FindLaw | Find a Lawyer. Find Answers.
Are you a legal Professional?
My current location:
Los Angeles, CA
| Change location
| Featured Legal Services | |
|
(562) 435-1426
|
U.S. $1,650,000,000
CREDIT AGREEMENT
Dated as of May 10, 1996
among
WILLAMETTE INDUSTRIES, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
ABN AMRO BANK N.V.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
NATIONSBANK, N.A.
and
WACHOVIA BANK OF GEORGIA, N.A.
as Co-Agents
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BA SECURITIES, INC.
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.02 Other Interpretive Provisions . . . . . . . . . . . . . . . 17
1.03 Accounting Principles . . . . . . . . . . . . . . . . . . . 18
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . 19
2.01 Amounts and Terms of Commitments. . . . . . . . . . . . . . 19
(a) The Term Credit. . . . . . . . . . . . . . . . . . . . 19
(b) The Revolving Credit . . . . . . . . . . . . . . . . . 19
2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . 19
2.03 Procedure for Committed Borrowing . . . . . . . . . . . . . 20
2.04 Conversion and Continuation Elections for Committed
Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . 21
2.05 Bid Borrowings. . . . . . . . . . . . . . . . . . . . . . . 22
2.06 Procedure for Bid Borrowings. . . . . . . . . . . . . . . . 23
2.07 Termination or Reduction of Commitments . . . . . . . . . . 27
(a) Term Commitments . . . . . . . . . . . . . . . . . . . 27
(b) Revolving Commitments. . . . . . . . . . . . . . . . 27
2.08 Optional Prepayments. . . . . . . . . . . . . . . . . . . . 27
(a) Committed Loans . . . . . . . . . . . . . . . . . . . . 27
(b) Bid Loans. . . . . . . . . . . . . . . . . . . . . . 28
2.09 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . 28
(a) Asset Dispositions. . . . . . . . . . . . . . . . . . . 28
(b) Debt and Equity Issuances. . . . . . . . . . . . . . 28
(c) General. . . . . . . . . . . . . . . . . . . . . . . 28
2.10 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . 29
(a) Term Loans. . . . . . . . . . . . . . . . . . . . . . . 29
(b) Revolving Loans. . . . . . . . . . . . . . . . . . . 29
(c) Bid Loans. . . . . . . . . . . . . . . . . . . . . . 29
2.11 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.12 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(a) Arrangement and Agency Fees . . . . . . . . . . . . . . 30
(b) Bid Auction Fee. . . . . . . . . . . . . . . . . . . 30
(c) Facility Fee . . . . . . . . . . . . . . . . . . . . 30
2.13 Computation of Fees and Interest. . . . . . . . . . . . . . 30
2.14 Payments by the Company . . . . . . . . . . . . . . . . . . 31
2.15 Payments by the Banks and Designated Bidders to the
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.16 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . 33
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY. . . . . . . . . . . 33
3.01 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.02 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . 34
3.03 Increased Costs and Reduction of Return . . . . . . . . . . 35
3.04 Funding Losses. . . . . . . . . . . . . . . . . . . . . . . 36
3.05 Inability to Determine Rates. . . . . . . . . . . . . . . . 37
3.06 Reserves on Offshore Rate Committed Loans . . . . . . . . . 37
3.07 Certificates of Banks . . . . . . . . . . . . . . . . . . . 37
3.08 Substitution of Banks . . . . . . . . . . . . . . . . . . . 38
3.09 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE IV CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . 38
4.01 Conditions of Initial Loans . . . . . . . . . . . . . . . . 38
(a) Credit Agreement and Notes . . . . . . . . . . . . . 38
(b) Resolutions; Incumbency. . . . . . . . . . . . . . . 38
(c) Organization Documents; Good Standing. . . . . . . . 39
(d) Legal Opinions . . . . . . . . . . . . . . . . . . . 39
(e) Payment of Fees. . . . . . . . . . . . . . . . . . . 39
(f) Certificate. . . . . . . . . . . . . . . . . . . . . 39
(g) Acquisition. . . . . . . . . . . . . . . . . . . . . 40
(h) Approvals and Consents . . . . . . . . . . . . . . . 40
(i) No Litigation. . . . . . . . . . . . . . . . . . . . 40
(j) Company Financial Statements . . . . . . . . . . . . 40
(k) Pro Forma Financial Statements and Projections . . . 40
(l) Other Documents. . . . . . . . . . . . . . . . . . . 40
4.02 Conditions to All Borrowings. . . . . . . . . . . . . . . . 41
(a) Notice of Borrowing. . . . . . . . . . . . . . . . . 41
(b) Continuation of Representations and Warranties . . . 41
(c) No Existing Default. . . . . . . . . . . . . . . . . 41
(d) No Material Adverse Effect . . . . . . . . . . . . . 41
ARTICLE V REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . 42
5.01 Corporate Existence and Power . . . . . . . . . . . . . . . 42
5.02 Corporate Authorization; No Contravention . . . . . . . . . 42
5.03 Governmental Authorization. . . . . . . . . . . . . . . . . 42
5.04 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . 43
5.05 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 43
5.06 No Default. . . . . . . . . . . . . . . . . . . . . . . . . 43
5.07 ERISA Compliance. . . . . . . . . . . . . . . . . . . . . . 43
5.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . 44
5.09 Title to Properties; Liens. . . . . . . . . . . . . . . . . 44
5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.11 Financial Condition . . . . . . . . . . . . . . . . . . . . 44
5.12 Environmental Matters . . . . . . . . . . . . . . . . . . . 45
5.13 Regulated Entities. . . . . . . . . . . . . . . . . . . . . 45
5.14 No Burdensome Restrictions. . . . . . . . . . . . . . . . . 45
5.15 Copyrights, Patents, Trademarks and Licenses, Etc.. . . . . 45
5.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VI AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . 46
6.01 Financial Statements. . . . . . . . . . . . . . . . . . . . 46
6.02 Certificates; Other Information . . . . . . . . . . . . . . 47
6.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.04 Preservation of Corporate Existence, Etc. . . . . . . . . . 48
6.05 Maintenance of Property . . . . . . . . . . . . . . . . . . 49
6.06 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.07 Payment of Obligations. . . . . . . . . . . . . . . . . . . 49
6.08 Compliance with Laws. . . . . . . . . . . . . . . . . . . . 50
6.09 Maintenance of Books and Records; Inspection. . . . . . . . 50
6.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VII NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 50
7.01 Limitation on Liens . . . . . . . . . . . . . . . . . . . . 50
7.02 Restrictions on Fundamental Changes . . . . . . . . . . . . 52
7.03 Disposition of Assets . . . . . . . . . . . . . . . . . . . 53
7.04 Sales and Leasebacks. . . . . . . . . . . . . . . . . . . . 54
7.05 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . 54
7.06 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . 55
7.07 Maximum Funded Debt to Capitalization . . . . . . . . . . . 55
7.08 Transactions with Affiliates. . . . . . . . . . . . . . . . 55
7.09 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.10 Change in Business. . . . . . . . . . . . . . . . . . . . . 55
7.11 Accounting Changes. . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VIII EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . 55
8.01 Event of Default. . . . . . . . . . . . . . . . . . . . . . 55
(a) Non-Payment. . . . . . . . . . . . . . . . . . . . . 55
(b) Representation or Warranty . . . . . . . . . . . . . 56
(c) Specific Defaults. . . . . . . . . . . . . . . . . . 56
(d) Other Defaults . . . . . . . . . . . . . . . . . . . 56
(e) Cross-Default. . . . . . . . . . . . . . . . . . . . 56
(f) Insolvency; Voluntary Proceedings. . . . . . . . . . 56
(g) Involuntary Proceedings. . . . . . . . . . . . . . . 56
(h) ERISA. . . . . . . . . . . . . . . . . . . . . . . . 57
(i) Monetary Judgments . . . . . . . . . . . . . . . . . 57
(j) Non-Monetary Judgments . . . . . . . . . . . . . . . 57
(k) Change of Control. . . . . . . . . . . . . . . . . . 57
(l) Adverse Change . . . . . . . . . . . . . . . . . . . 57
8.02 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.03 Rights Not Exclusive. . . . . . . . . . . . . . . . . . . . 58
ARTICLE IX THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.01 Appointment and Authorization; "Agent". . . . . . . . . . . 58
9.02 Delegation of Duties. . . . . . . . . . . . . . . . . . . . 58
9.03 Liability of Agent. . . . . . . . . . . . . . . . . . . . . 58
9.04 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . 59
9.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . 60
9.06 Credit Decision . . . . . . . . . . . . . . . . . . . . . . 60
9.07 Indemnification of Agent. . . . . . . . . . . . . . . . . . 60
9.08 Agent in Individual Capacity. . . . . . . . . . . . . . . . 61
9.09 Successor Agent . . . . . . . . . . . . . . . . . . . . . . 61
9.10 Withholding Tax . . . . . . . . . . . . . . . . . . . . . . 61
9.11 Co-Agents; Lead Managers. . . . . . . . . . . . . . . . . . 63
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 63
10.01 Amendments and Waivers. . . . . . . . . . . . . . . . . . . 63
10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 64
10.03 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . 65
10.04 Costs and Expenses. . . . . . . . . . . . . . . . . . . . . 65
10.05 Company Indemnification . . . . . . . . . . . . . . . . . . 65
10.06 Payments Set Aside. . . . . . . . . . . . . . . . . . . . . 66
10.07 Successors and Assigns. . . . . . . . . . . . . . . . . . . 66
10.08 Assignments, Participations, Etc. . . . . . . . . . . . . . 66
10.09 Designated Bidders. . . . . . . . . . . . . . . . . . . . . 68
10.10 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 68
10.11 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.12 Notification of Addresses, Lending Offices, Etc.. . . . . . 69
10.13 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 69
10.14 Severability. . . . . . . . . . . . . . . . . . . . . . . . 70
10.15 No Third Parties Benefited. . . . . . . . . . . . . . . . . 70
10.16 Governing Law and Jurisdiction. . . . . . . . . . . . . . . 70
10.17 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . 70
10.18 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . 71
<PAGE>
ANNEXES
Annex I Pricing Grid
SCHEDULES
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 5.07 ERISA Compliance
Schedule 10.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Invitation for Competitive Bids
Exhibit G Form of Competitive Bid Request
Exhibit H Form of Competitive Bid
Exhibit I-1 Form of Committed Loan Note (Revolving Loans)
Exhibit I-2 Form of Committed Loan Note (Term Loans)
Exhibit J Form of Bid Loan Note
Exhibit K Form of Designation Agreement
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of May 10, 1996, among
WILLAMETTE INDUSTRIES, INC., an Oregon corporation (the "Company"), the
several financial institutions from time to time party to this Agreement
(individually, a "Bank," and collectively, the "Banks"), ABN AMRO BANK N.V.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK, N.A. and WACHOVIA BANK
OF GEORGIA, N.A., as co-agents, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Banks.
