset
Purchase Agreement, as in effect on April 22, 1998, without giving effect
to any amendment, modification or waiver thereto which (x) is deemed
material by the Agents and (y) to which the Agents shall not have consented
in writing, (iii) the Asset Purchase Agreement has been approved by all
necessary corporate action of Reynold's and the Borrower's respective Board
of Directors and/or shareholders, and (iv) there has not occurred any
material breach or default under the Asset Purchase Agreement;
(7) Evidence reasonably satisfactory to the Administrative Agent that
there exists no injunction or temporary restraining order which, in the
reasonable judgment of the Administrative Agent, would prohibit the making
of the Loans or the consummation of the Reynolds Acquisition and the other
transactions contemplated by the Transaction Documents or any litigation
seeking such an injunction or restraining order;
(8) Written money transfer instructions reasonably requested by the
Administrative Agent, addressed to the Administrative Agent and signed by
an Authorized Officer of the Borrower;
(9) (x) the audited financial statements of the Reynolds Group for
the fiscal years ending December 31, 1996 and December 31, 1997 and (y) the
PRO FORMA opening consolidated financial statements of the Borrower and its
Subsidiaries, after giving effect to the
52
Reynolds Acquisition, which financial statements shall demonstrate, in
the reasonable judgement of the Agents and the Required Lenders,
together with all other information then available to the Agents and the
Required Lenders, the ability of the Borrower and its Subsidiaries to
repay their debts and satisfy their respective other obligations as and
when due, and to comply with the financial covenants set forth in
SECTION 7.4 hereof, has not changed in any material respect from the PRO
FORMA financial statements furnished to the Agents on March 5, 1998;
(10) Evidence reasonably satisfactory to the Administrative Agent
that (x) all required U.S. governmental approvals related to the Reynolds
Acquisition have been obtained and all related filings made and any
applicable waiting periods shall have expired or been terminated, including
those prescribed by the Hart-Scott-Rodino Antitrust Improvements Act, as
amended, and (y) prior to the consummation of that portion of the Reynolds
Acquisition relating to the foreign assets of the Reynolds Group, all
material consents (other than governmental approvals) shall have been
obtained;
(11) Evidence satisfactory to the Administrative Agent of the payment
of all principal, interest, fees and premiums, if any, on all loans
outstanding under all outstanding funded debt and credit facilities of the
Borrower and each of its Domestic Incorporated Subsidiaries (other than
Permitted Existing Indebtedness) and the termination of the applicable
agreements, including, without limitation, BMBCC's Long-Term Credit
Agreement and Short-Term Credit Agreement, each dated as of February 5,
1996, and the Borrower's and its Subsidiaries' Indebtedness identified on
SCHEDULE 5.1 attached hereto;
(12) Evidence reasonably satisfactory to the Agents that the Borrower
and each of its Subsidiaries, and the Reynolds Group (a) has made a full
and complete assessment of the Year 2000 Issues; (b) has a realistic and
achievable program for remediating the Year 2000 Issues, including a
timetable and budget of anticipated costs; and (c) has a source of funds as
required in such budget;
(13) Such other documents as the Administrative Agent or any Lender
or its counsel may have reasonably requested, including, without
limitation, all of the documents reflected on the List of Closing Documents
attached as EXHIBIT F to this Agreement; and
(14) Evidence satisfactory to the Administrative Agent that the
Borrower has paid or caused to be paid (x) to the Agents and the Arrangers
the fees agreed to and then due and payable in the fee letter dated April
22, 1998, among the Agents, the Arrangers and the Borrower and (y) to the
Administrative Agent the fees agreed to and then due and payable in the
letter agreement dated April 22, 1998 among the Administrative Agent and
the Borrower.
5.2 EACH ADVANCE AND LETTER OF CREDIT. The Lenders shall not be required
to make any Advance or issue any Letter of Credit, unless on the applicable
Borrowing Date, or in the case of a Letter of Credit, the date on which the
Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
53
(ii) The representations and warranties contained in ARTICLE VI are
true and correct in all material respects as of such Borrowing Date except
for changes in the Schedules to this Agreement reflecting events,
conditions or transactions permitted by or not in violation of this
Agreement and except to the extent any such representation or warranty
speaks expressly only as of a different date.
Each Borrowing/Conversion/Continuation Notice with respect to each such
Advance and the letter of credit application with respect to each Letter of
Credit shall constitute a representation and warranty by the Borrower that the
conditions contained in SECTIONS 5.2(i) and (ii) have been satisfied. Any
Lender may require a duly completed officer's certificate in substantially the
form of EXHIBIT G hereto and/or a duly completed compliance certificate in
substantially the form of EXHIBIT H hereto as a condition to making an Advance.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and the other financial accommodations to the Borrower and
to issue the Letters of Credit described herein, the Borrower represents and
warrants as follows to each Lender and Agent as of the Closing Date, giving
effect to the Reynolds Acquisition and the consummation of the other
transactions contemplated by the Transaction Documents on the Closing Date, and
thereafter on each date as required by SECTION 5.2:
6.1 ORGANIZATION; CORPORATE POWERS. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, and (iii) has all requisite
corporate power and authority to own, operate and (to the extent contemplated
hereby) encumber its property and to conduct its business as presently conducted
and as proposed to be conducted.
6.2 AUTHORITY.
(A) The Borrower and each of its Subsidiaries has the requisite corporate
power and authority (i) to execute, deliver and perform each of the Transaction
Documents which are to be executed by it in connection with the Reynolds
Acquisition or which have been executed by it as required by this Agreement and
the other Loan Documents on or prior to Closing Date and (ii) to file the
Transaction Documents which must be filed by it in connection with the Reynolds
Acquisition or which have been filed by it as required by this Agreement, the
other Loan Documents or otherwise on or prior to the Closing Date with any
Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may be,
of each of the Transaction Documents which must be executed or filed by the
Borrower or any of its Subsidiaries in connection with the Reynolds Acquisition
or which have been executed or filed as required by this Agreement, the other
Loan Documents or otherwise on or prior to the Closing Date and to which the
Borrower or any of its Subsidiaries is party, and the consummation of the
transactions contemplated
54
thereby, have been duly approved by the respective boards of directors and,
if necessary, the shareholders of the Borrower and its Subsidiaries, and such
approvals have not been rescinded. No other corporate action or proceedings
on the part of the Borrower or its Subsidiaries are necessary to consummate
such transactions.
(C) Each of the Transaction Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed, delivered or filed, as the case
may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (except as enforceability
may be limited by bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity,
regardless of whether such enforcement is sought at equity or at law), is in
full force and effect and no material term or condition thereof has been
amended, modified or waived from the terms and conditions contained in the
Transaction Documents delivered to the Administrative Agent pursuant to SECTION
5.1 without the prior written consent of the Required Lenders.
6.3 NO CONFLICT; GOVERNMENTAL CONSENTS. The execution, delivery and
performance of each of the Loan Documents and other Transaction Documents to
which the Borrower or any of its Subsidiaries is a party do not and will not
(i) conflict with the certificate or articles of incorporation or by-laws of
the Borrower or any such Subsidiary, (ii) conflict with, result in a breach
of or constitute (with or without notice or lapse of time or both) a default
under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or material Contractual Obligation of
the Borrower or any such Subsidiary, or require termination of any material
Contractual Obligation, (iii) with respect to the Loan Documents, conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law (including, without
limitation, any Environmental Property Transfer Act) or material Contractual
Obligation of the Borrower or any such Subsidiary, or require termination of
any material Contractual Obligation, except such breach, default or
termination which individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect, or (iv) result in or require the
creation or imposition of any Lien whatsoever upon any of the property or
assets of the Borrower or any such Subsidiary, other than Liens permitted by
the Loan Documents. Except as set forth on SCHEDULE 6.3 to this Agreement,
the execution, delivery and performance of each of the Transaction Documents
to which the Borrower or any of its Subsidiaries is a party do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except (a) filings, consents or notices
which have been made, obtained or given, or which, if not made, obtained or
given, individually or in the aggregate could not reasonably be expected to
have a Material Adverse Effect, and (b) filings necessary to create or
perfect security interests in the Collateral.
6.4 FINANCIAL STATEMENTS.
(A) The PRO FORMA financial statements of the Borrower and its
Subsidiaries, copies of which are attached hereto as SCHEDULE 6.4 to this
Agreement, present on a PRO FORMA basis the financial condition of the Borrower
and such Subsidiaries as of such date, and reflect on a PRO FORMA basis those
liabilities reflected in the notes thereto as of such date and resulting from
consummation of the Reynolds Acquisition and the other transactions contemplated
by this Agreement, and the payment or
55
accrual of all Transaction Costs payable on the Closing Date with respect to
any of the foregoing and demonstrate that, after giving effect to the
Reynolds Acquisition, the ability of the Borrower and its Subsidiaries to
repay their debts and satisfy their respective other obligations as and when
due, and to comply with the requirements of this Agreement has not changed in
any material respect from the PRO FORMA financial statements furnished to the
Agents on March 5, 1998. The projections and assumptions expressed in the
PRO FORMA financials referenced in this SECTION 6.4(A) were prepared in good
faith and represent management's opinion based on the information available
to the Borrower at the time so furnished.
(B) Complete and accurate copies of the following financial statements and
the following related information have been delivered to the Administrative
Agent: (1) the consolidated balance sheets of the Borrower and its Subsidiaries
as at December 31, 1996 and December 31, 1997, and the related consolidated
statements of income, changes in stockholders' equity and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, and the audit
report related thereto, and the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at March 31, 1998 and the related unaudited,
consolidated statements of operations, changes in stockholder's equity and cash
flows of the Borrower and its Subsidiaries for the three (3) months then ended;
and (2) the consolidated balance sheet of the aluminum beverage-can
manufacturing business of Reynolds purchased under the Asset Purchase Agreement
(the "REYNOLDS GROUP") as at December 31, 1996 and December 31, 1997, and the
related consolidated statements of operations, changes in stockholder's equity
and cash flows of the Reynolds Group for the fiscal years then ended, and the
audit report related thereto. Each of the financial statements delivered
pursuant to this SECTION 6.4(B) present fairly the financial condition of the
Borrower and its Subsidiaries and the Reynolds Group, as applicable.
6.5 NO MATERIAL ADVERSE CHANGE. (a) Since December 31, 1997 up to the
Closing Date, there has been no material adverse change in the operations,
business, properties, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its consolidated Subsidiaries taken as a whole,
and since December 31, 1997 up to the Closing Date no condition, event, change
or occurrence, or any series of the foregoing, exists or has occurred which,
individually or in the aggregate, has had or is reasonably likely to have, a
"Material Adverse Effect" as defined in the draft Asset Purchase Agreement
delivered to the Agents on April 14, 1998 (identified as document 116230.14
Draft of April 6, 1998 - 10:52 AM) and which definition is as follows:
"MATERIAL ADVERSE EFFECT" means an individual or cumulative adverse
change in, or effect on, the business, customers, operations,
properties, condition (financial or otherwise), assets or liabilities
of the Business taken as a whole that is reasonably expected to be
materially adverse to the business, customers, operations, properties,
condition (financial or otherwise), assets or liabilities of the
Business taken as a whole.
(b) Since the Closing Date, there has occurred no change in the operations,
business, properties, condition (financial or otherwise), results of operations
or prospects of the Borrower, or the Borrower and its Subsidiaries taken as a
whole, which has had or would reasonably be expected to have a Material Adverse
Effect (as defined in SECTION 1.1 hereof).
56
6.6 TAXES.
(A) TAX EXAMINATIONS. All deficiencies which have been asserted in
writing against the Borrower or any of its Subsidiaries as a result of any
federal, provincial, state, local or foreign tax examination for each taxable
year in respect of which an examination has been conducted have been fully paid
or finally settled or are being contested in good faith, and as of the Closing
Date no issue has been raised in writing by any taxing authority in any such
examination which, by application of similar principles, reasonably can be
expected to result in assertion by such taxing authority of a material
deficiency for any other year not so examined which has not been reserved for in
the Borrower's consolidated financial statements to the extent, if any, required
by Agreement Accounting Principles. Except as permitted pursuant to SECTION
7.2(D), neither the Borrower nor any of its Subsidiaries anticipates any
material tax liability with respect to the years which have not been closed
pursuant to applicable law.
(B) PAYMENT OF TAXES. All material tax returns and reports of the
Borrower and its Subsidiaries required to be filed have been timely filed, and
all taxes, assessments, fees and other governmental charges thereupon and upon
their respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items which
are being contested in good faith and have been reserved for in accordance with
Agreement Accounting Principles. The Borrower has no knowledge of any proposed
tax assessment against the Borrower or any of its Subsidiaries that will have or
could reasonably be expected to have a Material Adverse Effect.
6.7 LITIGATION; LOSS CONTINGENCIES AND VIOLATIONS. There is no action,
suit, proceeding, arbitration or (to the Borrower's knowledge) investigation
before or by any Governmental Authority or private arbitrator pending or, to the
Borrower's knowledge, threatened against the Borrower or any of its Subsidiaries
or any property of any of them (i) challenging the validity or the
enforceability of any material provision of the Transaction Documents or
(ii) which will have or would reasonably be expected to have a Material Adverse
Effect. There is no material loss contingency within the meaning of Agreement
Accounting Principles which has not been reflected in the consolidated financial
statements of the Borrower prepared and delivered pursuant to SECTION 7.1(A) for
the fiscal period during which such material loss contingency was incurred.
Neither the Borrower nor any of its Subsidiaries is (A) in violation of any
applicable Requirements of Law which violation will have or would reasonably be
expected to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or would reasonably be expected to have a Material Adverse
Effect.
6.8 SUBSIDIARIES. SCHEDULE 6.8 to this Agreement (i) contains a
description of the corporate structure of the Borrower, its Subsidiaries
(including for purposes of this clause (i) its Excluded Subsidiaries and the FTB
Group) and any other Person in which the Borrower or any of its Subsidiaries
holds an Equity Interest (both narratively and in chart form); (ii) accurately
sets forth as of the Closing Date (A) the correct legal name, the jurisdiction
of incorporation and the jurisdictions in which each of the Borrower and the
direct and indirect Subsidiaries of the Borrower is qualified to transact
business as a foreign corporation, (B) the authorized, issued and outstanding
shares of each
57
class of Capital Stock of the Borrower, each of its Subsidiaries and FTB and,
for such Subsidiaries and FTB, the owners of such shares (both as of the
Closing Date and on a fully-diluted basis), and (C) a summary of the direct
and indirect partnership, joint venture, or other Equity Interests, if any,
of the Borrower and each Subsidiary of the Borrower in any Person that is not
a corporation; and (iii) accurately sets forth which of the Persons
identified in clause (i) is (A) a member of the FTB Group or (B) an Excluded
Subsidiary. Except as set forth on SCHEDULE 6.8, none of the issued and
outstanding Capital Stock of the Borrower or any of its Subsidiaries is
subject to any vesting, mandatory redemption, or mandatory repurchase
agreement. Except as set forth on SCHEDULE 6.8, as of the Closing Date,
there are no warrants or options outstanding with respect to the Capital
Stock of any of the Borrower's Material Subsidiaries. The outstanding
Capital Stock of the Borrower, each of its Subsidiaries and, as of the
Closing Date, FTB is duly authorized, validly issued, fully paid and
nonassessable and is not Margin Stock. Except as set forth on SCHEDULE 6.8,
as of the Closing Date, the Borrower has no Subsidiaries or Excluded
Subsidiaries and there are no other members of the FTB Group.
6.9 ERISA. (a) Except as set forth on SCHEDULE 6.9, neither the Borrower
nor any member of the Controlled Group maintains or contributes to any Benefit
Plan or Multiemployer Plan. Except as set forth on SCHEDULE 6.9, no Benefit
Plan has incurred any material accumulated funding deficiency (as defined in
Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not waived.
Neither the Borrower nor any member of the Controlled Group has incurred any
material liability to the PBGC which remains outstanding. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
and furnished to the lenders is complete and accurate in all material respects.
Since the date of each such Schedule B, there has been no material adverse
change in the funding status or financial condition of the Benefit Plan relating
to such Schedule B. Within the previous six years, neither the Borrower nor any
member of the Controlled Group has (i) failed to make a required contribution or
payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a Multiemployer Plan for which the
required withdrawal liability has not been satisfied. Within the previous six
years, neither the Borrower nor any member of the Controlled Group has failed to
make a required installment or any other required payment under Section 412 of
the Code on or before the due date for such installment or other payment to any
Benefit Plan. Neither the Borrower nor any member of the Controlled Group is
required to provide security to a Benefit Plan under Section 401(a)(29) of the
Code due to a Plan amendment that results in an increase in current liability
for the plan year. Each Single Employer Plan which is intended to be qualified
under Section 401(a) of the Code as currently in effect is so qualified, and
each trust related to any such Plan is exempt from federal income tax under
Section 501(a) of the Code as currently in effect. The Borrower and all
Subsidiaries are in compliance in all material respects with the
responsibilities, obligations and duties imposed on them by ERISA and the Code
with respect to all Single Employer Plans. Neither the Borrower nor any of its
Subsidiaries nor any fiduciary of any Plan has engaged in a material nonexempt
prohibited transaction described in Sections 406 of ERISA or 4975 of the Code.
Neither the Borrower nor any member of the Controlled Group has taken or failed
to take any action which would constitute or result in a material Termination
Event. Neither the Borrower nor any member of the Controlled Group is subject
to any material liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. Neither the Borrower nor any of its Subsidiaries has, by reason of the
transactions contemplated hereby, any obligation to make any material payment to
any employee pursuant to any Plan or existing contract or arrangement.
58
(b) For purposes of this SECTION 6.9 and SECTION 6.23 only,
"material" means any noncompliance or basis for liability which, together with
all other noncompliance or grounds for liability under this SECTION 6.9, or
SECTION 6.23, as applicable, would be reasonably likely to subject Ball or any
of its Subsidiaries to liability individually or in the aggregate in excess of
$25,000,000.
6.10 ACCURACY OF INFORMATION. (a) The written information, exhibits and
reports furnished by or on behalf of the Borrower and any of its Subsidiaries to
the Agents or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents, the representations and warranties of the Borrower and
its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Agents and the Lenders pursuant to the terms thereof,
including, without limitation, the Confidential Information Memorandum, dated
May 1998, taken as a whole, do not contain as of the date furnished any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
(b) The projections supplied in connection with the factual
information referred to in CLAUSE (a) above were or are based on good faith
estimates and assumptions believed to be fair and reasonable at the time made,
given historical financial performance and current and reasonably foreseeable
business conditions, and, to the Borrower's knowledge, there are no facts or
circumstances presently existing which singly or in the aggregate would cause a
material change in such projections, it being recognized and agreed by the
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results and that the differences may
be material.
6.11 SECURITIES ACTIVITIES. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.12 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any Contractual Obligation which individually or in the aggregate will
have or would reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor any of its Subsidiaries has received notice or has knowledge
that (i) it is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any Contractual
Obligation applicable to it, or (ii) any condition exists which, with the giving
of notice or the lapse of time or both, would constitute a default with respect
to any such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate will not have or would not
reasonably be expected to have a Material Adverse Effect.
6.13 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate would reasonably be expected to have a Material Adverse Effect.
