UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
[ x ] Quarterly Report Pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the Period Ended December 31, 1997
OR
[ ] Transition Report Pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the Transition Period From __________________ to _____________________
Commission file number 1-652
UNIVERSAL CORPORATION
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
VIRGINIA 54-0414210
- ------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1501 North Hamilton Street, Richmond, Virginia 23230
- ----------------------------------------------------- -----------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code - (804) 359-9311
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--------- ----------
Indicate the number of shares outstanding of each of the Registrant's classes of
Common Stock as of the latest practicable date.
Common Stock, No par value - 35,283,742 shares outstanding as of February 5,
1998
<PAGE>
<TABLE>
2
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Universal Corporation and Subsidiaries
CONSOLIDATED STATEMENTS OF INCOME AND RETAINED EARNINGS
Three and Six Months Ended December 31, 1997 and 1996
(In thousands of dollars, except per share data)
<CAPTION>
Three Months Six Months
1997 1996 1997 1996
----------------- ----------------- --------------- --------------
<S> <C>
Sales and other operating revenues.............. $1,265,157 $1,337,221 $2,288,313 $2,158,061
Costs and expenses
Costs of goods sold......................... 1,103,628 1,185,082 1,984,549 1,885,383
Selling, general and administrative......... 77,004 77,049 155,441 148,535
Interest.................................... 15,879 18,344 29,681 34,255
----------------- ----------------- --------------- --------------
1,196,511 1,280,475 2,169,671 2,068,173
----------------- ----------------- --------------- --------------
Income before income taxes and other items...... 68,646 56,746 118,642 89,888
Income taxes................................ 27,637 22,736 47,637 35,955
Minority interests.......................... 3,382 3,341 3,044 3,949
----------------- ----------------- --------------- --------------
Income from consolidated operations............. 37,627 30,669 67,961 49,984
Equity in net income of unconsolidated
affiliate.................................. 458 733 2,897 1,440
----------------- ----------------- --------------- --------------
Net income...................................... $38,085 $ 31,402 $70,858 $51,424
================= ================= =============== ==============
Earnings per share.............................. $1.08 $.90 $2.02 $1.47
================= ================= =============== ==============
Diluted earnings per share $1.08 $.89 $2.00 $1.46
================= ================= =============== ==============
Retained earnings - Beginning of period......... $424,298 $360,273
Net income...................................... 70,858 51,424
Cash dividends declared ($.545-1997; $.52-1996).. (19,191) (17,879)
--------------- --------------
Retained earnings - End of period .............. $475,965 $393,818
=============== ==============
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3
Universal Corporation and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(In thousands of dollars)
<CAPTION>
December 31, June 30,
1997 1997
---------------- -----------------
ASSETS
Current
Cash and cash equivalents.................................. $122,186 $ 109,070
Accounts and notes receivable.............................. 422,349 428,430
Advances to suppliers...................................... 87,672 79,499
Accounts receivable - unconsolidated affiliates............. 11,324 7,768
Inventories - at lower of cost or market:
Tobacco................................................ 847,754 570,650
Lumber and building products........................... 103,548 105,567
Agri-products.......................................... 77,844 80,812
Other.................................................. 21,941 12,444
Prepaid income taxes....................................... 8,289 7,665
Deferred income taxes...................................... 7,583 7,064
Other current assets....................................... 16,002 22,270
---------------- -----------------
Total current assets................................... 1,726,492 1,431,239
Real estate, plant and equipment - at cost
Land....................................................... 32,891 30,887
Buildings.................................................. 230,523 214,605
Machinery and equipment.................................... 453,800 430,360
---------------- -----------------
717,214 675,852
Less accumulated depreciation.......................... 379,877 366,200
---------------- -----------------
337,337 309,652
Other assets
Goodwill................................................... 121,238 117,483
Other intangibles.......................................... 21,583 22,703
Investments in unconsolidated affiliates................... 39,472 33,413
Deferred income taxes...................................... 1,767 1,509
Other noncurrent assets.................................... 72,459 65,980
---------------- -----------------
256,519 241,088
---------------- -----------------
$2,320,348 $1,981,979
================ =================
See accompanying notes.
<PAGE>
4
Universal Corporation and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(in thousands of dollars)
<CAPTION>
December 31, June 30,
1997 1997
--------------- ---------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current
Notes payable and overdrafts............................... $641,620 $589,648
Accounts payable........................................... 305,627 275,980
Accounts payable - unconsolidated affiliates............... 14,923 10,204
Customer advances and deposits............................. 334,774 144,175
Accrued compensation....................................... 20,793 19,296
Income taxes payable....................................... 28,071 16,166
Current portion long-term obligations...................... 29,562 28,228
--------------- ---------------
Total current liabilities........ ..................... 1,375,370 1,083,697
Long-term obligations.......................................... 280,304 291,637
Postretirement benefits other than pensions.................... 46,232 45,553
Other long-term liabilities.................................... 40,117 42,273
Deferred income taxes.......................................... 25,467 18,527
Minority interests............................................. 31,702 30,699
Shareholders' equity
Additional preferred stock, no par value, authorized
5,000,000 shares, none issued or outstanding
Common stock, no par value, authorized 50,000,000
shares, issued and outstanding 35,283,742 shares
(35,139,137 at June 30,1996)............................ 82,319 77,040
Retained earnings.......................................... 475,965 424,298
Foreign currency translation adjustments................... (37,128) (31,745)
--------------- ---------------
Total shareholders' equity............................. 521,156 469,593
--------------- ---------------
$2,320,348 $1,981,979
=============== ===============
<PAGE>
5
Universal Corporation and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
Six Months Ended December 31, 1997 and 1996
(In thousands of dollars)
<CAPTION>
1997 1996
-------------- -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income................................................. $70,858 $51,424
Adjustments to reconcile net income to net cash provided
by operating activities................................ 30,700 39,200
Changes in operating assets and liabilities................ (54,842) (194,959)
-------------- -------------
Net cash provided by (used in) operating activities.... 46,716 (104,335)
-------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property, plant and equipment.................. (51,700) (25,300)
-------------- -------------
Net cash used in investing activities.................. (51,700) (25,300)
-------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of short-term debt - net.......................... 52,000 31,400
Repayment of long-term debt................................ (20,000) (20,000)
Issuance of long-term debt................................. 0 14,200
Issuance of common stock................................... 5,300 280
Dividends paid............................................. (19,200) (17,900)
-------------- -------------
Net cash provided by financing activities.............. 18,100 7,980
-------------- -------------
Net increase (decrease) in cash and cash equivalents........... 13,116 (121,655)
Cash and cash equivalents at beginning of period............... 109,070 214,782
-------------- -------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD..................... $122,186 $93,127
============== =============
</TABLE>
<PAGE>
6
Universal Corporation and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1997
All figures contained herein are unaudited. Amounts are stated in thousands of
dollars, except per share data and the number of average common shares
outstanding.
1) The operations of segments of domestic and foreign tobacco, lumber and
building products and agri-products are seasonal. Therefore, the results of
operations for the six-month period ended December 31, 1997, are not necessarily
indicative of results to be expected for the year ending June 30, 1998. All
adjustments necessary to fairly state the results for such period have been
included and were of a normal recurring nature.
2) Contingent liabilities: At December 31, 1997, total exposure under guarantees
issued for banking facilities of unconsolidated affiliates was $2 million. Other
contingent liabilities approximate $48 million and relate principally to
performance bonds and Common Market Guarantees. The Company's Brazilian
subsidiaries have been notified by the tax authorities of proposed adjustments
to the income tax returns filed in prior years. The total adjustments, including
penalties and interest, approximate $55 million. The Company believes the
Brazilian tax returns filed were in compliance with the applicable tax code. The
numerous proposed adjustments vary in complexity and amounts. While it is not
feasible to predict the precise amount or timing of each proposed adjustment,
the Company believes that the ultimate disposition will not have an material
adverse effect on the Company's consolidated financial position or results of
operations.
3) In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"), which establishes standards for reporting and display of comprehensive
income and its components. SFAS 130 is effective for fiscal years beginning
after December 15, 1997, and will be adopted by the Company for fiscal year
1999.
In 1997, the Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 131, "Disclosures about Segments of an Enterprise and
Related Information" ("SFAS 131"). SFAS 131 is effective for fiscal years
beginning after December 15, 1997. The Company is currently evaluating the
implementation of SFAS 131 which will be adopted by the Company for fiscal year
1999.
4) In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share" ("SFAS 128"), which
was adopted by the Company in the quarter ended December 31, 1997. Prior to the
adoption of SFAS 128, the Company was not required to present the dilutive
effects of employee stock options because the effects were immaterial. SFAS 128
requires the presentation of both basic and diluted earnings per share,
regardless of materiality, unless the per share amounts are equal. The effect of
adopting SFAS 128 on earnings per share calculations for prior periods is not
material.
<PAGE>
7
For all periods presented, net income was not affected by the calculation of
basic and diluted earnings per share. The following table sets forth the
computation of earnings per share and diluted earnings per share.
<TABLE>
<CAPTION>
Three Months Six Months
1997 1996 1997 1996
----------- ----------- ----------- -----------
<S> <C>
Net income ($ in thousands) .............. $ 38,085 $ 31,402 $ 70,858 $ 51,424
=========== =========== =========== ===========
Denominator for earnings per share
Weighted average shares ......... 35,172,358 35,064,585 35,155,747 35,060,516
Effect of dilutive securities
Employee stock options .......... 217,767 114,453 204,113 104,208
---------- ---------- ---------- ----------
Denominator for diluted earnings per share 35,390,125 35,179,038 35,359,860 35,164,724
=========== =========== =========== ===========
Earnings per share ....................... $ 1.08 $ .90 $ 2.02 $ 1.47
=========== =========== =========== ===========
Diluted earnings per share ............... $ 1.08 $ .89 $ 2.00 $ 1.46
=========== =========== =========== ===========
</TABLE>
<PAGE>
8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Financial Condition
Working capital at December 31, 1997 was comparable to June 30, 1997 at
approximately $350 million. Due to the seasonal nature of tobacco operations,
the components of working capital on a comparative basis increased significantly
compared to June 30th. Current assets and current liabilities increased $295
million and $292 million, respectively. The majority of the increase was
reflected in tobacco inventory which was supported by increased notes payable
and overdrafts and customer advances. The mix of notes payable and customer
advances supporting inventories is dependent on the Company's borrowing
capabilities, interest rates and exchange rates as well as those of its
customers. The increase in tobacco inventories primarily represents purchases of
crops that have not yet been processed and/or shipped due to customer
requirements. The Company generally does not purchase tobacco in the U.S. on a
speculative basis; thus the higher inventory levels represent tobacco that has
been committed to customers. In the United States, tobacco working capital at
December 31 represents a combination of processed flue-cured tobacco and burley
tobacco purchases from mid-November. Approximately 70% of the company's U. S.
burley tobacco purchases normally occur during November and December. Processing
begins shortly after the purchase and continues through the spring. June 30th
usually represents the low point of U.S. tobacco working capital needs as most
of the current crop has been shipped and paid for by customers.
Generally, the Company's international tobacco operations conduct
business in U.S. dollars, thereby limiting foreign exchange risk to local
production and overhead costs. Agri-product and lumber operations enter into
foreign exchange contracts to hedge firm purchase and sales commitments for
<PAGE>
9
terms of less than six months. Contracts used to manage foreign currency risks
are not material. Interest rate risk is limited because customers in the tobacco
business usually pre-finance purchases or pay market rates of interest for
inventory purchased for their accounts.
Effective December 18, 1997 the Company replaced its $100 million
revolving credit facility with a new $300 million facility issued in two
tranches of $150 million each. The new facility is expected to be used as
support for an increased commercial paper program that will provide flexibility
in the Company's short-term borrowings. The liquidity and capital resources of
the Company at December 31, 1997, remain adequate to support its businesses.
Results of Operations
'Sales and Other Operating Revenues' for the second quarter of fiscal
year 1998 decreased 5% compared to the same period last year due to timing
differences between the first and second quarters related to sales of Brazilian
tobacco and reduced lumber and building products revenues. Lumber and building
product revenues were adversely affected by the strength of the U.S. dollar,
which has appreciated, on average, approximately 17 percent against the Dutch
guilder since the second quarter of last year. For the six month period, `Sales
and Other Operating Revenues' increased by $130 million or 6% compared to the
six months ended December 31, 1996. Lower lumber and building products revenues
for the six months were offset by strong tobacco sales growth year-to-date.
Operating income (pre-tax earnings before interest) increased in both
the second quarter and six- month period compared to the corresponding periods
last year. In the second quarter, operating income increased by $9 million or
13% compared to the second quarter of fiscal year 1997. During the six-month
period ended December 31, operating income increased by $24 million or 19%. The
increases in the second quarter and six-month periods were principally due to
<PAGE>
10
improvements realized in both domestic and foreign tobacco operations. Domestic
tobacco operations in the current quarter benefited from higher volumes
purchased and processed. Foreign tobacco operations were positively impacted by
larger Brazilian flue-cured and burley crops. A higher proportion of the
Brazilian crop is normally shipped in the Company's first six months of fiscal
year. In addition, the Company's dark operations continued to benefit from
increased cigar consumption and demand. Lumber and building products operating
income in both periods was down due to the aforementioned effect of a strong
U.S. dollar. Volumes and margins were also lower due to declining world market
prices for hardwood, softwood and plywood. Agri-product operating income in the
quarter and six months were well above last year, benefiting from a strong
international tea market and rubber operations.
'Selling, General and Administrative Expenses' for the six-month period
increased by 5% over the comparable period last year reflecting increased
foreign tobacco shipments. Interest expense was down from the comparable periods
last year principally reflecting lower borrowing levels by the Company.
As a result of the Company's inventory control policies, it is
currently not holding material leaf inventories that are not committed to
customers. No significant impact is anticipated in the Company's financial
condition or results of operations from the current weakness in the economies of
certain countries in Southeast Asia. In spite of large production increases in
China, world flue-cured and burley tobacco markets are essentially in balance.
Quarterly comparisons continue to be impacted by the timing of shipments to
customers.
<PAGE>
11
The Company is currently in the process of evaluating the potential
impact on its worldwide computer systems related to the year 2000. Systems and
equipment may malfunction due to the inability to recognize a date ending with
the digits "00", which could disrupt and have a material adverse impact on some
of the Company's operations. The Company expects to complete its evaluation by
June 30, 1998 and complete implementation of corrective actions by June 30,
1999. At the current time the Company has not finalized the total costs
resulting from the Year 2000 issue. In compliance with current generally
accepted accounting principles, costs incurred to fix the Year 2000 problems
will be expensed as incurred. The Company currently believes that these costs
will not be material to its consolidated financial condition or results of
operations. Costs such as vendor-supplied software and computer hardware will be
capitalized and amortized to expense over their expected useful life.
In January 1998 the Company reached an agreement to sell its minority
interest in a Dutch spice joint venture. The transaction is expected to result
in an after-tax gain of approximately $11 million, which will be recognized in
second half of fiscal year 1998's earnings.
Reference is made to Items 1 and 7 and the Notes to the Consolidated
Financial Statements in Item 8 of the Company's Form 10-K for the fiscal year
ended June 30, 1997, regarding important factors that would cause actual results
to differ materially from those contained in any forward-looking statement made
by or on behalf of the Company, including forward-looking statements contained
in Item 2 of this Form 10-Q.