WHEREAS, the Banks have agreed to make available to the Company a term
loan facility, and a revolving credit and bid loan facility, upon the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in
subsection 2.06(c)(ii)(D).
"Absolute Rate Auction" means a solicitation of Competitive
Bids setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears
interest at a rate determined with reference to the Absolute Rate.
"Acquisition" means the acquisition by the Company of certain
timberlands and other assets in the United States from Hanson Natural
Resources Company, a Delaware general partnership, Cavenham Energy
Resources Inc., a Delaware corporation, and Cavenham Forest Industries
Inc., a Delaware corporation.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of
voting securities, membership interests, by contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Banks and the
Designated Bidders hereunder, and any successor agent arising under
Section 9.09.
"Agent-Related Persons" means (i) BofA and any successor agent
arising under Section 9.09, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and (ii) the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" means the address for payments set forth
on Schedule 10.02 or such other address as the Agent may from time to
time specify.
"Agreement" means this Credit Agreement.
"Applicable Fee Amount" means with respect to the Facility Fee,
the amount set forth opposite the indicated Level below the heading
"Facility Fee" in the pricing grid set forth on Annex I in accordance
with the parameters for calculations of such amount also set forth on
Annex I.
"Applicable Margin" means (i) with respect to Base Rate Committed
Loans, 0%; and (ii) with respect to Offshore Rate Committed Loans, the
amount set forth opposite the indicated Level below the heading
"Revolving Loan LIBO Rate Spread" or "Term Loan LIBO Rate Spread," as
applicable, in the pricing grid set forth on Annex I in accordance with
the parameters for calculations of such amounts also set forth on
Annex I.
"Arranger" means BA Securities, Inc., a Delaware corporation.
"Assignee" has the meaning specified in subsection 10.08(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated
cost of internal legal services and all reasonable disbursements of
internal counsel.
"Bank" has the meaning specified in the introductory clause
hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in
San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of
one or more Bid Loans made to the Company on the same day by one
or more Bid Loan Banks or Designated Bidders.
"Bid Loan" means a Loan by a Bid Loan Bank or a Designated
Bidder to the Company under Section 2.05, which may be a LIBOR Bid
Loan or an Absolute Rate Bid Loan.
"Bid Loan Bank" means each Bank specified in a written
notice from the Company to the Agent (which, in the case of the
first such notice, must be given at least five Business Days prior
to the first Competitive Bid Request hereunder) unless such Bank
has since been specified by the Company as no longer being a Bid
Loan Bank in a written notice to the Agent; provided that (i) the
addition or removal of a Bid Loan Bank shall not take effect until
five Business Days following the Agent's receipt of written notice
thereof, (ii) the number of Bid Loan Banks at any time (exclusive
of any Bid Loan Bank which has since been specified by the Company
as no longer being a Bid Loan Bank in a written notice to the
Agent but which still has Bid loans outstanding) may not be less
than ten, and (iii) Bid Loan Banks may be added or removed only on
one day in each calendar month; and provided, further, that the
Company may not give notice adding or removing Bid Loan Banks
during a LIBOR Auction or an Absolute Rate Auction. Subject to the
foregoing, Bid Loan Banks may be selected, added or removed
hereunder in the Company's discretion. As used herein, the term
"Bid Loan Bank" shall include any Bank which was previously
specified as a Bid Loan Bank and then specified as no longer being
a Bid Loan Bank but still has Bid Loans outstanding. The Agent
will promptly notify the Banks of any notice from the Company
selecting, adding or removing Bid Loan Banks.
"Bid Loan Note" has the meaning specified in Section 2.02.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same Type made to the Company on the same day by the Banks or (in the
case of Bid Borrowings) Designated Bidders under Article II, and may be
a Committed Borrowing or a Bid Borrowing and, other than in the case of
Base Rate Committed Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Committed Borrowing
occurs under Section 2.03 or a Bid Borrowing occurs under Section 2.06.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Loan, means such a day on
which dealings are carried on in the applicable offshore dollar
interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of any capital lease obligations
incurred during such period) made by the Company or any of its
Subsidiaries to acquire or to construct fixed assets, plant and
equipment during such period as determined in accordance with GAAP;
provided, however, that Capital Expenditures shall exclude expenditures
to make the Acquisition, or any other acquisition of substantially all
of the capital stock of or other equity interests in any Person, or
substantially all of the assets of any Person or any division, business
unit or line of business of any Person, to the extent funded by Loans
hereunder ("Excluded Capital Expenditures").
"Capitalization", on any date, means the sum of (i) Consolidated
Funded Debt plus (ii) Net Worth on such date.
"Change of Control" means (i) any transaction or series of related
transactions in which any Person or two or more Persons acting in
concert shall acquire beneficial ownership, directly or indirectly, of
securities of the Company (or other securities convertible into such
securities) representing 40% or more of the combined voting power of all
securities of the Company entitled to vote in the election of directors;
or (ii) during any period of up to 12 consecutive months, commencing
after the Effective Date, individuals who at the beginning of such 12
month period were directors of the Company shall cease for any reason to
constitute a majority of the Board of Directors of the Company and the
Persons replacing such individuals shall not have been nominated by the
Board of Directors of the Company.
"Closing Date" means the date of the initial funding of any Loan
hereunder.
"Co-Agent" means each of ABN AMRO Bank N.V., Morgan Guaranty Trust
Company of New York, Nationsbank, N.A. and Wachovia Bank of Georgia,
N.A., in its capacity as co-agent hereunder.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, for each Bank, the sum of its Revolving
Commitment and Term Commitment.
"Committed Borrowing" means a Borrowing hereunder consisting
of Committed Loans made on the same day by the Banks ratably
according to their respective Pro Rata Shares and, in the case of
Offshore Rate Committed Loans, having the same Interest Periods.
"Committed Loan" means a Term Loan or a Revolving Loan made
by a Bank to the Company under Section 2.01.
"Committed Loan Note" has the meaning specified in Section 2.02.
"Competitive Bid" means an offer by a Bid Loan Bank or a
Designated Bidder to make a Bid Loan in accordance with subsection
2.06(c).
"Competitive Bid Request" has the meaning specified in
subsection 2.06(a).
"Compliance Certificate" means a certificate substantially in the
form of Exhibit C.
"Consolidated EBITDA" means, for any period, net income for such
period, plus Consolidated Interest Expense for such period, plus income
tax expense for such period, plus depreciation expense, amortization
expense and other non-cash expenses for such period, of the Company and
its Subsidiaries on a consolidated basis, as determined in accordance
with GAAP.
"Consolidated Funded Debt" means, as of any date of determination,
all Indebtedness of the Company and its Subsidiaries on such date, on a
consolidated basis and as determined in accordance with GAAP.