6.14 ASSETS AND PROPERTIES. The Borrower and each of its Subsidiaries has
good and marketable title to all of its material assets and properties (tangible
and intangible, real or personal) owned by it or a valid leasehold interest in
all of its material leased assets (except insofar as
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marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free
and clear of all Liens, except Liens permitted under SECTION 7.3(C).
Substantially all of the assets and properties used or useful to the business
of the Borrower or any Subsidiary of the Borrower are in adequate operating
condition and repair, ordinary wear and tear excepted.
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS. Neither the Borrower nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other foreign, federal or state statute
or regulation which limits its ability to incur indebtedness as contemplated
hereby or its ability to consummate the transactions contemplated hereby or in
connection with the Reynolds Acquisition.
6.16 INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all of its respective properties in at least such
amounts, against at least such risks and with such risk retention as are usually
maintained, insured against or retained, as the case may be, in the same general
area by companies of established repute engaged in the same or a similar
business; PROVIDED, that the Borrower and its Subsidiaries may self-insure to
the same extent as other companies of established repute engaged in the same or
a similar business in the same general area in which the Borrower or such
Subsidiary operates and to the extent consistent with prudent business practice.
The Borrower will furnish to the Lenders, upon request from the Administrative
Agent, information presented in reasonable detail as to the insurance so
carried.
6.17 LABOR MATTERS.
(A) Except as listed on SCHEDULE 6.17 to this Agreement, there are on the
Closing Date: (1) no collective bargaining agreements to which the Borrower or
any of its Subsidiaries is a party covering any of the employees of the Borrower
or any of its Subsidiaries; (2) to the Borrower's knowledge no attempts to
organize the employees of the Borrower or any of its Subsidiaries; and (3) no
material labor disputes at any facility of the Borrower or any of its
Subsidiaries, including without limitation any walkouts disrupting the
operations of the Borrower or any of its Subsidiaries, any strikes or any
lockouts, pending, or, to the Borrower's knowledge, threatened.
(B) Set forth in SCHEDULE 6.17 to this Agreement is a list, as of the
Closing Date, of all material consulting agreements, employment contracts and
service agreements with temporary employment agencies that individually are of
value in excess of $1,000,000 per year and are not otherwise disclosed pursuant
to this Agreement.
(C) Set forth in SCHEDULE 6.17 to this Agreement is a list, as of the
Closing Date, of all employment arbitration awards, judgments, consent decrees,
findings, settlement agreements, or other final resolutions rendered against the
Borrower or any of its Subsidiaries during the preceding five years that,
individually or in the aggregate, exceed $10,000,000 or which, regardless of
when rendered, individually or in the aggregate impose continuing obligations on
the Borrower or any of its Subsidiaries in excess of $10,000,000.
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6.18 REYNOLDS ACQUISITION. As of the Closing Date and immediately prior to
(or contemporaneous with) the making of the initial Loans:
(i) the Reynolds Acquisition Documents are in full force and effect,
no material breach, default or waiver of any term or provision thereof by
the Borrower or any of its Subsidiaries or, to the best of the Borrower's
knowledge, the other parties thereto, has occurred (except for such
breaches, defaults and waivers, if any, consented to in writing by the
Agents) and no action has been taken by any competent authority which
restrains, prevents or imposes any material adverse condition upon, or
seeks to restrain, prevent or impose any material adverse condition upon,
the Reynolds Acquisition;
(ii) the representations and warranties of the Borrower contained in
the Reynolds Acquisition Documents, if any, are true and correct in all
material respects;
(iii) except as set forth in SCHEDULE 6.18 to this Agreement, all
material conditions precedent to, and all material consents necessary to
permit, the Reynolds Acquisition pursuant to the Reynolds Acquisition
Documents have been satisfied or waived, the Reynolds Acquisition has been
consummated in accordance with the Reynolds Acquisition Documents, and the
Borrower has obtained good and marketable title to the "Business Assets"
(as defined in the Asset Purchase Agreement) free and clear of any Liens
other than Liens permitted under SECTION 7.3(C).
6.19 ENVIRONMENTAL MATTERS. (a) Except as disclosed on SCHEDULE 6.19 to
this Agreement, or otherwise in the Environmental Audit (a copy of which was
delivered by the Borrower to the Administrative Agent and made available by the
Administrative Agent to each Lender prior to the Closing Date):
(i) the operations of the Borrower and its Subsidiaries comply in all
material respects with Environmental, Health or Safety Requirements of Law;
(ii) the Borrower and its Subsidiaries have all material permits,
licenses or other authorizations required under Environmental, Health or
Safety Requirements of Law (or have filed timely applications for renewal
of such permits, licenses or authorizations) and are in material compliance
with such permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of their
respective present property or operations, or, to the best of, the
Borrower's or any of its Subsidiaries' knowledge, any of their respective
past property or operations, are subject to or the subject of, any
investigation known to the Borrower or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree, settlement
or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material
Remedial Action; or (C) any material claims or liabilities arising from the
Release or threatened Release of a Contaminant;
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(iv) there is not now, nor to the best of the Borrower's or any of
its Subsidiaries' knowledge has there ever been, on or in the property of
the Borrower or any of its Subsidiaries any landfill, hazardous waste
storage facility in which Contaminants are or were stored for more than
ninety (90) days, waste pile, or surface impoundment that may reasonably be
expected to result in a material claim, loss or Remedial Action obligation;
(v) there is not now, nor to the best of the Borrower's or any of its
Subsidiaries' knowledge has there ever been, on or in the property of the
Borrower's or any of its Subsidiaries any underground storage tanks, above
ground storage tanks, polychlorinated biphenyls (PCBs) used in hydraulic
oils, electric transformers or other equipment, or any asbestos containing
material that may reasonably be expected to result in a material claim,
loss or Remedial Action obligation; and
(vi) neither the Borrower nor any of its Subsidiaries has any
material contingent obligation or liability in connection with any Release
or threatened Release of a Contaminant.
(b) For purposes of this SECTION 6.19 "material" means any noncompliance
or basis for liability which could reasonably be likely to subject the Borrower
or any of its Subsidiaries to liability individually or in the aggregate in
excess of $25,000,000 (exclusive of costs, expenses, claims covered by insurance
policies of the Borrower or any of its Subsidiaries unless the insurers of such
costs, expenses or claims have disclaimed coverage or reserved the right to
disclaim coverage thereof and exclusive of costs, expenses or claims covered by
the indemnity of a financially responsible indemnitor in favor of the Borrower
or any of its Subsidiaries unless the indemnitor has disclaimed or reserved the
right to disclaim coverage thereof).
6.20 OTHER INDEBTEDNESS.
(i) As of the Closing Date and immediately prior to the making of the
initial Loans, the Borrower has issued the Subordinated Notes in an
aggregate original principal amount of $250,000,000 and received the net
proceeds thereof, and the subordination provisions of the Subordinated Note
Indenture are enforceable against the holders of the Subordinated Notes.
(ii) As of the Closing Date and immediately prior to the making of
the initial Loans, the Borrower has issued the Senior Notes in an aggregate
original principal amount of $300,000,000 and received the net proceeds
thereof.
6.21 SOLVENCY. After giving effect to (i) the Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made, (ii) the
issuance of the Senior Notes and the Subordinated Notes, (iii) the consummation
of the Reynolds Acquisition and the payment of the "Purchase Price" under and as
defined in the Asset Purchase Agreement and (iv) the payment and accrual of all
Transaction Costs, the Borrower and its Subsidiaries taken as a whole is
Solvent.
6.22 YEAR 2000 ISSUES. Each of the Borrower and its Subsidiaries has made
a full and complete assessment of the Year 2000 Issues and has a realistic and
achievable program for remediating the Year 2000 Issues on a timely basis.
Based on this assessment and program, the
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Borrower does not reasonably anticipate any Material Adverse Effect on its or
its Subsidiaries' operations, business or financial condition as a result of
Year 2000 Issues.
6.23 FOREIGN EMPLOYEE BENEFIT MATTERS. (a) Each Foreign Employee Benefit
Plan is in compliance in all material respects with all laws, regulations and
rules applicable thereto and the respective requirements of the governing
documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan maintained or contributed to by the Borrower or any Subsidiary or
any member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Plan is maintained; and (d) there are no material actions, suits
or claims (other than routine claims for benefits) pending or, to the knowledge
of the Borrower and its Subsidiaries, threatened against the Borrower or any
Subsidiary or any member of its Controlled Group with respect to any Foreign
Employee Benefit Plan. For purposes of this SECTION 6.23, "material" shall have
the meaning set forth in SECTION 6.9(b).
ARTICLE VII: COVENANTS
The Borrower covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations), unless the Required
Lenders shall otherwise give prior written consent:
7.1 REPORTING. The Borrower shall:
(A) FINANCIAL REPORTING. Furnish to the Administrative Agent (and the
Administrative Agent shall promptly provide copies of the following to each of
the other Agents and the Lenders):
(i) QUARTERLY REPORTS. As soon as practicable, and in any event
within fifty (50) days after the end of the first three fiscal quarters in
each fiscal year, (a) the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such period and the related consolidated
statements of income, stockholder's equity and cash flows of the Borrower
and its Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, together with schedules, in form and substance sufficient to
calculate the financial covenants set forth in Sections 7.3(A) through (G),
7.3(L), 7.3(T) and 7.4; and (b) the consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such period and the related
consolidating statements of income of the Borrower and its Subsidiaries for
such fiscal quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter, in each case,
prepared in a manner consistent with past practice and certified by the
chief financial officer or treasurer of the Borrower on behalf of the
Borrower as fairly presenting the consolidated (and, to the extent
presented, the consolidating) financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their operations
for the periods indicated in accordance with Agreement Accounting
Principles, subject to normal year end adjustments.
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(ii) ANNUAL REPORTS. As soon as practicable, and in any event within
ninety-five (95) days after the end of each fiscal year, (a) the
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related consolidated
and consolidating statements of income of the Borrower and its Subsidiaries
for such fiscal year, consolidated stockholders' equity and cash flow of
the Borrower and its Subsidiaries for such fiscal year, and in comparative
form the corresponding figures for the previous fiscal year, with schedules
in form and substance sufficient to calculate the financial covenants set
forth in SECTIONS 7.3(A) through (G), 7.3(L), 7.3(T) and 7.4; and (b) an
audit report on the consolidated financial statements listed in CLAUSE (a)
hereof of independent certified public accountants of recognized national
standing, which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial position of
the Borrower and its Subsidiaries, as at the dates indicated and the
results of their operations and cash flows for the periods indicated in
conformity with Agreement Accounting Principles and that the examination by
such accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards. The deliveries
made pursuant to this CLAUSE (ii) shall be accompanied by any management
letter prepared by the above-referenced accountants (or, if such management
letter is later prepared by such accountants it shall be delivered to the
Agent promptly after receipt by the Borrower).
(iii) OFFICER'S CERTIFICATE. Together with each delivery of any
financial statement pursuant to CLAUSES (i) and (ii) of this SECTION
7.1(A), (a) an Officer's Certificate of the Borrower, substantially in the
form of EXHIBIT G attached hereto and made a part hereof, stating that as
of the date of such Officer's Certificate no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating the nature
and status thereof and (b) a compliance certificate, substantially in the
form of EXHIBIT H attached hereto and made a part hereof, signed by the
Borrower's chief financial officer or treasurer, which demonstrate
compliance, when applicable, with the provisions of SECTION 7.4, and which
calculate the Leverage Ratio for purposes of determining the then
Applicable Floating Rate Margin, Applicable Eurodollar Margin and
Applicable Commitment Fee Percentage.
(iv) BUDGETS; BUSINESS PLANS; FINANCIAL PROJECTIONS. As soon as
practicable and in any event not later than forty-five (45) days after the
beginning of each fiscal year, a copy of the plan and forecast (including a
projected balance sheet, income statement and a statement of cash flow) of
the Borrower and its Subsidiaries for the upcoming fiscal year, prepared on
a quarterly basis for such fiscal year, and otherwise prepared in such
detail as shall be reasonably satisfactory to the Administrative Agent.
(B) NOTICE OF DEFAULT. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer or controller of the
Borrower obtaining knowledge (i) of any condition or event which constitutes a
Default or Unmatured Default, or becoming aware that any Lender or Agent has
given any written notice with respect to a claimed Default or Unmatured Default
under this Agreement, or (ii) that any Person has given any written notice to
the Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
SECTION 8.1(e), deliver to the Administrative Agent an Officer's Certificate (a
copy of which the Administrative Agent shall promptly deliver to the other
Agents and
64
the Lenders) specifying (a) the nature and period of existence of any
such claimed default, Default, Unmatured Default, condition or event, (b) the
notice given or action taken by such Person in connection therewith, and
(c) what action the Borrower and/or its Subsidiaries has taken, is taking and
proposes to take with respect thereto.
(C) LAWSUITS. (i) Promptly upon the Borrower or any Subsidiary of the
Borrower obtaining knowledge of the institution of, or written threat of, any
action, suit, proceeding, governmental investigation or arbitration against or
affecting the Borrower or any of its Subsidiaries or any property of the
Borrower or any of its Subsidiaries not previously disclosed pursuant to SECTION
6.7, which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of its Subsidiaries to liability in an amount aggregating $20,000,000 or
more (exclusive of claims covered by insurance policies of the Borrower or any
of its Subsidiaries unless the insurers of such claims have disclaimed coverage
or reserved the right to disclaim coverage on such claims and exclusive of
claims covered by the indemnity of a financially responsible indemnitor in favor
of the Borrower or any of its Subsidiaries unless the indemnitor has disclaimed
or reserved the right to disclaim coverage thereof), give written notice thereof
to the Administrative Agent and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (ii) in addition to the requirements set
forth in CLAUSE (i) of this SECTION 7.1(C), upon request of the Administrative
Agent or the Required Lenders, promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to CLAUSE (i) above and provide such other information
as may be reasonably available to it that would not violate any attorney-client
privilege by disclosure to the Lenders to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
(D) INSURANCE. As soon as practicable and in any event within ninety (90)
days of the end of each fiscal year commencing with the fiscal year ending
December 31, 1998, deliver to the Administrative Agent a report in form and
substance reasonably satisfactory to the Administrative Agent and the Lenders
outlining all material insurance coverage maintained as of the date of such
report by the Borrower and its Subsidiaries and the duration of such coverage.
(E) ERISA NOTICES. Deliver or cause to be delivered to the Administrative
Agent, at the Borrower's expense, the following information and notices as soon
as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Borrower or any
member of the Controlled Group obtains knowledge that a Termination Event
has occurred which would be reasonably likely to subject the Borrower or
any of its Subsidiaries to liability, individually or in the aggregate in
excess of $10,000,000, a written statement of the appropriate financial
officer or treasurer of the Borrower describing such Termination Event and
the action, if any, which the Borrower or the applicable Subsidiary has
taken, is taking or proposes to take with respect thereto, and if and when
known, any action taken or threatened by the IRS, DOL or PBGC with respect
thereto;
65
(ii) within ten (10) Business Days after any officer of the Borrower
or any of its Subsidiaries obtains knowledge that a prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred which would be reasonably likely to subject the Borrower or any of
its Subsidiaries to liability, individually or in the aggregate in excess
of $10,000,000, a statement of the chief financial officer or treasurer of
the Borrower describing such transaction and the action which the Borrower
or such Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within ten (10) Business Days after any material increase in
the benefits of any existing Benefit Plan or the establishment of any new
Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which the
Borrower or any member of the Controlled Group was not previously
contributing, where the aggregate annual contributions to such Plan(s)
resulting therefrom are or could reasonably be expected to exceed
$10,000,000, notification of such increase, establishment, commencement or
obligation to commence and the amount of such contributions;
(iv) within ten (10) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Code which would be reasonably likely to subject the Borrower or any of its
Subsidiaries to liability, individually or in the aggregate in excess of
$10,000,000, copies of each such letter;
(v) within ten (10) Business Days after the establishment of any
Foreign Employee Benefit Plan or the commencement of, or obligation to
commence, contributions to any Foreign Employee Benefit Plan to which the
Borrower or any Subsidiary was not previously contributing, where the
aggregate annual contributions to such Plan(s) resulting therefrom are or
would reasonably be expected to exceed $10,000,000, notification of such
establishment, commencement or obligation to commence and the amount of
such contributions;
(vi) upon the request of the Administrative Agent or any Lender,
copies of each annual report (form 5500 series), including Schedule B
thereto, filed with respect to each Benefit Plan;
(vii) upon the request of the Administrative Agent or any Lender,
copies of each available actuarial report for any Benefit Plan or
Multiemployer Plan and each available annual report for any Multiemployer
Plan;
(viii) within ten (10) Business Days after the filing thereof with
the IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all communications received by the Borrower or a member of
the Controlled Group with respect to such request;
(ix) within ten (10) Business Days after receipt by the Borrower or
any member of the Controlled Group of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;
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(x) within ten (10) Business Days after receipt by the Borrower or
any member of the Controlled Group of a notice from a Multiemployer Plan
regarding the imposition of withdrawal liability which would be reasonably
likely to subject the Borrower or any of its Subsidiaries to liability,
individually or in the aggregate in excess of $10,000,000, copies of each
such notice;
(xi) within ten (10) Business Days after the Borrower or any member
of the Controlled Group fails to make a required installment or any other
required payment under Section 412 of the Code on or before the due date
for such installment or payment which would be reasonably likely to subject
the Borrower or any of its Subsidiaries to liability, individually or in
the aggregate in excess of $10,000,000, a notification of such failure;
and
(xii) within ten (10) Business Days after any officer of the Borrower
or any member of the Controlled Group knows or has reason to know that
(a) a Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan,
or (c) the PBGC has instituted proceedings under Section 4042 of ERISA to
terminate a Multiemployer Plan.
For purposes of this SECTION 7.1(E), the Borrower, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the Plan Administrator (as defined in Section 3(16)(A) of ERISA) of any Plan of
which the Borrower or any member of the Controlled Group or such Subsidiary is
the plan sponsor.
(F) LABOR MATTERS. Notify the Administrative Agent within a reasonable
period of time following the Borrower's knowledge thereof of (i) any material
labor dispute at any facility of the Borrower or any of its Subsidiaries,
including without limitation, any authorized or unauthorized strike or any
lockout, and (ii) any attempt to organize the employees of the Borrower or any
of its Subsidiaries.
(G) OTHER INDEBTEDNESS. Deliver to the Administrative Agent (i) a copy of
each regular report, notice or other written communication regarding potential
or actual defaults (including any accompanying officer's certificate) delivered
by or on behalf of the Borrower and/or any of its Subsidiaries to the holders of
funded Indebtedness pursuant to the terms of the agreements governing such
Indebtedness, such delivery to be made at the same time and by the same means as
such notice or other communication is delivered to such holders, and (ii) a copy
of each notice or other written communication received by the Borrower and/or
any of its Subsidiaries from the holders of funded Indebtedness pursuant to the
terms of such Indebtedness, such delivery to be made promptly after such notice
or other communication is received by the Borrower and/or such Subsidiary.