<PAGE>
12
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: February 6, 1998 UNIVERSAL CORPORATION
-----------------------------------------------
(Registrant)
/s/ Hartwell H. Roper
-----------------------------------------------
Hartwell H. Roper, Vice President and
Chief Financial Officer
/s/ William J. Coronado
-----------------------------------------------
William J. Coronado, Controller
(Principal Accounting Officer)
<PAGE>
13
PART II. OTHER INFORMATION
EXHIBIT INDEX
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
- -- --------
10.21 Form of Universal Corporation 1997 Restricted Stock Agreement,
with Schedule of Awards to Executive Officers.*
10.22 Form of Universal Corporation 1997 Stock Option and Equity
Accumulation Agreement, with Schedule of Grants to Executive
Officers.*
10.23 Non-Employee Director Restricted Stock Agreement dated October
29, 1997, between Universal Corporation and Charles H. Foster,
Jr.*
10.24 Non-Employee Director Restricted Stock Agreement dated October
29, 1997, between Universal Corporation and Joseph C. Farrell.*
10.25 1997 Non-Qualified Stock Option Agreement between Deli
Universal, Inc. and D.G. Cohen Tervaert.*
10.26 Employment Agreement dated January 15, 1998 between the Company
and Henry H. Harrell, Allen B. King, William L. Taylor, Hartwell
H. Roper, Edward M. Schaaf III, and James M. White III.*
10.27 364 Day Credit Agreement dated December 18, 1997. *
10.28 Three Year Credit Agreement dated December 18, 1997. *
12 Ratio of Earnings to Fixed Charges.*
27 Financial Data Schedule.*
* Filed Herewith
Exhibit 10.21
UNIVERSAL CORPORATION
1997 RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated this 15th day of December 1997, between Universal
Corporation, a Virginia corporation ("the Company") and ____________ (the
"Officer"), is made pursuant and subject to the provisions of the Company's 1989
Executive Stock Plan, as amended, which is incorporated herein by reference, and
any future amendments thereto (the "Plan"). All terms used herein that are
defined in the Plan shall have the same meanings given them in the Plan. All
terms used herein that are defined in prior option and restricted stock
agreements (the "CEO Agreements") executed pursuant to the Company's Automatic
Exercise Program shall have the same meanings given to them in the CEO
Agreements.
1. Award of Restricted Stock. Pursuant to the Plan, the Company on this
date awards to the Officer, subject to the terms and conditions of the Plan and
subject further to the terms and conditions set forth herein, ______ shares of
Common Stock (the "Restricted Stock") to be credited to and held in the
Optionee's Account and used for automatic exercises of options under the
Automatic Exercise Program.
2. Loan to the Officer for Payment of Taxes on Award of Restricted
Stock; Amendment of CEO Agreements. On December 15, 1997, the Company loaned to
the Officer $______ (the "Loan") for the payment by the Company of withholding
taxes on the award of Restricted Stock under this Agreement. Interest on the
Loan shall be payable quarterly at the applicable federal rate for demand loans
in effect for the quarter for which the interest payment relates. Principal on
the Loan shall be paid from the proceeds of the sale by the Company of one-half
(1/2) of the shares of Common Stock representing the after-tax gain on each
automatic exercise of the Options granted under the Automatic Exercise Program.
The Officer may also pay cash to the Company or deliver shares of Common Stock
to the Company to be sold on an Automatic Exercise Date to reduce or retire the
unpaid principal on the Loan. All accrued and unpaid interest and all unpaid
principal on the Loan shall be due and payable (the "Loan Maturity Date") upon
the earlier of (i) the date the Automatic Exercise Program terminates as
provided in the CEO Agreements or (ii) the Expiration Date. The Officer
authorizes the Company on the Loan Maturity Date to sell shares of Common Stock
then held in the Optionee's Account to pay the Company all accrued and unpaid
interest and all unpaid principal on the Loan. For purposes of this paragraph 2,
the Officer authorizes and directs the Company to deliver shares of Common Stock
from the Optionee's Account, free of all restrictions, to the broker designated
in the CEO Agreements and the broker to sell the shares and remit the proceeds
to the Company for the payment of interest and principal on the Loan as provided
in this paragraph 2. Each of the CEO Agreements with the Officer is hereby
amended to incorporate the terms of this paragraph 2 and to provide that the
shares of Common Stock held in the Optionee's Account for automatic exercises of
Options shall not include the number of shares, if any, sold for payment of
principal and interest on the Loan as provided in this paragraph 2.
3. Eligibility. In order to receive the Restricted Stock awarded under
this Agreement, the Officer must sign and return a copy of this Agreement by
January 31, 1998.
4. Restriction on Sales and Encumbrance of Shares; Amendment of CEO
Agreements. During the Officer's participation in the Automatic Exercise
Program, the Officer agrees that unless otherwise permitted by the Executive
Compensation Committee (the "Committee") of the Board of Directors of the
Company in its sole discretion, (i) shares of Common Stock contributed to or
received by and on behalf of the Officer pursuant to the Program and (ii) shares
of Common Stock representing the after-tax gain on each automatic exercise,
rounded to the nearest whole share, shall be held in the Optionee's Account and
shall not be available for sale, transfer, pledge, hypothecation or other
disposition except for payment of interest and principal on the Loan as provided
in paragraph 2, payment of tax obligations as provided in the CEO Agreements,
and stock-for-stock option exercises pursuant to the CEO Agreements. All shares
of Common Stock held in the Optionee's Account shall be owned by and registered
in the name of the Officer, and, subject to paragraph 2 above, the Officer shall
have all rights of ownership with respect thereto, including voting rights and
the right to receive dividends. Such shares shall be held by the Company and a
legend on the stock certificate(s) shall note the restrictions. The restrictions
on the shares of Common Stock held in the Optionee's Account shall lapse upon
termination of the Automatic Exercise Program as provided in the CEO Agreements.
The Company shall deliver a written report to the Officer on the status of the
Optionee's Account following each Automatic Exercise Date. Upon termination of
the Automatic Exercise Program as provided in the CEO Agreements, all shares of
Common Stock held in the Optionee's Account, less any of such shares sold
pursuant to paragraph 2 above, shall be delivered to the Officer free of all
restrictions. Each of the CEO Agreements with the Officer is hereby amended to
incorporate the terms of this paragraph 4.
5. No Right to Continued Employment. This Agreement does not confer
upon the Officer any right with respect to continuance of employment by the
Company or an Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate his or her employment at any time.
6. Investment Representation. The Officer agrees that unless such
shares previously have been registered under the Securities Act of 1933 (i) the
shares of Restricted Stock awarded to him or her hereunder will be acquired for
investment and not with a view to distribution or resale and (ii) until such
registration, certificates representing such shares may bear an appropriate
legend to assure compliance with such Act. This investment representation shall
terminate when such shares have been registered under the Securities Act of
1933.
7. Administration and Interpretation. The Plan Administrator shall be
the Company; however, this Agreement shall be operated under the supervision and
authority of the Committee. Any interpretation of this Agreement shall be made
by the Committee. Any amendment to this Agreement must be authorized by the
Committee.
8. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Virginia, except to
the extent that federal law shall be deemed to apply.
9. Conflicts. In the event of any conflict between the provisions of
the Plan as in effect on the date hereof and the provisions of this Agreement,
the provisions of the Plan shall govern. All references herein to the Plan shall
mean the Plan as in effect on the date hereof.
10. Officer Bound by Plan. The Officer hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all the terms and provisions thereof.
11. Binding Effect. Subject to the limitations stated herein and in the
Plan, this Agreement shall be binding upon and inure to the benefit of the
legatees, distributees, and personal representatives of the Officer and the
successors of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer, and the Officer has affixed his or her signature
hereto.
UNIVERSAL CORPORATION OFFICER
By: ________________________________ ______________________________
Title: ________________________________ [Name]
0383647.05
<PAGE>
Schedule to Exhibit 10.21
Executive Officer Shares Awarded Loan Amount
H. H. Harrell 7,800 $149,666.40
A. B. King 5,850 112,249.80
W. L. Taylor 3,600 69,076.80
H. H. Roper 3,250 62,361.00
0383647.05
Exhibit 10.22
UNIVERSAL CORPORATION
1997 STOCK OPTION AND EQUITY ACCUMULATION AGREEMENT
THIS AGREEMENT, dated this 20th day of November 1997, between Universal
Corporation, a Virginia corporation ("the Company") and ____________ (the
"Optionee"), is made pursuant and subject to the provisions of the Company's
1989 Executive Stock Plan, as amended, and the Company's 1997 Executive Stock
Plan, which are incorporated herein by reference, and any future amendments
thereto (the "Plans"). All terms used herein that are defined in the Plans shall
have the same meanings given them in the Plans.
1. Grant of Long Term Option and Reload Options. Pursuant to the Plans,
and upon action taken by the Executive Compensation Committee (the "Committee")
of the Board of Directors of the Company on November 20, 1997, the Company
grants to the Optionee, subject to the terms and conditions of the Plans and
subject further to the terms and conditions set forth herein, the right and
option to purchase __________ shares of Common Stock (the "Long Term Option")
and the Reload Options as described in subparagraph 5E. The Long Term Option and
Reload Options are non-qualified stock options. The option price of the Long
Term Option shall be the Fair Market Value of Common Stock at the close of
business on November 20, 1997, or $38.94 per share.
2. Expiration Date. The expiration date of the Long Term Option and any
Reload Options granted hereunder shall be November 20, 2007 (the "Expiration
Date").
3. Date Options Become Exercisable. Any Option granted hereunder may
not be exercised until at least six months after the date of grant thereof.
4. Eligibility to Participate. In order to participate and receive the
Options granted under this Agreement, the Optionee must sign and return a copy
of this Agreement by January 31, 1998.
5. Automatic Exercise Program.
A. Method of Automatic Exercise. Until the Automatic Exercise
Program terminates as provided in subparagraph 5G, the Optionee authorizes the
Company on any Automatic Exercise Date (as hereinafter defined), including the
Initial Exercise Date (as hereinafter defined), automatically to exercise the
lowest price Long Term or Reload Options granted the Optionee under this Program
only by means of a stock-for-stock swap using shares of Common Stock then
credited to the Optionee's Account. On the Initial Exercise Date, such Options
shall be automatically exercised to purchase the number of shares of Common
Stock which can be purchased from shares of Common Stock credited to the
Optionee's Account. With respect to subsequent Automatic Exercise Dates, the
Optionee authorizes the Company to automatically exercise such Options for the
amount of shares of Common Stock which can be purchased from shares of Common
Stock held in the Optionee's Account received on previous Automatic Exercise
Dates and shares of Common Stock, if any, contributed to the Optionee's Account
pursuant to subparagraph 5D, less the number of shares, if any, withheld from
the exercise or sold for payment of taxes under subparagraph 5F. The automatic
exercise shall only occur if the Fair Market Value on the Automatic Exercise
Date exceeds by one percent (1%) or more the exercise price of the lowest priced
Option held by the Optionee under this Program (the "Automatic Exercise
Criterion"). The Optionee grants the Company or any of its officers the power of
attorney to endorse and transfer the share certificates credited to the
Optionee's Account in accordance with the Automatic Exercise Program. The power
of attorney shall cease upon the termination of the Optionee's participation in
the Automatic Exercise Program.
B. Other Options Granted by Universal to the Optionee. Options
granted to the Optionee under agreements other than this Agreement, the
Universal Corporation 1994 Stock Option and Equity Accumulation Agreement (the
"1994 Agreement") or the Universal Corporation 1991 Stock Option and Equity
Accumulation Agreement (the "1991 Agreement") are not eligible to be included in
the Automatic Exercise Program under this Agreement, the 1994 Agreement and the
1991 Agreement.
C. Automatic Exercise Dates; Amendment of 1994 Agreement and
1991 Agreement. The initial automatic exercise date under the Automatic Exercise
Program for Options granted under this Agreement shall be June 15, 1998, or the
first business day thereafter on which the Automatic Exercise Criterion is met
(the "Initial Exercise Date"), and subsequent automatic exercise dates for such
Options shall occur upon the first business day on which the New York Stock
Exchange trades stock which occurs after a six month interval has elapsed since
the last automatic exercise date, or the first business day thereafter on which
the Automatic Exercise Criterion is met (the "Automatic Exercise Date(s)");
provided, however, that any Automatic Exercise Date for Options granted under
this Agreement, the 1994 Agreement or the 1991 Agreement shall be at least six
months after the last Automatic Exercise Date for any such Options. Subparagraph
5C of the 1994 Agreement is amended to read as follows:
C. The initial automatic exercise date under the Automatic
Exercise Program for Options granted under this Agreement shall be June
1, 1995, or the first business day thereafter on which the Automatic
Exercise Criterion is met (the "Initial Exercise Date"), and subsequent
automatic exercise dates for such Options shall occur upon the first
business day on which the New York Stock Exchange trades stock which
occurs after a six month interval has elapsed since the last such
automatic exercise date, or the first business day thereafter on which
the Automatic Exercise Criterion is met (the "Automatic Exercise
Date(s)"); provided, however, that any Automatic Exercise Date for
Options granted under this Agreement, the Universal Corporation 1997
Stock Option and Equity Accumulation Agreement or the Universal
Corporation 1991 Stock Option and Equity Accumulation Agreement shall
be at least six months after the last Automatic Exercise Date for any
such Options.
Subparagraph 5C of the 1991 Agreement is amended to read as follows:
C. The initial automatic exercise date under the Automatic
Exercise Program shall be November 1, 1992, or the first business day
thereafter on which the Automatic Exercise Criterion is met (the
"Initial Exercise Date"), and subsequent automatic exercise dates shall
occur upon the first business day on which the New York Stock Exchange
trades stock which occurs after a six month interval has elapsed since
the last automatic exercise date, or the first business day thereafter
on which the Automatic Exercise Criterion is met (the "Automatic
Exercise Date(s)"); provided, however, that any Automatic Exercise Date
for Options granted under this Agreement, the Universal Corporation
1997 Stock Option and Equity Accumulation Agreement and the Universal
Corporation 1994 Stock Option and Equity Accumulation Agreement shall
be at least six months after the last Automatic Exercise Date for any
such Options.
D. Method of Payment Under Automatic Exercise Program;
Amendment of 1994 Agreement and 1991 Agreement. Other than the payment on the
Initial Exercise Date from shares of Common Stock then credited to the
Optionee's Account pursuant to the 1994 Agreement and the 1991 Agreement,
payment by the Optionee under the Automatic Exercise Program shall be only from
shares of Common Stock received from the previous exercise under the Program and
from additional shares of Common Stock delivered to the Optionee's Account as
provided in this subparagraph 5D.
Prior to termination of the Automatic Exercise Program as provided in
subparagraph 5G, the Committee may permit the Optionee to deliver additional
shares of Common Stock to the Company for credit to the Optionee's Account for
inclusion in the Program. The Committee may limit the total number of such
additional shares which may be contributed by the Optionee. Such additional
shares may be delivered from time-to-time during the term of the Program.
However, for purposes of the Program, the delivery of shares shall be made at
least six (6) months prior to the Automatic Exercise Date on which such shares
shall be used for a stock swap pursuant to the Program.
The second paragraph of subparagraph 5D of the 1994 Agreement and the
second paragraph of subparagraph 5D of the 1991 Agreement are amended to read as
follows:
Prior to termination of the Automatic Exercise Program as
provided in subparagraph 5G, the Committee may permit the Optionee to
deliver additional shares of Common Stock to the Company for credit to
the Optionee's Account for inclusion in the Program. The Committee may
limit the total number of additional shares which may be contributed by
the Optionee. Such additional shares may be delivered from time-to-time
during the term of the Program. However, for purposes of the Program,
the delivery of shares shall be made at least six (6) months prior to
the Automatic Exercise Date on which such shares shall be used for a
stock swap pursuant to the Program.
E. Reload Options. Only participants in the Automatic Exercise
Program will be eligible to receive Reload Options. A Reload Option is an
automatic grant of a new Option each time the Company executes an automatic
stock-for-stock swap exercise. The number of shares granted in the Reload Option
shall equal the number of shares exchanged in payment of the exercise price on
an Automatic Exercise Date. The Reload Options will be fully vested six (6)
months from the date of grant and will have a term which expires on the same
date as the automatically exercised Option. The exercise price for a Reload
Option shall be the Fair Market Value on the date of the Reload Option grant.
The grant of a Reload Option shall be subject to there being sufficient
shares available for such grants under the Plans. If there are not sufficient
shares available to fully meet the obligation of the Automatic Exercise Program
as described above, then the Committee will, in its sole discretion, allocate
the available shares to participants. In addition, should the Committee, in its
sole discretion, determine that continuing to grant Reload Options is no longer
in the best interest of the Company, it may, by means of written notice to
participants, cause the discontinuance of the granting of Reload Options.