"Consolidated Gross Interest Expense" means, for any period,
interest expense of the Company and its Subsidiaries for such period,
plus interest of the Company and its Subsidiaries capitalized during
such period, in each case on a consolidated basis and as determined in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, for any period, the
ratio of (i) Consolidated EBITDA, minus Capital Expenditures, for such
period, to (ii) Consolidated Gross Interest Expense for such period.
"Consolidated Interest Expense" means, for any period, interest
expense of the Company and its Subsidiaries on a consolidated basis for
such period, as determined in accordance with GAAP.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets of the Company and its Subsidiaries (minus applicable reserves
and other properly deductible items) after deducting therefrom (i) all
liabilities other than deferred income taxes, Consolidated Funded Debt
and shareholders' equity and (ii) all goodwill, trade names, trademarks,
patents, organization expenses and other like intangibles, all as set
forth on the most recent balance sheet of the Company and its
Subsidiaries, on a consolidated basis and determined in accordance with
GAAP.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or
any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Committed Loans of one Type to
another Type, or (b) continues as Committed Loans of the same Type, but
with a new Interest Period, Committed Loans having Interest Periods
expiring on such date.
"Debt Rating" means the rating of the Company's senior unsecured
long-term debt by each of S&P and Moody's.
"Default" means any event or circumstance which, with the giving
of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Designated Bidder" means an Affiliate of a Bid Loan Bank that is
an entity described in clause (c)(i) or (ii) of the definition of
"Eligible Assignee" and that has become a party hereto pursuant to
Section 10.09.
"Designation Agreement" means a designation agreement entered into
by a Bank and a Designated Bidder and accepted by the Agent, in
substantially the form of Exhibit K.
"Disposition" means the sale, lease, conveyance or other
disposition of property or assets, other than sales or other
dispositions expressly permitted under subsections 7.03(a) through
7.03(f).
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Effective Date" means May 10, 1996, the date as of which this
Agreement has been executed and delivered by the parties hereto.
"Eligible Assignee" means (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $250,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000, provided that such bank is
acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a Person of which a
Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations which is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Facility Fee" has the meaning specified in subsection 2.12(c).
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York with
respect to the preceding Business Day opposite the caption "Federal
Funds (Effective)"; or, if for any relevant day such rate is not so
published with respect to any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Agent of the
rates for the last transaction in overnight Federal funds arranged prior
to 9:00 a.m. (New York City time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected by the
Agent.
"Fee Letter" has the meaning specified in subsection 2.12(a).
"FRB" means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account
of amounts payable or paid pursuant to Section 3.01.
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession),
which are applicable to the circumstances as of the date of
determination, subject to Section 1.03.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken
or assumed as the deferred purchase price of property or services (other
than trade payables entered into in the ordinary course of business on
ordinary terms); (c) all reimbursement or payment obligations
(contingent or otherwise) with respect to Surety Instruments (in the
case of letters of credit, whether or not drawn); (d) all obligations
evidenced by notes, bonds, debentures or similar instruments; (e) all
indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with
respect to property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all net liabilities of
such Person under all Swap Contracts; (h) all indebtedness referred to
in clauses (a) through (g) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (i)
all guaranties and other direct and indirect liabilities of any Person
in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (h) above. For all purposes of this
Agreement, the Indebtedness of any Person shall include all recourse
Indebtedness of any partnership or joint venture or limited liability
company in which such Person is a general partner or a joint venturer or
a member.
"Indemnified Liabilities" has the meaning specified in Section
10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in subsection
6.01(a).
"Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24,
Seventh), as amended.
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court
or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief
of debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; undertaken under U.S. Federal, state or
foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base
Rate Committed Loan, the last day of each Interest Period applicable to
such Loan and, as to any Base Rate Committed Loan, the last Business Day
of each calendar quarter and each date such Base Rate Committed Loan is
converted into another Type of Committed Loan; provided, however, that
(a) if any Interest Period for an Offshore Rate Committed Loan exceeds
three months, the date that falls three months after the beginning of
such Interest Period and after each Interest Payment Date thereafter is
also an Interest Payment Date, and (b) as to any Bid Loan, such
intervening dates prior to the maturity thereof as may be specified by
the Company and agreed to by the applicable Bid Loan Bank or Designated
Bidder in the applicable Competitive Bid shall also be Interest Payment
Dates.
"Interest Period" means, (a) as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan, or (in the case of
any Offshore Rate Committed Loan) on the Conversion/Continuation Date on
which the Loan is converted into or continued as an Offshore Rate
Committed Loan, and ending on the date one, two, three or six months
thereafter as selected by the Company in its Notice of Borrowing, Notice
of Conversion/Continuation or Competitive Bid Request, as the case may
be; and (b) as to any Absolute Rate Bid Loan, a period of not less than
14 days and not more than 365 days (366 days in leap years) as selected
by the Company in the applicable Competitive Bid Request;
provided that:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, that Interest Period shall be extended
to the following Business Day unless, in the case of an Offshore
Rate Loan, the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate
Loan that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end
on the last Business Day of the calendar month at the end of such
Interest Period;
(iii) no Interest Period for any Term Loan shall extend
beyond the Term Maturity Date, and no Interest Period for any
Revolving Loan shall extend beyond the Revolving Termination Date;
and
(iv) no Interest Period applicable to a Term Loan or
portion thereof shall extend beyond any date upon which is due any
scheduled principal payment in respect of the Term Loans unless
the aggregate principal amount of Term Loans represented by Base
Rate Committed Loans and by Offshore Rate Committed Loans having
Interest Periods that will expire on or before such date, equals
or exceeds the amount of such principal payment.
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lending Office" means (i), as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
10.02; (ii), as to any Designated Bidder, the office or offices of such
Designated Bidder specified as its "Lending Office" or "Lending Offices"
in its Designation Agreement; and (iii) such other office or offices as
such Bank or Designated Bidder may from time to time notify the Company
and the Agent.
"LIBO Rate" for any Interest Period, with respect to each LIBOR
Bid Loan in any Bid Borrowing or an Offshore Rate Committed Loan, means:
(i) the rate of interest per annum determined by the Agent to be
the rate of interest per annum appearing on Telerate display page 3750
(or such other display on the Telerate System as may replace such page)
for Dollar deposits in the approximate amount of, in the case of LIBOR
Bid Loans and with respect to each LIBOR Bid Loan in the applicable Bid
Borrowing, such LIBOR Bid Loan to be borrowed in such Bid Borrowing,
and, in the case of Offshore Rate Committed Loans, the Offshore Rate
Committed Loan to be made, continued or converted by BofA, and having a
maturity comparable to such Interest Period, at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such
Interest Period, subject to clause (ii) below; or
(ii) if for any reason rates are not available as provided in the
preceding clause (i) of this definition, the "LIBO Rate" instead means
the rate of interest per annum determined by the Agent to be the
arithmetic mean (rounded upward to the nearest 1/16th of 1%) of the
rates of interest per annum notified to the Agent by BofA as the rate of
interest at which Dollar deposits in the approximate amount of, in the
case of LIBOR Bid Loans and with respect to each LIBOR Bid Loan in the
applicable Bid Borrowing, such LIBOR Bid Loan to be borrowed in such Bid
Borrowing, and, in the case of Offshore Rate Committed Loans, the
Offshore Rate Committed Loan to be made, continued or converted by BofA,
and having a maturity comparable to such Interest Period, would be
offered to major banks in the London interbank market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"LIBOR Auction" means a solicitation of Competitive Bids
setting forth a LIBOR Bid Margin pursuant to Section 2.06.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a
rate based upon the LIBO Rate.
"LIBOR Bid Margin" has the meaning specified in subsection
2.06(c)(ii)(C).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement for security purposes, lien
(statutory or other) or other security interest or encumbrance of any
kind or nature in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease, any
financing lease having substantially the same economic effect as any of
the foregoing, or the filing of any financing statement naming the owner
of the asset to which such lien relates as debtor, under the Uniform
Commercial Code or any comparable law) and any contingent or other
agreement to provide any of the foregoing, but not including the
interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank or a Designated
Bidder to the Company under Article II, and may be a Committed Loan
(including any Revolving Loan or Term Loan) or a Bid Loan.
"Loan Documents" means this Agreement, any Notes, the Fee Letter
and all other documents delivered to the Agent or any Bank or Designated
Bidder in connection herewith.
"Majority Banks" means (a) Banks holding more than 66-2/3% of the
Commitments, or (b) if the Commitments have been terminated, Banks
holding more than 66-2/3% of the then aggregate unpaid principal amount
of the Loans. For purposes of this definition, each Bank shall be
deemed to hold all outstanding Bid Loans of such Bank's Designated
Bidders.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company or the
Company and its Subsidiaries taken as a whole; (b) a material impairment
of the ability of the Company to perform under any Loan Document and to
avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the Company
of any Loan Document.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been
obligated to make, contributions.