(H) OTHER REPORTS. Deliver or cause to be delivered to the Administrative
Agent copies of all financial statements, reports and notices, if any, sent or
made available generally by the Borrower to its securities holders or filed with
the SEC by the Borrower, all press releases made available generally by the
Borrower or any of the Borrower's Subsidiaries to the public concerning material
developments in the business of the Borrower or any such Subsidiary and all
notifications received from the SEC by the
67
Borrower or its Subsidiaries pursuant to the Securities Exchange Act of 1934,
as amended, and the rules promulgated thereunder.
(I) ENVIRONMENTAL NOTICES. As soon as possible and in any event within ten
(10) days after receipt by the Borrower or any of its Subsidiaries, a copy of
(i) any notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release by the
Borrower, any of its Subsidiaries, or any other Person of any Contaminant, and
(ii) any notice alleging any violation of any Environmental, Health or Safety
Requirements of Law by the Borrower or any of its Subsidiaries if, in either
case, such notice or claim relates to an event which could reasonably be
expected to subject the Borrower or any of its Subsidiaries to liability
individually or in the aggregate in excess of $10,000,000.
(J) OTHER INFORMATION. Promptly upon receiving a request therefor from
the Administrative Agent, prepare and deliver to the Administrative Agent and
the Lenders such other information with respect to the Borrower, any of its
Subsidiaries, or the Collateral, including, without limitation, schedules
identifying any Asset Sale or Financing (and the use of the Net Cash Proceeds
thereof), as from time to time may be reasonably requested by the Administrative
Agent.
7.2 AFFIRMATIVE COVENANTS.
(A) CORPORATE EXISTENCE, ETC. Except in connection with a transaction
otherwise permitted under the terms of this Agreement, the Borrower shall, and
shall cause each of its Subsidiaries to, at all times maintain its corporate
existence and preserve and keep, or cause to be preserved and kept, in full
force and effect its rights and franchises material to its businesses.
(B) CORPORATE POWERS; CONDUCT OF BUSINESS. Except in connection with a
transaction otherwise permitted under the terms of this Agreement, the Borrower
shall, and shall cause each of its Subsidiaries to, qualify and remain qualified
to do business in each jurisdiction in which the nature of its business requires
it to be so qualified and where the failure to be so qualified will have or
would reasonably be expected to have a Material Adverse Effect. The Borrower
will, and will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted.
(C) COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall cause its
Subsidiaries to, (i) comply in all material respects with all Requirements of
Law and all restrictive covenants affecting such Person or the business,
properties, assets or operations of such Person, and (ii) obtain as needed all
material permits necessary for its operations and maintain such permits in good
standing unless, in either such case under clause (i) or (ii), failure to comply
or obtain would not reasonably be expected to have a Material Adverse Effect.
(D) PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. The Borrower shall
pay, and cause each of its Subsidiaries to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
property before any penalty or interest accrues thereon, and (ii) all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and
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payable and which by law have or may become a material Lien (other than a
Lien permitted by SECTION 7.3(C)) upon any of the Borrower's or such
Subsidiary's property or assets, prior to the time when any material penalty
or fine shall be incurred with respect thereto; PROVIDED, HOWEVER, that no
such taxes, assessments and governmental charges referred to in CLAUSE (i)
above or claims referred to in CLAUSE (ii) above (and interest, penalties or
fines relating thereto) need be paid if being contested in good faith by
appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with Agreement Accounting Principles shall have been made therefor.
(E) INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect, insurance policies and programs as reflect coverage that is
reasonably consistent with prudent industry practice for similarly situated
companies.
(F) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Borrower
shall permit and cause each of the Borrower's Subsidiaries, the FTB Group and
the Excluded Subsidiaries to permit, any authorized representative(s) designated
by either the Administrative Agent or any Lender to visit and inspect any of the
properties of the Borrower or any of such Subsidiaries, members of the FTB Group
or Excluded Subsidiaries, to examine, audit, check and make copies of their
respective financial and accounting records, books, journals, orders, receipts
and any correspondence and other data relating to their respective businesses or
the transactions contemplated hereby or by the Reynolds Acquisition (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and independent certified public accountants (and such accountants are
hereby authorized to disclose to the Administrative Agent any and all financial
statements and other supporting financial documents with respect to the
business, financial condition and other affairs of the Borrower and its
Subsidiaries, the FTB Group and the Excluded Subsidiaries), all upon reasonable
notice and at such reasonable times during normal business hours, as often as
may be reasonably requested; PROVIDED, HOWEVER, that the Borrower's obligation
to reimburse the Administrative Agent and the Lenders for reasonable costs and
expenses incurred in connection with such inspections shall be limited to no
more than one (1) inspection during any calendar year if such inspections are
conducted at a time when no Default or Unmatured Default shall have occurred and
is continuing. The Borrower shall keep and maintain, and cause each of its
Subsidiaries, FTB and the Excluded Subsidiaries to keep and maintain, in all
material respects, proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made of all dealings
and transactions in relation to their respective businesses and activities. If
a Default has occurred and is continuing, the Borrower, upon the Administrative
Agent's request, shall turn over or make available copies of any such records to
the Administrative Agent or its representatives; PROVIDED, that if no Default
shall have occurred and is continuing, the Administrative Agent or its
representatives, as applicable, shall return such records to the Borrower.
(G) ERISA COMPLIANCE. The Borrower shall, and shall cause each other
member of the Ball Corporate Group to, establish, maintain and operate all Plans
to comply in all respects with the provisions, if applicable, of ERISA, the
Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans, except where such noncompliance would not reasonably be expected to
subject the Borrower or any of its Subsidiaries to liability individually or in
the aggregate in excess of $25,000,000.
69
(H) MAINTENANCE OF PROPERTY. The Borrower shall cause all material
property used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
(normal wear and tear excepted) and supplied with all necessary equipment and
shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Borrower may
be necessary 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 7.2(H) shall prevent the Borrower from discontinuing the
operation or maintenance of any of such property if such discontinuance is, in
the judgment of the Borrower, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Administrative Agent or the Lenders.
(I) ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject the
Borrower or any Subsidiary to liability individually or in the aggregate in
excess of $25,000,000.
(J) USE OF PROCEEDS. The Borrower shall use the proceeds of the Revolving
Loans to (i) facilitate the Reynolds Acquisition, (ii) repay existing
Indebtedness, (iii) pay the Transaction Costs, and (iv) provide funds for the
additional working capital needs and other general corporate purposes of the
Borrower and its Subsidiaries. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Loans to purchase or carry any
Margin Stock or to make any Acquisition, other than the Reynolds Acquisition and
any other Permitted Acquisition pursuant to SECTION 7.3(G).
(K) ADDITIONAL GUARANTORS/PLEDGE OF CAPITAL STOCK. (i) The Borrower will
(a) deliver and cause each of its Domestic Incorporated Subsidiaries to deliver
an agreement evidencing the pledge, to the Administrative Agent, for the benefit
of the Holders of Secured Obligations, of all of the Capital Stock of each
Domestic Incorporated Subsidiary, within thirty (30) days after such Subsidiary
has become a Subsidiary of the Borrower and (b) cause each Domestic Incorporated
Subsidiary, within twenty (20) days after becoming a Subsidiary of the Borrower,
to execute and deliver to the Administrative Agent an assumption agreement
pursuant to which it agrees to be bound by the terms and provisions of the
Subsidiary Guaranty (whereupon such Subsidiary shall become a "Guarantor" under
this Agreement), and (c) deliver and cause such Subsidiaries to deliver
corporate resolutions, opinions of counsel, stock certificates, stock powers,
UCC financing statements with respect to the Capital Stock Collateral and such
other corporate documentation as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory to the Administrative
Agent.
(ii) The Borrower shall deliver an agreement evidencing the pledge, to the
Administrative Agent, for the benefit of the Holders of Secured Obligations, of
(A) all of the Capital Stock of Latasa owned by any member of the Ball Corporate
Group (but not in excess of 65% of all of the outstanding Capital Stock thereof)
on the date of the consummation of the Latasa Acquisition; and (B) 65% of the
Capital Stock of each other Material Foreign Subsidiary, within sixty (60) days
after such Subsidiary has become a Material Foreign Subsidiary, together, in
each such case, with corporate resolutions, opinions of counsel, stock
certificates, stock powers and such other corporate documentation as the
Administrative Agent may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent; provided, however, in the
event that any such Material Foreign Subsidiary is
70
wholly-owned by a Domestic Incorporated Subsidiary, in connection with which
all of the requirements of CLAUSE (i) above have been satisfied and the
activities of which are limited to owning the Capital Stock of its
Subsidiaries, then, the Administrative Agent, at its option, may waive the
requirement for the pledge of such Material Foreign Subsidiary's Capital
Stock under this CLAUSE (ii); and PROVIDED FURTHER, HOWEVER, in the event
that more than one Subsidiary within a commonly controlled group of
Subsidiaries constitutes a Material Foreign Subsidiary, then only the Capital
Stock of the "parent" or "controlling" Subsidiary shall be required to be
pledged.
(iii) If at any time any Material Foreign Subsidiary shall issue or cause
to be issued Capital Stock, or warrants or options with respect to its Capital
Stock, such that the aggregate amount of the Capital Stock of such Material
Foreign Subsidiary pledged to the Administrative Agent for the benefit of the
Holders of Secured Obligations is less than 65% of all of the outstanding
Capital Stock thereof, the Borrower shall (A) promptly notify the Administrative
Agent of such deficiency and (B) deliver or cause to be delivered any
agreements, instruments, certificates and other documents as the Administrative
Agent may reasonably request all in a form and substance reasonably satisfactory
to the Administrative Agent in order to cause all of the Capital Stock of such
Material Foreign Subsidiary owned by any member of the Ball Corporate Group (but
not in excess of 65% of all of the outstanding Capital Stock thereof) to be
pledged to the Agent for the benefit of the Holders of Secured Obligations;
PROVIDED, that any Material Subsidiary may issue or cause to be issued any
Capital Stock or warrants or options in respect of such Capital Stock only so
long as no Change of Control shall result therefrom.
(iv) In the event that the Borrower or any Guarantor causes or permits any
Foreign Incorporated Subsidiary that is not a Guarantor to, directly or
indirectly, guarantee the payment of any Indebtedness of the Borrower or any
Guarantor then the Borrower will (a) simultaneously deliver, or cause to be
delivered, an agreement evidencing the pledge, to the Administrative Agent, for
the benefit of the Holders of Secured Obligations, of all of the Capital Stock
of such Foreign Incorporated Subsidiary, (b) simultaneously cause such Foreign
Incorporated Subsidiary to execute and deliver to the Administrative Agent an
assumption agreement pursuant to which it agrees to be bound by the terms and
provisions of the Subsidiary Guaranty (whereupon such Subsidiary shall become a
"Guarantor" under this Agreement), and (c) deliver and cause such Subsidiaries
to deliver corporate resolutions, opinions of counsel, stock certificates, stock
powers, UCC financing statements with respect to the Capital Stock Collateral
and such other corporate documentation as the Administrative Agent may
reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent.
(L) YEAR 2000 ISSUES. The Borrower shall, and shall cause each of its
Subsidiaries to, take all actions reasonably necessary to assure that the Year
2000 Issues will not have a Material Adverse Effect. The Borrower shall provide
the Administrative Agent and each of the Lenders a copy of the Borrower's
program to address Year 2000 Issues, including updates and progress reports upon
request. The Borrower shall advise the Administrative Agent if any Year 2000
Issues will have or would reasonably be expected to have a Material Adverse
Effect.
(M) FOREIGN EMPLOYEE BENEFIT COMPLIANCE. The Borrower shall, and shall
cause each of its Subsidiaries and each member of the Controlled Group to,
establish, maintain and operate all Foreign Employee Benefit Plans to comply in
all material respects with all laws, regulations and rules
71
applicable thereto and the respective requirements of the governing documents
for such Plans, except for failures to comply which, in the aggregate, would
not be reasonably likely to subject the Borrower or any of its Subsidiaries
to liability, individually or in the aggregate in excess of $25,000,000.
(N) FOREIGN GOVERNMENTAL CONSENTS AND APPROVALS. Within fifteen (15) days
after the date upon which the Latasa Acquisition is consummated, the Borrower
shall, or shall cause its Subsidiaries to, make all required filings or
registrations with, give appropriate notice to, and otherwise seek any required
authorization, consent and approval of the Administrative Council for Economic
Defense in Brazil in respect of the Reynolds Acquisition.
7.3 NEGATIVE COVENANTS.
(A) INDEBTEDNESS. Neither the Borrower nor any other member of the Ball
Corporate Group shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except:
(i) the Obligations;
(ii) Indebtedness incurred in connection with the Long-Term Credit
Agreement in a principal amount not to exceed $1,050,000,000 at any time;
(iii) Indebtedness incurred in connection with the Receivables
Purchase Documents;
(iv) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness;
(v) Indebtedness evidenced by the Canadian Credit Facility and
Permitted Refinancing Indebtedness in respect thereof, in each case, in a
principal amount not to exceed $50,000,000;
(vi) Indebtedness evidenced by the Senior Notes and the
Subordinated Notes;
(vii) subordinated indebtedness the terms (including, without
limitation, those with respect to amount, maturity, amortization, interest
rate, premiums, fees, covenants, subordination, events of default and
remedies) of which are acceptable to the Required Lenders when issued, but
in each case not any increase in the principal amount thereof and not any
refinancing, modification, refunding or extension of maturity thereof, in
whole or in part, unless such refinancing, modification, refunding or
extension is not materially less favorable to the Borrower or any of its
Subsidiaries, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants,
subordination, events of default and remedies (such Indebtedness being
referred to herein as "PERMITTED ADDITIONAL SUBORDINATED INDEBTEDNESS");
(viii) Indebtedness in respect of obligations secured by Customary
Permitted Liens;
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(ix) Indebtedness constituting Guarantied Obligations permitted by
SECTION 7.3(E);
(x) Indebtedness arising from intercompany loans from the Borrower
to any Controlled Subsidiary, or from any Subsidiary to the Borrower or any
Controlled Subsidiary, PROVIDED that if the Borrower or any Guarantor is
the obligor on such Indebtedness, such Indebtedness shall be expressly
subordinate to the payment in full of the Secured Obligations; PROVIDED,
FURTHER, that the aggregate of all Foreign Subsidiary Investments does not
exceed the Permitted Foreign Subsidiary Investment Amount at any time;
(xi) guaranties by the Borrower of Indebtedness permitted to be
incurred by any Subsidiary or Indebtedness of any Person in which the
Borrower makes an Investment pursuant to SECTION 7.3(D)(ix) (provided the
amount of Indebtedness so guarantied shall be included for purposes of
calculating the Investment in such Person as provided under SECTION
7.3(D)(ix));
(xii) secured or unsecured purchase money Indebtedness (including
Capitalized Leases) incurred by the Borrower or any of its Subsidiaries
after the Closing Date to finance the acquisition of assets used in the
business, if (1) at the time of such incurrence, no Default or Unmatured
Default has occurred and is continuing or would result from such
incurrence, (2) such Indebtedness has a scheduled maturity and is not due
on demand, (3) such Indebtedness does not exceed the lower of the fair
market value or the cost of the applicable fixed assets on the date
acquired, (4) such Indebtedness does not exceed $50,000,000 in aggregate
principal amount outstanding at any time, and (5) any Lien securing such
Indebtedness is permitted under SECTION 7.3(C) (such Indebtedness being
referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(xiii) Indebtedness with respect to surety, appeal and performance
bonds obtained by the Borrower or any of its Subsidiaries in the ordinary
course of business;
(xiv) Indebtedness incurred by the Borrower or any of its
Subsidiaries (whether assumed by the Borrower or such Subsidiary or issued
to the seller) in any Permitted Acquisition as part of the consideration
therefor, PROVIDED that such Indebtedness is unsecured and is subordinated
to the Obligations on terms reasonably acceptable to the Administrative
Agent (including, without limitation, those with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants,
subordination, events of default and remedies);
(xv) Indebtedness in respect of the Synthetic Leases;
(xvi) all Indebtedness of the FTB Group only to the extent that
neither the Borrower nor any Guarantor shall incur or suffer to exist any
Guarantied Obligations in respect thereof (unless and to the extent such
Guarantied Obligation would otherwise be permitted under SECTION 7.3(T))
and;
(xvii) Indebtedness incurred by the Borrower or any Guarantor in
addition to that referred to elsewhere in this SECTION 7.3(A) in a
principal amount not to exceed in the
73
aggregate (a) $25,000,000 if the Leverage Ratio (calculated as of the
last day of the immediately preceding fiscal quarter) shall be greater
than 3.0 to 1.0 as of the date of incurrence thereof, and (b)
$75,000,000 if the Leverage Ratio (calculated as of the last day of the
immediately preceding fiscal quarter) shall be less than or equal to 3.0
to 1.0 as of the date of incurrence thereof.
(B) SALES OF ASSETS. Neither the Borrower nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) Permitted Receivables Transfers;
(iii) the disposition in the ordinary course of business of
Equipment that is obsolete, excess or no longer useful in the Borrower's
and its Subsidiaries' business;
(iv) transfers of assets between the Borrower and any Controlled
Subsidiary or between Controlled Subsidiaries of the Borrower not otherwise
prohibited by this Agreement; PROVIDED, that the aggregate of all Foreign
Subsidiary Investments does not exceed the Permitted Foreign Subsidiary
Investment Amount at any time;
(v) transfers of assets pursuant to Investments permitted by
SECTION 7.3(D) and Restricted Payments permitted by SECTION 7.3(F);
(vi) the sale of the PET business unit of the Borrower and its
Subsidiaries; PROVIDED, that such transaction (a) is for consideration
consisting at least seventy-five percent (75%) of cash, (b) is for not less
than fair market value (as determined by the board of directors of the
Borrower in good faith, whose determination shall be conclusive evidence
thereof and shall be evidenced by a resolution of such board of directors
set forth in an Authorized Officer of the Borrower's certificate delivered
to the Administrative Agent), and (c) is consummated when no Default has
occurred and is continuing or would result therefrom;
(vii) the sale of all or part of the assets or business constituting
the Aerospace business unit of the Borrower and its Subsidiaries in one or
more transactions; PROVIDED, that (a) each such transaction (x) is for
consideration consisting at least seventy-five percent (75%) of cash, (y)
is for not less than fair market value (as determined by the board of
directors of the Borrower in good faith, whose determination shall be
conclusive evidence thereof and shall be evidenced by a resolution of such
board of directors set forth in an Authorized Officer of the Borrower's
certificate delivered to the Administrative Agent), and (z) is consummated
when no Default has occurred and is continuing or would result therefrom,
and (b) the PRO FORMA opening consolidated financial statements of the
Borrower and its Subsidiaries shall demonstrate that the Leverage Ratio of
the Borrower and its Subsidiaries as of the last day of the Borrower's most
recently completed fiscal quarter (assuming the effectiveness of such sale
on such last day of the Borrower's most recently completed fiscal quarter)
shall be less than or
74
equal to the greater of (A) 3.0 to 1.0 and (B) the Leverage Ratio of the
Borrower and its Subsidiaries as of the last day of the Borrower's most
recently completed fiscal quarter as set forth on the compliance
certificate delivered together with the financial statements for such
fiscal quarter pursuant to SECTION 7.1(A)(iii);
(viii) leases that are operating leases under which the Borrower or
any of its Subsidiaries is the lessor in the ordinary course of its
business that are not substantially equivalent to sales; and
(ix) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets, PROVIDED that any such transaction (a) is for
consideration consisting at least seventy-five percent (75%) of cash, (b)
is for not less than fair market value (as determined by the board of
directors of the Borrower in good faith, whose determination shall be
conclusive evidence thereof and shall be evidenced by a resolution of such
board of directors set forth in an Authorized Officer of the Borrower's
certificate delivered to the Administrative Agent), and (c) when combined
with all such other transactions pursuant to this CLAUSE (ix) (each such
transaction being valued at book value) (i) during the immediately
preceding twelve-month period, represents the disposition of not greater
than $100,000,000, and (ii) during the period from the Closing Date to the
date of such proposed transaction, represents the disposition of not
greater than $300,000,000.