F. Payment of Taxes Under the Automatic Exercise Program;
Amendment of 1994 Agreement and 1991 Agreement. Unless at least six (6) months
prior to an Automatic Exercise Date the Optionee gives written notice to the
Company, directed to the attention of its Secretary, that he or she will pay the
Company, on a timely basis, cash for the payment of withholding taxes on the
gain realized from the exercise of an Option under the Automatic Exercise
Program, the Company shall (i) reduce the number of shares of Common Stock
issuable upon such exercise by the number of whole shares of Common Stock which
on such exercise date best approximates but does not exceed the minimum amount
of taxes required to be withheld by the Company and (ii) on the date seven (7)
days after such Automatic Exercise Date, the Company shall deliver from the
Optionee's Account to the broker hereinafter designated by the Optionee, free of
all restrictions, the number of whole shares of Common Stock which best
approximates the amount of such taxes in excess of the minimum amount required
to be withheld by the Company. For purposes of the preceding sentence, the
Optionee designates Shearson Lehman Brothers, Inc., Three James Center, 1051
East Cary Street, Richmond, Virginia 23219, Account No. ____________, as his or
her broker and authorizes and directs the Company to deliver such shares to said
broker and the broker to sell the shares and remit the proceeds to the Company
for the payment of withholding taxes. Subparagraph 5F of the 1994 Agreement and
Subparagraph 5F of the 1991 Agreement are amended to read as follows:
F. Unless at least six (6) months prior to an Automatic
Exercise Date the Optionee gives written notice to the Company,
directed to the attention of its Secretary, that he or she will pay the
Company, on a timely basis, cash for the payment of withholding taxes
on the gain realized from the exercise of an Option under the Automatic
Exercise Program, the Company shall (i) reduce the number of shares of
Common Stock issuable upon such exercise by the number of whole shares
of Common Stock which on such exercise date best approximates the
minimum amount of taxes required to be withheld by the Company and (ii)
on the date seven (7) days after such Automatic Exercise Date, the
Company shall deliver from the Optionee's Account to the broker
designated by the Optionee in subparagraph 5F of the Universal
Corporation 1997 Stock Option and Equity Accumulation Agreement, free
of all restrictions, the number of whole shares of Common Stock which
best approximates the amount of such taxes in excess of the minimum
amount required to be withheld by the Company.
G. Termination of the Automatic Exercise Program. The
Automatic Exercise Program shall terminate upon the earlier of (i) the date on
which the Optionee gives written notice to the Company that he or she
irrevocably elects to terminate participation in such Program, provided that
such notice may not be given before the second business day after the Initial
Exercise Date; or (ii) the date the Optionee's employment with the Company is
terminated; or (iii) the failure by the Company to be in a position to grant
Reload Options on any Automatic Exercise Date pursuant to subparagraph 5E in
which case the Company shall promptly notify the Optionee.
H. Restriction on Sales and Encumbrance of Shares. During the
Optionee's participation in the Automatic Exercise Program, the Optionee agrees
that unless otherwise permitted by the Committee in its sole discretion, (i)
shares of Common Stock contributed to or received by and on behalf of the
Optionee pursuant to the Program and (ii) shares of Common Stock representing
the after-tax gain on each automatic exercise, rounded to the nearest whole
share, shall be held in the Optionee's Account and shall not be available for
sale, transfer, pledge, hypothecation or other disposition except for payment of
tax obligations as provided in subparagraph 5F, and stock-for-stock Option
exercises pursuant to this paragraph 5. All shares of Common Stock held in the
Optionee's Account shall be owned by and registered in the name of the Optionee,
and the Optionee shall have all rights of ownership with respect thereto,
including voting rights and the right to receive dividends. Such shares shall be
held by the Company and a legend on the stock certificate(s) shall note the
restrictions. The restrictions on the shares of Common Stock held in the
Optionee's Account shall lapse upon termination of the Automatic Exercise
Program as provided in subparagraph 5G.
I. Maintenance of Shares. The Company shall establish and
maintain an individual account in the Optionee's name (the "Optionee's Account")
to hold shares of Common Stock registered in the Optionee's name contributed to
or obtained through the Automatic Exercise Program under this Agreement, the
1994 Agreement and the 1991 Agreement. The Company shall deliver a written
report to the Optionee on the status of the Optionee's Account following each
Automatic Exercise Date. Upon termination of the Automatic Exercise Program as
provided in subparagraph 5G, all shares of Common Stock held in the Optionee's
Account shall be delivered to the Optionee free of all restrictions.
6. Nonautomatic Exercises by the Optionee.
A. Subject to Automatic Exercise Program Termination. Except
for exercises under the Automatic Exercise Program as provided in paragraph 5,
the Optionee shall not be able to exercise the Long Term and Reload Options
until the earlier of (i) the date the Program terminates as provided in
subparagraph 5G or (ii) the date one (1) year prior to the Expiration Date. On
such date, such Options that have vested pursuant to paragraph 3 and that have
not been previously exercised under the Automatic Exercise Program may be
exercised in the manner provided in this paragraph 6.
B. Nonautomatic Exercises. After termination of the Automatic
Exercise Program in accordance with subparagraphs 5G(ii) or (iii), or on the
date one (1) year prior to the Expiration Date, all vested and unexercised Long
Term and Reload options shall continue to be exercisable by the Optionee until
the earlier of the termination of the Optionee's rights hereunder pursuant to
subparagraphs 6E and 6F, or the Expiration Date. A partial exercise of such
Options pursuant to subparagraphs 6E or 6F shall not affect Optionee's right to
exercise such Options with respect to the remaining shares, subject to the six
month vesting period set forth in paragraph 3 and the conditions of the Plans
and this Agreement. If the Optionee terminates the Automatic Exercise Program
pursuant to subparagraph 5G(i), such Options may only be exercised in the manner
provided in subparagraph 6H.
C. Method of Exercising and Payment for Shares. An Option
exercised pursuant to this paragraph 6 shall be exercised by written notice of
the Optionee delivered to the attention to the Company's Secretary at the
Company's principal office in Richmond, Virginia. The written notice shall
specify the number of shares being acquired pursuant to the exercise of the
Option when such Option is being exercised in part pursuant to subparagraphs 6E
or 6F. The exercise date shall be the date such notice is received by the
Company. Such notice shall be accompanied by payment in full of the Option Price
for each share of Common Stock to be purchased.
D. Cashless Exercise. To the extent permitted under the
applicable laws and regulations, at the request of the Optionee, the Company
agrees to cooperate in a "cashless exercise" of a Long Term or Reload Option
pursuant to this paragraph 6. The cashless exercise shall be effected by the
Optionee delivering to the Securities Broker instructions to exercise all or
part of the Option, including instructions to sell a sufficient number of shares
of Common Stock to cover the costs and expenses associated therewith.
E. Exercise During Employment. Subject to (i) the provisions
of subparagraph 6F which shall apply to exercise in the event of retirement,
death, disability or Committee approval, and (ii) the provisions of subparagraph
6H which shall apply to exercise in the event Optionee terminates his or her
participation in the Automatic Exercise Program as provided in subparagraph
5G(i), all vested and unexercised Long Term and Reload Options may be exercised
in whole or in part during Optionee's employment with the Company or an
Affiliate from the date such Options are exercisable pursuant to subparagraph 6B
until the earlier of the expiration of ninety (90) days from the date the
Optionee's employment with the Company or an Affiliate is terminated or the
Expiration Date; provided, however, that the Optionee's right to exercise the
Options shall terminate immediately in the event the Optionee's employment with
the Company or an Affiliate is terminated for cause as hereinafter defined or
the Optionee is in violation of the provisions of paragraph 7 hereof. For
purposes of the preceding sentence, the Optionee's employment shall be deemed to
have been terminated for cause if the Optionee's employment is terminated as
result of fraud, dishonesty or embezzlement from the Company or an Affiliate.
F. Exercise in the Event of Retirement, Death, or Disability
or Approval by the Committee. Subject to the provisions of subparagraph 6H which
shall apply to exercise in the event the Optionee terminates his or her
participation in the Automatic Exercise Program as provided in subparagraph
5G(i), all unexercised Long Term and Reload Options that have vested pursuant to
paragraph 3 shall be exercisable in whole or in part in the event that prior to
the Expiration Date (i) the Optionee retires (early, after age 55, normal, at
age 65, or delayed) or, (ii) the Optionee dies or becomes permanently and
totally disabled (as defined in the Disability Benefits Plan of Universal Leaf
Tobacco Company, Incorporated and Domestic Subsidiaries) while employed by the
Company or an Affiliate or (iii) for any reason approved by the Committee in its
absolute discretion. In the event of death, such Options may be exercised by the
Optionee's estate, or the person or persons to whom his or her rights under this
Agreement shall pass by will or the laws of descent and distribution. Options
that become exercisable pursuant to this subparagraph 6F will continue to be
exercisable for the remainder of the period preceding the Expiration Date.
G. Exercise in the Event of Liquidation or Reorganization. In
the event of a dissolution or liquidation of the Company or a merger or
consolidation in which the Company is not the surviving corporation, the
Optionee shall have the right immediately prior to such dissolution or
liquidation, or merger or consolidation, to exercise all unexercised Long Term
and Reload Options in full.
H. Exercise in the Event the Optionee Terminates Automatic
Exercise Program. In the event the Optionee irrevocably elects to terminate his
or her participation in the Automatic Exercise Program as provided in
subparagraph 5G(i), the Optionee may (i) exercise all, but not a part, of all
unexercised Long Term and Reload Options which have vested pursuant to paragraph
3 for a period of thirty (30) days from the date the Optionee gives written
notice as provided in subparagraph 5G(i), (ii) exercise unexercised Reload
Options which have not vested pursuant to paragraph 3 for a period of thirty
(30) days from the date each such Option vests, (iii) exercise all vested and
unexercised Long Term and Reload Options in whole or in part during the one (1)
year period prior to the Expiration Date, and (iv) exercise all vested and
unexercised Long Term and Reload Options in whole or in part pursuant to
subparagraph 6F. An exercise pursuant to subparagraph 6H(iii) may only be made
during the Optionee's employment with the Company or an Affiliate.
I. Payment of Withholding Taxes. Within seven (7) days
following the date of exercise pursuant to this paragraph 6, the Optionee shall
pay to the Company in cash (or provide for the payment of) the withholding taxes
on the gain realized from the exercise of the Option.
7. Optionee Covenants. The Optionee recognizes that over a period of
many years the Company and its Affiliates (including any predecessors or
entities from which it might have acquired goodwill) have developed, at
considerable expense, relationships with customers and prospective customers
which constitute a major part of the value of the goodwill of the Company and
the Affiliates. During the course of his or her employment by the Company, the
Optionee will have substantial contact with these customers and prospective
customers. In order to protect the goodwill of the Company's and the Affiliates'
businesses, the Optionee covenants and agrees that, in the event of the
termination of his or her employment, whether voluntary or involuntary, he or
she shall forfeit the Options granted under this Agreement if he or she directly
or indirectly as an owner, shareholder, director, employee, partner, agent,
broker, consultant or other participant, for the period during which such
Options are exercisable:
(a) calls upon or causes to be called upon, or solicits
or assists in the solicitation of any person, firm,
association, or corporation, listed as a customer of
the Company or any Affiliate on the date of
termination of the Optionee's employment, for the
purpose of selling, renting or supplying any product
or service competitive with the products or services
of the Company or any Affiliate; or
(b) performs or contracts to perform for a competitor of
the Company or any Affiliate the same or similar
services he or she performed for the Company or such
Affiliate.
Subparagraphs (a) and (b) of this paragraph 7 are separate and
divisible covenants; if for any reason any one covenant is held to be invalid or
unenforceable, in whole or in part, the same shall not be held to affect the
validity or enforceability of the others, or of any other provision of this
Agreement. The period and scope of the restrictions set forth in this paragraph
7 shall be reduced to the maximum permitted by the law actually applied to
determine the validity of each subparagraph.
8. Fractional Shares. Fractional shares shall not be issuable
hereunder, and when any provision hereof may entitle the Optionee to a
fractional share such fraction shall be disregarded.
9. No Right to Continued Employment. This Agreement does not confer
upon the Optionee any right with respect to continuance of employment by the
Company or an Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate his or her employment at any time.
10. Investment Representation. The Optionee agrees that unless such
shares previously have been registered under the Securities Act of 1933 (i) any
shares of Common Stock purchased by him or her hereunder will be purchased for
investment and not with a view to distribution or resale and (ii) until such
registration, certificates representing such shares may bear an appropriate
legend to assure compliance with such Act. This investment representation shall
terminate when such shares have been registered under the Securities Act of
1933.
11. Administration and Interpretation. The Plan Administrator shall be
the Company; however, this Agreement shall be operated under the supervision and
authority of the Committee. The Committee shall have the authority to terminate
the Automatic Exercise Program and the issuance of any Reload Options. Also, the
Committee may issue additional Reload Options and Long Term Options under this
Agreement if authorized by the Plans or any amendment thereto, or any successor
plan. Any interpretation of this Agreement shall be made by the Committee. Any
amendment to this Agreement must be authorized by the Committee.
12. Change in Capital Structure. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by the
Long Term and Reload Options, and the price per share thereof, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock of the Company resulting from a subdivision or
consolidation of shares or the payment of a stock dividend (but only on the
Common Stock), a stock split-up or any other increase or decrease in the number
of such shares effected without receipt of cash or property or labor or services
by the Company.
Subject to any required action by the shareholders of the Company, if
the Company shall be the surviving corporation in any merger or consolidation,
the Long-Term and Reload Options shall pertain to and apply to the securities to
which a holder of the number of shares of Common Stock subject to such Options
would have been entitled. A dissolution or liquidation of the Company or a
merger or consolidation in which the Company is not the surviving corporation,
shall cause such Options to terminate, provided that the Optionee shall, in such
event, have the right immediately prior to such dissolution or liquidation, or
merger or consolidation in which the Company is not the surviving corporation,
to exercise such Options.
In the event of a change in the Common Stock of the Company as
presently constituted, which is limited to a change of all of its authorized
shares without par value into the same number of shares with a different par
value, the shares resulting from any such change shall be deemed to be the
Common Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Committee,
whose determination in that respect shall be final, binding and conclusive.
Except as hereinbefore expressly provided in this paragraph 12, the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger, or consolidation or spin-off of assets
or stock of another corporation, and any issue by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to the Options granted
under this Agreement.
The grant of the Long Term and Reload Options pursuant to this
Agreement shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve, liquidate or
sell, or transfer all or any part of its business or assets.
13. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Virginia, except
to the extent that federal law shall be deemed to apply.
14. Conflicts. In the event of any conflict between the provisions of
the Plans as in effect on the date hereof and the provisions of this Agreement,
the provisions of the Plans shall govern. All references herein to the Plans
shall mean the Plans as in effect on the date hereof.
15. Optionee Bound by Plans. The Optionee hereby acknowledges receipt
of a copy of the Plans and agrees to be bound by all the terms and provisions
thereof.
16. Binding Effect. Subject to the limitations stated herein and in the
Plans, this Agreement shall be binding upon and inure to the benefit of the
legatees, distributees, and personal representatives of the Optionee and the
successors of the Company.
17. Nontransferability. The Long Term and Reload Options granted under
this Agreement shall be nontransferable except by will or by the laws of descent
and distribution. During the Optionee's lifetime, such Options may be exercised
only by the Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer, and the Optionee has affixed his or her signature
hereto.
UNIVERSAL CORPORATION OPTIONEE
By: ________________________________ ______________________________
Title: ________________________________ [Name]
0384708.02
<PAGE>
Schedule to Exhibit 10.22
Executive Officer Options Granted
H. H. Harrell 120,000
A. B. King 90,000
W. L. Taylor 55,000
H. H. Roper 50,000
J. M. White, III 18,000
0384708.02
Exhibit 10.23
UNIVERSAL CORPORATION
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated this 29th day of October, 1997, between Universal
Corporation, a Virginia corporation (the "Company") and Charles H. Foster, Jr.