"Net Issuance Proceeds" means, as to any incurrence, issuance or
sale of Indebtedness of the type referred to in clause (a) and clause
(d) of the definition of Indebtedness herein, or any issuance or sale of
equity, by any Person, cash proceeds received or receivable by such
Person in connection therewith, net of commissions, fees and other
reasonable out-of-pocket costs and expenses paid or incurred in
connection therewith in favor of any Person not an Affiliate of such
Person; provided that the following shall not be deemed Net Issuance
Proceeds hereunder: (i) any incurrence of any such Indebtedness by any
Subsidiary from the Company or any other Subsidiary, or any issuance or
sale of equity securities by any Subsidiary to the Company or any other
Subsidiary; (ii) any issuance or sale of equity securities pursuant to
any stock option plan or employee benefit or compensation plan;
(iii) any such Indebtedness incurred pursuant to this Agreement;
(iv) any such Indebtedness in connection with commercial paper notes or
other short term Indebtedness to the extent that unutilized Revolving
Commitments hereunder constitute credit support with respect thereto;
(v) any such Indebtedness incurred in connection with any extension,
renewal, refinancing or replacement of any existing Indebtedness (to the
extent that the aggregate principal amount of such Indebtedness is not
increased in connection therewith); and (vi) any such Indebtedness in
connection with any industrial revenue bond issuance.
"Net Proceeds" means, as to any Disposition by a Person, proceeds
in cash and cash equivalents as and when received by such Person
(including such proceeds subsequently received in respect of noncash
consideration initially received and amounts initially placed in escrow
that subsequently become available), net of: (A) the direct costs
relating to such Disposition (excluding amounts payable to such Person
or any Affiliate of such Person), (B) sale, use or other transaction
taxes paid or payable by such Person as a direct result thereof, and
(C) amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Indebtedness secured by a Lien on
the asset which is the subject of such Disposition; provided that, if no
Default or Event of Default exists hereunder, any such proceeds shall
not be considered Net Proceeds to the extent that such proceeds are
placed in an escrow account promptly upon the receipt thereof and within
180 days after receipt of such proceeds, such proceeds are applied to
the replacement of all or any part of the assets in respect of which
such cash proceeds were received, it being understood that any portion
of such proceeds that has not been so used within such 180 day period
shall be deemed to be Net Proceeds for purposes hereof.
"Net Worth" means, as of any date, the sum of the capital stock
and additional paid in capital plus retained earnings (or minus
accumulated deficits) of the Company and its Subsidiaries on such date,
on a consolidated basis and as determined in accordance with GAAP.
"Notes" means the Committed Loan Notes and the Bid Loan Notes.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document, owing by the
Company to any Bank, Designated Bidder, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing
or hereafter arising.
"Offshore Rate Committed Loan" means any Committed Loan that bears
interest based on the LIBO Rate.
"Offshore Rate Loan" means any LIBOR Bid Loan or any Offshore Rate
Committed Loan.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Company or any ERISA
Affiliate sponsors or maintains, or to which it makes, is making, or is
obligated to make contributions, or in the case of a multiple employer
plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 7.01.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
any other entity of whatever nature.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place)
at such time of such Bank's Commitment divided by the combined
Commitments of all Banks. The initial Pro Rata Share of each Bank is
set forth opposite such Bank's name in Schedule 2.01 under the heading
"Pro Rata Share."
"Replacement Bank" has the meaning specified in Section 3.08.
"Reportable Event" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator
or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of
its property is subject.
"Responsible Officer" means the chief executive officer, the chief
financial officer or the president of the Company, or any other officer
having substantially the same authority and responsibility; or, with
respect to compliance with financial covenants, the chief financial
officer, the corporate controller, or the treasurer of the Company, or
any other officer having substantially the same authority and
responsibility.
"Revolving Commitment", as to each Bank, has the meaning specified
in subsection 2.01(b).
"Revolving Loan" has the meaning specified in subsection 2.01(b).
"Revolving Termination Date" means the earlier to occur of:
(a) May 15, 2001; and
(b) the date on which the Revolving Commitments terminate
in accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"S&P" means Standard & Poor's Ratings Group.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside
bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or bill option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
"Target Business Material Adverse Effect" means a material adverse
change in, or a material adverse effect upon, the financial condition,
economic value or business prospects of the assets and business to be
acquired by the Company in connection with the Acquisition.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, which arise from any
payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents, excluding, in the case of each
Bank and the Agent, respectively, taxes imposed on or measured by its
net income by each jurisdiction (or any political subdivision thereof)
under the laws of which such Bank or the Agent, as the case may be, is
organized or maintains a lending office.
"Term Commitment," as to each Bank, has the meaning specified in
subsection 2.01(a).
"Term Loan" has the meaning specified in subsection 2.01(a).
"Term Maturity Date" means May 15, 1998.
"Type" means, as to any Committed Loan, its nature as an Offshore
Rate Committed Loan or a Base Rate Committed Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities (as defined in Section 4001(a)(16) of ERISA), over
the current value of that Pension Plan's assets, determined in
accordance with the assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Wholly-Owned Subsidiary" means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms. Unless otherwise
expressly provided, any reference to any action of the Agent or the Banks by
way of consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result
of negotiations among the Agent, the Company and the other parties, have been
reviewed by counsel to the Agent, the Company and such other parties, and are
the products of all parties. Accordingly, they shall not be construed against
the Banks or the Agent merely because of the Agent's or Banks' involvement in
their preparation.
1.03 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied; provided, however,
that, if GAAP shall have been modified after the Effective Date and the
application of such modified GAAP shall have a material effect on such
financial computations (including the computations required for the purpose of
determining compliance with the covenants set forth in Article VII), then such
computations shall be made and such financial statements, certificates and
reports shall be prepared, and all accounting terms not otherwise defined
herein shall be construed, in accordance with GAAP as in effect prior to such
modification, unless and until the Majority Banks and the Company shall have
agreed upon the terms of the application of such modified GAAP.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. (a) The Term Credit. Each
Bank severally agrees, on the terms and conditions set forth herein, to make a
single loan to the Company (each such loan, a "Term Loan") on the Closing Date
in an amount not to exceed the amount set forth opposite such Bank's name on
Schedule 2.01 under the heading "Term Commitment" (such amount, such Bank's
"Term Commitment"). Amounts borrowed as Term Loans which are repaid or
prepaid by the Company may not be reborrowed.
(b) The Revolving Credit. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans to the Company (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an
aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Bank's name on Schedule 2.01 under the heading "Revolving
Commitment" (such amount, as the same may be reduced under Section 2.07 or
reduced or increased as a result of one or more assignments under Section
10.08, such Bank's "Revolving Commitment"); provided, however, that, after
giving effect to any Committed Borrowing of Revolving Loans, (i) the aggregate
principal amount of all Revolving Loans outstanding at such time plus the
aggregate principal amount of all Bid Loans outstanding, shall not at any time
exceed the combined Revolving Commitments, and (ii) the aggregate principal
amount of all outstanding Revolving Loans, together with the aggregate
principal amount of all Term Loans outstanding at such time plus the aggregate
principal amount of all Bid Loans outstanding, shall not at any time exceed
the combined Commitments. Within the limits of each Bank's Revolving
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this subsection 2.01(b), prepay under Section 2.08 and
reborrow under this subsection 2.01(b).
2.02 Loan Accounts. (a) The Loans made by each Bank or Designated
Bidder shall be evidenced by one or more loan accounts or records maintained
by such Bank or Designated Bidder in the ordinary course of business. The
loan accounts or records maintained by the Agent and each Bank or Designated
Bidder shall be rebuttable presumptive evidence of the amount of the Loans
made by the Banks and Designated Bidders to the Company and the interest and
payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans.
(b) Upon the request of any Bank made through the Agent, the
Committed Loans made by such Bank may be evidenced by one or more promissory
notes of the Company, substantially in the form of Exhibit I-1 and
Exhibit I-2, with appropriate insertions ("Committed Loan Notes"), and upon
the request of any Bank or Designated Bidder made through the Agent the Bid
Loans made by such Bank or Designated Bidder may be evidenced by one or more
promissory notes of the Company, substantially in the form of Exhibit J, with
appropriate insertions ("Bid Loan Notes"), instead of or in addition to loan
accounts. Each such Bank or Designated Bidder shall endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made by it
and the amount of each payment of principal made by the Company with respect
thereto. Each such Bank and Designated Bidder is irrevocably authorized by
the Company to endorse its Note(s) and each Bank's or Designated Bidder's
record shall be rebuttable presumptive evidence of the accuracy of the
information so recorded; provided, however, that the failure of a Bank or
Designated Bidder to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank or Designated Bidder.