Not less than five (5) Business Days prior to the consummation of any
transaction permitted by CLAUSE (vi), (vii), or (ix) above, the Borrower shall
deliver to the Administrative Agent a certificate of an Authorized Officer of
the Borrower certifying compliance with the requirements of CLAUSE (vi), (vii)
or (ix), as applicable, and showing in reasonable detail the calculations on
which such certification is based.
(C) LIENS. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any of their respective property or assets except:
(i) Liens created by the Loan Documents or otherwise securing the
Secured Obligations;
(ii) Liens arising under the Receivables Purchase Documents;
(iii) Permitted Existing Liens;
(iv) Customary Permitted Liens;
(v) purchase money Liens (including the interest of a lessor under
a Capitalized Lease and Liens to which any property is subject at the time
of the Borrower's acquisition thereof) securing Permitted Purchase Money
Indebtedness; PROVIDED that such Liens shall not apply to any property of
the Borrower or its Subsidiaries other than that purchased or subject to
such Capitalized Lease;
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(vi) Liens with respect to property acquired by the Borrower or any
Subsidiary after the Closing Date (and not created in contemplation of such
acquisition) to the extent any such acquisitions are permitted pursuant to
the terms hereof;
(vii) Liens incurred in connection with sale-leaseback transactions
permitted under SECTION 7.3(J); and
(viii) Liens on any of the Collateral which are incurred in
connection with the Guaranty Agreement to the extent (a) such Collateral
secures the Secured Obligations at such time and (b) the beneficiaries of
the Guaranty Agreement have entered into an intercreditor agreement with
the Administrative Agent in form and substance reasonably acceptable to the
Agents; and
(ix) Liens securing other obligations not exceeding $25,000,000 in
the aggregate at any time outstanding.
In addition, neither the Borrower nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent for the benefit of itself and
the Holders of Secured Obligations, as additional collateral for the
Obligations; PROVIDED that any agreement, note, indenture or other instrument in
connection with Permitted Purchase Money Indebtedness (including Capitalized
Leases) may prohibit the creation of a Lien in favor of the Administrative Agent
for the benefit of itself and the Holders of the Secured Obligations on the
items of property obtained with the proceeds of such Permitted Purchase Money
Indebtedness.
(D) INVESTMENTS. Other than Investments permitted pursuant to PARAGRAPH
(G) below, neither the Borrower nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than
the amount thereof on the Closing Date;
(iii) Investments in Ball Capital Corp. required in connection with
the Receivables Purchase Documents;
(iv) Investments, if any, resulting from transactions under the
Manufacturing Supply Agreement;
(v) Investments in trade receivables or received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement (including settlements of litigation) of delinquent obligations
of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
76
(vi) Investments consisting of deposit accounts maintained by the
Borrower and its Subsidiaries in the ordinary course of business in
connection with its cash management system;
(vii) Investments consisting of non-cash consideration from a sale,
assignment, transfer, lease, conveyance or other disposition of property
permitted by SECTION 7.3(B);
(viii) Investments consisting of intercompany loans from the Borrower
or any Subsidiary to the Borrower or any other Subsidiary permitted by
SECTION 7.3(A)(x); PROVIDED, that the aggregate of all Foreign Subsidiary
Investments made pursuant to this SECTION 7.3(D)(viii) shall not exceed
$25,000,000 at any time;
(ix) Investments which do not constitute Acquisitions, made in cash
and in any Person having similar lines of business to those of the
Borrower, PROVIDED that the total amount of all such Investments made after
the Closing Date (including the amount of all cash invested, the fair
market value of assets or property contributed and the principal amount of
any Indebtedness guaranteed in connection therewith, but excluding, to the
extent that any such Investment permitted hereunder shall be sold for cash,
the lesser of (x) the cash return of capital with respect to such
Investment (net of the cost of disposition) and (y) the initial amount of
such Investment) shall not exceed $25,000,000 during the term of this
Agreement; and
(x) Investments in any Subsidiary that is a Controlled Subsidiary
of the Borrower;
(xi) Investments constituting Permitted Acquisitions;
(xii) Restricted Investments permitted by SECTION 7.3(F)(viii);
(xiii) Investments, in addition to the Permitted Existing Investment,
in any member of the FTB Group; PROVIDED, HOWEVER, such additional
Investments which when aggregated with the amount of Indebtedness which is
credit enhanced pursuant to the provisions of SECTION 7.3(T) shall not
exceed, in the aggregate an amount equal to Two Hundred Seven Million
Dollars ($207,000,000);
(xiv) Investments constituting Indebtedness permitted by SECTION
7.3(A) or Guarantied Obligations permitted by SECTION 7.3(E); and
(xv) Investments in addition to those permitted elsewhere in this
SECTION 7.3(D), in an amount not to exceed $40,000,000 in the aggregate at
any time outstanding;
PROVIDED, HOWEVER, that the Investments described in CLAUSES (ix), (xi), (xii)
and (xiii) above shall not be permitted if either a Default or an Unmatured
Default shall have occurred and be continuing on the date thereof or would
result therefrom.
(E) GUARANTIED OBLIGATIONS. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Guarantied Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
77
of business; (ii) Permitted Existing Guarantied Obligations; (iii) obligations,
warranties, and indemnities, not relating to Indebtedness of any Person, which
have been or are undertaken or made in the ordinary course of business and not
for the benefit of or in favor of an Affiliate of the Borrower or such
Subsidiary which is not a Guarantor; (iv) Guarantied Obligations arising under
the Transaction Documents; (v) guaranties of Indebtedness permitted by SECTION
7.3(A), PROVIDED, that to the extent such Indebtedness shall be subordinated to
the Obligations, each such guarantee shall be subordinated to the Obligations on
terms reasonably acceptable to the Administrative Agent; (vi) obligations under
the Guaranty Agreement; (vii) Guarantied Obligations with respect to surety,
appeal and performance bonds obtained by the Borrower or any Subsidiary in the
ordinary course of business; and (viii) additional Guarantied Obligations which
do not exceed $10,000,000 in the aggregate at any time.
(F) RESTRICTED PAYMENTS. Neither the Borrower nor any of its Subsidiaries
shall declare or make any Restricted Payment, except:
(i) the defeasance, redemption or repurchase of any Indebtedness
with the Net Cash Proceeds of Permitted Refinancing Indebtedness;
(ii) mandatory payments of interest, principal or premium, if any,
due on the Indebtedness in accordance with mandatory redemption or
repayment provisions in effect with respect to such Indebtedness as of the
Closing Date, unless in each case such payments are prohibited by the terms
of such Indebtedness or the subordination provisions applicable thereto;
(iii) dividends or other distributions (including, without
limitation liquidating distributions) payable or made by (a) any
Wholly-Owned Subsidiary of the Borrower in compliance with applicable
corporation law; and (b) any other Subsidiary of the Borrower in compliance
with applicable corporation law; PROVIDED, that the amount of such
dividends or distributions under this CLAUSE (b) which are paid or made to
any Person not a member of the Ball Corporate Group (the "THIRD-PARTY
PAYMENTS") shall be included for purposes of calculating compliance with
CLAUSE (viii) below and shall be permitted only to the extent they are
permitted under CLAUSE (viii) below;
(iv) dividends or other payments from any Subsidiary of the
Borrower to the Borrower pursuant to the Tax Allocation Agreement;
(v) any public offering or other offering qualified under Rule
144A under the Securities Act of 1933, as amended, of all or part of the
Equity Interests of a Person constituting the Aerospace business unit of
the Borrower and/or any dividend or other distribution by the Borrower,
direct or indirect, of any Equity Interests of a Person constituting the
Aerospace business unit of the Borrower; PROVIDED that (x) the PRO FORMA
opening consolidated financial statements of the Borrower and its
Subsidiaries shall demonstrate that the Leverage Ratio of the Borrower and
its Subsidiaries as of the last day of the Borrower's most recently
completed fiscal quarter (assuming the effectiveness of such Restricted
Payment on such last day of the Borrower's most recently completed fiscal
quarter) shall be less than or equal to the greater of (A) 3.0 to 1.0 and
(B) the Leverage Ratio of the Borrower and its Subsidiaries as of the last
day of the Borrower's most recently completed fiscal quarter as set
78
forth on the compliance certificate delivered together with the financial
statements for such fiscal quarter pursuant to SECTION 7.1(A)(iii), and (y)
the Borrower would not otherwise be in Default after giving effect thereto;
(vi) in connection with the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Borrower
owned by any member of the Borrower's or any of its Subsidiaries'
management, pursuant to a management equity subscription agreement or stock
option agreement in effect on the Closing Date or entered into after the
Closing Date with members of the management of any Person acquired after
the Closing Date, PROVIDED, that the aggregate purchase price of all such
repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $15,000,000 in the aggregate since the Closing Date;
(vii) in connection with the repurchase of Equity Interests of the
Borrower or any Subsidiary of the Borrower held by employees, former
employees, directors or former directors pursuant to the terms of
agreements (including employment agreements) approved by the Borrower's
board of directors, PROVIDED, that the aggregate purchase price of all such
repurchased Equity Interests net of Equity Interests sold to employees and
directors shall not exceed $5,000,000 during any twelve-month period; and
(viii) Third-Party Payments under CLAUSE (iii) above and additional
Restricted Payments (including Restricted Investments but excluding any
Restricted Payment made in compliance with CLAUSE (v) above) which do not
in the aggregate exceed, for the period commencing with the Borrower's
fiscal quarter ending December 31, 1998, and ending on the last day of the
last quarter ending prior to such Third-Party Payment or Restricted
Payment, the greater of (A) the sum of $60,000,000 MINUS the amount of all
Third-Party Payments and Restricted Payments made under this CLAUSE (A),
and (B) the sum of (a) fifty percent (50%) of Consolidated Net Income for
such period (or, if Consolidated Net Income for such period is a deficit,
less 100% of such deficit), PLUS (b) the aggregate Net Cash Proceeds from
the sale or issuance of Equity Interests (other than Disqualified Stock) of
the Borrower for such period, PLUS (c) to the extent that any Restricted
Investment permitted hereunder and made after the Closing Date shall be
sold for cash during such period, the lesser of (x) the cash return of
capital with respect to such Restricted Investment (net of the cost of
disposition) and (y) the initial amount of such Restricted Investment;
PROVIDED, HOWEVER, that the Restricted Payments described in CLAUSES (iv),
(v), (vi), (vii) and (viii) above shall not be permitted if either a
Default or an Unmatured Default shall have occurred and be continuing at
the date of declaration or payment thereof or would result therefrom.
(G) CONDUCT OF BUSINESS; RESTRICTIONS ON EXCLUDED SUBSIDIARIES;
SUBSIDIARIES; ACQUISITIONS. (i) Neither the Borrower nor any of its
Subsidiaries or Excluded Subsidiaries shall engage in any business other than
the businesses engaged in by the Borrower and such Subsidiaries and Excluded
Subsidiaries on the date hereof, the businesses engaged in by the Reynolds Group
which is being acquired pursuant to the Reynolds Acquisition and any business or
activities which are substantially
79
similar, related or incidental thereto. Without first entering into
documentation reasonably acceptable to the Administrative Agent and
consistent with the requirements set forth in SECTION 7.2(K), pursuant to
which the Capital Stock of such entity is pledged pursuant to a Pledge
Agreement and pursuant to which such entity becomes a Guarantor (at which
time such entity shall be a "Subsidiary" hereunder and shall no longer
constitute an "Excluded Subsidiary"), no Excluded Subsidiary shall engage in
any business enterprise other than being a "name-holding" entity and shall
have no assets (other than the statutorily required minimum capitalization)
or liabilities.
(ii) THE BORROWER MAY CREATE, ACQUIRE AND/OR CAPITALIZE ANY
SUBSIDIARY (A "NEW SUBSIDIARY") after the date hereof pursuant to any
transaction that is permitted by or not otherwise prohibited by this
Agreement, PROVIDED that (1) each New Subsidiary that is a Domestic
Incorporated Subsidiary shall execute a guaranty of the Obligations and (2)
(x) all of the Equity Interests in each New Subsidiary that is a Domestic
Incorporated Subsidiary and (y) 65% of the Equity Interests in each New
Subsidiary that is a Material Foreign Subsidiary, in each case, owned by the
Borrower or any other Subsidiary shall be pledged to the Administrative
Agent, for the benefit of Holders of Secured Obligations, pursuant to
documentation in form and substance satisfactory to the Administrative Agent.
(iii) Neither the Borrower nor any of its Subsidiaries shall make
any Acquisitions, other than (x) the Reynolds Acquisition, (y) the Latasa
Acquisition, provided the aggregate purchase price (including assumed
liabilities) in respect thereof shall not exceed $74,000,000, and (z) other
Acquisitions meeting the following requirements or otherwise approved by the
Required Lenders (each of the Acquisitions permitted by CLAUSES (x), (y) and
(z) constituting a "PERMITTED ACQUISITION"):
(1) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of any
Indebtedness in connection therewith;
(2) after giving effect to such transaction, the aggregate of all
Foreign Subsidiary Investments would not exceed the Permitted Foreign
Subsidiary Investment Amount;
(3) the Acquisition shall be consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and the businesses being
acquired shall be substantially similar, related or incidental to the
businesses or activities engaged in by the Borrower and its Subsidiaries on
the Closing Date;
(4) if the Leverage Ratio (calculated on a PRO FORMA basis using
historical audited and reviewed unaudited financial statements obtained
from the seller, broken down by fiscal quarter in the Borrower's reasonable
judgment, as if the Acquisition and such incurrence of Indebtedness had
occurred on the first day of the twelve-month period ending on the last day
of the Borrower's most recently completed fiscal quarter) is greater than
3.0 to 1.0, the aggregate purchase price (including assumed liabilities) of
all Acquisitions otherwise permitted under this SECTION 7.3(G)(iii)(z)
shall not exceed (a) for any single transaction or series of related
transactions, $50,000,000; and (b) for all transactions from and after the
Closing Date, $100,000,000; and
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(5) prior to each such Acquisition, the Borrower shall deliver to the
Administrative Agent a certificate from one of the Authorized Officers of
the Borrower, demonstrating to the reasonable satisfaction of the
Administrative Agent and the Required Lenders that after giving effect to
such Acquisition and the incurrence of any Indebtedness permitted by
SECTION 7.3(A) in connection therewith, on a PRO FORMA basis using
historical audited and reviewed unaudited financial statements obtained
from the seller, broken down by fiscal quarter in the Borrower's reasonable
judgment, as if the Acquisition and such incurrence of Indebtedness had
occurred on the first day of the twelve-month period ending on the last day
of the Borrower's most recently completed fiscal quarter, the Borrower
would have been in compliance with the financial covenants in SECTION 7.4
and not otherwise in Default.
(H) TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Neither the
Borrower nor any of its Subsidiaries shall (i) directly or indirectly enter
into or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder or holders of any of the Equity Interests of the
Borrower, or with any Affiliate of the Borrower which is not its Subsidiary,
on terms that are less favorable to the Borrower or any of its Subsidiaries,
as applicable, than those that might be obtained in an arm's length
transaction at the time from Persons who are not such a holder or Affiliate,
except for (a) Permitted Receivables Transfers, (b) transactions pursuant to
the Tax Allocation Agreement, (c) transactions pursuant to the Manufacturing
Supply Agreement, and (d) Restricted Payments permitted by SECTION 7.3(F) or
(ii) enter or permit to exist any such non-arm's length transaction between
either the Borrower or any Domestic Incorporated Subsidiary, on the one hand,
and any Foreign Incorporated Subsidiary, on the other hand, if as a result
thereof the aggregate of all Foreign Subsidiary Investments would at any time
exceed the Permitted Foreign Subsidiary Investment Amount.
(I) RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Borrower nor any
of its Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of the Borrower's or any
such Subsidiary's business or property, whether now or hereafter acquired,
except (a) transactions permitted under SECTIONS 7.3(B), 7.3(F) or 7.3(G) and
(b) the merger of any Subsidiary into the Borrower or a Controlled
Subsidiary. No member of the FTB Group shall enter into any merger or
consolidation, except the merger or consolidation of any member of the FTB
Group into any other member of the FTB Group; PROVIDED, that FTB shall be the
survivor of any merger or consolidation to which it is a party and no Change
of Control shall result therefrom.
(J) SALES AND LEASEBACKS. Neither the Borrower nor any of its
Subsidiaries shall become liable, directly, by assumption or by Guarantied
Obligation, with respect to any lease, whether an operating lease or a
Capitalized Lease, of any property (whether real or personal or mixed (other
than the aircraft owned by the Borrower and its Subsidiaries as of the
Closing Date)) (i) which it or one of its Subsidiaries sold or transferred or
is to sell or transfer to any other Person, or (ii) which it or one of its
Subsidiaries intends to use for substantially the same purposes as any other
property which has been or is to be sold or transferred by it or one of its
Subsidiaries to any other Person in connection with such lease, unless in
either case the sale involved is not prohibited under SECTION 7.3(B) and the
lease involved is not prohibited under SECTION 7.3(A).
81
(K) MARGIN REGULATIONS. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. To the extent that any of the following actions or
omissions, individually or in the aggregate, would reasonably be expected to
subject the Borrower or any member of the Controlled Group to liability in
excess of $25,000,000, the Borrower shall not:
(i) engage, or permit any of its Subsidiaries to engage, in any
prohibited transaction described in Sections 406 of ERISA or 975 of the
Code for which a statutory or class exemption is not available or a private
exemption has not been previously obtained from the DOL;
(ii) fail, or permit any Controlled Group member to fail, to pay
timely required contributions or annual installments required under Section
412 of the Code or due with respect to any waived funding deficiency with
respect to any Benefit Plan;
(iii) terminate, or permit any Controlled Group member to terminate,
any Benefit Plan which would result in any liability of the Borrower or any
Controlled Group member under Title IV of ERISA;
(iv) fail to make any contribution or payment to any Multiemployer
Plan which the Borrower or any Controlled Group member may be required to
make under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto;
(v) amend, or permit any Controlled Group member to amend, a Benefit
Plan resulting in an increase in current liability for the plan year such
that the Borrower or any Controlled Group member is required to provide
security to such Plan under Section 401(a)(29) of the Code other than an
amendment required by applicable law, a collective bargaining agreement or
related obligation or a purchase or sale agreement;
(vi) permit any unfunded liabilities with respect to any Foreign
Pension Plan except to the extent that any such unfunded liabilities are
being funded by annual contributions made by the Borrower or any member of
its Controlled Group and such annual contributions are not less than the
minimum amounts required under applicable local law; or
(vii) fail, or permit any of its Subsidiaries or Controlled Group
members to fail, to pay any required contributions or payments to a Foreign
Pension Plan on or before the due date for such required installment or
payment.