(the "Director"), is made pursuant and subject to the provisions of the
Company's 1997 Executive Stock Plan, which is incorporated herein by reference,
and any future amendments thereto (the "Plan") and the Company's Restricted
Stock Plan for Non-Employee Directors (the "Restricted Stock Plan"). All terms
used herein that are defined in the Plan shall have the same meanings given them
in the Plan.
1. Award of Restricted Stock. Pursuant to the Plan and the Restricted
Stock Plan, the Company on this date awards to the Director, subject to the
terms and conditions set forth herein, 700 shares of Restricted Stock. Such
number of shares of Restricted Stock shall be proportionately adjusted for any
increase or decrease in the total number of shares of Common Stock outstanding
resulting from a subdivision or consolidation of shares or the payment of a
dividend entirely in shares of Common Stock, a stock split-up or any other
increase or decrease in the number of shares of Common Stock outstanding without
the receipt by the Company of cash, property, or labor or services. Of the 700
shares of Restricted Stock awarded hereunder, 400 shares are awarded under, and
subject to the terms and conditions of the Restricted Stock Plan (the
"Restricted Stock Plan Award"), and 300 shares are awarded under, and subject to
the terms and conditions of the Plan (the "Plan Award").
2. Terms and Conditions. This award of Restricted Stock is subject to
the following terms and conditions:
A. Restricted Period. This award of Restricted Stock shall be
subject to the restrictions set forth herein for a period (the "Restricted
Period") commencing on the date of this Agreement and ending with the earliest
of the following events:
(1) the Director retires from the Board in
compliance with the Board's retirement
policy as then in effect;
(2) the Director's service on the Board
terminates as a result of not being
nominated for reelection by the Board (other
than at the Director's request);
(3) the Director's service on the Board
terminates because the Director, although
nominated for reelection by the Board, is
not reelected by the Company's shareholders;
(4) the Director becomes Disabled (as defined
below);
(5) the Director dies; or
(6) the occurrence of a Change of Control.
A Director shall be deemed "Disabled" if the
Director is unable to perform his or her customary duties on the Board for a
period of six months or longer due to bodily injury or disease.
B. Forfeiture of Restricted Stock. If the date ("Termination
Date") a Director's service on the Board terminates is before the end of the
Restricted Period, the Director shall forfeit and return to the Company the
shares of Restricted Stock awarded hereunder.
C. Restrictions. The shares of Restricted Stock awarded
hereunder and any stock distributions with respect to such Restricted Stock
shall be subject to the following restrictions during the Restricted Period:
(1) the Restricted Stock shall be subject to
forfeiture as provided herein;
(2) the Restricted Stock may not be sold,
assigned, transferred, pledged, hypothecated
or otherwise disposed of, and neither the
right to receive the Restricted Stock nor
any interest hereunder may be assigned by
the Director, and any attempted assignment
shall be void;
(3) A certificate representing the shares of
Restricted Stock awarded hereunder shall be
held in escrow by the Company and shall, in
the Company's sole discretion, bear an
appropriate restrictive legend and be
subject to appropriate "stop transfer"
orders. To facilitate the escrow of the
shares of Restricted Stock awarded hereunder
with the Company, the Director shall deliver
herewith the Stock Power attached hereto as
Exhibit I executed in blank by the Director
and dated as of the date hereof;
(4) Any additional stock or other securities or
property that may be issued or distributed
with respect to the Restricted Stock awarded
hereunder as a result of any stock dividend,
stock split, business combination or other
event shall be subject to the restrictions
and other terms and conditions set forth in
this Agreement; and
(5) The Director shall not be entitled to
receive any shares of the Restricted Stock
awarded hereunder prior to the completion of
any registration or qualification of the
Restricted Stock under any federal or state
law, or the receipt thereof may be subject
to such restrictions to insure compliance
with the same as the Company, in its sole
discretion, determines to be necessary or
advisable.
D. Receipt of Common Stock. If the Director's Termination
Date is at or after the end of the Restricted Period, the Director shall receive
the number of shares of restricted Common Stock awarded hereunder, free and
clear of the restrictions set forth in this Agreement, except for any
restrictions necessary to comply with federal and state securities laws.
Certificates representing such shares shall be released to the Director as
promptly as practical following the Director's becoming entitled to receive such
shares.
E. Shareholder Rights. Upon issuance of a certificate
representing the shares of Restricted Stock awarded hereunder, the Director
shall, subject to the restrictions set forth herein, have all rights of a
shareholder with respect to such shares of Restricted Stock, including the right
to vote such shares and the right to receive cash dividends and other
distributions thereon.
F. Tax Withholding. The Director shall pay to the Company in
cash (or provide for the payment of) the full amount of all federal and state
income and employment taxes required to be withheld by the Company in respect to
the inclusion in the taxable income of the Director of any amount with respect
to the shares of Restricted Stock awarded hereunder.
3. No Right to Renomination. Nothing in this Agreement shall confer
upon the Director any right to be renominated to the Board.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive law of the Commonwealth of Virginia,
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the law of any other jurisdiction.
5. Investment Representation. The Director agrees that unless such
shares previously have been registered under the Securities Act of 1933, (i) any
shares of Restricted Stock awarded hereunder will be acquired for investment and
not with a view to distribution or resale and (ii) until such registration,
certificates representing such shares may bear an appropriate legend to assure
compliance with such Act. This investment representation shall terminate when
such shares have been registered under the Securities Act of 1933 or the
requirements of such Act have otherwise been satisfied.
6. Director Bound by Plan. The Director hereby acknowledges receipt of
a copy of the Plan and agrees to be bound by all the terms and provisions
thereof.
7. Conflicts. With respect to the Restricted Stock Plan Award, in the
event of any conflict between the provisions of the Restricted Stock Plan as in
effect on the date hereof and the provisions of this Agreement, the provisions
of the Restricted Stock Plan shall govern. With respect to the Plan Award, in
the event of any conflict between the provisions of the Plan as in effect on the
date hereof and the provisions of this Agreement, the provisions of the Plan
shall govern. All references herein to the Plan shall mean the Plan as in effect
on the date hereof, and all references herein to the Restricted Stock Plan shall
mean the Restricted Stock Plan as in effect on the date hereof.
8. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the legatees, distributees, and personal representatives of the
Director and the successors of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer, and the Director has affixed his or her signature
hereto.
UNIVERSAL CORPORATION DIRECTOR
By: _________________________ ______________________________
Title: _________________________
0380093.04
<PAGE>
EXHIBIT I
STOCK POWER
FOR VALUE RECEIVED, pursuant to a certain Restricted Stock Agreement
between Universal Corporation and the undersigned dated ___________________ __,
19__, I hereby sell, assign and transfer unto Universal Corporation all shares
of the restricted Common Stock of Universal Corporation awarded to me on this
date and in the future under said Agreement and do hereby irrevocably constitute
and appoint _____________________________________ as my attorney-in-fact to
transfer the said shares of stock on the books of Universal Corporation with
full power of substitution in the premises.
Dated ______________ __, 19__.
------------------------------------
Director
0380093.04
Exhibit 10.24
UNIVERSAL CORPORATION
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated this 29th day of October, 1997, between Universal
Corporation, a Virginia corporation (the "Company") and Joseph C. Farrell (the
"Director"), is made pursuant and subject to the provisions of the Company's
1997 Executive Stock Plan, which is incorporated herein by reference, and any
future amendments thereto (the "Plan"). All terms used herein that are defined
in the Plan shall have the same meanings given them in the Plan.
1. Award of Restricted Stock. Pursuant to the Plan, the Company on
this date awards to the Director, subject to the terms and conditions of the
Plan and subject further to the terms and conditions set forth herein, 700
shares of Restricted Stock. Such number of shares of Restricted Stock shall be
proportionately adjusted for any increase or decrease in the total number of
shares of Common Stock outstanding resulting from a subdivision or consolidation
of shares or the payment of a dividend entirely in shares of Common Stock, a
stock split-up or any other increase or decrease in the number of shares of
Common Stock outstanding without the receipt by the Company of cash, property,
or labor or services.
2. Terms and Conditions. This award of Restricted Stock is subject to
the following terms and conditions:
A. Restricted Period. This award of Restricted Stock shall be
subject to the restrictions set forth herein for a period (the "Restricted
Period") commencing on the date of this Agreement and ending with the earliest
of the following events:
(1) the Director retires from the Board in
compliance with the Board's retirement
policy as then in effect;
(2) the Director's service on the Board
terminates as a result of not being
nominated for reelection by the Board (other
than at the Director's request);
(3) the Director's service on the Board
terminates because the Director, although
nominated for reelection by the Board, is
not reelected by the Company's shareholders;
(4) the Director becomes Disabled (as defined
below);
(5) the Director dies; or
(6) the occurrence of a Change of Control.
A Director shall be deemed "Disabled" if the
Director is unable to perform his or her customary duties on the Board for a
period of six months or longer due to bodily injury or disease.
B. Forfeiture of Restricted Stock. If the date ("Termination
Date") a Director's service on the Board terminates is before the end of the
Restricted Period, the Director shall forfeit and return to the Company the
shares of Restricted Stock awarded hereunder.
C. Restrictions. The shares of Restricted Stock awarded
hereunder and any stock distributions with respect to such Restricted Stock
shall be subject to the following restrictions during the Restricted Period:
(1) he Restricted Stock shall be subject to
forfeiture as provided herein;
(2) the Restricted Stock may not be sold,
assigned, transferred, pledged, hypothecated
or otherwise disposed of, and neither the
right to receive the Restricted Stock nor
any interest hereunder may be assigned by
the Director, and any attempted assignment
shall be void;
(3) A certificate representing the shares of
Restricted Stock awarded hereunder shall be
held in escrow by the Company and shall, in
the Company's sole discretion, bear an
appropriate restrictive legend and be
subject to appropriate "stop transfer"
orders. To facilitate the escrow of the
shares of Restricted Stock awarded hereunder
with the Company, the Director shall deliver
herewith the Stock Power attached hereto as
Exhibit I executed in blank by the Director
and dated as of the date hereof;
(4) Any additional stock or other securities or
property that may be issued or distributed
with respect to the Restricted Stock awarded
hereunder as a result of any stock dividend,
stock split, business combination or other
event shall be subject to the restrictions
and other terms and conditions set forth in
this Agreement; and
(5) The Director shall not be entitled to
receive any shares of the Restricted Stock
awarded hereunder prior to the completion of
any registration or qualification of the
Restricted Stock under any federal or state
law, or the receipt thereof may be subject
to such restrictions to insure compliance
with the same as the Company, in its sole
discretion, determines to be necessary or
advisable.
D. Receipt of Common Stock. If the Director's Termination
Date is at or after the end of the Restricted Period, the Director shall receive
the number of shares of restricted Common Stock awarded hereunder, free and
clear of the restrictions set forth in this Agreement, except for any
restrictions necessary to comply with federal and state securities laws.
Certificates representing such shares shall be released to the Director as
promptly as practical following the Director's becoming entitled to receive such
shares.
E. Shareholder Rights. Upon issuance of a certificate
representing the shares of Restricted Stock awarded hereunder, the Director
shall, subject to the restrictions set forth herein, have all rights of a
shareholder with respect to such shares of Restricted Stock, including the right
to vote such shares and the right to receive cash dividends and other
distributions thereon.
F. Tax Withholding. The Director shall pay to the Company in
cash (or provide for the payment of) the full amount of all federal and state
income and employment taxes required to be withheld by the Company in respect to
the inclusion in the taxable income of the Director of any amount with respect
to the shares of Restricted Stock awarded hereunder.
3. No Right to Renomination. Nothing in this Agreement shall confer
upon the Director any right to be renominated to the Board.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive law of the Commonwealth of Virginia,
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the law of any other jurisdiction.
5. Investment Representation. The Director agrees that unless such
shares previously have been registered under the Securities Act of 1933, (i) any
shares of Restricted Stock awarded hereunder will be acquired for investment and
not with a view to distribution or resale and (ii) until such registration,
certificates representing such shares may bear an appropriate legend to assure
compliance with such Act. This investment representation shall terminate when
such shares have been registered under the Securities Act of 1933 or the
requirements of such Act have otherwise been satisfied.
6. Director Bound by Plan. The Director hereby acknowledges receipt of
a copy of the Plan and agrees to be bound by all the terms and provisions
thereof.
7. Conflicts. In the event of any conflict between the provisions of
the Plan as in effect on the date hereof and the provisions of this Agreement,
the provisions of the Plan shall govern. All references herein to the Plan shall
mean the Plan as in effect on the date hereof.
8. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the legatees, distributees, and personal representatives of the
Director and the successors of the Company.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer, and the Director has affixed his or her signature
hereto.
UNIVERSAL CORPORATION DIRECTOR
By: _________________________ ______________________________
Title: _________________________
0380093.06
<PAGE>
EXHIBIT I
STOCK POWER
FOR VALUE RECEIVED, pursuant to a certain Restricted Stock Agreement
between Universal Corporation and the undersigned dated ___________________ __,
19__, I hereby sell, assign and transfer unto Universal Corporation all shares
of the restricted Common Stock of Universal Corporation awarded to me on this
date and in the future under said Agreement and do hereby irrevocably constitute
and appoint _____________________________________ as my attorney-in-fact to
transfer the said shares of stock on the books of Universal Corporation with
full power of substitution in the premises.
Dated ______________ __, 19__.
------------------------------------
Director
0380093.06
Exhibit 10.25
DELI UNIVERSAL, INC.
1997 NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of November 20, 1997, between Deli Universal,
Inc., a corporation organized under the laws of Virginia (the "Company"), and
D.G. Cohen Tervaert (the "Optionee"), is made pursuant and subject to the
provisions of the Universal Corporation 1997 Executive Stock Plan and any future
amendments thereto (the "Plan"). Capitalized terms not otherwise defined herein
have the meanings given them in the Plan.
1. Grant of Option. Pursuant to the Plan, the Company, on November 20,
1997, granted to the Optionee, subject to the terms and conditions of the Plan
and subject further to the terms and conditions herein set forth, the right and
option to purchase from the Company all or any part of an aggregate of 17,000
shares of common stock of Universal Corporation ("Common Stock") at the option
price of $38.94 per share. Such option will be exercisable as hereinafter
provided.
2. Terms and Conditions. This option is subject to the following terms
and conditions:
(a) Expiration Date. The Expiration Date of this option
is November 20, 2002.
(b) Exercise of Option. This option shall be exercisable,
with respect to the total number of shares of Common
Stock covered by this option, as set forth in
paragraph 1 above, on and after the date hereof, and
it shall continue to be exercisable with respect to
such shares until the earlier of (i) termination of
the Optionee's rights hereunder pursuant to paragraph
3 or 4, or (ii) the Expiration Date. A partial
exercise of this option shall not affect the
Optionee's right to exercise this option subsequently
with respect to the remaining shares that are
exercisable subject to the conditions of the Plan and
this Agreement.
(c) Method of Exercising and Payment for Shares. This
option shall be exercised by written notice (i)
delivered to the attention of the Company's Secretary
at the Company's principal office in Richmond,
Virginia, and (ii) telefaxed on the date of such
delivery to the Secretary of Universal Corporation
(Facsimile Number 804/254-3594). The written notice
shall specify the number of shares being acquired
pursuant to the exercise of the option when such
option is being exercised in part in accordance with
subparagraph 2(b) hereof. The exercise date shall be
the date such notice is received by the Company. Such
notice shall be accompanied by payment of the option
price in full for each share of Common Stock being
acquired pursuant to such exercise, in cash or cash
equivalent acceptable to the Committee, by the
surrender of shares of Common Stock with a Fair
Market Value at the time of exercise equal to the
option price, or by any combination of cash or
acceptable cash equivalent and Common Stock having an
aggregate Fair Market Value equal to the option
price.