2.03 Procedure for Committed Borrowing. (a) Each Committed Borrowing
shall be made upon the Company's irrevocable written notice delivered to the
Agent in the form of a Notice of Borrowing (which notice must be received by
the Agent prior to 9:00 a.m. (San Francisco time) (i) three Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Committed
Loans; and (ii) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which
(1) in the case of Base Rate Committed Loans, shall be in an
aggregate minimum amount of $10,000,000 or any integral multiple
of $1,000,000 in excess thereof and (2) in the case of Offshore
Rate Committed Loans, shall be in an aggregate minimum amount of
$10,000,000 or any integral multiple of $1,000,000 in excess
thereof;
(B) in the case of the initial Committed Borrowing,
whether Term Loans only or Revolving Loans and Term Loans are
requested and in the latter case the respective amounts thereof;
(C) the requested Borrowing Date, which shall be a
Business Day;
(D) the Type of Loans comprising the Committed
Borrowing; and
(E) the duration of the Interest Period applicable
to Offshore Rate Committed Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of the Interest
Period for any Committed Borrowing comprised of Offshore Rate
Loans, such Interest Period shall be three months;
provided, however, that with respect to the Committed Borrowing to be made on
the Closing Date, the Notice of Borrowing shall be delivered to the Agent not
later than 9:00 a.m. (San Francisco time) (1) three Business Days prior to the
Closing Date for Offshore Rate Committed Loans, and (2) one Business Day
before the Closing Date for Base Rate Committed Loans.
(b) The Agent will promptly notify each Bank of its receipt of
any Notice of Borrowing and of the amount of such Bank's Pro Rata Share of
that Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office by 11:00 a.m. (San Francisco time) on the Borrowing
Date requested by the Company in funds immediately available to the Agent.
If, on such proposed Borrowing Date, all applicable conditions to funding
referenced in Article IV are satisfied, the proceeds of all such Committed
Loans will then be made available to the Company by the Agent by wire transfer
in accordance with written instructions provided to the Agent by the Company
of like funds as received by the Agent.
(d) After giving effect to any Committed Borrowing, unless the
Agent shall otherwise consent, there may not be more than ten different
Interest Periods in effect in respect of all Committed Loans and Bid Loans
together then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings.
(a) The Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base
Rate Committed Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore Rate Committed Loans, to convert any
such Committed Loans (or any part thereof (1), in the case of Base Rate
Committed Loans, in an aggregate amount not less than $10,000,000, or
that is in an integral multiple of $1,000,000 in excess thereof and (2),
in the case of Offshore Rate Committed Loans, in an aggregate amount not
less than $10,000,000, or that is an integral multiple of $1,000,000 in
excess thereof, into Committed Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Offshore Rate Committed Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less
than $10,000,000, or that is in an integral multiple of $1,000,000 in
excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Committed Borrowing is reduced, by payment,
prepayment, or conversion of part thereof to be less than $10,000,000, such
Offshore Rate Committed Loans shall automatically convert into Base Rate
Committed Loans, and on and after such date the right of the Company to
continue such Committed Loans as Offshore Rate Committed Loans shall
terminate.
(b) The Company shall deliver a Notice of Conversion/
Continuation to be received by the Agent not later than 9:00 a.m. (San
Francisco time) at least (i) three Business Days in advance of the Conversion/
Continuation Date, if the Committed Loans are to be converted into or
continued as Offshore Rate Committed Loans; and (ii) one Business Day in
advance of the Conversion/Continuation Date, if the Loans are to be converted
into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be
continued;
(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) in the case of conversions into Offshore
Committed Rate Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Committed Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Committed Loans, or if
any Default or Event of Default then exists, the Company shall be deemed to
have elected to convert such Offshore Rate Committed Loans into Base Rate
Committed Loans effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Committed
Loans held by each Bank with respect to which the notice was given.
(e) Unless the Majority Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have
a Committed Loan converted into or continued as an Offshore Rate Committed
Loan.
(f) After giving effect to any conversion or continuation of
Committed Loans, unless the Agent shall otherwise consent, there may not be
more than ten different Interest Periods in effect in respect of all Committed
Loans and Bid Loans together then outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bid Loan Bank severally agrees that the Company may, as set
forth in Section 2.06, from time to time request the Bid Loan Banks prior to
the Revolving Termination Date to submit offers to make Bid Loans to the
Company; provided, however, that the Bid Loan Banks may, but shall have no
obligation to, submit such offers and the Company may, but shall have no
obligation to, accept any such offers, and any Bid Loan Bank may designate one
or more Designated Bidders to make such offers from time to time and, if such
offers are accepted by the Company, to make such Bid Loans; and provided,
further, that at no time shall (a) the outstanding aggregate principal amount
of all Bid Loans made by all Bid Loan Banks and Designated Bidders, plus the
outstanding aggregate principal amount of all Committed Loans made by all
Banks, exceed the combined Commitments; (b) the outstanding aggregate
principal amount of all Bid Loans made by all Bid Loan Banks and Designated
Bidders, plus the outstanding aggregate principal amount of all Revolving
Loans made by all Banks, exceed the combined Revolving Commitments; or (c) the
number of Interest Periods for Bid Loans then outstanding plus the number of
Interest Periods for Committed Loans then outstanding, exceed ten.
2.06 Procedure for Bid Borrowings. (a) When the Company wishes to
request the Bid Loan Banks to submit offers to make Bid Loans hereunder, it
shall transmit to the Agent by telephone call followed promptly by facsimile
transmission a notice in substantially the form of Exhibit G (a "Competitive
Bid Request") so as to be received no later than 7:00 a.m. (San Francisco
time) (x) four Business Days prior to the date of a proposed Bid Borrowing in
the case of a LIBOR Auction, or (y) two Business Days prior to the date of a
proposed Bid Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof;
(iii) whether the Competitive Bids requested are to
be for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of "Interest
Period" herein.
Subject to subsection 2.06(c), the Company may not request Competitive Bids
for more than three Interest Periods in a single Competitive Bid Request and
may not request Competitive Bids more than once in any period of five Business
Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will
promptly send to the Bid Loan Banks and Designated Bidders by facsimile
transmission an Invitation for Competitive Bids, which shall constitute an
invitation by the Company to each Bid Loan Bank and Designated Bidder to
submit Competitive Bids offering to make the Bid Loans to which such
Competitive Bid Request relates in accordance with this Section 2.06.
(c) (i) Each Bid Loan Bank and Designated Bidder may at
its discretion submit a Competitive Bid containing an offer or
offers to make Bid Loans in response to any Invitation for
Competitive Bids. Each Competitive Bid must comply with the
requirements of this subsection 2.06(c) and must be submitted to
the Agent by facsimile transmission at the Agent's office for
notices set forth on Schedule 10.02 not later than (A) 6:30 a.m.
(San Francisco time) three Business Days prior to the proposed
Borrowing Date, in the case of a LIBOR Auction or (B) 6:30 a.m.
(San Francisco time) on the proposed Borrowing Date, in the case
of an Absolute Rate Auction; provided that Competitive Bids
submitted by the Agent (or any Affiliate of the Agent) in the
capacity of a Bid Loan Bank or Designated Bidder may be submitted,
and may only be submitted, if the Agent or such Affiliate notifies
the Company of the terms of the offer or offers contained therein
not later than (A) 6:15 a.m. (San Francisco time) three Business
Days prior to the proposed Borrowing Date, in the case of a LIBOR
Auction or (B) 6:15 a.m. (San Francisco time) on the proposed
Borrowing Date, in the case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially
the form of Exhibit H, specifying therein:
(A) the proposed Borrowing Date;
(B) the principal amount of each Bid Loan for
which such Competitive Bid is being made, which principal
amount (x) may be equal to, greater than or less than the
Revolving Commitment of the quoting Bid Loan Bank or the
quoting Designated Bidder's affiliated Bid Loan Bank,
(y) must be $5,000,000 or in integral multiples of
$1,000,000 in excess thereof, and (z) may not exceed the
principal amount of Bid Loans for which Competitive Bids
were requested;
(C) in case the Company elects a LIBOR Auction,
the margin above or below the LIBO Rate (the "LIBOR Bid
Margin") offered for each such Bid Loan, expressed in
multiples of 1/1000th of one basis point to be added to or
subtracted from the applicable LIBO Rate and the Interest
Period applicable thereto;
(D) in case the Company elects an Absolute Rate
Auction, the rate of interest per annum expressed in
multiples of 1/1000th of one basis point (the "Absolute
Rate") offered for each such Bid Loan and the Interest
Period applicable thereto; and
(E) the identity of the quoting Bid Loan Bank
or Designated Bidder.
A Competitive Bid may contain up to three separate offers by the
quoting Bid Loan Bank or Designated Bidder with respect to each
Interest Period specified in the related Invitation for
Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with
Exhibit H or does not specify all of the information
required by subsection (c)(ii) of this Section;
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive
Bids; or
(D) arrives after the time set forth in
subsection (c)(i).