(M) ISSUANCE OF DISQUALIFIED STOCK. Neither the Borrower nor any of
its Subsidiaries shall issue any Disqualified Stock other than (i) the
issuance of Disqualified Stock having a liquidation preference in an
aggregate amount not in excess of the principal amount of Indebtedness that
the Borrower and its Subsidiaries could incur on the date of such issuance
pursuant to SECTION 7.3(A)(vi) OR (vii) Or (ii) pursuant to an exchange or
conversion of then outstanding Indebtedness of the Borrower
82
or any of its Subsidiaries for or into Disqualified Stock, PROVIDED that, to
the extent that the aggregate amount of the liquidation preference of such
Disqualified Stock exceeds the principal amount of the Indebtedness so
exchanged or converted, such Disqualified Stock could be issued pursuant to
CLAUSE (i) above. All such issued and outstanding Disqualified Stock shall
be treated as Indebtedness for all purposes of this Agreement (and as funded
Indebtedness for purposes of SECTION 7.1(G)), and the amount of such deemed
Indebtedness shall be the aggregate amount of the liquidation preference of
such Disqualified Stock. The Borrower shall not permit any Subsidiary to
issue any shares of preferred stock.
(N) CORPORATE DOCUMENTS. Neither the Borrower nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents or the Tax
Allocation Agreement as in effect on the date hereof in any manner adverse in
any material respect to the interests of the Lenders, without the prior
written consent of the Required Lenders.
(O) FISCAL YEAR. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from
a period consisting of the 12-month period ending on December 31 of each
calendar year.
(P) SUBSIDIARY COVENANTS. Except as required in connection with the
Receivables Purchase Documents, the Borrower will not, and will not permit
any Subsidiary to, create or otherwise cause to become effective or suffer to
exist any consensual encumbrance or restriction of any kind on the ability of
any Subsidiary to effect any of the following: (i) pay dividends or make any
other distribution on its stock, (ii) make any other Restricted Payment,
(iii) pay any Indebtedness or other Obligation owed to the Borrower or any
other Subsidiary, (iv) make loans or advances or other Investments in the
Borrower or any other Subsidiary, or (v) sell, transfer or otherwise convey
any of its property to the Borrower or any other Subsidiary (except property
subject to a Lien permitted hereunder).
(Q) HEDGING OBLIGATIONS. The Borrower shall not and shall not permit
any of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity
exchange, swap, collar, cap or similar agreements entered into by the
Borrower pursuant to which the Borrower has hedged its actual interest rate,
foreign currency or commodity exposure. Such permitted hedging agreements
entered into by the Borrower and any other Person are sometimes referred to
herein as "HEDGING AGREEMENTS."
(R) OTHER INDEBTEDNESS. The Borrower shall not amend, modify or
supplement, or permit any Subsidiary to amend, modify or supplement (or
consent to any amendment, modification or supplement of), any document,
agreement or instrument evidencing the Senior Notes or any Subordinated
Indebtedness (or any replacements, substitutions or renewals thereof) or
pursuant to which the Senior Notes or any Subordinated Indebtedness is issued
where such amendment, modification or supplement provides for the following
or which has any of the following effects:
(i) increases the overall principal amount of any such Indebtedness or
increases the amount of any single scheduled installment of principal or
interest;
83
(ii) shortens or accelerates the date upon which any installment of
principal or interest becomes due or adds any additional mandatory
redemption provisions;
(iii) shortens the final maturity date of such Indebtedness or
otherwise accelerates the amortization schedule with respect to such
Indebtedness;
(iv) increases the rate of interest accruing on such Indebtedness;
(v) provides for the payment of additional fees or increases existing
fees;
(vi) amends or modifies any financial or negative covenant (or
covenant which prohibits or restricts the Borrower or a Subsidiary of the
Borrower from taking certain actions) in a manner which is more onerous or
more restrictive in any material respect to the Borrower (or any Subsidiary
of the Borrower) or which is otherwise materially adverse to the Borrower
and/or the Lenders or, in the case of adding covenants, which places
material additional restrictions on the Borrower (or a Subsidiary of the
Borrower) or which requires the Borrower or any such Subsidiary to comply
with more restrictive financial ratios or which requires the Borrower to
better its financial performance from that set forth in the existing
financial covenants;
(vii) amends, modifies or adds any affirmative covenant in a manner
which, when taken as a whole, is materially adverse to the Borrower and/or
the Lenders; or
(viii) in the case of any Subordinated Indebtedness, amends, modifies
or supplements the subordination provisions thereof.
(S) AMENDMENT OF RECEIVABLES PURCHASE DOCUMENTS. The Borrower shall
not, and shall not permit any of its Subsidiaries to, agree to or enter into
any amendment, restatement or other modification of the Receivables Purchase
Documents, or substitute or replace the Receivables Purchase Documents with
another receivables securitization facility, that would (i) increase the
maximum amount of Indebtedness to be incurred thereunder to an amount in
excess of $125,000,000; (ii) accelerate any scheduled amortization date;
(iii) increase the recourse obligations of the Borrower or any of its
Subsidiaries (other than Ball Capital Corp.) in any material respect; (iv)
provide for an "Event of Default," "Termination Event," "Early Amortization
Event," "Servicer Default" or other similar event upon the occurrence of a
Default or Unmatured Default hereunder; (v) impose net worth covenants for
Ball Capital Corp. that are materially more stringent than those in existence
on the Closing Date; (vi) materially decrease the cash consideration to be
paid to Ball Capital Corp. or Ball Metal Food Container Corp., a Delaware
corporation, Ball Plastic Container Corp., a Colorado corporation, and BMBCC
on account of any Permitted Receivables Transfers; or (vii) materially
increase the amount of discount, yield or interest payable thereunder.
(T) RESTRICTIONS ON CREDIT SUPPORT TO THE FTB GROUP. Other than
Permitted Existing Investments with respect to the FTB Group, neither the
Borrower nor any of its Subsidiaries shall provide any type of credit support
or credit enhancement to any member of the FTB Group, whether directly
through loans to or Investments in, letters of credit issued for the benefit
of any creditor of any
84
member of the FTB Group or guarantees or any other Contractual Obligation,
contingent or otherwise, of the Borrower or any of such Subsidiaries with
respect to any Indebtedness or other obligation or liability of any member of
the FTB Group, including, without limitation, any such Indebtedness,
obligation or liability directly or indirectly guaranteed, supported by
letter of credit, endorsed (other than for collection or deposit in the
ordinary course of business), co-made or discounted or sold with recourse, or
in respect of which the Borrower or any of its Subsidiaries is otherwise
directly or indirectly liable, including contractual obligations (contingent
or otherwise) arising through any agreement to purchase, repurchase, or
otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether
in the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received;
PROVIDED such credit support or other credit enhancement shall be permitted
if and only to the extent that it is treated as an Investment covered by the
provisions of SECTION 7.3(D) and to the extent that such credit support or
credit enhancement when added to the other Investments in the FTB Group would
be permitted pursuant to SECTION 7.3(D).
(U) AMENDMENTS TO AGREEMENTS. The Borrower shall not enter into, and
shall not permit any Subsidiary to enter into, or otherwise consent to, any
amendment or other modification to the Asset Purchase Agreement in any way
that would be materially adverse to the Borrower or any of its Subsidiaries
or to any of the Lenders.
7.4 FINANCIAL COVENANTS. The Borrower shall comply with the following:
(A) DEFINED TERMS FOR FINANCIAL COVENANTS. The following terms used in
this Agreement shall have the following meanings (such meanings to be
applicable, except to the extent otherwise indicated in a definition of a
particular term, both to the singular and the plural forms of the terms
defined):
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness, but excluding
(without duplication) any capitalized interest with respect thereto) by the
Borrower and its Subsidiaries during that period that, in conformity with
Agreement Accounting Principles, are required to be included in or reflected
by the property, plant, equipment or similar fixed asset accounts reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be
capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CONSOLIDATED NET INCOME" shall mean the net income and net losses of
the Borrower and its Subsidiaries on a consolidated basis as defined
according to Agreement Accounting Principles after excluding, without
duplication, the sum of (i) any net losses or net income from the operations
of any
85
member of the FTB Group (other than net income which has been paid by cash
dividend or otherwise distributed in cash to the Borrower or one of the
Guarantors) and (ii) the cumulative effect of a change in accounting
principles, in each case, calculated for the applicable period and determined
in accordance with Agreement Accounting Principles; PROVIDED, that when
calculating Consolidated Net Income, there shall be excluded from such
calculation, the earnings of a Subsidiary to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary to the
Borrower with respect to such earnings is not, at the date of determination,
permitted without the prior approval of a Governmental Authority (and such
approval has not been obtained), or is prohibited, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Subsidiary or the holders of its Capital Stock. For purposes of the
calculation of Consolidated Net Income, the provisions of CLAUSE (i) shall be
applicable to the FTB Group whether or not they constitute a Minority
Interest.
"CONSOLIDATED NET WORTH" shall mean the sum of shareholders' equity of
the Borrower and its Subsidiaries, including preferred stock of the Borrower
and its Subsidiaries; PROVIDED, that there shall be excluded therefrom all
amounts related to the FTB Group.
"EBITDA" means, for any period, on a consolidated basis for the Borrower
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of:
(i) Consolidated Net Income,
PLUS (ii) Interest Expense, to the extent deducted in computing
Consolidated Net Income,
PLUS (iii) charges against income for foreign, federal, state and
local taxes, to the extent deducted in computing
Consolidated Net Income,
PLUS (iv) depreciation expense, to the extent deducted in computing
Consolidated Net Income,
PLUS (v) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets,
Transaction Costs, and other fees, costs and expenses in
connection with Permitted Acquisitions, in each case, to
the extent deducted in computing Consolidated Net Income,
PLUS (vi) the lease expense component of the Synthetic Leases, to
the extent deducted in computing Consolidated Net Income,
MINUS (vii) the gain (or PLUS the loss) (net of any tax effect)
resulting from the sale of any capital assets other than
in the ordinary course of business,
MINUS (viii) extraordinary or nonrecurring after-tax gains (or PLUS
extraordinary or nonrecurring after-tax losses),
86
MINUS (ix) any gain resulting from any write-up of assets (other
than with respect to any Company Owned Life Insurance
Program),
PLUS (x) any loss resulting from any write-down of assets; and
PLUS (xi) any non-cash restructuring charge.
in each case calculated for the applicable period in conformity with Agreement
Accounting Principles.
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Borrower and its consolidated Subsidiaries (other than the FTB Group),
whether paid or accrued (including the interest component of Capitalized
Leases, the interest component of the Synthetic Leases, net payments (if any)
pursuant to Hedging Obligations relating to interest rate protection,
commitment and letter of credit fees, and discount and other fees and charges
incurred under the Receivables Purchase Documents), but excluding interest
expense not payable in cash (including amortization of discount), as
determined in conformity with Agreement Accounting Principles.
"TOTAL DEBT" means, for any period, on a consolidated basis for the
Borrower and its consolidated Subsidiaries (other than the FTB Group),
Indebtedness of the Borrower and its Subsidiaries, other than (i) Hedging
Obligations and (ii) the sum (without duplication) of the amounts then
available for drawing under commercial or trade letters of credit and (iii)
Support Obligations.
(B) MINIMUM CONSOLIDATED NET WORTH. The Borrower shall not permit its
Consolidated Net Worth at any time to be less than the sum of (a)
$500,000,000, PLUS (b) fifty percent (50%) of Consolidated Net Income (if
positive) calculated separately for each fiscal quarter commencing with the
fiscal quarter ending December 31, 1998, PLUS (c) one hundred percent (100%)
of the Net Cash Proceeds resulting from the issuance by the Borrower of any
Capital Stock.
(C) TOTAL DEBT TO EBITDA RATIO. The Borrower shall not permit the ratio
(the "LEVERAGE RATIO") of Total Debt to EBITDA to be greater than the ratio
set forth below under the column entitled "Leverage Ratio" at any time during
the fiscal quarter ending on the corresponding date set forth below:
87
QUARTER ENDING LEVERAGE RATIO
-------------- --------------
December 31, 1998 4.75 to 1.00
March 31, 1999 4.75 to 1.00
June 30, 1999 4.75 to 1.00
September 30, 1999 4.50 to 1.00
December 31, 1999 4.50 to 1.00
March 31, 2000 4.25 to 1.00
June 30, 2000 4.25 to 1.00
September 30, 2000 4.00 to 1.00
December 31, 2000 4.00 to 1.00
March 31, 2001 4.00 to 1.00
June 30, 2001
and each quarter
thereafter 3.50 to 1.00
The Leverage Ratio shall be calculated, in each case, determined as of the
last day of each fiscal quarter based upon (a) for Total Debt, Total Debt as
of the last day of each such fiscal quarter; and (b) for EBITDA, the actual
amount for the four-quarter period ending on such day, calculated, with
respect to Permitted Acquisitions, on a PRO FORMA basis using historical
audited and reviewed unaudited financial statements obtained from the seller,
broken down by fiscal quarter in the Borrower's reasonable judgment;
PROVIDED, that there shall be excluded from the calculation of the Leverage
Ratio all amounts related to the FTB Group.
(D) FIXED CHARGE COVERAGE RATIO. The Borrower shall maintain a ratio
("FIXED CHARGE COVERAGE RATIO") of (i) the sum (without duplication) of the
amounts of (a) EBITDA MINUS (b) Capital Expenditures to (ii) the sum of the
amounts of (a) scheduled amortization of the principal portion of the "Term
Loans" (as defined in the Long-Term Credit Agreement) and scheduled
amortization of the principal portion of all other Indebtedness of the
Borrower and its Subsidiaries (PROVIDED, that solely for purposes of
calculating the Fixed Charge Coverage Ratio as of the fiscal quarter ending
on December 31, 2001, such calculation shall be made exclusive of payments
made at the final maturity of the Synthetic Leases during such fiscal
quarter), PLUS (b) Interest Expense, PLUS (c) cash taxes paid, PLUS (d)
dividends paid by the Borrower or other cash distributions made on the equity
of the Borrower (PROVIDED, that for purposes of this SECTION 7.4(D),
calculation of the Fixed Charge Coverage Ratio shall be exclusive of the
effect of Restricted Payments made in compliance with SECTION 7.3(F)(v))
during such period of at least:
(i) 1.05 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending December 31, 1998 through the fiscal quarter
ending June 30, 1999;
(ii) 1.10 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending September 30, 1999 through the fiscal
quarter ending June 30, 2000;
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(iii) 1.15 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending on September 30, 2000 through the fiscal
quarter ending on June 30, 2001; and
(iv) 1.20 to 1.00 for each fiscal quarter thereafter until the
Termination Date.
In each case the Fixed Charge Coverage Ratio shall be determined as of the
last day of each fiscal quarter for the four-quarter period ending on such
day PROVIDED, that there shall be excluded from the calculation of the Fixed
Charge Coverage Ratio all amounts relating to the FTB Group.
ARTICLE VIII: DEFAULTS
8.1 DEFAULTS. Each of the following occurrences shall constitute a
Default under this Agreement:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall (i) fail to
pay when due any of the Obligations consisting of principal with respect to
the Loans or (ii) shall fail to pay within five (5) Business Days of the date
when due any of the other Obligations under this Agreement or the other Loan
Documents.
(b) BREACH OF CERTAIN COVENANTS. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation
binding on the Borrower under:
(i) SECTION 7.1(C) through and including (J) and SECTION 7.2 and
such failure shall continue unremedied for fifteen (15) Business Days;
(ii) SECTION 7.1(A), 7.1(B), or 7.3 or 7.4.
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made or deemed made by the Borrower to the Administrative Agent or
any Lender herein or by the Borrower or any of its Subsidiaries in any of the
other Loan Documents or in any statement or certificate at any time given by
any such Person pursuant to any of the Loan Documents shall be untrue in any
material respect on the date as of which made (or deemed made).
(d) OTHER DEFAULTS. The Borrower shall default in the performance of
or compliance with any term contained in this Agreement (other than as
covered by PARAGRAPHS (a), (b) or (c) of this SECTION 8.1), or the Borrower
or any of its Subsidiaries shall default in the performance of or compliance
with any term contained in any of the other Loan Documents, and such default
shall continue for fifteen (15) Business Days after the earlier of (i) notice
from the Administrative Agent or (ii) the date on which any member of the
Borrower's or such Subsidiary's management, as applicable, shall first have
actual knowledge thereof.
(e) DEFAULT AS TO OTHER INDEBTEDNESS. (x) Any "Default" shall occur
under and as defined in the Long-Term Credit Agreement; or (y) the Borrower
or any of its Subsidiaries shall fail to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
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otherwise) with respect to any Indebtedness (including, without limitation,
Indebtedness with respect to any Hedging Agreement, but other than (i) the
Obligations and the Indebtedness under the Receivables Purchase Documents and
(ii) the Obligations and Indebtedness of the FTB Group (which Obligations and
Indebtedness are non-recourse to the Borrower and its Subsidiaries)) the
aggregate outstanding principal amount of which Indebtedness is in excess of
$10,000,000; or any breach, default or event of default shall occur, or any
other condition shall exist under any instrument, agreement or indenture
pertaining to any such Indebtedness, if the effect thereof is to cause an
acceleration, mandatory redemption, a requirement that the Borrower or any of
its Subsidiaries offer to purchase such Indebtedness or other required
repurchase of such Indebtedness, or permit the holder(s) of such Indebtedness
to accelerate the maturity of any such Indebtedness or require a redemption
or other repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or otherwise) or
the holder of such Indebtedness requires such Indebtedness to be prepaid,
redeemed or otherwise repurchased by the Borrower or any of its Subsidiaries
(other than by a regularly scheduled required prepayment) prior to the stated
maturity thereof.
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case under applicable bankruptcy, insolvency or
other similar law shall be commenced against the Borrower or any Material
Subsidiary and the petition shall not be dismissed, stayed, bonded or
discharged within sixty (60) days after commencement of the case; or a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Borrower or any Material Subsidiary in an
involuntary case, under any applicable bankruptcy, insolvency or other
similar law now or hereinafter in effect; or any other similar relief shall
be granted under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Borrower or any
Material Subsidiary or over all or a substantial part of the property of
the Borrower or any Material Subsidiary shall be entered; or an interim
receiver, trustee or other custodian of the Borrower or any Material
Subsidiary or of all or a substantial part of the property of the Borrower
or any Material Subsidiary shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the property
of the Borrower or any Material Subsidiary shall be issued and any such
event shall not be stayed, dismissed, bonded or discharged within sixty
(60) days after entry, appointment or issuance.
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The Borrower
or any Material Subsidiary shall (i) commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any such law, (iii) consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property, (iv) make any assignment for the benefit of creditors or (v) take
any corporate action to authorize any of the foregoing.
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(h) JUDGMENTS AND ATTACHMENTS. Any money judgment(s) (other than a
money judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any Material
Subsidiary or any of their respective assets involving in any single case or
in the aggregate an amount in excess of $10,000,000 is or are entered and
shall remain undischarged, unvacated, unbonded or unstayed for a period of
sixty (60) days or in any event later than fifteen (15) days prior to the
date of any judicially sanctioned sale thereunder.