(d) Cashless Exercise. To the extent permitted under the
applicable laws and regulations, at the request of
the Optionee, the Company in its discretion may agree
to a "cashless exercise" of the option. Such cashless
exercise shall be effected pursuant to the procedure
to be established by the Company pursuant to the
Plan, which may include a requirement that at least
three (3) weeks prior to the exercise date the
Optionee provide written notice requesting a cashless
exercise to the Company and to Universal Corporation
in the manner specified in subparagraph 2(c) above.
(e) Nontransferability. This option is nontransferable
except by will or by the laws of descent and
distribution. During the Optionee's lifetime, this
option may be exercised only by the Optionee.
3. Exercise During Employment. Subject to the two-year period for
retirement, death and disability in paragraph 4, this option may not be
exercised in whole or in part after the earlier of (i) the date ninety days
after the date the Optionee terminates his employment with the Company or an
Affiliate or (ii) the Expiration Date; provided, however, that the Optionee's
right to exercise this option shall terminate immediately in the event the
Optionee's employment with the Company or an Affiliate is terminated for cause
as hereinafter defined or the Optionee is in violation of paragraph 6 hereof.
For purposes of the preceding sentence, the Optionee's employment shall be
deemed to have been terminated for cause if the Optionee's employment is
terminated as a result of fraud, dishonesty or embezzlement from the Company or
an Affiliate.
4. Exercise in the Event of Retirement, Death, Disability. This option
shall continue to be exercisable in full in the event that prior to the
Expiration Date of this option the Optionee (i) retires (early, after age 55,
normal, at age 65, or delayed retirement) or for any reason approved by the
Committee in its absolute discretion or, (ii) dies or becomes totally and
permanently disabled (as defined below) while employed by the Company or an
Affiliate. In the event of death this option may be exercised by the Optionee's
estate, or the person or persons to whom his rights under this option shall pass
by will or the laws of descent and distribution. This option will continue to be
exercisable for (x) the two-year period beginning on the date the Optionee
retires or for any reason approved by the Committee, dies or terminates
employment due to permanent and total disability, as the case may be, or (y) the
remainder of the period preceding the Expiration Date, whichever is shorter. For
purposes of this Agreement, "totally and permanently disabled" shall mean the
incapacity of the Optionee by reason of bodily injury or disease which prevents
the Optionee from performing the customary duties of his position with the
Company or an Affiliate, provided such disability can be expected to continue
for a lifetime.
5. Exercise in the Event of Liquidation or Reorganization. In the event
of a dissolution or liquidation of Universal Corporation or a merger or
consolidation in which Universal Corporation is not the surviving corporation,
the Optionee shall have the right immediately prior to such dissolution or
liquidation, or merger or consolidation, to exercise his option in full.
6. Optionee Covenants. The Optionee recognizes that over a period of
many years the Company and Universal Corporation and its Affiliates (including
any predecessors or entities from which they might have acquired goodwill) have
developed, at considerable expense, relationships with customers and prospective
customers which constitute a major part of the value of the goodwill of the
Company, Universal Corporation and the Affiliates. During the course of his
employment by the Company, the Optionee will have substantial contact with these
customers and prospective customers. In order to protect the goodwill of the
Company's, Universal Corporation's and the Affiliate's businesses, the Optionee
covenants and agrees that, in the event of the termination of his employment,
whether voluntary or involuntary, he shall forfeit the option if he directly or
indirectly as an owner, shareholder, director, employee, partner, agent, broker,
consultant or other participant, for the period during which the option is
exercisable:
(a) calls upon or causes to be called upon, or
solicits or assists in the solicitation of any
person, firm, association, or corporation, listed as
a customer of the Company, Universal Corporation or
any Affiliate on the date of termination of the
Optionee's employment, for the purpose of selling,
renting or supplying any product or service
competitive with the products or services of the
Company, Universal Corporation or any Affiliate; or
(b) performs for a competitor of the Company the same
or similar services he or she performed for the
Company.
Subparagraphs (a) and (b) are separate and divisible covenants; if for
any reason any one covenant is held to be invalid or unenforceable, in whole or
in part, the same shall not be held to affect the validity or enforceability of
the others, or of any provision of this Agreement. The period and scope of the
restrictions set forth in this paragraph shall be reduced to the maximum
permitted by the law actually applied to determine the validity of each
subparagraph.
7. Fractional Shares. Fractional shares shall not be issuable
hereunder, and when any provision hereof may entitle the Optionee to a
fractional share such fraction shall be disregarded.
8. No Right to Continued Employment. This option does not confer upon
the Optionee any right with respect to continuance of employment by the Company
or an Affiliate, nor shall it interfere in any way with the right of the Company
or an Affiliate to terminate his employment at any time.
9. Investment Representation. The Optionee agrees that unless such
shares previously have been registered under the Securities Act of 1933 (i) any
shares purchased by him hereunder will be purchased for investment and not with
a view to distribution or resale and (ii) until such registration, certificates
representing such shares may bear an appropriate legend to assure compliance
with such Act. This investment representation shall terminate when such shares
have been registered under the Securities Act of 1933.
10. Change in Capital Structure. Subject to any required action by the
shareholders of Universal Corporation, the number of shares of Common Stock
covered by this option, and the price per share thereof, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock of Universal Corporation resulting from a subdivision or
consolidation of shares or the payment of a stock dividend (but only on the
Common Stock), a stock split-up or any other increase or decrease in the number
of such shares effected without receipt of cash or property or labor or services
by Universal Corporation.
Subject to any required action by the shareholders of Universal
Corporation, if Universal Corporation shall be the surviving corporation in any
merger or consolidation, this option shall pertain to and apply to the
securities to which a holder of the number of shares of Common Stock subject to
this option would have been entitled. A dissolution or liquidation of Universal
Corporation or a merger or consolidation in which Universal Corporation is not
the surviving corporation, shall cause this option to terminate, provided that
the Optionee shall, in such event, have the right immediately prior to such
dissolution or liquidation, or merger or consolidation in which Universal
Corporation is not the surviving corporation, to exercise this option.
In the event of a change in the Common Stock of Universal Corporation
as presently constituted, which is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any such change shall be deemed
to be the Common Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock or
securities of Universal Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive.
Except as hereinbefore expressly provided in this Section 10, the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger, or consolidation or spin-off of assets
or stock of another corporation, and any issue by Universal Corporation or the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares of Common Stock
subject to this option.
The grant of the option pursuant to the Plan shall not affect in any
way the right or power of Universal Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
11. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of Virginia.
12. Conflicts. In the event of any conflict between the provisions of
the Plan as in effect on the date hereof and the provisions of this Agreement,
the provisions of the Plan shall govern. All references herein to the Plan shall
mean the Plan as in effect on the date hereof.
13. Optionee Bound by Plan. The Optionee hereby acknowledges receipt of
a copy of the Plan and agrees to be bound by all the terms and provisions
thereof.
14. Binding Effect. Subject to the limitations stated above and in the
Plan, this Agreement shall be binding upon and inure to the benefit of the
legatees, distributees, and personal representatives of the Optionee and the
successors of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer, and the Optionee has affixed his signature hereto.
DELI UNIVERSAL, INC. OPTIONEE
By: _________________________________ _____________________________
D.G. Cohen Tervaert
0389187.04
Exhibit 10.26
EMPLOYMENT AGREEMENT
AGREEMENT by and between Universal Corporation, a Virginia corporation
(the "Company"), and ________________________ (the "Executive"), dated as of the
15th day of January, 1998.
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Board believes it is imperative to diminish
the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first date during the
Change of Control Period (as defined in Section 1(b)) on which a Change of
Control (as defined in Section 2) occurs. Anything in this Agreement to the
contrary notwithstanding, if a Change of Control occurs and if the Executive's
employment with the Company is terminated prior to the date on which the Change
of Control occurs, and if it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request of a third party who has
taken steps reasonably calculated to effect a Change of Control or (ii)
otherwise arose in connection with or anticipation of a Change of Control, then
for all purposes of this Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of employment.
(b) The "Change of Control Period" shall mean the period
commencing on the date hereof and ending on the third anniversary of the date
hereof; provided, however, that commencing on the date one year after the date
hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"),
unless previously terminated, the Change of Control Period shall be
automatically extended so as to terminate three years from such Renewal Date,
unless at least 60 days prior to the Renewal Date the Company shall give notice
to the Executive that the Change of Control Period shall not be so extended.
(c) "Subsidiary" shall mean any corporation that is directly,
or indirectly though one or more intermediaries, controlled by the Company.
2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (iv)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, (ii) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
3. Employment Period; Guaranty. If the Executive is employed by the
Company and/or a Subsidiary on the Effective Date, the Company hereby agrees to
continue to employ and to cause such Subsidiary to continue to employ the
Executive, and the Executive hereby agrees to remain in the employ of the
Company and/or such Subsidiary, subject to the terms and conditions of this
Agreement, for the period commencing on the Effective Date and ending on the
third anniversary of such date (the "Employment Period"). For purposes of this
Agreement, unless expressly limited to Universal Corporation, "Company"
hereinafter shall mean each of Universal Corporation and/or any of its
Subsidiaries that employ the Executive. A Subsidiary that executes this
Agreement absolutely and unconditionally guarantees to the Executive the
performance of all obligations of the Company under this Agreement.
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive's
position (including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned at any time during the 120-day period immediately preceding the
Effective Date and (B) the Executive's services shall be performed at the
location where the Executive was employed immediately preceding the Effective
Date or any office or location less than 35 miles from such location.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote reasonable attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve times the highest
monthly base salary paid or payable, including any base salary which has been
earned but deferred, to the Executive by the Company and its affiliated
companies in respect of the twelve-month period immediately preceding the month
in which the Effective Date occurs. During the Employment Period, the Annual
Base Salary shall be reviewed no more than 12 months after the last salary
increase awarded to the Executive prior to the Effective Date and thereafter at
least annually. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase and the term Annual Base
Salary as utilized in this Agreement shall refer to Annual Base Salary as so
increased. As used in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to Annual Base Salary,
the Executive shall be awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the "Annual Bonus") in cash at least equal
to the Executive's highest bonus under annual incentive plans of the Company and
its affiliated companies or any comparable bonus under any predecessor or
successor plan, for the last three full fiscal years prior to the Effective Date
(annualized in the event that the Executive was not employed by the Company for
the whole of such fiscal year) (the "Recent Annual Bonus"). Each such Annual
Bonus shall be paid no later than the end of the third month of the fiscal year
next following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During
the Employment Period, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to
both regular and special incentive opportunities, to the extent, if any, that
such distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated companies for the
Executive under such plans, practices, policies and programs as in effect at any
time during the 120-day period immediately preceding the Effective Date or if
more favorable to the Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its affiliated
companies.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other peer executives of the Company and
its affiliated companies.
(v) Expenses. During the Employment Period the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most favorable
policies, practices and procedures of the Company and its affiliated companies
in effect for the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer executives of
the Company and its affiliated companies.
(vi) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to fringe benefits, including, without
limitation, tax and financial planning services, payment of club dues, and, if
applicable, use of an automobile and payment of related expenses, in accordance
with the most favorable plans, practices, programs and policies of the Company
and its affiliated companies in effect for the Executive at any time during the
120-day period immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment
Period, the Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to exclusive personal secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies at any
time during the 120-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as provided generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies.
(viii) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance with the most
favorable plans, policies, programs and practices of the Company and its
affiliated companies as in effect for the Executive at any time during the
120-day period immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 12(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the Executive's duties with the Company or
one of its affiliates (other than any such failure resulting from incapacity due
to physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief Executive
Officer of the Company which specifically identifies the manner in which the
Board or Chief Executive Officer believes that the Executive has not
substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated
by the Executive for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or any other
action by the Company which results in a diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company to comply with any of
the provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be
based at any office or location
other than as provided in Section 4(a)(i)(B) hereof or the Company's requiring
the Executive to travel on Company business to a substantially greater extent
than required immediately prior to the Effective Date;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and
satisfy Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive. Anything in this Agreement to the
contrary notwithstanding, a termination by the Executive for any reason during
the 30-day period immediately following the first anniversary of the Effective
Date shall be deemed to be a termination for Good Reason for all purposes of
this Agreement.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability.
If, during the Employment Period, the Company shall terminate the Executive's
employment other than for Cause or Disability or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) the Executive's Annual
Base Salary through the Date of Termination to the extent not theretofore paid
and (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II)
the Annual Bonus paid or payable, including any bonus or portion thereof which
has been earned but deferred (and annualized for any fiscal year consisting of
less than twelve full months or during which the Executive was employed for less
than twelve full months), for the most recently completed fiscal year during the
Employment Period, if any (such higher amount being referred to as the "Highest
Annual Bonus") and (y) a fraction, the numerator of which is the number of days
in the current fiscal year through the Date of Termination, and the denominator
of which is 365, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1) and (2) shall be hereinafter referred to as the
"Accrued Obligations"); and
B. the amount equal to the product of (1)
three and (2) the sum of (x) the Executive's Annual Base Salary and (y) the
Highest Annual Bonus; and
C. an amount equal to the excess of (a) the
actuarial equivalent of the benefit under the qualified defined benefit
retirement plan of the Company or any of its affiliated companies (the
"Retirement Plan") (utilizing actuarial assumptions no less favorable to the
Executive than those in effect under the Retirement Plan immediately prior to
the Effective Date), and any excess or supplemental retirement plan of the
Company or any of its affiliated companies in which the Executive participates
(together, the "BRP") which the Executive would receive if the Executive's
employment continued for three years after the Date of Termination assuming for
this purpose that all accrued benefits are fully vested, and, assuming that the
Executive's compensation in each of the three years is that required by Section
4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the
Executive's actual benefit (paid or payable), if any, under the Retirement Plan
and the BRP as of the Date of Termination;
(ii) for three years after the Executive's Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue
benefits to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv) of this Agreement if the
Executive's employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies and their families,
provided, however, that if the Executive becomes reemployed with another
employer and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility. For purposes of determining eligibility (but
not the time of commencement of benefits) of the Executive for retiree benefits
pursuant to such plans, practices, programs and policies, the Executive shall be
considered to have remained employed until three years after the Date of
Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as
incurred, provide the Executive with outplacement services the scope and
provider of which shall be selected by the Executive in his sole discretion; and
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(b) shall include, without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to receive, benefits
at least equal to the most favorable benefits provided by the Company and
affiliated companies to the estates and beneficiaries of peer executives of the
Company and such affiliated companies under such plans, programs, practices and
policies relating to death benefits, if any, as in effect with respect to other
peer executives and their beneficiaries at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other peer executives of the
Company and its affiliated companies and their beneficiaries.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 6(c)
shall include, and the Executive shall be entitled after the Disability
Effective Date to receive, disability and other benefits at least equal to the
most favorable of those generally provided by the Company and its affiliated
companies to disabled executives and/or their families in accordance with such
plans, programs, practices and policies relating to disability, if any, as in
effect generally with respect to other peer executives and their families at any
time during the 120-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as in effect at
any time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive (x) his Annual Base Salary through
the Date of Termination, (y) the amount of any compensation previously deferred
by the Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to Section
12(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 9) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Section 9(a), if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
Payments do not exceed 110% of the greatest amount that could be paid to the
Executive such that the receipt of Payments would not give rise to any Excise
Tax (the "Reduced Amount"), then no Gross-Up Payment shall be made to the
Executive and the Payments, in the aggregate, shall be reduced to the Reduced
Amount.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by a nationally recognized certified public accounting firm as may be designated
by the Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by
the Company to the Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 9(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such
claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties),incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9(c)) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
10. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
11. Successors.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
If to the Company:
Universal Corporation
1501 North Hamilton Street
Richmond, Virginia 23260
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) The Executive and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company is "at
will" and, subject to Section 1(a) hereof, prior to the Effective Date, the
Executive's employment and/or this Agreement may be terminated by either the
Executive or the Company at any time prior to the Effective Date, in which case
the Executive shall have no further rights under this Agreement. From and after
the Effective Date this Agreement shall supersede any other agreement between
the parties with respect to the subject matter hereof.