(d) Promptly on receipt and not later than 7:00 a.m. (San
Francisco time) three Business Days prior to the proposed Borrowing Date in
the case of a LIBOR Auction, or 7:00 a.m. (San Francisco time) on the proposed
Borrowing Date, in the case of an Absolute Rate Auction, the Agent will notify
the Company of the terms (i) of any Competitive Bid submitted by a Bid Loan
Bank or Designated Bidder that is in accordance with subsection 2.06(c), and
(ii) of any Competitive Bid that amends, modifies or is otherwise inconsistent
with a previous Competitive Bid submitted by such Bid Loan Bank or Designated
Bidder with respect to the same Competitive Bid Request. Any such subsequent
Competitive Bid shall be disregarded by the Agent unless such subsequent
Competitive Bid is submitted solely to correct a manifest error in such former
Competitive Bid and only if received within the times set forth in subsection
2.06(c). The Agent's notice to the Company shall specify (1) the aggregate
principal amount of Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Request; and (2) the
respective principal amounts and LIBOR Bid Margins or Absolute Rates, as the
case may be, so offered. Subject only to the provisions of Sections 3.02,
3.05 and 4.02 hereof and the provisions of this subsection (d), any
Competitive Bid shall be irrevocable except with the written consent of the
Agent given on the written instructions of the Company.
(e) Not later than 7:30 a.m. (San Francisco time) three Business
Days prior to the proposed Borrowing Date, in the case of a LIBOR Auction, or
7:30 a.m. (San Francisco time) on the proposed Borrowing Date, in the case of
an Absolute Rate Auction, the Company shall notify the Agent of its acceptance
or non-acceptance of the offers so notified to it pursuant to subsection
2.06(d). The Company shall be under no obligation to accept any offer and may
choose to reject all offers. In the case of acceptance, such notice shall
specify the aggregate principal amount of offers for each Interest Period that
is accepted. The Company may accept any Competitive Bid in whole or in part;
provided that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing must
be $5,000,000 or in any integral multiple of $1,000,000 in excess
thereof;
(iii) acceptance of offers may only be made on the
basis of ascending LIBOR Bid Margins or Absolute Rates within each
Interest Period, as the case may be; and
(iv) the Company may not accept any offer that is
described in subsection 2.06(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Bid Loan Banks or
Designated Bidders with the same LIBOR Bid Margins or Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Bid Loans in respect of which such offers are accepted
shall be allocated by the Agent among such Bid Loan Banks or Designated
Bidders as nearly as possible (in such multiples, not less than $1,000,000, as
the Agent may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determination by the Agent of the amounts of Bid
Loans shall be conclusive in the absence of manifest error.
(g) (i) The Agent will promptly notify each Bid Loan Bank or
Designated Bidder having submitted a Competitive Bid if its offer has
been accepted and, if its offer has been accepted, of the amount of the
Bid Loan or Bid Loans to be made by it on the date of the Bid Borrowing.
(ii) Each Bid Loan Bank or Designated Bidder, which
has received notice pursuant to subsection 2.06(g)(i) that its
Competitive Bid has been accepted, shall make the amounts of such
Bid Loans available to the Agent for the account of the Company at
the Agent's Payment Office, by 11:00 a.m. (San Francisco time), on
such date of Bid Borrowing, in funds immediately available to the
Agent for the account of the Company at the Agent's Payment
Office. If, on or prior to the proposed date of the Bid
Borrowing, all applicable conditions to funding referenced in
Article IV are satisfied, the proceeds of all such Bid Loans will
then be made available to the Company by the Agent by wire
transfer in accordance with written instructions provided to the
Agent by the Company of like funds as received by the Agent.
(iii) Promptly following each Bid Borrowing, the
Agent shall notify each Bank and Designated Bidder of the ranges
of bids submitted and the highest and lowest Bids accepted for
each Interest Period requested by the Company and the aggregate
amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Bid Loan
Banks and Designated Bidders shall furnish such information to the
Agent as the Agent may request relating to the making of Bid
Loans, including the amounts, interest rates, dates of borrowings
and maturities thereof, for purposes of the allocation of amounts
received from the Company for payment of all amounts owing
hereunder.
(h) Nothing in this Section 2.06 shall be construed as a right
of first offer in favor of the Bid Loan Banks or Designated Bidders or to
otherwise limit the ability of the Company to request and accept credit
facilities from any Person (including any of the Bid Loan Banks or Designated
Bidders), provided that no Default or Event of Default would otherwise arise
or exist as a result of the Company executing, delivering or performing under
such credit facilities.
2.07 Termination or Reduction of Commitments. (a) Term Commitments.
If on the Closing Date the aggregate Term Commitments shall exceed the
outstanding principal amount of the Term Loans made, such unused portion of
the Term Commitments shall automatically terminate on the Closing Date.
(b) Revolving Commitments. The Company may, upon not less than
five Business Days' prior notice to the Agent, terminate the Revolving
Commitments, or permanently reduce the Revolving Commitments by an aggregate
minimum amount of $25,000,000 or any integral multiple of $5,000,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of
Revolving Loans made on the effective date thereof, the then-outstanding
principal amount of the Revolving and Bid Loans would exceed the amount of the
combined Revolving Commitments then in effect. Once reduced in accordance
with this Section, the Revolving Commitments may not be increased. Any
reduction of the Revolving Commitments shall be applied to each Bank according
to its Pro Rata Share. All of the accrued Facility Fee to, but not including,
the effective date of any reduction or termination of the Revolving
Commitments, shall be paid on the effective date of such reduction or
termination.
2.08 Optional Prepayments. (a) Committed Loans. Subject to Section
3.04, the Company may, at any time or from time to time, upon notice to the
Agent given not later than 9:00 a.m. (San Francisco time), at least three
Business Days prior to the proposed prepayment date (in the case of Offshore
Rate Committed Loans), and at least one Business Day prior to the proposed
prepayment date (in the case of Base Rate Committed Loans), ratably prepay
Committed Loans in whole or in part, in minimum amounts of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof. Such notice of prepayment
shall be irrevocable and shall specify the date and amount of such prepayment,
whether such prepayment of Committed Loans is of Term Loans or Revolving Loans
(or a combination thereof), and the Type(s) of Committed Loans to be prepaid.
The Agent will promptly notify each Bank of its receipt of any such notice,
and of such Bank's Pro Rata Share of such prepayment. If such notice is given
by the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount
prepaid and any amounts required pursuant to Section 3.04.
(b) Bid Loans. Bid Loans may not be voluntarily prepaid.
2.09 Mandatory Prepayments. (a) Asset Dispositions. If the Company or
any Subsidiary shall at any time or from time to time make or agree to make a
Disposition involving an aggregate amount of Net Proceeds of $25,000,000 or
more, then (i) the Company shall promptly notify the Agent of such proposed
Disposition (including the amount of the estimated Net Proceeds to be received
by the Company or such Subsidiary in respect thereof) and of the Company's
intent to make a mandatory prepayment of Term Loans hereunder, and
(ii) promptly upon, and in no event later than five days after, receipt by the
Company or the Subsidiary of the Net Proceeds of such Disposition, the Company
shall prepay Term Loans in an aggregate amount equal to the amount of such Net
Proceeds.
(b) Debt and Equity Issuances. If the Company or any Subsidiary
shall incur, issue or sell any Indebtedness of the type referred to in clause
(a) and clause (d) of the definition of Indebtedness herein, or issue or sell
new common or preferred equity securities, the Company shall promptly notify
the Agent of the estimated Net Issuance Proceeds thereof to be received by the
Company or such Subsidiary in respect thereof and of the Company's intent to
make a mandatory prepayment of Term Loans hereunder. Promptly upon, and in no
event later than five days after, receipt by the Company or such Subsidiary of
such Net Issuance Proceeds, the Company shall prepay the Term Loans in an
aggregate amount equal to the amount of such Net Issuance Proceeds.
(c) General. Any prepayments pursuant to this Section 2.09
shall be applied first to any Term Loans consisting of Base Rate Committed
Loans then outstanding and then to Term Loans consisting of Offshore Rate
Committed Loans with the shortest Interest Periods remaining; provided,
however, that if the amount of Base Rate Committed Loans then outstanding is
not sufficient to satisfy the entire prepayment requirement, the Company may,
at its option, so long as no Default or Event of Default exists, place any
amounts which it would otherwise be required to use to prepay Offshore Rate
Committed Loans on a day other than the last day of the Interest Period
therefor in an interest-bearing escrow account with one of the Banks until the
end of such Interest Period at which time such escrowed amounts shall be
applied to prepay such Offshore Rate Loans. In connection with any prepayment
under this Section 2.09, the Company shall deliver to the Agent on or before
the date of the prepayment a certificate of a Responsible Officer setting
forth in reasonable detail the calculation of the amount of the prepayment and
the facts and circumstances giving rise to the applicable prepayment event.
The Agent will promptly notify each Bank of its receipt of any notice from the
Company under this Section 2.09, any information provided by the Company in
connection with the prepayment and such Bank's Pro Rata Share of any
prepayment. The Company shall pay, together with each prepayment under this
Section 2.09, accrued interest on the amount prepaid and any amounts required
pursuant to Section 3.04.