(i) DISSOLUTION. Any order, judgment or decree shall be entered
against the Borrower or any Material Subsidiary decreeing its involuntary
dissolution or split up and such order shall remain undischarged and unstayed
for a period in excess of sixty (60) days; or the Borrower or any Material
Subsidiary shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(j) LOAN DOCUMENTS; FAILURE OF SECURITY. At any time, for any reason,
(i) any Loan Document as a whole that materially affects the ability of the
Administrative Agent, or any of the Lenders to enforce the Obligations or
enforce their rights against the Collateral ceases to be in full force and
effect or the Borrower or any of the Borrower's Subsidiaries party thereto
seeks to repudiate its obligations thereunder and the Liens intended to be
created thereby are, or the Borrower or any such Subsidiary seeks to render
such Liens, invalid or unperfected, or (ii) any material Lien on Collateral
in favor of the Administrative Agent contemplated by the Loan Documents
shall, at any time, for any reason (except as permitted by the terms of any
such Loan Document), be invalidated or otherwise cease to be in full force
and effect, or such Lien shall not have the priority contemplated by this
Agreement or the Loan Documents.
(k) TERMINATION EVENT. Any Termination Event occurs which individually
or in the aggregate would reasonably be expected to subject the Borrower or
any Controlled Group member to liability in excess of $25,000,000.
(l) WAIVER OF MINIMUM FUNDING STANDARD. The plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the substantial business
hardship upon which the application for the waiver is based could reasonably
be expected to subject either the Borrower or any Controlled Group member to
liability in excess of $10,000,000.
(m) CHANGE OF CONTROL. A Change of Control shall occur.
(n) ENVIRONMENTAL MATTERS. The Borrower or any of its Subsidiaries
shall be the subject of any proceeding or investigation pertaining to (i) the
Release by the Borrower or any of its Subsidiaries of any Contaminant, (ii)
the liability of the Borrower or any of its Subsidiaries arising from the
Release by any other Person of any Contaminant, or (iii) any violation of any
Environmental, Health or Safety Requirements of Law by the Borrower or any of
its Subsidiaries, which, in any case, has subjected or is reasonably likely
to subject the Borrower or any of its Subsidiaries to liability individually
or in the aggregate in excess of $25,000,000 (exclusive of costs, expenses,
claims covered by insurance policies of the Borrower or any of its
Subsidiaries unless the insurers of such costs, expenses or claims have
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disclaimed coverage or reserved the right to disclaim coverage thereof and
exclusive of costs, expenses or claims covered by the indemnity of a
financially responsible indemnitor in favor of the Borrower or any of its
Subsidiaries unless the indemnitor has disclaimed or reserved the right to
disclaim coverage thereof).
(o) GUARANTOR DEFAULT OR REVOCATION. The Borrower or any Guarantor
shall terminate or revoke any of their respective obligations under any of
the Collateral Documents, or any other guarantor of the Obligations shall
terminate or revoke any of its obligations under the applicable guarantee
agreement or breach any of the terms of such guarantee agreement.
(p) FAILURE OF SUBORDINATION. The subordination provisions of the
documents and instruments evidencing any Subordinated Indebtedness shall, at
any time, be invalidated or otherwise cease to be in full force and effect.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with SECTION 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND
REMEDIES
9.1 TERMINATION OF REVOLVING LOAN COMMITMENTS; ACCELERATION. If any
Default described in SECTION 8.1(f) or 8.1(g) or 8.1(i) occurs with respect
to the Borrower, the obligations of the Lenders to make Loans hereunder and
the obligation of each Issuing Bank to issue Letters of Credit hereunder
shall automatically terminate and the Obligations shall immediately become
due and payable without any election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, the
Required Lenders may terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation of the Issuing Banks to issue Letters
of Credit hereunder, or declare the Obligations to be due and payable, or
both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower expressly waives.
9.2 DEFAULTING LENDER. In the event that any Lender fails to fund its
Revolving Loan Pro Rata Share of any Advance requested or deemed requested by
the Borrower, which such Lender is obligated to fund under the terms of this
Agreement (the funded portion of such Advance being hereinafter referred to
as a "NON PRO RATA LOAN"), until the earlier of such Lender's cure of such
failure and the termination of the Revolving Loan Commitments, the proceeds
of all amounts thereafter repaid to the Administrative Agent by the Borrower
and otherwise required to be applied to such Lender's share of all other
Obligations pursuant to the terms of this Agreement shall be advanced to the
Borrower by the Administrative Agent on behalf of such Lender to cure, in
full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything in this Agreement to the contrary:
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(i) the foregoing provisions of this SECTION 9.2 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to SECTION
2.10;
(ii) any such Lender shall be deemed to have cured its failure
to fund its Revolving Loan Pro Rata Share of any Advance at such time
as an amount equal to such Lender's original Revolving Loan Pro Rata
Share of the requested principal portion of such Advance is fully
funded to the Borrower, whether made by such Lender itself or by
operation of the terms of this SECTION 9.2, and whether or not the Non
Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Revolving Loan Pro Rata
Share of any Advance ("CURE LOANS") shall bear interest at the rate
applicable to Floating Rate Loans in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were
Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in
accordance with the other terms of this Agreement, would be applied to
the outstanding Floating Rate Loans shall be applied FIRST, ratably to
all Floating Rate Loans constituting Non Pro Rata Loans, SECOND,
ratably to Floating Rate Loans other than those constituting Non Pro
Rata Loans or Cure Loans and, THIRD, ratably to Floating Rate Loans
constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Revolving Loan Pro Rata Share of any
Advance and the termination of the Revolving Loan Commitments, the
term "Required Lenders" for purposes of this Agreement shall mean
Lenders (excluding all Lenders whose failure to fund their respective
Revolving Loan Pro Rata Share of such Advance have not been so cured)
whose Pro Rata Shares represent at least fifty percent (50%) of the
aggregate Pro Rata Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to fund
its Revolving Loan Pro Rata Share of any Advance is cured in
accordance with SECTION 9.2(ii), (A) such Lender shall not be entitled
to any commitment fees with respect to its Revolving Loan Commitment
and (B) such Lender shall not be entitled to any letter of credit
fees, which commitment fees and letter of credit fees shall accrue in
favor of the Lenders which have funded their respective Revolving Loan
Pro Rata Share of such requested Advance, shall be allocated among
such performing Lenders ratably based upon their relative Revolving
Loan Commitments, and shall be calculated based upon the average
amount by which the aggregate Revolving Loan Commitments of such
performing Lenders exceeds the sum of (I) the outstanding principal
amount of the Loans owing to such performing Lenders, PLUS (II) the
outstanding Reimbursement Obligations owing to such performing
Lenders, PLUS (III) the aggregate participation interests of such
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performing Lenders arising pursuant to SECTION 3.6 with respect to
undrawn and outstanding Letters of Credit.
9.3 AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Administrative Agent with the consent in writing of
the Required Lenders) and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrower
hereunder or waiving any Default hereunder; PROVIDED, HOWEVER, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Revolving Loan Termination Date or any
other date fixed for any payment of principal of, or interest on, the
Loans, the Reimbursement Obligations or any fees or other amounts payable
to such Lender (except with respect to (a) any modifications of the
provisions relating to prepayments of Loans and other Obligations or (b) a
waiver of the application of the default rate of interest pursuant to
SECTION 2.11 hereof or (c) as expressly provided by the terms of SECTION
2.18).
(ii) Reduce the principal amount of any Loans or L/C Obligations, or
reduce the rate or extend the time of payment of interest or fees thereon.
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the applicable
percentage in this Agreement to act on specified matters, or amend the
definitions of "Required Lenders", "Revolving Loan Pro Rata Share", or "Pro
Rata Share".
(iv) Increase the amount of the Revolving Loan Commitment of any
Lender hereunder, or increase any Lender's Revolving Loan Pro Rata Share or
Pro Rata Share.
(v) Permit the Borrower to assign its rights under this Agreement.
(vi) Amend this SECTION 9.3.
(vii) Release all or substantially all of the Collateral.
(viii) Except in connection with a transaction otherwise permitted
pursuant to the terms of any Loan Document, release any Domestic
Incorporated Subsidiary from its obligations under the Subsidiary Guaranty.
Any supplemental agreement entered into in accordance with the terms of this
SECTION 9.3 shall apply to each of the Lenders equally. No amendment of any
provision of this Agreement relating to (a) the Administrative Agent shall be
effective without the written consent of the Administrative Agent, (b) Swing
Line Loans shall be effective without the written consent of the Swing Line
Bank and (c) any Issuing Lender without the written consent of such Issuing
Lender. The Administrative Agent may waive payment of the fee required under
SECTION 13.3(B) without obtaining the consent of any of the Lenders.
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9.4 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan or the issuance of a Letter of
Credit notwithstanding the existence of a Default or the inability of the
Borrower to satisfy the conditions precedent to such Loan or issuance of such
Letter of Credit shall not constitute any waiver or acquiescence. Any single
or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment
or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders
required pursuant to SECTION 9.3, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by
law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X: GENERAL PROVISIONS
10.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of this
Agreement and the making of the Loans herein contemplated.
10.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 PERFORMANCE OF OBLIGATIONS. The Borrower agrees that the
Administrative Agent may, but shall have no obligation, to (i) at any time,
pay or discharge taxes, liens, security interests or other encumbrances
levied or placed on or threatened against any Collateral and (ii) after the
occurrence and during the continuance of a Default, make any other payment or
perform any act required of the Borrower under any Loan Document or take any
other action which the Administrative Agent in its discretion deems necessary
or desirable to protect or preserve the Collateral, including, without
limitation, any action to (y) effect any repairs or obtain any insurance
called for by the terms of any of the Loan Documents and to pay all or any
part of the premiums therefor and the costs thereof and (z) pay any rents
payable by the Borrower which are more than 30 days past due, or as to which
the landlord has given notice of termination, under any lease. The
Administrative Agent shall use its best efforts to give the Borrower notice
of any action taken under this SECTION 10.3 prior to the taking of such
action or promptly thereafter provided the failure to give such notice shall
not affect the Borrower's obligations in respect thereof. The Borrower
agrees to pay the Administrative Agent, upon demand, the principal amount of
all funds advanced by the Administrative Agent under this SECTION 10.3,
together with interest thereon at the rate from time to time applicable to
Floating Rate Loans from the date of such advance until the outstanding
principal balance thereof is paid in full. If the Borrower fails to make
payment in respect of any such advance under this SECTION 10.3 within one (1)
Business Day after the date the Borrower receives written demand therefor
from the Administrative Agent, the Administrative Agent shall promptly notify
each Lender and each Lender agrees that it shall thereupon make available to
the Administrative Agent, in Dollars in immediately available funds, the
amount equal to such Lender's Pro Rata Share of such advance. If such funds
are not made available to the
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Administrative Agent by any such Lender within one (1) Business Day after the
Administrative Agent's demand therefor, the Administrative Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Administrative
Agent its Pro Rata Share of any such unreimbursed advance under this SECTION
10.3 shall neither relieve any other Lender of its obligation hereunder to
make available to the Administrative Agent such other Lender's Pro Rata Share
of such advance on the date such payment is to be made nor increase the
obligation of any other Lender to make such payment to the Administrative
Agent. All outstanding principal of, and interest on, advances made under
this SECTION 10.3 shall constitute Obligations secured by the Collateral
until paid in full by the Borrower.
10.4 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agents and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Agents and the Lenders relating to the subject matter thereof.
10.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to
which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement and their respective successors and assigns.
10.7 EXPENSES; INDEMNIFICATION.
(A) EXPENSES. The Borrower shall reimburse the Agents and the
Arrangers for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time
charges of attorneys and paralegals for the Agents, which attorneys and
paralegals may be employees of the Agents) paid or incurred by any Agent or
any Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Agents and the
Arrangers and the Lenders for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' and paralegals' fees
and time charges of attorneys and paralegals for the Agents and the Arrangers
and the Lenders, which attorneys and paralegals may be employees of the
Agents or the Arrangers or the Lenders) paid or incurred by any Agent or any
Arranger or any Lender in connection with the restructure, workout or
collection of the Obligations and enforcement (whether by legal proceedings,
negotiation or otherwise) of the Loan Documents. In addition to expenses set
forth above, the Borrower agrees to reimburse the Administrative Agent,
promptly after the Administrative Agent's request therefor, for each audit,
or other business analysis expressly permitted or contemplated hereby and
performed by or for the benefit of the Lenders in connection
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with this Agreement or the other Loan Documents in an amount equal to the
Administrative Agent's then customary charges for each person employed to
perform such audit or analysis, plus all reasonable costs and expenses
(including without limitation, travel expenses) incurred by the
Administrative Agent in the performance of such audit or analysis; PROVIDED,
that the Borrower shall only be responsible for expenses in connection with
one (1) such audit or business analysis in any calendar year at a time when
no Default had occurred or was continuing.
(B) INDEMNITY. The Borrower further agrees to defend, protect,
indemnify, and hold harmless each and all of the Agents, the Arrangers and
the Lenders and each of their respective Affiliates, and each of such
Agent's, Arranger's, Lender's, or Affiliate's respective officers, directors,
trustees, investment advisors, employees, attorneys and agents (including,
without limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in ARTICLE V)
(collectively, the "INDEMNITEES") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in
any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the
Transaction Documents, or any act, event or transaction related or
attendant thereto or to the Reynolds Acquisition, the making of the Loans,
and the issuance of and participation in Letters of Credit hereunder, the
management of such Loans or Letters of Credit, the use or intended use of
the proceeds of the Loans or Letters of Credit hereunder, or any of the
other transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or
threat to the environment, natural resources or public health or welfare,
costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental,
health or safety condition of any respective property of the Borrower or
its Subsidiaries, the presence of asbestos-containing materials at any
respective property of the Borrower or its Subsidiaries or the Release or
threatened Release of any Contaminant arising out of or relating to, in any
way, the past, present or future operations of the Borrower, its
Subsidiaries or any of their respective predecessors in interest
(collectively, the "INDEMNIFIED MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters to the extent caused by or
resulting from the willful misconduct or Gross Negligence of such Indemnitee
with respect to the Loan Documents or the Indemnified Matters, in
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each case, as determined by the final non-appealed judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all Indemnified Matters incurred by
the Indemnitees.
(C) WAIVER OF CERTAIN CLAIMS; SETTLEMENT OF CLAIMS. The Borrower further
agrees to assert no claim against any of the Indemnitees on any theory of
liability for consequential, special, indirect, exemplary or punitive damages.
No settlement shall be entered into by the Borrower or any of its Subsidiaries
with respect to any claim, litigation, arbitration or other proceeding with
respect to which any Agent or any Lender or any Indemnitee is a party (or in
connection with which liability has been asserted against any Agent or any
Lender or any Indemnitee) and relating to or arising out of the transactions
evidenced by this Agreement, the other Loan Documents or the Reynolds
Acquisition Documents unless such settlement releases all Indemnitees from any
and all liability with respect thereto.
(D) SURVIVAL OF AGREEMENTS. The obligations and agreements of the
Borrower under this SECTION 10.7 shall survive the termination of this
Agreement.
10.8 NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
10.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
10.11 NONLIABILITY OF LENDERS. The relationship between the Borrower and
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither any Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither any Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
10.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
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BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET
SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2)
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR (3) TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON.
WITHOUT IMPAIRING THE BORROWER'S ABILITY TO BRING ANY COUNTERCLAIM IN ANY
PROCEEDING COMMENCED PURSUANT TO SUBSECTION (A) ABOVE, THE BORROWER AGREES THAT
IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY
SUCH PERSON UNDER THIS SUBSECTION (B) TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS; VENUE. THE BORROWER WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY APPOINTS CT CORPORATION, WHOSE ADDRESS IS
208 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60603 AS THE BORROWER'S AGENT FOR
THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT. THE BORROWER
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS)
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WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION
SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 10.13, WITH ITS COUNSEL.
10.14 SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. The Borrower agrees
that any and all claims of the Borrower against any of its Subsidiaries that is
a Guarantor or the capital stock of which is pledged pursuant to a Pledge
Agreement (each a "RESTRICTED SUBSIDIARY") with respect to any "Intercompany
Indebtedness" (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Secured Obligations, or against any of its
properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Secured Obligations; PROVIDED that, and not
in contravention of the foregoing, so long as no Default has occurred and is
continuing the Borrower may make loans to and receive payments in the ordinary
course with respect to such Intercompany Indebtedness from each such Restricted
Subsidiary to the extent permitted by the terms of this Agreement and the other
Loan Documents. Notwithstanding any right of the Borrower to ask, demand, sue
for, take or receive any payment from any Restricted Subsidiary all rights,
liens and security interests of the Borrower, whether now or hereafter arising
and howsoever existing, in any assets of any other Restricted Subsidiary
(whether constituting part of Collateral given to any Holder of Secured
Obligations or the Administrative Agent to secure payment of all or any part of
the Secured Obligations or otherwise) shall be and are subordinated to the
rights of the Holders of Secured Obligations and the Administrative Agent in
those assets. The Borrower shall have no right to possession of any such asset
or to foreclose upon any such asset, whether by judicial action or otherwise,
unless and until all of the Secured Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied (in cash) and all
financing arrangements pursuant to any Loan Document among the Borrower and the
Holders of Secured Obligations have been terminated. If all or any part of the
assets of any Restricted Subsidiary, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Restricted
Subsidiary, whether partial or
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complete, voluntary or involuntary, and whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding, or if the business of any such
Restricted Subsidiary is dissolved or if substantially all of the assets of
any such Restricted Subsidiary are sold, then, and in any such event (such
events being herein referred to as an "INSOLVENCY EVENT"), any payment or
distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
indebtedness of any Restricted Subsidiary to the Borrower ("INTERCOMPANY
INDEBTEDNESS") shall be paid or delivered directly to the Administrative
Agent for application on any of the Secured Obligations, due or to become
due, until such Secured Obligations (other than contingent indemnity
obligations) shall have first been fully paid and satisfied (in cash).
Should any payment, distribution, security or instrument or proceeds thereof
be received by the Borrower upon or with respect to the Intercompany
Indebtedness after an Insolvency Event and prior to the satisfaction of all
of the Secured Obligations (other than contingent indemnity obligations) and
the termination of all financing arrangements pursuant to any Loan Document
among the Borrower and the Holders of Secured Obligations, the Borrower shall
receive and hold the same in trust, as trustee, for the benefit of the
Holders of Secured Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Holders of Secured Obligations,
in precisely the form received (except for the endorsement or assignment of
the Borrower where necessary), for application to any of the Secured
Obligations, due or not due, and, until so delivered, the same shall be held
in trust by the Borrower as the property of the Holders of Secured
Obligations. If the Borrower fails to make any such endorsement or
assignment to the Administrative Agent, the Administrative Agent or any of
its officers or employees are irrevocably authorized to make the same. The
Borrower agrees that until the Secured Obligations (other than the contingent
indemnity obligations) have been paid in full (in cash) and satisfied and all
financing arrangements pursuant to any Loan Document among the Borrower and
the Holders of Secured Obligations have been terminated, the Borrower will
not assign or transfer to any Person (other than the Administrative Agent)
any claim the Borrower has or may have against any Restricted Subsidiary.