(g) The Executive and the Company agree that as of the date
hereof, this Agreement supercedes and terminates the Senior Executive Severance
Agreement between the Company and the Executive dated [Date].
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
UNIVERSAL CORPORATION
By: _____________________________________
Title: _____________________________________
------------------------------------------
[Name of Subsidiary]
By: _____________________________________
Title: _____________________________________
------------------------------------------
[Name of Executive]
0389946.14
Exhibit 10.27
364-DAY CREDIT AGREEMENT
Dated as of December 18, 1997
among
UNIVERSAL CORPORATION
as Borrower,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
as Administrative Agent,
ABN-AMRO BANK, N.V.,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent,
CRESTAR BANK,
as Managing Agent,
FIRST UNION NATIONAL BANK
and
WACHOVIA BANK, N.A.
as Co-Agents,
<PAGE>
<TABLE>
TABLE OF CONTENTS
<S> <C>
SECTION 1 DEFINITIONS.............................................................................................1
1.1 Definitions..........................................................................................1
1.2 Computation of Time Periods.........................................................................15
1.3 Accounting Terms....................................................................................15
SECTION 2 CREDIT FACILITIES......................................................................................16
2.1 Revolving Loans.....................................................................................16
2.2 Competitive Loan Subfacility........................................................................19
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.........................................................21
3.1 Default Rate........................................................................................21
3.2 Extension and Conversion............................................................................22
3.3 Prepayments.........................................................................................22
3.4 Termination and Reduction of Commitments............................................................23
3.5 Fees................................................................................................23
3.6 LIBOR Reserve Compensation..........................................................................24
3.7 Capital Adequacy....................................................................................24
3.8 Unavailability......................................................................................24
3.9 Illegality..........................................................................................25
3.10 Requirements of Law................................................................................25
3.11 Inability To Determine Interest Rate...............................................................27
3.12 Replacement of Lenders.............................................................................27
3.13 Taxes..............................................................................................27
3.14 Indemnity..........................................................................................30
3.15 Pro Rata Treatment.................................................................................30
3.16 Sharing of Payments................................................................................31
3.17 Payments, Computations, Etc........................................................................32
3.18 Obligation of Lenders to Mitigate..................................................................33
3.19 Evidence of Debt...................................................................................34
SECTION 4 CONDITIONS.............................................................................................34
4.1 Conditions to Closing...............................................................................34
4.2 Conditions to All Loans.............................................................................36
SECTION 5 REPRESENTATIONS AND WARRANTIES.........................................................................37
5.1 Financial Condition.................................................................................37
5.2 No Changes or Restricted Payments...................................................................37
5.3 Organization; Existence; Compliance with Law........................................................37
5.4 Power; Authorization; Enforceable Obligations.......................................................38
5.5 No Legal Bar........................................................................................38
5.6 No Material Litigation..............................................................................38
5.7 No Default..........................................................................................38
5.8 Taxes...............................................................................................38
5.9 ERISA...............................................................................................39
5.10 Governmental Regulations, Etc......................................................................40
5.11 Subsidiaries.......................................................................................40
5.12 Purpose of Loans...................................................................................41
SECTION 6 AFFIRMATIVE COVENANTS..................................................................................41
6.1 Financial Statements................................................................................41
6.2 Certificates; Other Information.....................................................................42
6.3 Notices.............................................................................................42
6.4 Maintenance of Existence and Compliance with Law....................................................43
6.5 Maintenance of Property; Insurance..................................................................44
6.6 Inspection of Property; Books and Records; Discussions..............................................44
6.7 Financial Covenants.................................................................................44
6.8 Use of Proceeds.....................................................................................44
SECTION 7 NEGATIVE COVENANTS.....................................................................................45
7.1 Indebtedness........................................................................................45
7.2 Liens...............................................................................................45
7.3 Consolidation, Merger, Sale or Purchase of Assets, Capital Expenditures, etc........................45
7.4 Sale Leasebacks.....................................................................................46
7.5 Sale of Significant Subsidiaries....................................................................46
SECTION 8 EVENTS OF DEFAULT......................................................................................46
8.1 Events of Default...................................................................................46
8.2 Acceleration; Remedies..............................................................................49
SECTION 9 AGENCY PROVISIONS......................................................................................50
9.1 Appointment.........................................................................................50
9.2 Delegation of Duties................................................................................50
9.3 Exculpatory Provisions..............................................................................51
9.4 Reliance on Communications..........................................................................51
9.5 Notice of Default...................................................................................52
9.6 Non-Reliance on Administrative Agent and Other Lenders..............................................52
9.7 Indemnification.....................................................................................52
9.8 Administrative Agent in its Individual Capacity.....................................................53
9.9 Successor Administrative Agent......................................................................53
SECTION 10 MISCELLANEOUS.........................................................................................54
10.1 Notices............................................................................................54
10.2 Right of Set-Off...................................................................................55
10.3 Benefit of Agreement...............................................................................55
10.4 No Waiver; Remedies Cumulative.....................................................................58
10.5 Payment of Expenses, etc...........................................................................58
10.6 Amendments, Waivers and Consents...................................................................59
10.7 Counterparts.......................................................................................60
10.8 Headings...........................................................................................60
10.9 Survival...........................................................................................60
10.10 Governing Law; Submission to Jurisdiction; Venue..................................................60
10.11 Severability......................................................................................61
10.12 Entirety..........................................................................................61
10.13 Binding Effect; Termination.......................................................................61
</TABLE>
<PAGE>
SCHEDULES
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(b)-1 Form of Competitive Bid Request
Schedule 2.2(b)-2 Form of Notice of Receipt of Competitive Bid Request
Schedule 2.2(c) Form of Competitive Bid
Schedule 2.2(e) Form of Competitive Bid Accept/Reject Letter
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 4.1(b) Form of Legal Opinion
Schedule 4.1(i)(v) Secretary's Certificate
Schedule 5.6 Description of Legal Proceedings
Schedule 5.11 Subsidiaries
Schedule 6.2(b) Form of Officer's Compliance Certificate
Schedule 10.3 Form of Assignment and Acceptance
<PAGE>
364-DAY CREDIT AGREEMENT
THIS 364-DAY CREDIT AGREEMENT dated as of December 18, 1997 (the
"Credit Agreement"), is by and among UNIVERSAL CORPORATION, a Virginia
corporation (the "Borrower"), the lenders named herein and such other lenders as
may become a party hereto (the "Lenders"), NATIONSBANK, N.A., as Administrative
Agent (in such capacity, the "Administrative Agent"), ABN-AMRO BANK, N.V., as
Syndication Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Documentation Agent, CRESTAR BANK, as Managing Agent, and FIRST UNION NATIONAL
BANK and WACHOVIA BANK, N.A., as Co-Agents.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a $150
million credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.
"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 3.5(c).
"Administrative Agent's Fee Letter" means that certain letter
agreement, dated as of October 17, 1997, between the Agent and the
Borrower, as amended, modified, supplemented or replaced from time to
time.
"Affected Lender" means such term as defined in Section
3.9(a).
"Agency Services Address" means NationsBank, N.A.,
NC1-001-15-04, 101 North Tryon Street, Charlotte, North Carolina 28255,
Attn: Agency Services, or such other address as may be identified by
written notice from the Administrative Agent to the Borrower.
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect from time to time, being
initially ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).
"Applicable Percentage" means for any day, the rate per annum
set forth below opposite the applicable rating for the Borrower's
senior unsecured (non-credit enhanced) long term debt then in effect,
it being understood that the Applicable Percentage for (i) Base Rate
Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) LIBOR Loans shall be the percentage set forth under the
column "LIBOR Margin", and (iii) the Facility Fee shall be the
percentage set forth under the column "Facility Fee":
<TABLE>
<CAPTION>
Pricing S&P Moody's LIBOR Base Rate
Level Rating Rating Margin Margin Facility Fee
----- ------ ------ ------ ------ ------------
<S> <C>
I > A or above > A2 or above 0.180% 0% 0.070%
- -
II > A- > A3 0.220% 0% 0.080%
- -
III > BBB > Baa2 0.275% 0% 0.100%
- -
IV > BBB- > Baa3 0.375% 0% 0.125%
- -
V < BB+ < Ba1 0.550% 0% 0.150%
- -
</TABLE>
The numerical classification set forth under the column "Pricing Level"
shall be established based on the better of ratings by S&P and Moody's
for the Borrower's senior unsecured (non-credit enhanced) long term
debt, provided that such ratings are not more than one Pricing Level
apart; and an average of the Applicable Percentages in the event the
ratings are more than one Pricing Level apart. The Applicable
Percentage shall be determined and adjusted quarterly on the date five
(5) Business Days after the end of each calendar quarter (each a "Rate
Determination Date") based on the debt rating in effect on the last day
of the preceding calendar quarter and shall be effective until the next
Rate Determination Date. Adjustments in the Applicable Percentage shall
be effective as to all Loans, existing and prospective, from the date
of adjustment. The Administrative Agent shall promptly notify the
Lenders of changes in the Applicable Percentage.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) (A) such Person shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or make any general
assignment for the benefit of creditors or (B) the board of directors
of such Person shall authorize such Person to take any of the actions
set forth in subsection (A); or (iv) such Person shall be unable to, or
shall admit in writing its inability to, pay its debts generally as
they become due.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Administrative Agent shall have reasonably determined
(which determination shall be conclusive absent manifest error) that it
is unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means Universal Corporation, a Virginia
corporation, as referenced in the opening paragraph, its successors and
permitted assigns.
"Business Day" means any day other than a Saturday, Sunday or
legal holiday on which commercial banks are open for business in
Charlotte, North Carolina, Richmond, Virginia and New York, New York;
except that when used in connection with a LIBOR Loan, such day shall
also be a day on which dealings between banks are carried on in London,
England in deposits of U.S. Dollars.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Commitment" means the Revolving Commitment.
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the Termination
Date, or (ii) the date on which the Commitments terminate in accordance
with the provisions of this Credit Agreement.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan pursuant to the terms of Section 2.2.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.2, the fixed
rate of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.2(b).
"Competitive Bid Request Fee" means such fee, if any, agreed
upon by the Borrower and the Administrative Agent payable in connection
with each Competitive Bid Request.
"Competitive Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.2.
"Competitive Loan Lenders" means, at any time, those Lenders
which have Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning
assigned to such term in Section 2.2(a).
"Consolidated Funded Debt" means Funded Debt of the
Consolidated Group determined on a consolidated basis in accordance
with GAAP applied on a consistent basis.
"Consolidated Group" means the Borrower and its consolidated
subsidiaries as determined in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated Funded Debt to Consolidated
Total Capitalization.
"Consolidated Net Income" means for any period for the
Consolidated Group, net income on a consolidated basis determined in
accordance with GAAP applied on a consistent basis.
"Consolidated Tangible Net Worth" means, for the Consolidated
Group at any time, Consolidated Total Tangible Assets minus
Consolidated Total Liabilities as determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Consolidated Total Capitalization" means, for the
Consolidated Group at any time, the sum of Consolidated Funded Debt
plus consolidated shareholders' equity as determined in accordance with
GAAP applied on a consistent basis.
"Consolidated Total Liabilities" means for the Consolidated
Group at any time, total liabilities determined on a consolidated basis
in accordance with GAAP applied on a consistent basis.
"Consolidated Total Tangible Assets" means, for the
Consolidated Group at any time, consolidated total assets minus (i)
goodwill and (ii) other items properly classified as "intangible
assets", in each case as determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Consolidated Working Capital" means, for the Consolidated
Group at any time, consolidated current assets minus consolidated
current liabilities, in each case as determined on a consolidated basis
in accordance with GAAP applied on a consistent basis.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the Administrative Agent's Fee Letter, and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (i) has failed to make a Loan advance required pursuant to
the terms of this Credit Agreement, (ii) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of the Credit Agreement or any other of the
Credit Documents, or (iii) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar proceeding.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity which is under common
control with the Borrower within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes the Borrower and which
is treated as a single employer under Sections 414(b) or (c) of the
Code.
"ERISA Event" means, except as would not reasonably be
expected to have a Material Adverse Effect, (i) with respect to any
Plan, the occurrence of a Reportable Event; (ii) the withdrawal by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (iii) the distribution of
a notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (v) any event or condition which
could reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (vi) the complete or partial withdrawal of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiemployer Plan; (vii) the conditions for imposition of a lien under
Section 302(f) of ERISA exist with respect to any Plan; or (vii) the
adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Event of Default" means such term as defined in Section 8.1.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as reasonably determined by the
Administrative Agent.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money
having a maturity at the time of determination of more than one year or
which is renewable or extendible at the option of the Borrower for a
period of more than one year from the date of determination, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily
made having a maturity at the time of determination of more than one
year or which is renewable or extendible at the option of the Borrower
for a period of more than one year from the date of determination,
(iii) all purchase money Indebtedness (including for purposes hereof,
indebtedness and obligations described in clauses (iii) and (iv) of the
definition of "Indebtedness") of such Person, having a maturity at the
time of determination of more than one year or which is renewable or
extendible at the option of the Borrower for a period of more than one
year from the date of determination, including without limitation the
principal portion of all obligations of such Person under Capital
Leases having a maturity at the time of determination of more than one
year or which is renewable or extendible at the option of the Borrower,
(iv) all Support Obligations of such Person with respect to Funded Debt
of another Person, (v) the attributed principal amount outstanding
under any securitization transaction with a maturity at the time of
determination of more than one year, and (vi) the principal balance
outstanding under any synthetic lease or tax retention operating lease
with a maturity at the time of determination of more than one year to
which such Person is a party, where such transaction is considered
borrowed money indebtedness for tax purposes, but is classified as an
operating lease in accordance with GAAP. The Funded Debt of such Person
shall include the Funded Debt of any partnership or joint venture in
which such Person is a general partner or joint venturer, but only to
the extent there is recourse to such Person for the payment of such
Funded Debt.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Indebtedness" of any Person means, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made,
(iii) all obligations of such Person under conditional sale or other
title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such
Person (other than trade debt incurred in the ordinary course of
business and due within one year of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person, (v) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (vi) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, provided that for purposes hereof the amount of such
Indebtedness shall be limited to the greater of (A) the amount of such
Indebtedness as to which there is recourse to such Person and (B) the
fair market value of the property which is subject to the Lien, (vii)
all Support Obligations of such Person, (viii) the principal portion of
all obligations of such Person under Capital Leases, (ix) the maximum
outstanding amount of all standby letters of credit (excluding
performance standby letters of credit) issued or bankers' acceptances
created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (x) the
outstanding attributed principal amount under any securitization
transaction and (xi) the principal balance outstanding under any
synthetic lease or tax retention operating lease to which such Person
is a party, where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP. The Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, but only to the extent
to which there is recourse to such Person for payment of such
Indebtedness.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each March, June, September and December, the date of
repayment of principal of such Loan and the Maturity Date and (ii) as
to any LIBOR Loan or Competitive Loan, the last day of each Interest
Period for such Loan, the date of repayment of principal of such Loan
and on the Maturity Date, and in addition where the applicable Interest
Period is more than three months, then also on the date three months
from the beginning of the Interest Period, and each three months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of LIBOR Loans where
the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" means (i) as to any LIBOR Loan, a period of
one, two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals) and (ii) as to any Competitive
Loan, a period of not less than 7 nor more than 180 days' duration, as
the Borrower may request and the Competitive Lender may agree in
accordance with the provisions of Section 2.2; provided, however, (A)
if any Interest Period would end on a day which is not a Business Day,
such Interest Period shall be extended to the next succeeding Business
Day (except that in the case of LIBOR Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (B) no Interest Period shall extend
beyond the Maturity Date, and (C) in the case of LIBOR Loans, where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is
to end, such Interest Period shall end on the last day of such calendar
month.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and their successors and assigns.
"LIBOR Loan" means any Loan bearing interest at a rate
determined by reference to the LIBOR Rate.