2.10 Repayment. (a) Term Loans. The Company shall repay to the Banks
in full on the Term Maturity Date the aggregate principal amount of Term Loans
outstanding on such date.
(b) Revolving Loans. The Company shall repay to the Banks in
full on the Revolving Termination Date the aggregate principal amount of
Revolving Loans outstanding on such date.
(c) Bid Loans. The Company shall repay to each Bid Loan Bank or
Designated Bidder, as the case may be, that makes any Bid Loan in full the
principal amount of such Bid Loan on the last day of the relevant Interest
Period for such Bid Loan.
2.11 Interest. (a) Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the LIBO Rate or the Base Rate, as the case may be
(and subject to the Company's right to convert to other Types of Loans under
Section 2.04), plus the Applicable Margin. Each Bid Loan shall bear interest
on the outstanding principal amount thereof from the relevant Borrowing Date
at a rate per annum equal to the LIBO Rate plus (or minus) the LIBOR Bid
Margin or at the Absolute Rate, as the case may be.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Committed Loans under Section 2.08 or 2.09 for the portion of
the Loans so prepaid and upon payment (including prepayment) in full thereof
and, during the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, while any
Event of Default under subsection 8.01(a), (f) or (g) exists or after
acceleration, the Company shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal amount of
all outstanding Obligations, at a rate per annum equal to (i) in the case of
any Committed Loans, the sum of 2% per annum plus the applicable LIBO Rate or
Base Rate, as the case may be, and the Applicable Margin then in effect for
such Committed Loans, (ii) in the case of any Bid Loans, the sum of 2% per
annum plus the rate of interest otherwise payable in respect of such Bid
Loans, and (iii) in the case of any other Obligations, the Base Rate plus 2%;
provided, however, that, on and after the expiration of any Interest Period
applicable to any Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at
a rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank or Designated Bidder hereunder shall be
subject to the limitation that payments of interest shall not be required for
any period for which interest is computed hereunder, to the extent (but only
to the extent) that contracting for or receiving such payment by such Bank or
Designated Bidder would be contrary to the provisions of any law applicable to
such Bank or Designated Bidder limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Bank or Designated
Bidder, and in such event the Company shall pay such Bank or Designated Bidder
interest at the highest rate permitted by applicable law.
2.12 Fees. (a) Arrangement and Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay
an agency fee to the Agent for the Agent's own account, as required by the
letter agreement (the "Fee Letter") between the Company and the Arranger and
Agent dated January 24, 1996, as amended.
(b) Bid Auction Fee. The Company shall pay to the Agent, for
the Agent's own account, a bid auction fee in the amount set forth in the Fee
Letter, each time the Company requests the Bid Loan Banks to submit offers to
make Bid Loans.
(c) Facility Fee. The Company shall pay to the Agent for the
account of each Bank a facility fee (the "Facility Fee") on the amount of such
Bank's Revolving Commitment (without regard to usage), computed on a quarterly
basis in arrears on the last Business Day of each calendar quarter, based upon
the average daily amount of such Bank's Revolving Commitment for that quarter,
as calculated by the Agent, at a rate per annum equal to the Applicable Fee
Amount. The Facility Fee shall accrue from the earlier to occur of
(i) May 15, 1996, and (ii) the Closing Date to the Revolving Termination Date
and shall be due and payable quarterly in arrears on the last Business Day of
each quarter commencing on the first such date to occur after the Closing Date
through the Revolving Termination Date, with the final payment to be made on
the Revolving Termination Date; provided that, in connection with any
reduction or termination of the Revolving Commitments under Section 2.07,
accrued Facility Fee calculated for the period ending on such date shall also
be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The Facility
Fee provided in this subsection shall accrue at all times after the above-
mentioned commencement date, including at any time during which one or more
conditions in Article IV are not met.
2.13 Computation of Fees and Interest. (a) All computations of
interest for Base Rate Committed Loans when the Base Rate is determined by
BofA's "reference rate" shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more interest being paid than if computed on the
basis of a 365-day year). Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company, the Banks and the Designated Bidders in
the absence of manifest error. The Agent will, at the request of the Company
or any Bank or Designated Bidder, deliver to the Company or such Bank or
Designated Bidder, as the case may be, a statement showing the quotations used
by the Agent in determining any interest rate.
(c) If the Applicable Margin or Applicable Fee Amount is
increased or reduced with respect to any period for which the Company has
already paid interest or Facility Fee, the Agent shall recalculate the
additional interest or Facility Fee due from or to the Company and shall,
within 15 Business Days, give the Company and the Banks notice of such
recalculation.
(i) Any additional interest or Facility Fee due from the
Company shall be paid to the Agent for the account of the Banks on the
next date on which an interest or fee payment is due; provided, however,
that if there are no Loans outstanding or if the Loans are due and
payable, such additional interest or Facility Fee shall be paid promptly
after receipt of written request for payment from the Agent.
(ii) Any interest or Facility Fee refund due to the Company
shall be credited against payments otherwise due from the Company on the
next interest or fee payment due date or, if the Loans have been repaid
and the Banks are no longer committed to lend under this Agreement, the
Banks shall pay the Agent for the account of the Company such interest
or Facility Fee refund not later than five Business Days after written
notice from the Agent to the Banks.
2.14 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Agent for the account of the Banks and Designated Bidders at the
Agent's Payment Office, and shall be made in Dollars and in immediately
available funds, no later than 11:00 a.m. (San Francisco time) on the date
specified herein. The Agent will promptly distribute to each Bank (or
Designated Bidder) its Pro Rata Share (or other applicable share as expressly
provided herein) of such payment in like funds as received. Any payment
received by the Agent later than 11:00 a.m. (San Francisco time) shall be
deemed to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks or Designated Bidders that
the Company will not make such payment in full as and when required, the Agent
may assume that the Company has made such payment in full to the Agent on such
date in immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Bank or
Designated Bidder on such due date an amount equal to the amount then due such
Bank or Designated Bidder. If and to the extent the Company has not made such
payment in full to the Agent, each Bank or Designated Bidder shall repay to
the Agent on demand such amount distributed to such Bank or Designated Bidder,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank or Designated Bidder until the
date repaid.
2.15 Payments by the Banks and Designated Bidders to the Agent.
(a) Unless the Agent receives notice from a Bank or Designated Bidder, as the
case may be, on or prior to the Closing Date or, with respect to any Borrowing
after the Closing Date, at least one Business Day prior to the date of such
Borrowing, that such Bank or Designated Bidder will not make available as and
when required hereunder to the Agent for the account of the Company the amount
of that Bank's or Designated Bidder's Loan, the Agent may assume that such
Bank or Designated Bidder has made such amount available to the Agent in
immediately available funds on the Borrowing Date and the Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
Company on such date a corresponding amount. If and to the extent any Bank or
Designated Bidder shall not have made its full amount available to the Agent
in immediately available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank or Designated Bidder shall on
the Business Day following such Borrowing Date make such amount available to
the Agent, together with interest at the Federal Funds Rate for each day
during such period. A notice of the Agent submitted to any Bank or Designated
Bidder with respect to amounts owing under this subsection (a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Bank's or Designated Bidder's Loan
on the Borrowing Date for all purposes of this Agreement. If such amount is
not made available to the Agent on the Business Day following the Borrowing
Date, the Agent will notify the Company of such failure to fund and, upon
demand by the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank or Designated Bidder to make any
Loan on any Borrowing Date shall not relieve any other Bank or Designated
Bidder of any obligation hereunder to make a Loan on such Borrowing Date, but
no Bank or Designated Bidder shall be responsible for the failure of any other
Bank or Designated Bidder to make the Loan to be made by such other Bank or
Designated Bidder on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank or Designated Bidder shall obtain on account of the
Loans made by it any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable share
(or other share contemplated hereunder) of (i) payments in respect of the
Committed Loans obtained by all the Banks, or (ii) payments in respect of Bid
Loans having the same Borrowing Date, Interest Payment Date and maturity date,
such Bank or Designated Bidder shall immediately (a) notify the Agent of such
fact, and (b) purchase from the other Banks and, if applicable, Designated
Bidders, such participations in the Committed Loans or Bid Loans, as
applicable, made by them as shall be necessary to cause such purchasing Bank
or Designated Bidder to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank or Designated Bidder, such
purchase shall to that extent be rescinded and each other Bank or Designated
Bidder shall repay to the purchasing Bank or Designated Bidder the purchase
price paid therefor, together with an amount equal to such paying Bank's or
Designated Bidder's ratable share (according to the proportion of (i) the
amount of such paying Bank's or Designated Bidder's required repayment to (ii)
the total amount so recovered from the purchasing Bank or Designated Bidder)
of any interest or other amount paid or payable by the purchasing Bank or
Designated Bidder in respect of the total amount so recovered. The Company
agrees that any Bank or Designated Bidder so purchasing a participation from
another Bank or Designated Bidder may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but
subject to Section 10.11) with respect to such participation as fully as if
such Bank or Designated Bidder were the direct creditor of the Company in the
amount of such participation. The Agent will keep records (which shall be
rebuttably presumed to be correct) of participations purchased under this
Section and will in each case notify the Banks and, if applicable, Designated
Bidders, following any such purchases or repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to each Bank,
Designated Bidder, or the Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Bank, Designated Bidder or the Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Bank, Designated Bidder or the Agent, as the case
may be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Company shall also pay to each Bank or Designated
Bidder, or the Agent for the account of such Bank or Designated Bidder,
at the time interest is paid, Further Taxes in the amount that the
respective Bank or Designated Bidder specifies as necessary to preserve
the after-tax yield such Bank or Designated Bidder would have received
if such Taxes, Other Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Bank,
each Designated Bidder and the Agent for the full amount of (i) Taxes,
(ii) Other Taxes, and (iii) Further Taxes in the amount that the respective
Bank or Designated Bidder specifies as necessary to preserve the after-tax
yield such Bank or Designated Bidder would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be
made within 30 days after the date such Bank, such Designated Bidder or the
Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the Company
of Taxes, Other Taxes or Further Taxes, the Company shall furnish to each
Bank, each Designated Bidder or the Agent the original or a certified copy of
a receipt evidencing payment thereof or other evidence of payment satisfactory
to such Bank, such Designated Bidder or the Agent.