10.15 OTHER TRANSACTIONS. Each of the Agents, the Arrangers, the Lenders,
the Swing Line Bank, the Issuing Banks and the Borrower acknowledges that the
Lenders (or Affiliates of the Lenders) may, from time to time, effect
transactions for their own accounts or the accounts of customers, and hold
positions in loans or options on loans of the Borrower, the Borrower's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Borrower, the Borrower's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with each of the Agents are providing other
financial services and products to the Borrower in connection with the Reynolds
Acquisition and the other transactions contemplated by this Agreement. Each of
the Agents, the Arrangers, the Lenders, the
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Swing Line Bank, the Issuing Banks and the Borrower acknowledges and consents
to these multiple roles, and further acknowledges that the fact that any such
unit or Affiliate is providing another service or product or proposal
therefor to the Borrower does not mean that such service, product, or
proposal is or will be acceptable to any of the Agents, the Arrangers, the
Lenders, the Swing Line Bank, or the Issuing Banks.
ARTICLE XI: THE ADMINISTRATIVE AGENT
11.1 APPOINTMENT; NATURE OF RELATIONSHIP. The First National Bank of
Chicago is appointed by the Lenders as the Administrative Agent hereunder and
under each other Loan Document, and each of the Lenders irrevocably authorizes
the Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this ARTICLE XI.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Holder of Secured Obligations by reason of
this Agreement and that the Administrative Agent is merely acting as the
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Administrative Agent (i) does not assume any
fiduciary duties to any of the Holders of Secured Obligations, (ii) is a
"representative" of the Holders of Secured Obligations within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders, for itself and on behalf of its affiliates as Holders of Secured
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Secured Obligations waives.
11.2 POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
11.3 GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction results from (i) the
Gross Negligence or willful misconduct of such Person or (ii) breach of contract
by such Person with respect to the Loan Documents.
11.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, COLLATERAL, RECITALS,
ETC. Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (i) any statement, warranty or representation made in
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connection with any Loan Document or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document; (iii) the satisfaction of any condition specified in
ARTICLE V, except receipt of items required to be delivered solely to the
Administrative Agent; (iv) the existence or possible existence of any Default or
(v) the validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith. The Administrative
Agent shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or in any of the other Loan Documents, for
the perfection or priority of any of the Liens on any of the Collateral, or for
the execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents or the transactions contemplated thereby, or for the financial
condition of any guarantor of any or all of the Obligations, the Borrower or any
of its Subsidiaries.
11.5 ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent in all
cases, as between the Administrative Agent and the Holders of Secured
Obligations, shall be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all Holders of Secured Obligations. As between the
Administrative Agent and the Holders of Secured Obligations, the Administrative
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
11.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorney-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
11.7 RELIANCE ON DOCUMENTS; COUNSEL. As between the Administrative Agent
and the Holders of Secured Obligations, the Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8 THE ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Revolving Loan Commitments (i) for any amounts
not reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents (other than amounts not
reimbursed by the Borrower pursuant to the terms of the letter agreements
identified in SECTIONS 2.14(C)(ii) and (iii)), (ii) for any other expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
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Loan Documents and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of the
Loan Documents or any other document delivered in connection therewith or the
transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from the Gross Negligence or willful misconduct of the Administrative
Agent.
11.9 RIGHTS AS A LENDER. With respect to its Revolving Loan Commitment,
Loans made by it and the Letters of Credit issued by it as an Issuing Bank, the
Administrative Agent shall have the same rights and powers hereunder and under
any other Loan Document as any Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Subsidiaries in which such Person
is not prohibited hereby from engaging with any other Person.
11.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, any Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent, any Arranger or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
11.11 SUCCESSOR AGENT. The Administrative Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower, and the
Administrative Agent may be removed at any time with or without cause by written
notice received by the Administrative Agent from the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent. Notwithstanding anything herein to
the contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Borrower,
which approval shall not be unreasonably withheld. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000. Upon the acceptance of any appointment as
the Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents. After any
retiring Administrative Agent's resignation
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hereunder as Administrative Agent, the provisions of this ARTICLE XI shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent hereunder
and under the other Loan Documents. Notwithstanding anything herein to the
contrary, the Administrative Agent may at any time and without the consent of
any of the parties hereto designate one or more of its Affiliates as
successor Administrative Agent.
11.12 COLLATERAL DOCUMENTS. (a) Each Lender authorizes the Administrative
Agent to enter into each of the Collateral Documents to which it is a party and
to take all action contemplated by such documents. Each Lender agrees that no
Holder of Secured Obligations (other than the Administrative Agent) shall have
the right individually to seek to realize upon the security granted by any
Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Administrative Agent for the benefit of
the Holders of Secured Obligations upon the terms of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by any
Person as collateral security for the Obligations, the Administrative Agent is
hereby authorized to execute and deliver on behalf of the Holders of Secured
Obligations any Loan Documents necessary or appropriate to grant and perfect a
Lien on such Collateral in favor of the Administrative Agent on behalf of the
Holders of Secured Obligations.
(c) The Lenders hereby authorize the Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Revolving
Loan Commitments and payment and satisfaction of all of the Obligations at any
time arising under or in respect of this Agreement or the Loan Documents or the
transactions contemplated hereby or thereby; (ii) as permitted by, but only in
accordance with, the terms of the applicable Loan Document; or (iii) if
approved, authorized or ratified in writing by the Required Lenders, unless such
release is required to be approved by all of the Lenders hereunder. Upon
request by the Administrative Agent at any time, the Lenders will confirm in
writing the Administrative Agent's authority to release particular types or
items of Collateral pursuant to this SECTION 11.12(c).
(d) Upon any sale or transfer of assets constituting Collateral which
is permitted pursuant to the terms of any Loan Document, or consented to in
writing by the Required Lenders or all of the Lenders, as applicable, or
consummation of any transaction involving the sale of all or substantially all
of the assets of a Guarantor and upon at least five Business Days' prior written
request by the Borrower, the Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Administrative
Agent for the benefit of the Holders of Secured Obligations herein or pursuant
hereto upon the Collateral that was sold or transferred or evidence the release
of the applicable Guarantor from its obligations under the Subsidiary Guaranty;
PROVIDED, HOWEVER, that (i) the Administrative Agent shall not be required to
execute any such document on terms which, in the Administrative Agent's opinion,
would expose the Administrative Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Secured Obligations, any other Guarantor's obligations under the
Subsidiary Guaranty or any Liens upon (or obligations of the
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Borrower or any Subsidiary in respect of) all interests retained by the
Borrower or any Subsidiary, including (without limitation) the proceeds of
the sale, all of which shall continue to constitute part of the Collateral.
Notwithstanding the foregoing, each of the Agents, the Arrangers and the
Lenders hereby acknowledges and agrees that upon the consummation of any
transaction involving the sale of the PET business unit of the Borrower and
the disposition of the Aerospace business unit of the Borrower, which sale or
disposition is permitted pursuant to the terms of SECTION 7.3(B)(vi) or (vii)
or 7.3(F)(v), the Administrative Agent, for itself and on behalf of the
Lenders and the Issuing Banks, shall release and terminate the Subsidiary
Guaranty with respect to any Subsidiary of the Borrower which is the subject
of such transaction or, as applicable, release the stock of such Subsidiary
from the pledge to the Administrative Agent.
11.13. NO DUTIES IMPOSED UPON SYNDICATION AGENT, DOCUMENTATION AGENT OR
ARRANGERS. None of the Persons identified on the cover page to this Agreement,
the signature pages to this Agreement or otherwise in this Agreement as a
"Syndication Agent" or "Documentation Agent" or "Arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, if such Person is a Lender, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Persons identified on the cover page
to this Agreement, the signature pages to this Agreement or otherwise in this
Agreements as a "Syndication Agent" or "Documentation Agent" or "Arranger" shall
have or be deemed to have any fiduciary duty to or fiduciary relationship with
any Lender. In addition to the agreements set forth in SECTION 11.10, each of
the Lenders acknowledges that it has not relied, and will not rely, on any of
the Persons so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 SETOFF. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 APPLICATION OF PAYMENTS. Subject to the provisions of SECTION 9.2,
the Administrative Agent shall, unless otherwise specified at the direction of
the Required Lenders which direction shall
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be consistent with the last sentence of this SECTION 12.3 (it being agreed
and understood that so long as no Default shall have occurred and is
continuing any modification of the application of payments shall be made only
with the consent of the Borrower), apply all payments and prepayments in
respect of any Obligations and all proceeds of the Collateral in the
following order:
(A) first, to pay interest on and then principal of any portion of
the Loans which the Administrative Agent may have advanced on behalf of any
Lender for which the Administrative Agent has not then been reimbursed by
such Lender or the Borrower;
(B) second, to pay interest on and then principal of any advance made
under SECTION 10.3 for which the Administrative Agent has not then been
paid by the Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Administrative Agent;
(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the issuer(s) of
Letters of Credit;
(E) fifth, to pay interest due in respect of Swing Line Loans;
(F) sixth, to pay interest due in respect of Loans (other than Swing
Line Loans) and L/C Obligations;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(H) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans) and Reimbursement
Obligations;
(I) ninth, to provide required cash collateral, if required pursuant
to SECTION 3.11;
(J) tenth, to the ratable payment of all other Obligations; and
(K) eleventh, to the Hedging Obligations under Hedging Agreements.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied FIRST, to repay
outstanding Floating Rate Loans, and THEN to repay outstanding Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this SECTION 12.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Administrative Agent, the Lenders, the Swing Line Bank and the issuer(s) of
Letters of Credit and other Holders of Secured Obligations as among themselves.
The order of priority set forth in CLAUSES (D) through (K) of this SECTION 12.3
may at any time and from time to time be
107
changed by the Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person; PROVIDED, that the order of
priority of payments in respect of Swing Line Loans may be changed only with
the prior written consent of the Swing Line Bank. The order of priority set
forth in CLAUSES (A) through (C) of this SECTION 12.3 may be changed only
with the prior written consent of the Administrative Agent.
12.4 RELATIONS AMONG LENDERS. Except with respect to the exercise of
set-off rights of any Lender in accordance with SECTION 12.1, the proceeds of
which are applied in accordance with this Agreement, and except as set forth in
the last sentence of this SECTION 12.4, each Lender agrees that it will not take
any action, nor institute any actions or proceedings, against the Borrower or
any other obligor hereunder or with respect to any Collateral or Loan Document,
without the prior written consent of the Required Lenders or, as may be provided
in this Agreement or the other Loan Documents, at the direction of the
Administrative Agent. The Lenders are not partners or co-venturers, and no
Lender shall be liable for the acts or omissions of, or (except as otherwise set
forth herein in case of the Administrative Agent) authorized to act for, any
other Lender. Notwithstanding the foregoing, and subject to SECTION 12.2, any
Lender shall have the right to enforce on an unsecured basis the payment of the
principal of and interest on any Loan made by it after the date such principal
or interest has become due and payable pursuant to the terms of this Agreement.
Notwithstanding anything to the contrary in this Agreement or in any other Loan
Document, the Administrative Agent shall commence enforcement of any remedy
(including, without limitation, the exercise of any voting rights under any
Pledge Agreement) under this Agreement or any other Loan Document only with the
consent, or at the direction, of the Required Lenders.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents without the consent of all of the Lenders, and any such
assignment in violation of this SECTION 13.1(i) shall be null and void, and (ii)
any assignment by any Lender must be made in compliance with SECTION 13.3
hereof. Notwithstanding CLAUSE (II) of this SECTION 13.1 or SECTION 13.3, (i)
any Lender may at any time, without the consent of the Borrower or the
Administrative Agent, assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank and (ii) any Lender which is a fund or
commingled investment vehicle that invests in commercial loans in the ordinary
course of its business may at any time, without the consent of the Borrower or
the Administrative Agent, pledge or assign all or any part of its rights under
this Agreement to a trustee or other representative of holders of obligations
owed or securities issued by such Lender as collateral to secure such
obligations or securities; PROVIDED, HOWEVER, that no such assignment or pledge
shall release the transferor Lender from its obligations hereunder. The
Administrative Agent may treat each Lender as the owner thereof for all purposes
hereof unless and until such Lender complies with SECTION 13.3 hereof in the
case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Administrative Agent. Any assignee or
transferee of a Loan, Revolving Loan Commitment, L/C Interest or any other
interest of a Lender under the Loan Documents agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
108
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of any Loan, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Loan.
13.2 PARTICIPATIONS.
(A) PERMITTED PARTICIPANTS; EFFECT. Subject to the terms set forth in
this SECTION 13.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender, any L/C Interest of such
Lender or any other interest of such Lender under the Loan Documents on a pro
rata or non-pro rata basis. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of all Loans made by it for all purposes
under the Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents except that, for purposes of ARTICLE IV
hereof, the Participants shall be entitled to the same rights as if they were
Lenders.
(B) VOTING RIGHTS. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment (but not any prepayment) of
principal of, or interest or fees on, any such Loan or Revolving Loan
Commitment, or releases all or substantially all of the Collateral, if any,
securing any such Loan.
(C) BENEFIT OF SETOFF. The Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in SECTION 12.1 hereof in respect to
its participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, PROVIDED that each Lender shall retain the
right of setoff provided in SECTION 12.1 hereof with respect to the amount of
participating interests sold to each Participant except to the extent such
Participant exercises its right of setoff. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
SECTION 12.1 hereof, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with SECTION 12.2 as if each Participant were a Lender.
13.3 ASSIGNMENTS.
(A) PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities
109
("PURCHASERS") all or a portion of its rights and obligations under this
Agreement (including, without limitation, its Revolving Loan Commitment, all
Loans owing to it, all of its participation interests in existing Letters of
Credit, and its obligation to participate in additional Letters of Credit
hereunder) in accordance with the provisions of this SECTION 13.3. Each
assignment may be of a non-ratable percentage of the assigning Lender's
rights and obligations under this Agreement. Such assignment shall be
substantially in the form of EXHIBIT D hereto and shall not be permitted
hereunder unless such assignment is either for all of such Lender's rights
and obligations under the Loan Documents or, without the prior written
consent of the Administrative Agent, involves loans and commitments in an
aggregate amount of at least $5,000,000 (which minimum amount (i) shall not
apply to any assignment between Lenders, or to an Affiliate or Approved Fund
of any Lender, and (ii) in any event may be waived by the Required Lenders
after the occurrence of a Default or Unmatured Event of Default). The
consent of the Administrative Agent and, prior to the occurrence of a
Default, the Borrower (which consent of the Administrative Agent and of the
Borrower, in each such case, shall not be unreasonably withheld), shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate or Approved Fund of such
Lender.
(B) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Administrative Agent
of a notice of assignment, substantially in the form attached as APPENDIX I to
EXHIBIT D hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required
by SECTION 13.3(A) hereof, and (ii) payment of a $3,500 fee by the assignee or
the assignor (as agreed) to the Administrative Agent (unless waived by the
Administrative Agent) for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the Purchaser to the
effect that either (y) none of the consideration used to make the purchase of
the Revolving Loan Commitment, Loans and L/C Obligations under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA or (z) the purchase by the Purchaser of the
assignment does not and the holding by the Purchaser of the rights and interests
in and under the Loan Documents does not and will not constitute a "prohibited
transaction" within the meaning of Sections 406 of ERISA and Section 4975 of the
Code. On and after the effective date of such assignment, such Purchaser, if
not already a Lender, shall for all purposes be a Lender party to this Agreement
and any other Loan Documents executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Administrative Agent shall be required to release
the transferor Lender with respect to the percentage of the Aggregate Revolving
Loan Commitment, Loans and Letter of Credit participations assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this SECTION 13.3(B), the transferor Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements so that to the extent notes have
been issued to evidence any of the transferred Loans, replacement notes are
issued to such transferor Lender and new notes or, as appropriate, replacement
notes, are issued to such Purchaser, in each case, in principal amounts
reflecting their Revolving Loan Commitment, as adjusted pursuant to such
assignment.
(C) THE REGISTER. The Administrative Agent shall maintain at its address
referred to in SECTION 14.1 a copy of each assignment delivered to and accepted
by it pursuant to this SECTION 13.3 and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the
110
Revolving Loan Commitment of and principal amount of the Loans owing to, each
Lender from time to time and whether such Lender is an original Lender or the
assignee of another Lender pursuant to an assignment under this SECTION 13.3.
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
13.4 CONFIDENTIALITY. Subject to SECTION 13.5, the Administrative Agent
and the Lenders and their respective representatives, consultants and advisors
shall hold all nonpublic information obtained pursuant to the requirements of
this Agreement or in connection with the transactions contemplated by this
Agreement and identified as such by the Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor, and shall require any such
Transferee to agree (and require any of its Transferees to agree in writing) to
comply with this SECTION 13.4. In no event shall the Administrative Agent or
any Lender be obligated or required to return any materials furnished by the
Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, each prospective
Transferee shall be required to agree that if it does not become a participant
or assignee it shall return all materials furnished to it by or on behalf of the
Borrower in connection with this Agreement.
13.5 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries and the Collateral; PROVIDED that
prior to any such disclosure, such prospective Transferee shall agree in writing
to preserve in accordance with SECTION 13.4 the confidentiality of any
confidential information described therein.
ARTICLE XIV: NOTICES
14.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.13 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties; PROVIDED, HOWEVER,
that Borrowing/Conversion/Continuation Notices shall be delivered to the
Administrative Agent at One First National Plaza, Suite 0634, Chicago, Illinois
60670-0634, Attention: Karen Hannusch, Telephone No. 312-732-9868, Facsimile No.
312-732-2715. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
111
14.2 CHANGE OF ADDRESS. The Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XV: COUNTERPARTS
15.1 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower, the Administrative Agent and the Lenders and each party has notified
the Administrative Agent by telex or telephone, that it has taken such action.
[REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
112
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
BALL CORPORATION, as the Borrower
By: /s/ Douglas E. Poling
----------------------------------
Name: Douglas E. Poling
Title: Treasurer
Address:
10 Longs Peak Drive
Broomfield, CO 80021
Attention: Douglas E. Poling
Telephone No.: (303) 460-2191
Facsimile No.: (303) 460-2127
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative Agent and as a Lender
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President
Address:
One First National Plaza
15th Floor
Chicago, Illinois 60670
Attention: Timothy E. Greening
Telephone No.: (312) 732-1864
Facsimile No.: (312) 732-7655
with a copy to:
One Indiana Square Suite 312
Indianapolis, IN 46266
Attention: Scott C. Morrison, Vice President
Telephone No.: (317) 266-7351
Facsimile No.: (317) 266-6042
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 114
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Syndication Agent and as a Lender
By: /s/ M.E. Kelley
-----------------------------------
Name: Mark Kelley
Title: Managing Director
Address:
231 South LaSalle Street
9th Floor
Chicago, IL 60697
Attention: Paul B. Higdon
Telephone No.: (312) 828-7952
Facsimile No.: (312) 987-0303
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 115
LEHMAN COMMERCIAL PAPER INC., as Documentation
Agent and as a Lender
By: /s/ William J. Gallagher
----------------------------------
Name: William J. Gallagher
Title: Authorized Signatory
Address:
3 World Financial Center
200 Vesey Street
New York, New York 10285
Attention: Michelle Swanson
Telephone No.: 212-526-0330
Facsimile No.: 212-528-0819
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 116
ABN AMRO BANK N.V., as a Lender
By: /s/ Denis J. Campbell IV
------------------------------------
Name: Denis J. Campbell IV
Title: Vice President
By: /s/ Mary L. Honda
------------------------------------
Name: Mary L. Honda
Title: Vice President
Address:
135 South LaSalle Street
Suite 2805
Chicago, IL 60603
Attention: Credit Administration
Telephone No.: (312) 904-8835
Facsimile No.: (312) 904-8840
with a copy to:
ABN AMRO Bank N.V.