"LIBOR Rate" means, for any LIBOR Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) appearing on Telerate Page 3750 (or any
successor or equivalent page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR Rate" shall mean, for any LIBOR Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars
at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"LIBOR Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (
or other applicable authority or any successor thereof), as such
regulation may be amended from time to time or any successor
regulation, as the maximum reserve requirement (including, without
limitation, any basic, supplemental, emergency, special, or marginal
reserves) applicable with respect to eurocurrency liabilities as that
term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest
rate of LIBOR Loans is determined), whether or not Lender has any
eurocurrency liabilities subject to such reserve requirement at that
time. LIBOR Loans shall be deemed to constitute eurocurrency
liabilities and as such shall be deemed subject to reserve requirements
without benefits of credits for proration, exceptions or offsets that
may be available from time to time to a Lender. The LIBOR Rate shall be
adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
conditional sale or other title retention agreement, any financing or
similar statement or notice filed under the Uniform Commercial Code as
adopted and in effect in the relevant jurisdiction or other similar
recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or Competitive
Loans.
"Material Adverse Effect" means an event or condition which
has resulted (A) in the provision of a loss contingency in the
consolidated financial statements of the Borrower and the notes
thereto, (B) in a reduction in the shareholders' equity determined on a
consolidated basis for the Borrower which has resulted in, or (C) in
(A) and (B) such a provision or reduction respectively, which in any
case as determined in accordance with GAAP, shall be equal to or
greater than twenty percent (20%) of the total shareholders' equity as
shown in the most recent annual financial statements for the Borrower
on a consolidated basis to constitute a "Material Adverse Effect".
"Maturity Date" means such term as defined in Section 2.1(c).
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such Borrower in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. and its successors.
"Non-Excluded Taxes" means such term as is defined in Section
3.13.
"Note" or "Notes" means any Revolving Note.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Participation Interest" means the purchase by a Lender of a
participation in Loans as provided in Section 3.16.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Liens" means:
(1) Liens existing at the date of this Agreement and
securing indebtedness outstanding on the date of this
Agreement;
(2) Liens securing indebtedness owing by any
Subsidiary to the Borrower or a Significant Subsidiary;
(3) Liens on assets of any corporation existing at
the time such corporation becomes a Significant Subsidiary;
(4) Liens on assets existing at the time of
acquisition thereof; provided such Lien shall not extend to
any other property of the Borrower or a Significant
Subsidiary;
(5) Liens to secure indebtedness incurred or
guaranteed by the Borrower or a Subsidiary to finance the
purchase price of land, buildings or equipment or improvements
to or construction of land, buildings or equipment, which
indebtedness is incurred or guaranteed prior to, at the time
of, or within 180 days after such acquisition (or in the case
of real property, completion of such improvement or
construction or commencement of full operation of such
property, whichever is later); provided that such Lien shall
extend only to the asset to be acquired or improved with such
financing;
(6) Liens on any assets of a corporation existing at
the time such corporation is merged into or consolidated with
the Borrower or a Significant Subsidiary; provided such Lien
shall not extend to any other property of the Borrower or a
Significant Subsidiary;
(7) Liens on any assets in favor of the United States
of America or any State thereof, or in favor of any other
country, or political subdivision thereof and created to
secure (a) payments pursuant to any contract or statute; or
(b) any indebtedness incurred or guaranteed by the Borrower or
any Significant Subsidiary to finance the purchase price (or
in the case of real property, the cost of construction) of the
assets subject to any such Lien (including, but not limited
to, Liens incurred in connection with pollution control,
industrial revenue or similar finances);
(8) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or
in part, of any Lien referred to in the foregoing paragraphs
(1) to (7), inclusive;
(9) Liens for property taxes and assessments or
governmental charges or levies and Liens securing claims or
demands of mechanics, suppliers, carriers, landlords and other
like Persons;
(10) Liens incurred or deposits made in the ordinary
course of business (a) in connection with worker's
compensation, unemployment insurance, social security and
other like laws, or (b) to secure the performance of letters
of credit, bids, sales contracts, leases, statutory
obligations, surety, appeal and performance bonds and other
similar obligations, in each case not incurred in connection
with the borrowing of money, the obtaining of advances or the
payment of the deferred purchase price of property;
(11) attachment, judgment and other similar Liens
arising in connection with court proceedings, provided that
execution and other enforcement of such Liens are effectively
stayed and all claims which the Liens secure are being
actively contested in good faith and by appropriate
proceedings;
(12) Liens arising in the ordinary course of the
business or incidental to the conduct of such business or the
ownership of the assets of the Borrower or any Significant
Subsidiary which Liens arise out of transactions involving the
sale or purchase of goods or services and which do not, in the
opinion of the Borrower, materially impair the use of such
assets in the operations of the business of the Borrower of
such Significant Subsidiary.
(13) Liens arising out of sale and lease-back
transactions not prohibited by Subsection 7.4; and
(14) Liens other than those described in clause (1)
through (13) above provided the sum of (a) the aggregate
principal amount secured thereby at any time outstanding and
(b) the aggregate amount of sale and lease-back transactions
measured as provided in Subsection 7.4 consummated after
September 30, 1997 does not exceed Twenty-Five Million Dollars
($25,000,000).
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate in effect
at its principal office in Charlotte, North Carolina, with each change
in the Prime Rate being effective on the date such change is publicly
announced as effective (it being understood and agreed that the Prime
Rate is a reference rate used by NationsBank in determining interest
rates on certain loans and is not intended to be the lowest rate of
interest charged on any extension of credit by NationsBank to any
debtor).
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Proposed Lender" means such term as defined in Section 3.12.
"Register" shall have the meaning given such term in Section
10.3(c).
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Requesting Lender" shall have the meaning assigned to such
term in Section 3.12.
"Required Lenders" means, at any time, Lenders having more
than fifty percent (50%) of the Commitments, or if the Commitments have
been terminated, Lenders having more than fifty percent (50%) of the
aggregate principal amount of Loans outstanding (taking into account in
each case Participation Interests or obligation to participate
therein); provided that the Commitments of, and outstanding principal
amount of Loans (taking into account Participation Interests therein)
owing to, a Defaulting Lender shall be excluded for purposes hereof in
making a determination of Required Lenders.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property is subject.
"Responsible Officer" means the Chief Financial Officer, the
Controller, any Vice President and the Treasurer.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding of up to such Lender's
Revolving Committed Amount as specified in Schedule 2.1(a), as such
amount may be reduced from time to time in accordance with the
provisions hereof.
"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a decimal) the numerator of which is the
Revolving Commitment of such Lender at such time and the denominator of
which is the Aggregate Revolving Committed Amount at such time. The
initial Revolving Commitment Percentages are set out on Schedule
2.1(a).
"Revolving Committed Amount" means, collectively, the
aggregate amount of all of the Revolving Commitments and, individually,
the amount of each Lender's Revolving Commitment as specified in
Schedule 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans and Competitive Loans in substantially the form
attached as Schedule 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Significant Subsidiary" means each corporation organized
under the laws of the United States of America or Brazil, or any
political subdivision of either, which is now or hereafter becomes a
consolidated Subsidiary and any other consolidated Subsidiary which (i)
as of the end of any of the three then most recently ended fiscal years
of the Company owns assets determined on a consolidated basis for such
Subsidiary and its Subsidiaries constituting more than 10% of the total
assets of the Consolidated Group taken as a whole determined on a
consolidated basis as of the end of the same fiscal year and (ii) has
during any of the three then most recently ended fiscal years of the
Borrower, net income determined on a consolidated basis for such
Subsidiary and its Subsidiaries in excess of 10% of the net income of
the Consolidated Group taken as a whole determined on a consolidated
basis for the same fiscal year.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50% of
the voting interests at any time. Unless otherwise identified,
"Subsidiary" or "Subsidiaries" shall mean Subsidiaries of the Borrower.
"Support Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Support Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Support Obligation is made.
"Termination Date" means, as to each Lender, the date 364 days
following the Closing Date, or if extended with the written consent of
such Lender, such later date not more than 364 days following the then
applicable Termination Date.
"Three Year Credit Agreement" means that Three Year Credit
Agreement dated as of the date hereof, as amended and modified, among
the Borrower, the Lenders identified therein and NationsBank, N.A., as
Administrative Agent.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 6.1
hereof (or, prior to the delivery of the first financial statements pursuant to
Section 6.1 hereof, consistent with the annual audited financial statements
referenced in Section 5.1(i) hereof); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements, then such calculations shall be made on a basis consistent
with the most recent financial statements delivered by the Borrower to the
Lenders as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans in Dollars (the "Revolving Loans") to the Borrower from time to
time in the amount of such Lender's Revolving Commitment Percentage of such
Revolving Loans for the purposes hereinafter set forth; provided that (i) with
regard to the Lenders collectively, the aggregate principal amount of Loans
outstanding at any time shall not exceed the Aggregate Revolving Committed
Amount, and (ii) with regard to each Lender individually, the aggregate
principal amount of such Lender's Revolving Commitment Percentage of Revolving
Loans outstanding at any time shall not exceed such Lender's Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or LIBOR Loans, or a
combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone notice
promptly confirmed in writing) to the Administrative Agent not later
than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day
prior to the date of the requested borrowing in the case of Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of LIBOR Loans. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Revolving Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, and
(D) whether the borrowing shall be comprised of Base Rate Loans, LIBOR
Loans or a combination thereof, and if LIBOR Loans are requested, the
Interest Period(s) therefor. If the Borrower shall fail to specify in
any such Notice of Borrowing (I) an applicable Interest Period in the
case of a LIBOR Loan, then such notice shall be deemed to be a request
for an Interest Period of one month, or (II) the type of Revolving Loan
requested, then such notice shall be deemed to be a request for a Base
Rate Loan hereunder. The Administrative Agent shall give notice to each
Lender promptly upon receipt of each Notice of Borrowing pursuant to
this Section 2.1(b)(i), the contents thereof and each such Lender's
share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a
minimum aggregate principal amount of $5,000,000, in the case of LIBOR
Loans, or $1,000,000 (or the remaining Revolving Committed Amount, if
less), in the case of Base Rate Loans, and integral multiples of
$1,000,000 in excess thereof.
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower, or in such other
manner as the Administrative Agent may specify in writing, by 12:00
noon (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent by crediting the
account designated by the Borrower with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans owing on the
Termination Date under this Credit Agreement shall be due and payable in full on
the then applicable Termination Date under the Three Year Credit Agreement (the
"Maturity Date"). As used in the foregoing sentence, "then applicable" shall be
determined as of the Termination Date under this Credit Agreement.
(d) Interest. Subject to the provisions of Section 3.1:
(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Base
Rate plus the Applicable Percentage;
(ii) LIBOR Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of LIBOR Loans, such LIBOR Loans shall
bear interest at a per annum rate equal to the LIBOR Rate plus the
Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
executed Revolving Note in favor of each Lender.
(f) Maximum Number of LIBOR Loans. The Borrower will be limited to a
maximum number of five (5) LIBOR Loans outstanding at any time. For purposes
hereof, LIBOR Loans with separate or different Interest Periods will be
considered as separate LIBOR Loans even if their Interest Periods expire on the
same date.
(g) Extension of Termination Date. The Borrower may, within 60 days,
but not less than 45 days, prior to the then applicable Termination Date, by
notice to the Administrative Agent, make written request of the Lenders to
extend the then applicable Termination Date for an additional period of 364
days. The Administrative Agent will give prompt notice to each of the Lenders of
its receipt of any such request for extension of the Termination Date. Each
Lender shall make a determination not later than 30 days prior to the then
applicable Termination Date (the "Extension Consent Date") as to whether or not
it will agree to extend the Termination Date as requested (such approval of an
extension shall be an "Extension Consent"); provided, however, that failure by
any Lender to make a timely response to the Borrower's request for extension of
the Termination Date shall be deemed to constitute a refusal by such Lender to
extension of the Termination Date.
(h) Lender Not Consenting. If by any Extension Consent Date the
Borrower and the Administrative Agent have not received an Extension Consent
from any Lender, the Termination Date, as it relates to such Lender, shall not
be extended, the Commitment of such Lender shall terminate on the Termination
Date applicable to it and any Loans made by such Lender and all accrued and
unpaid interest thereon shall be due and payable on the Maturity Date applicable
to it. Upon the termination of the Commitment of any such Lender, unless this
Agreement is amended as provided in Subsections 2.1(k) or 2.1(l), the aggregate
amount of the Commitments shall be reduced by the amount of such terminated
Commitment, and the Revolving Commitment Percentage of each other Lender shall
be adjusted to that percentage obtained by dividing the Commitment of such
Lender by the aggregate amount of the Commitments after giving effect to such
reduction as provided in the definition of "Revolving Commitment Percentage".
(i) Other Lenders. No refusal by any one Lender to consent to any
extension of the Termination Date shall affect the extension of the Termination
Date as it may relate to the Commitment and Loans of any Lender which consents
to such extension as provided in Subsection 2.1(g), and one or more Lenders may
consent to the extension of the Termination Date as it relates to them
notwithstanding any refusal by any other Lenders so to consent; provided that
even as to the consenting Lenders the Termination Date will be extended only
upon consent to such an extension by Lenders holding more than 50% of the
aggregate Commitments.
(j) Termination of Commitment. If any Lender does not deliver an
Extension Consent as provided in Subsection 2.1(g) and no Loans are then
outstanding, the Borrower may upon at least three (3) Business Days' prior
notice to such Lender and to the Administrative Agent terminate the Commitment
of such Lender. Upon any such termination the Revolving Commitment Percentage of
each other Lender shall be adjusted, if necessary, to that percentage obtained
by dividing the Commitment of such Lender by the aggregate amount of the
Commitments after giving effect to such termination and any increases in the
aggregate amount of the Commitments under the provisions of Subsection 2.1(k) or
Subsection 2.1(l).
(k) Increase in Commitment of Other Lender or Lenders. If any Lender
does not deliver an Extension Consent as provided in Subsection 2.1(g), upon the
expiration of the Commitment of such Lender, or upon its termination as provided
in Subsection 2.1(j), the Borrower may offer each Lender which has delivered an
Extension Consent as provided in Subsection 2.1(g) a reasonable opportunity to
increase its Commitment by an amount equal to its pro-rata share (based on its
Commitment before such increase) of the Commitment of the Lender which does not
deliver an Extension Consent as provided in Subsection 2.1(g). After giving such
Lenders such an opportunity, the Borrower may with the approval of the
Administrative Agent amend this Agreement to increase the Commitment of any
other Lender or Lenders with the consent of such Lender or Lenders provided that
such increase does not increase the aggregate amount of the Commitments to an
amount greater than the aggregate amount of Commitments in effect immediately
before such expiration or termination.
(l) Additional Lender or Lenders. If any Lender does not deliver an
Extension Consent as provided in Section 2.1(g), upon the expiration of the
Commitment of such Lender, or upon its termination as provided in Subsection
2.1(j), the Borrower may with the approval of the Administrative Agent amend
this Agreement as provided in Subsections 10.3 and 10.6 to add one or more other
Lenders as parties, with such Commitment or Commitments as may be agreed to by
the Administrative Agent and such other Lender or Lenders, provided that such
additions do not increase the aggregate amount of the Commitments to an amount
greater than the aggregate amount of Commitments in effect immediately before
such expiration or termination.
(m) Notice. The Administrative Agent shall promptly advise each Lender
of any change in Revolving Commitment Percentages made pursuant to Subsection
2.1(j) and shall promptly provide each of the Lenders with a copy of any
amendment made pursuant to Subsection 2.1(k) or Subsection 2.1(l).
2.2 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, the
Borrower may, during the Commitment Period, request and each Lender may, in its
sole discretion, agree to make, Competitive Loans in Dollars to the Borrower;
provided, however, that (i) the aggregate principal amount of outstanding
Competitive Loans shall not at any time exceed the lesser of (A) ONE HUNDRED
FIFTY MILLION DOLLARS ($150,000,000) or (B) the Revolving Committed Amount (the
"Competitive Loan Maximum Amount"), and (ii) with regard to the Lenders
collectively, the aggregate principal amount of Loans outstanding at any time
shall not exceed the Aggregate Revolving Committed Amount. Each Competitive Loan
shall be in an aggregate principal amount not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining portion of the
Competitive Loan Maximum Amount, if less).