(e) If the Company is required to pay any amount to any Bank or
Designated Bidder pursuant to subsection (b) or (c) of this Section, then such
Bank shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the sole judgment of such Bank is not otherwise
disadvantageous to such Bank.
3.02 Illegality. (a) If any Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending Office,
or such Bank's Designated Bidders in the case of LIBOR Bid Loans, to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Company
through the Agent, any obligation of that Bank or Designated Bidder to make
Offshore Rate Loans (including in respect of any LIBOR Bid Loan as to which
the Company has accepted such Bank's or Designated Bidder's Competitive Bid,
but as to which the Borrowing Date has not arrived) shall be suspended until
such Bank notifies the Agent and the Company that the circumstances giving
rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful for such Bank or
such Bank's Designated Bidders to maintain any Offshore Rate Loan, the Company
shall, upon its receipt of notice of such fact and demand from such Bank (with
a copy to the Agent), prepay in full such Offshore Rate Loans of such Bank (or
of its Designated Bidders) then outstanding, together with interest accrued
thereon and amounts required under Section 3.04, either on the last day of the
Interest Period thereof, if such Bank or any such Designated Bidder may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if such Bank or any such Designated Bidder may not lawfully
continue to maintain such Offshore Rate Loan. If the Company is required so
to prepay any Offshore Rate Committed Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Committed Loans has been so terminated or suspended, the Company may
elect, by giving notice to the Bank through the Agent that all Loans which
would otherwise be made by the Bank as Offshore Rate Committed Loans shall be
instead Base Rate Committed Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank or Designated Bidder shall designate a different Lending
Office with respect to its Offshore Rate Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of such Bank or Designated Bidder, be illegal or otherwise
disadvantageous to such Bank or Designated Bidder.
3.03 Increased Costs and Reduction of Return. (a) If any Bank
determines that, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance by that
Bank with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any
increase in the cost to such Bank of agreeing to make or making, funding or
maintaining any Offshore Rate Committed Loans, then the Company shall be
liable for, and shall from time to time, upon demand (with a copy of such
demand to be sent to the Agent), pay to the Agent for the account of such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank or Designated Bidder shall have determined that
(i) the introduction of any Capital Adequacy Regulation, (ii) any change in
any Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by such Bank or Designated Bidder (or its Lending
Office) or any corporation controlling such Bank or Designated Bidder with any
Capital Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by such Bank or Designated Bidder or any
corporation controlling such Bank or Designated Bidder and (taking into
consideration such Bank's, such Designated Bidder's or such corporation's
policies with respect to capital adequacy and such Bank's or Designated
Bidder's desired return on capital) determines that the amount of such capital
is increased as a consequence of its Commitments, Loans, credits or
obligations under this Agreement, then, upon demand of such Bank or Designated
Bidder to the Company through the Agent, the Company shall pay to such Bank or
Designated Bidder, as the case may be, from time to time as specified by such
Bank or Designated Bidder, such additional amounts as are sufficient to
compensate such Bank or Designated Bidder for such increase.
3.04 Funding Losses. The Company shall reimburse each Bank and each
Designated Bidder, and hold each Bank and each Designated Bidder harmless
from, any, loss or expense which such Bank or such Designated Bidder may
sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a
Committed Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment of any
Committed Loan in accordance with any notice delivered under Section 2.08
or 2.09;
(d) the prepayment (including pursuant to Section 2.08, 2.09 or
3.02(b)) or other payment (including after acceleration thereof) of any
Offshore Rate Loan or Absolute Rate Bid Loan on a day that is not the last day
of the relevant Interest Period; or
(e) the conversion under Section 2.04 of any Offshore Rate
Committed Loan to a Base Rate Committed Loan on a day that is not the last day
of the relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds were
obtained.
3.05 Inability to Determine Rates. If the Agent or the Majority Banks
shall have determined that for any reason adequate and reasonable means do not
exist for determining the LIBO Rate for any requested Interest Period with
respect to a proposed borrowing of Offshore Rate Loans, or conversion into or
continuation of Offshore Rate Committed Loans, or that the LIBO Rate
applicable pursuant to subsection 2.11(a) for any requested Interest Period
with respect to a borrowing of Offshore Rate Loans, or a conversion into or
continuation of Offshore Rate Committed Loans, does not adequately and fairly
reflect the cost to the Banks of funding such Loans, the Agent will promptly
so notify the Company and each Bank. Thereafter, the obligation of the Banks
to make or maintain Offshore Rate Loans hereunder shall be suspended until the
Agent upon the instruction of the Majority Banks revokes such notice in
writing. Upon receipt of such notice, the Company may revoke any Notice of
Borrowing or Notice of Conversion/Continuation then submitted by it with
respect to such Offshore Rate Committed Loans. If the Company does not revoke
such notice as to any proposed Offshore Rate Committed Loans, the Banks shall
make, convert or continue any such Offshore Rate Committed Loans, as proposed
by the Company, in the amount specified in the applicable notice submitted by
the Company, but such Offshore Rate Committed Loans shall be made, converted
or continued as Base Rate Committed Loans instead of Offshore Rate Committed
Loans. Any outstanding Competitive Bid Request for LIBOR Bid Loans or notice
of acceptance by the Company of any Competitive Bids for LIBOR Bid Loans will
be deemed automatically revoked.
3.06 Reserves on Offshore Rate Committed Loans. The Company shall pay
to each Bank, as long as such Bank shall be required under regulations of the
FRB to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Offshore Rate Committed Loan equal to the actual costs of such reserves
allocated to such Offshore Rate Committed Loan by the Bank (as determined by
the Bank in good faith, which determination shall be rebuttable presumptive
evidence of the accuracy of such determination), payable on each date on which
interest is payable on such Committed Loan, provided the Company shall have
received at least 15 days' prior written notice (with a copy to the Agent) of
such additional interest from the Bank. If a Bank fails to give notice 15
days prior to the relevant Interest Payment Date, such additional interest
shall be payable 15 days from receipt of such notice.
3.07 Certificates of Banks. Any Bank or Designated Bidder claiming
reimbursement or compensation under this Article III shall deliver to the
Company (with a copy to the Agent) a certificate setting forth in reasonable
detail the amount payable to such Bank or Designated Bidder hereunder and such
certificate shall be rebuttable presumptive evidence of the accuracy of such
determination. If any Bank or Designated Bidder fails to notify the Company
that such Bank or Designated Bidder intends to claim any such reimbursement or
compensation in respect of a claim under Section 3.03, 3.04 or 3.06 within six
months after such Bank or Designated Bidder has, or with reasonable diligence
should have, knowledge of its claim therefor, the Company shall not be
obligated to compensate such Bank or Designated Bidder for the amount of such
Bank's or Designated Bidder's claim accruing prior to the date which is six
months before the date on which such Bank or Designated Bidder first notifies
the Company that it intends to make such claim; it being understood that the
calculation of the actual amounts may not be possible within such period and
that such Bank or Designated Bidder may provide such calculation as soon as
reasonably practicable thereafter without affecting or limiting the Company's
payment obligations hereunder.
3.08 Substitution of Banks. Upon the receipt by the Company from any
Bank or Designated Bidder (an "Affected Bank") of a claim for payment or
compensation under Section 3.01 or 3.02 that the Company deems to be material
or a notice under Section 3.03, the Company may at its expense (i) request one
or more of the other Banks to acquire and assume all or part of such Affected
Bank's Loans and Commitment, or (ii) designate a replacement bank to acquire
and assume all or