135 South LaSalle Street
Suite 625
Chicago, IL 60603
Attention: Mary Honda
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 117
ARAB BANKING CORPORATION (B.S.C.), as a Lender
By: /s/ Grant E. McDonald
------------------------------------
Name: Grant E. McDonald
Title: Vice President
Address:
277 Park Avenue
32nd Floor
New York, NY 10172-3299
Attention: Grant McDonald, Vice President
Telephone No.: (212) 583-4759
Facsimile No.: (212) 583-0935
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 118
BANKBOSTON, N.A., as a Lender
By: /s/ Janet Twomey
--------------------------------------
Name: Janet Twomey
Title: Vice President
Address:
100 Federal Street
Boston, MA 02110
Mail Stop: MA B05 01-10-01
Attention: Janet Twomey
Telephone No.: (617) 434-3069
Facsimile No.: (617) 434-0601
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 119
BANK LEUMI USA, as a Lender
By: /s/ Del Lorimer
-----------------------------------
Name: Del Lorimer
Title: Vice President
Address:
8383 Wilshire Blvd.
Suite 400
Beverly Hills, CA 90211
Attention: Del Lorimer
Telephone No.: (323) 966-4721
Facsimile No.: (323) 655-5933
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 120
BANK OF HAWAII, as a Lender
By: /s/ Brenda K. Testerman
--------------------------------------
Name: Brenda Testerman
Title: Vice President
Address:
130 Merchant Street
20th Floor
Honolulu, HI 96813
Attention: Donna Arakawa
Telephone No.: (808) 693-1698
Facsimile No.: (808) 693-1672
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 121
THE BANK OF NEW YORK, as a Lender
By: /s/ Robert Louk
---------------------------------
Name: Robert Louk
Title: Vice President
Address:
One Wall Street
New York, NY 10286
Attention: Robert J. Louk
Telephone No.: (310) 996-8663
Facsimile No.: (310) 996-8667
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 122
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Jon Burckin
---------------------------------
Name: Jon Burckin
Title: Relationship Manager
Address:
600 Peachtree Street N.E.
Suite 2700
Atlanta, GA 30308
Attention: Kathy Clark
Telephone No.: (404) 877-1542
Facsimile No.: (404) 888-8998
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 123
THE BANK OF TOKYO -- MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By: /s/ Hajime Watanabe
-----------------------------------
Name: Hajime Watanabe
Title: Deputy General Manager
Address:
227 West Monroe Street
Suite 2300
Chicago, IL 60606
Attention: Christopher Jones
Telephone No.: (312) 696-4656
Facsimile No.: (312) 696-4535
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 124
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Clive Bettles
-----------------------------------
Name: Clive Bettles
Title: Senior Vice President & Manager
By: /s/ Mitchell M. Ozawa
-----------------------------------
Name: Mitchell M. Ozawa
Title: Vice President
Address:
725 South Figueroa Street
Suite 2090
Los Angeles, CA 90017
Attention: Mitchell Ozawa
Telephone No.: (213) 488-9120
Facsimile No.: (213) 488-9602
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 125
PARIBAS, as a Lender
By: /s/ Nicholas C. Mast
-----------------------------------
Name: Nicholas C. Mast
Title: RGM
By: /s/ Ann B. McAloon
-----------------------------------
Name: Ann B. McAloon
Title: Vice President
Address:
227 West Monroe Street
Suite 3300
Chicago, IL 60606
Attention: Nicholas C. Mast
Telephone No.: (312) 853-6038
Facsimile No.: (312) 853-6020
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 126
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE, as a Lender
By: /s/ Sean Mounier
-------------------------------------
Name: Sean Mounier
Title: First Vice President
By: /s/ Brian O'Leary
-------------------------------------
Name: Brian O'Leary
Title: Vice President
Address:
520 Madison Avenue
37th Floor
New York, NY 10022
Attention: Sean Mounier
Telephone No.: (212) 715-4413
Facsimile No.: (212) 715-4535
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 127
CITY NATIONAL BANK, as a Lender
By: /s/ Scott J. Kelley
---------------------------
Name: Scott J. Kelley
Title: Vice President
Address:
400 North Roxbury Drive
Beverly Hills, CA 90210
Attention: Scott Kelley
Telephone No.: (310) 888-6536
Facsimile No.: (310) 888-6564
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 128
COMMERZBANK, A.G. NEW YORK BRANCH, as a Lender
By: /s/ Mary Harold
-------------------------------------------
Name: Mary Harold
Title: Vice President
By: /s/ Andrew Campball
-------------------------------------------
Name: Andrew Campball
Title: Assistant Vice President
Address:
2 World Financial Center
32nd Floor
New York, NY 10281-1050
Attention: Mary Harold
Telephone No.: (212) 266-7509
Facsimile No.: (212) 266-7374
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 129
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/ Alain Papiasse
-------------------------------------
Name: Alain Papiasse
Title: Executive Vice President
Address:
2200 Ross Avenue
Suite 4400 West
Dallas, TX 75201
Attention: Brian Brown
Telephone No.: (214) 220-2308
Facsimile No.: (214) 220-2323
with a copy to:
1301 Avenue of the Americas
New York, NY 10019
Attention: Ron Finn
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 130
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CAYMAN
ISLAND BRANCH, as a Lender
By: /s/ S. Wendt
-----------------------------------
Name: Sabine Wendt
Title: Asst. Vice President
By: /s/ Karen A. Brinkman
-----------------------------------
Name: Karen A. Brinkman
Title: Vice President
Address:
609 Fifth Avenue
New York, NY 10017
Attention: Sabine Wendt
Telephone No.: (212) 745-1559
Facsimile No.: (212) 745-1556
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 131
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ John W. Sweeney
---------------------------------
Name: John W. Sweeney
Title: Assistant Vice President
By: /s/ Christopher E. Sarisky
---------------------------------
Name: Christopher E. Sarisky
Title: Assistant Vice President
Address:
190 South LaSalle Street
Suite 2700
Chicago, IL 60603
Attention: James Jerz
Telephone No.: (312) 444-1314
Facsimile No.:
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 132
ERSTE BANK NEW YORK BRANCH, as a Lender
By: /s/ RIMA TERRADISTA
-------------------------------
Name: Rima Terradista
Title: Vice President
By: /s/ JOHN S. RUNNION
-------------------------------
Name: JOHN S. RUNNION
Title: FIRST VICE PRESIDENT
Address for notices
280 Park Avenue, West Building
New York, NY 10017
Attention: Rima Terradista
Telephone No.: (212) 984-5638
Facsimile No.: (212) 984-5627
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 133
FIRST COMMERCIAL BANK, NEW YORK AGENCY, as a
Lender
By: /s/ Ou Jia Shyang
-------------------------------
Name: Jia-Shyang Ou
Title: Assistant Vice President
& Deputy General Manager
Address:
Two World Trade Center
Suite 7868
New York, NY 10048
Attention: Jeffrey Wang
Telephone No.: (212) 432-6590
Facsimile No.: (212) 432-7250
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 134
FIRST HAWAIIAN BANK, as a Lender
By: /s/ TRAVIS RUETENIK
-------------------------------
Name: Travis Ruetenik
Title: Corporate Banking Officer
Address:
999 Bishop Street
11th Floor
Honolulu, HI 96813
Attention: Travis Ruetenik
Telephone No.: (808) 525-7074
Facsimile No.: (808) 525-6372
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 135
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ SCOTT SANTA CRUZ
-------------------------------
Name: Scott Santa Cruz
Title: VP
Address:
301 South College Street, DC-5
Charlotte, NC 28288-0737
Attention: Scott Santa Cruz
Telephone No.: (704) 383-1988
Facsimile No.: (704) 374-3300
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 136
FLEET NATIONAL BANK, as a Lender
By: /s/ JEFFREY C. LYNCH
-------------------------------
Name: Jeffrey C. Lynch
Title: V.P.
Address:
One Federal Street
Boston, MA 02110
Attention: Jeffrey Lynch
Telephone No.: (617) 346-5061
Facsimile No.: (617) 346-0145
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 137
THE FUJI BANK, LIMITED, as a Lender
By: /s/ PETER L. CHINNICI
-------------------------------
Name: Peter L. Chinnici
Title: Joint General Manager
Address:
225 West Wacker Drive
Suite 2000
Chicago, IL 60606
Attention: James R. Fayen
Telephone No.: (312) 621-0397
Facsimile No.: (312) 621-0530
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 138
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
By: /s/ J K. WILLIAMS
-------------------------------
Name: Janet K. Williams
Title: Duly Authorized Signatory
Address:
201 High Ridge Road
Stamford, CT 06927-5100
Attention: David Rich
Telephone No.: (203) 961-2993
Facsimile No.: (203) 316-7978
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 139
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ ANGELA BENTLEY
-------------------------------
Name: Angela Bentley
Title: Banking Officer
Address:
313 Carondelet Street
12th Floor
New Orleans, LA 70130
Attention: Angela Bentley
Telephone No.: (504) 533-2319
Facsimile No.: (504) 533-5344
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 140
IMPERIAL BANK, as a Lender
By: /s/ RAY VADALMA
-------------------------------
Name: Ray Vadalma
Title: Senior Vice President
Address:
9920 South La Cienega Boulevard, 14th Floor
Inglewood, CA 90301
Attention: Mark W. Campbell
Telephone No.: (310) 417-5886
Facsimile No.: (310) 417-5997
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 141
THE INDUSTRIAL BANK OF JAPAN, LIMITED, CHICAGO
BRANCH, as a Lender
By: /s/ WALTER R. WOLFF
-------------------------------
Name: Walter R. Wolff
Title: Joint General Manager
Address:
227 West Monroe Street
Suite 2600
Chicago, IL 60606
Attention: Steve Ryan
Telephone No.: (312) 855-6251
Facsimile No.: (312) 855-8200
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 142
KBC BANK N.V., as a Lender
By: /s/ R. Snauffer
-------------------------------
Name: ROBERT SNAUFFER
Title: VICE PRESIDENT
By: /s/ Marcel Claes
-------------------------------
Name: MARCEL CLAES
Title: DEPUTY GENERAL MANAGER
Address:
125 West 55th Street
10th Floor
New York, NY 10019
Attention: Michael Curran
Telephone No.: (212) 541-0708
Facsimile No.: (212) 956-5580
with a copy to:
515 South Figueroa Street
Suite 1920
Los Angeles, CA 90071
Attention: Luc Cools
Telephone No.: (213) 624-0401
Facsimile No.: (213) 629-5801
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 143
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Mary K. Young
-------------------------------
Name: Mary K. Young
Title: Commercial Banking Officer
Address:
700 Fifth Avenue
46th Floor
Seattle, WA 98104
Attention: Mary K. Young
Telephone No.: (206) 684-6085
Facsimile No.: (206) 684-6035
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 144
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as a
Lender
By: /s/ Brady S. Sadek
-------------------------------
Name: Brady S. Sadek
Title: Senior Vice President
Address:
165 Broadway
48th Floor
New York, NY 10006
Attention: Claire Kowalski
Telephone No.: (212) 335-4853
Facsimile No.: (212) 335-4441
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 145
MARINE MIDLAND BANK, as a Lender
By: /s/ Gina Sidorsky
-------------------------------
Name: Gina Sidorsky
Title: Authorized Signatory
Address:
140 Broadway
5th Floor
New York, NY 10005
Attention: Gina Sidorsky
Telephone No.: (212) 658-2750
Facsimile No.: (212) 658-2586
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 146
MITSUBISHI TRUST & BANKING CORP., CHICAGO BRANCH,
as a Lender
By: /s/ Nobuo Tominaga
-------------------------------
Name: Nobuo Tominaga
Title: Chief Manager
Address:
311 South Wacker Drive
Suite 6300
Chicago, IL 60606
Attention: John Zimmerman
Telephone No.: (312) 408-6014
Facsimile No.: (312) 663-0863
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 147
NATEXIS BANQUE, NEW YORK BRANCH, as a Lender
By: /s/ G. Kevin Dooley
-------------------------------
Name: G. Kevin Dooley
Title: Vice President
By: /s/ William C. Maier
-------------------------------
Name: William C. Maier
Title: VP-Group Manager
Address:
645 Fifth Avenue
20th Floor
New York, NY 10022
Attention: Kevin Dooley
Telephone No.: (212) 872-5195
Facsimile No.: (212) 872-5045
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 148
NATIONAL CITY BANK, as a Lender
By: /s/ Barry C. Robinson
-------------------------------
Name: Barry C. Robinson
Title: Vice President
Address:
1900 East Ninth Street
Loc 2077
Cleveland, OH 44114
Attention: Barry C. Robinson
Telephone No.: (216) 575-9322
Facsimile No.: (216) 222-0003
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 149
NORWEST BANK COLORADO, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Randall Schmidt
-------------------------------
Name: Randall Schmidt
Title: Vice President
Address:
1740 Broadway
MS 8673
Denver, CO 80274
Attention: Randall Schmidt
Telephone No.: (303) 863-6033
Facsimile No.: (303) 863-6670
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 150
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ David F. Knuth
-------------------------------
Name: DAVID F. KNUTH
Title: VICE PRESIDENT
Address:
201 East Fifth Street
Cincinnati, OH 45202
Attention: David F. Knuth
Telephone No.: (513) 651-8675
Facsimile No.: (513) 651-8951
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 151
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Dana W. Hemenway
-------------------------------
Name: Dana W. Hemenway
Title: Vice President
By: /s/ W. Pieter C. Kodde
-------------------------------
Name: W. Pieter C. Kodde
Title: Vice President
Address:
245 Park Avenue
New York, NY 10167
Attention: Corporate Services Dept.
Telephone No.: (212) 916-7800
Facsimile No.: (212) 818-0233
with a copy to:
Gordon Arnold
13355 Noel Road
Suite 1000
Dallas, TX 75240-6645
Phone: (972) 419-5260
Fax: (972) 419-6315
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 152
ROYAL BANK OF CANADA, as a Lender
By: /s/ Michael Korine
---------------------------
Name: Michael Korine
Title: Senior Manager
Address:
One Liberty Plaza
5th Floor
New York, NY 10006-1404
Attention: Michael Korine
Telephone No.: (212) 428-6258
Facsimile No.: (212) 428-2319
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 153
THE SANWA BANK, LTD., as a Lender
By: /s/ Richard H. Ault
---------------------------
Name: Richard H. Ault
Title:
Address:
10 S. Wacker Drive
31st Floor
Chicago, IL 60606
Attention: Richard Ault
Telephone No.: (312) 368-3011
Facsimile No.: (312) 346-6677
SOCIETE GENERALE, as a Lender
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 154
SOCIETE GENERALE, as a Lender
By: /s/ Michael Lincoln
---------------------------
Name: Michael Lincoln
Title: Director
Address:
181 West Madison Street
Suite 3400
Chicago, IL 60602
Attention: Michael Lincoln
Telephone No.: (312) 578-5056
Facsimile No.: (312) 578-5099
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 155
SOUTHERN PACIFIC BANK, as a Lender
By: /s/ Charles D. Martorano
---------------------------
Name: Charles D. Martorano
Title: Senior Vice President
Address:
150 S. Rodeo Drive
Beverly Hills, CA 90212
Attention: Cheryl Wasilewski/Chuck Martorano
Telephone No.: (310) 246-3739/3770
Facsimile No.: (310) 246-3666
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 156
STAR BANK, N.A., as a Lender
By: /s/ Thomas D. Gibbons
---------------------------
Name: Thomas D. Gibbons
Title: VP
Address:
425 Walnut Street, ML8160
Cincinnati, OH 45201-1038
Attention: Thomas D. Gibbons
Telephone No.: (513) 287-8313
Facsimile No.: (513) 632-2068
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 157
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH, as a
Lender
By: /s/ John H. Kemper
---------------------------
Name: John H. Kemper
Title: Senior Vice President
Address:
233 South Wacker Drive
Suite 4800
Chicago, IL 60606-6448
Attention: James Beckett
Telephone No.: (312) 876-7794
Facsimile No.: (312) 876-6436
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 158
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH, as a Lender
By: /s/ Suraj Bhatia
---------------------------
Name: Suraj Bhatia
Title: Senior Vice President
Address:
527 Madison Avenue
New York, NY 10022
Attention: Tim Ng
Telephone No.: (212) 326-0751
Facsimile No.: (212) 418-4848
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 159
SUNTRUST BANK, CENTRAL FLORIDA, N.A., as a Lender
By: /s/ Chris Black
---------------------------
Name: Chris Black
Title: FVP
Address:
200 South Orange Avenue
10th Floor
Orlando, FL 32801
Attention: Chris Black
Telephone No.: (407) 237-2467
Facsimile No.: (407) 237-6894
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 160
THE TOKAI BANK, LIMITED, NEW YORK BRANCH as a
Lender
By: /s/ Shinichi Kondo
---------------------------
Name: Shinichi Kondo
Title: Deputy General Manager
Address:
55 East 52nd Street
12th Floor
New York, NY 10055
Attention: Haruyo Niki
Telephone No.: (212) 339-1123
Facsimile No.: (212) 832-1428
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 161
TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/ David G. Parker
---------------------------
Name: David G. Parker
Title: Vice President
Address:
909 Fannin Street
17th Floor
Houston, TX 77010
Attention: Sonja R. Jordan
Telephone No.: (713) 653-8244
Facsimile No.: (713) 951-9921
with copy to:
Stephen Watts
Three First National Plaza
70 West Madison
Suite 5430
Chicago, IL 60602-4227
Telephone No.: (312) 977-2105
Facsimile No.: (312) 782-6337
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 162
TORONTO DOMINION (NEW YORK), INC., as a Lender
By: /s/ David G. Parker
---------------------------
Name: David G. Parker
Title: Vice President
Address:
909 Fannin Street
17th Floor
Houston, TX 77010
Attention: David G. Parker
Telephone No.: (713) 653-8248
Facsimile No.: (713) 951-9921
with copy to:
Hal Holappa
The Toronto Dominion Bank
31 West 52nd Street
New York, NY 10019
Telephone No.: (212) 827-7375
Facsimile No.: (212) 307-0750
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 163
WACHOVIA BANK, as a Lender
By: /s/ William F. Hamlet
---------------------------
Name: William F. Hamlet
Title: Senior Vice President
Address:
191 Peachtree Street N.E.
Atlanta, GA 30303
Attention: Michael S. Sims
Telephone No.: (404) 332-4403
Facsimile No.: (404) 332-6898
SIGNATURE PAGE TO SHORT-TERM
CREDIT AGREEMENT 164