(b) Competitive Bid Requests. The Borrower may solicit Competitive Bids
by delivery of a Competitive Bid Request substantially in the form of Exhibit
2.2(b)-1 to the Agent by 12:00 Noon (Charlotte, North Carolina time) on a
Business Day not less than three (3) nor more than four (4) Business Days prior
to the date of a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing (which
shall be a Business Day), (ii) the amount of the requested Competitive Loan
borrowing and (iii) the applicable Interest Periods requested. The Agent shall,
promptly following its receipt of a Competitive Bid Request under this
subsection (b), notify the affected Lenders of its receipt and the contents
thereof and invite the Lenders to submit Competitive Bids in response thereto.
The form of such notice is provided in Exhibit 2.2(b)-2. No more than three (3)
Competitive Bid Requests (e.g., the Borrower may request Competitive Bids for no
more than three (3) different Interest Periods at any one time) shall be
submitted at any one time and Competitive Bid Requests may be made no more
frequently than once every five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole discretion,
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid must be received by the Agent not later than
10:00 A.M. (Charlotte, North Carolina time) on the Business Day next succeeding
the date of receipt by the Agent of the related Competitive Bid Request. A
Lender may offer to make all or part of the requested Competitive Loan borrowing
and may submit multiple Competitive Bids in response to a Competitive Bid
Request. The Competitive Bid shall specify (i) the particular Competitive Bid
Request as to which the Competitive Bid is submitted, (ii) the minimum (which
shall be not less than $1,000,000 and integral multiples of $500,000 in excess
thereof) and maximum principal amounts of the requested Competitive Loan or
Loans as to which the Lender is willing to make, and (iii) the applicable
interest rate or rates and Interest Period or Periods therefor. The form of such
Competitive Bid is provided in Exhibit 2.2(c). A Competitive Bid submitted by a
Lender in accordance with the provisions hereof shall be irrevocable. The Agent
shall promptly notify, but in no event later than 10:00 A.M. (Charlotte, North
Carolina time), the Borrower of all Competitive Bids made and the terms thereof.
The Agent shall send a copy of each of the Competitive Bids to the Borrower for
its records as soon as practicable (and in any event within two (2) Business
Days following receipt of the bids).
(d) Submission of Competitive Bids by Agent. If the Agent, in its
capacity as a Lender, elects to submit a Competitive Bid in response to any
Competitive Bid Request, it shall submit such Competitive Bid directly to the
Borrower one-half of an hour earlier than the latest time at which the other
Lenders are required to submit their Competitive Bids to the Agent in response
to such Competitive Bid Request pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its sole and
absolute discretion, subject only to the provisions of this subsection (e),
accept or refuse any Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give telephone notification, which shall be binding, by 11:00
A.M. (Charlotte, North Carolina time) and confirmed with written notification
substantially in the form of Exhibit 2.2(e) of its acceptance of any or all such
Competitive Bids to the Agent by 1:00 P.M. (Charlotte, North Carolina time) on
the latest date on which notice of election to make a Competitive Bid is to be
given to the Agent by the Lenders; provided, however, (i) the failure by the
Borrower to give timely notice of its acceptance of a Competitive Bid shall be
deemed to be a refusal thereof, (ii) the Borrower may accept Competitive Bids
within any one Interest Period only in ascending order of rates, (iii) the
aggregate amount of Competitive Bids accepted by the Borrower shall not exceed
the principal amount specified in the Competitive Bid Request, (iv) the Borrower
may accept a portion of a Competitive Bid in the event, and to the extent,
acceptance of the entire amount thereof would cause the Borrower to exceed the
principal amount specified in the Competitive Bid Request, subject however to
the minimum amounts provided herein (and provided that where two or more Lenders
submit such a Competitive Bid at the same Competitive Bid Rate and for the same
Interest Period, then pro rata between or among such Lenders) and (v) no bid
shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $1,000,000 and integral multiples of $500,000 in
excess thereof, except that where a portion of a Competitive Bid is accepted in
accordance with the provisions of subsection (iv) hereof, then in a minimum
principal amount of $500,000 and integral multiples of $100,000 in excess
thereof (but not in any event less than the minimum amount specified in the
Competitive Bid), and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
subsection (iv) hereof, the amounts shall be rounded to integral multiples of
$100,000 in a manner which shall be in the discretion of the Borrower. A notice
of acceptance of a Competitive Bid given by the Borrower in accordance with the
provisions hereof shall be irrevocable. The Agent shall, not later than 12:00
Noon (Charlotte, North Carolina time) on the date of receipt by the Agent of a
notification from the Borrower of its acceptance and/or refusal of Competitive
Bids, notify each affected Lender of its receipt and the contents thereof. Upon
its receipt from the Agent of notification of the Borrower's acceptance of its
Competitive Bid in accordance with the terms of this subsection (e), each
successful bidding Lender will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make a
Competitive Loan shall make its Competitive Loan borrowing available to the
Agent for the account of the Borrower at the office of the Agent specified in
Schedule 2.1(a), or at such other office as the Agent may designate in writing,
by 1:30 P.M. (Charlotte, North Carolina time) on the date specified in the
Competitive Bid Request in Dollars and in funds immediately available to the
Agent. Such borrowing will then be made available to the Borrower by crediting
the account designated by the Borrower.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature
and be due and payable in full on the last day of the Interest Period applicable
thereto, unless accelerated sooner pursuant to Section 8.2. Unless the Borrower
shall give notice to the Agent otherwise, the Borrower shall be deemed to have
requested a Revolving Loan borrowing in the principal amount of the maturing
Competitive Loan, the proceeds of which will be used to repay such Competitive
Loan.
(h) Interest on Competitive Loans. Subject to the provisions of Section
3.1, Competitive Loans shall bear interest in each case at the Competitive Bid
Rate applicable thereto. Interest on Competitive Loans shall be payable in
arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans made by each Lender
shall be evidenced by the Revolving Note.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of
Default, any overdue principal of and, to the extent permitted by law, overdue
interest on the Loans and any other amounts then due and owing hereunder or
under the other Credit Documents shall bear interest, payable on demand, at a
per annum rate 2% greater than the rate which would otherwise be applicable
thereto (or if no rate is applicable, whether in respect of interest, fees or
other amounts, then 2% greater than the Base Rate).
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another interest rate type; provided, however, that (i) except as
provided in Section 3.8, 3.9 and 3.11, LIBOR Loans may be converted into Base
Rate Loans only on the last day of the Interest Period applicable thereto, (ii)
LIBOR Loans may be extended, and Base Rate Loans may be converted into LIBOR
Loans, only if the conditions in Section 4.2 have been satisfied, (iii) Loans
extended as, or converted into, LIBOR Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in such
minimum amounts as provided in Section 2.1(b)(ii), and (iv) any request for
extension or conversion of a LIBOR Loan which shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one month. Each
such extension or conversion shall be effected by the Borrower by giving a
Notice of Extension/Conversion (or telephone notice promptly confirmed in
writing) to the Administrative Agent prior to 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion of a LIBOR
Loan into a Base Rate Loan, and on the third Business Day prior to, in the case
of the extension of a LIBOR Loan as, or conversion of a Base Rate Loan into, a
LIBOR Loan, the date of the proposed extension or conversion, specifying the
date of the proposed extension or conversion, the Loans to be so extended or
converted, the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
subsections (a) through (e) of Section 4.2. In the event the Borrower fails to
request extension or conversion of any LIBOR Loan in accordance with this
Section, or any such conversion or extension is not permitted or required by
this Section, then such LIBOR Loan shall be continued as a LIBOR Loan at the end
of the Interest Period applicable thereto for an Interest Period of one month.
The Administrative Agent shall give each Lender notice as promptly as
practicable of any such proposed extension or conversion affecting any Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. Revolving Loans may be repaid in whole or in
part without premium or penalty; provided that (i) LIBOR Loans and Competitive
Loans may be prepaid only upon three (3) Business Days' prior written notice to
the Administrative Agent and must be accompanied by payment of any amounts owing
under Section 3.14, and (ii) partial prepayments shall be in minimum principal
amounts of $5,000,000, in the case of LIBOR Loans, and $1,000,000, in the case
of Base Rate Loans, and in integral multiples of $1,000,000 in excess thereof.
(b) Mandatory Prepayments. If at any time, (A) the aggregate principal
amount of Loans shall exceed the Aggregate Revolving Committed Amount, or (B)
the aggregate principal amount of Competitive Loans shall exceed the Competitive
Loan Maximum Amount, the Borrower shall immediately make payment on the Loans in
an amount sufficient to eliminate the deficiency.
(c) Application. Unless otherwise specified by the Borrower,
prepayments made hereunder shall be applied first to Revolving Loans which are
Base Rate Loans, then to Revolving Loans which are LIBOR Loans in direct order
of Interest Period maturities and then to Competitive Loans in direct order of
Interest Period maturities. Amounts prepaid hereunder may be reborrowed in
accordance with the provisions hereof.
3.4 Termination and Reduction of Commitments
(a) Voluntary Reductions. The Revolving Commitments may be terminated
or permanently reduced by the Borrower in whole or in part upon three (3)
Business Days' prior written notice to the Administrative Agent, provided that
(i) after giving effect to any voluntary reduction the aggregate principal
amount of Loans shall not exceed the Aggregate Revolving Committed Amount, as
reduced, and (ii) partial reductions shall be in minimum principal amounts of
$5,000,000, and in integral multiples of $1,000,000 in excess thereof.
(b) Mandatory Reduction. The Commitments hereunder shall terminate on
the Termination Date.
3.5 Fees.
(a) Facility Fee. In consideration of the Commitments hereunder, the
Borrower agrees to pay to the Administrative Agent for the ratable benefit of
the Lenders a facility fee (the "Facility Fee") equal to the Applicable
Percentage per annum, prior to the Termination Date, on the average daily
Aggregate Revolving Committed Amount, and from the Termination Date, on the
average daily aggregate Revolving Loans outstanding. The Facility Fee shall be
payable quarterly in arrears on the 15th day following the last day of each
calendar quarter for the immediately preceding quarter (or portion thereof)
beginning with the first such date to occur after the Closing Date and on the
Termination Date.
(b) Competitive Bid Request Fee. The Borrower agrees to pay to the
Administrative Agent such fees (the "Competitive Bid Request Fee") in connection
with Competitive Bid Requests hereunder as may be agreed upon between the
Borrower and the Administrative Agent in the Administrative Agent's Fee Letter
or elsewhere. Unless otherwise agreed, the Competitive Bid Request Fee shall be
paid quarterly in arrears.
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual administrative fee and such
other fees, if any, referred to in the Administrative Agent's Fee Letter
(collectively, the "Administrative Agent Fees").
3.6 LIBOR Reserve Compensation.
For so long as any Lender maintains reserves against "eurocurrency
liabilities" (or any other category of liabilities which includes deposits by
reference to which the interest rate on any LIBOR Loans is determined), and, as
a result, the cost to such Lender of making or maintaining any of its LIBOR
Loans is increased, then such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on such LIBOR Loans of such
Lender, additional interest at a rate per annum up to but not exceeding the
excess of (i) (A) the applicable LIBOR Rate divided by (B) one minus the LIBOR
Reserve Percentage over (ii) the applicable LIBOR Rate. Any Lender wishing to
require payment of such additional interest (x) shall so notify the Borrower and
the Administrative Agent, in which case such additional interest on the LIBOR
Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three (3)
Business Days after the giving of such notice and (y) shall furnish to the
Borrower at least five (5) Business Days prior to each date on which interest is
payable on the LIBOR Loans a certificate setting forth the amount to which such
Lender is then entitled under this Section 3.6 (which shall be consistent with
such Lender's good faith estimate of the level at which the related reserves are
maintained by it). Each such certificate shall be accompanied by such
information as the Borrower may reasonably request as to the computation set
forth therein.
3.7 Capital Adequacy.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto. The Lender will, upon request, provide a certificate in
reasonable detail as to the amount of such increased cost or reduction in amount
received and method of calculation.
3.8 Unavailability.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any Interest Period for a LIBOR Loan of any
amount or Interest Period, the Administrative Agent shall have determined or
shall have been notified by the Required Lenders (a) that deposits in the
relevant amount and for the relevant Interest Period are not available in the
relevant market to any Lender, or that reasonable means do not exist for
ascertaining the LIBOR Rate for any such Loan, or (b) that the rates at which
such deposits are being offered will not adequately and fairly reflect the cost
to any Lender of making or maintaining its LIBOR Loan during such Interest
Period, the Administrative Agent shall promptly give written or telecopy notice
of such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a LIBOR Loan of the affected amount or
Interest Period, or a conversion to or continuation of a LIBOR Loan of the
affected amount, Interest Period, shall be deemed rescinded. Each determination
by the Administrative Agent hereunder shall be conclusive absent manifest error.
3.9 Illegality.
(a) Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain LIBOR Loans as contemplated by this Credit Agreement, then
such Lender, together with Lenders giving notice under Section 3.8 and 3.10,
shall be an "Affected Lender" and by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that LIBOR Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder, whereupon any request for a LIBOR Loan shall, as to
such Lender only, be deemed a request for a Base Rate Loan, unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding LIBOR Loans
made by it be converted to Base Rate Loans, in which event all such
LIBOR Loans shall be automatically converted to Base Rate Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the LIBOR Loans that would have been made by such Lender or the converted
LIBOR Loans of such Lender shall instead be applied to repay the Base Rate Loans
made by such Lender in lieu of, or resulting from the conversion, of such LIBOR
Loans.
(b) For purposes of this Section 3.9, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
3.10 Requirements of Law.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any LIBOR Loans made by it or its obligation to make LIBOR Loans, or
change the basis of taxation of payments to such Lender in respect thereof
(except for (i) Non-Excluded Taxes covered by Section 3.12 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.12(b)) and (ii) changes in taxes
measured by or imposed upon the overall net income, or franchise tax (imposed in
lieu of such net income tax), of such Lender or its applicable lending office,
branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the LIBOR
Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any tax
of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable, provided that, in any such case,
the Borrower may elect to convert the LIBOR Loans made by such Lender hereunder
to Base Rate Loans by giving the Administrative Agent at least one Business
Day's notice of such election, in which case the Borrower shall promptly pay to
such Lender, upon demand, without duplication, such amounts, if any, as may be
required pursuant to Section 3.13. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall provide prompt notice
thereof to the Borrower, through the Administrative Agent, certifying (x) that
one of the events described in this paragraph (a) has occurred and describing in
reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount resulting from such event and (z) as to the additional amount
demanded by such Lender and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the Administrative Agent, to
the Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.11 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative
Agent shall have reasonably determined that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period, the Administrative Agent
shall give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. If such notice is given (a) any LIBOR Loans
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans and (b) any Loans that were to have been converted on the first
day of such Interest Period to or continued as LIBOR Loans shall be converted to
or continued as Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further LIBOR Loans shall be made or continued as such,
nor shall the Borrower have the right to convert Base Rate Loans to LIBOR Loans.
3.12 Replacement of Lenders.
If any Lender requests compensation pursuant to Section 3.6, 3.7, 3.10
or 3.13 hereof, or any Lender's obligation to make or continue, or to convert
Loans of any type into the other type of Loan shall be suspended pursuant to
Section 3.8, 3.9 or 3.11 hereof (any such Lender requesting such compensation,
or whose obligations are so suspended, being herein called a "Requesting
Lender"), the Borrower, upon three Business Days' notice, may require that such
Requesting Lender transfer all of its right, title and interest under this
Agreement and such Requesting Lender's Revolving Note to any bank or other
financial institution (a "Proposed Lender") identified by the Borrowers that is
reasonably satisfactory to the Administrative Agent (i) if such Proposed Lender
agrees to assume all of the obligations of such Requesting Lender hereunder, and
to purchase all of such Requesting Lender's Loans hereunder for consideration
equal to the aggregate outstanding principal amount of such Requesting Lender's
Loans, together with interest accrued thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Requesting Lender of all
other amounts payable hereunder to such Requesting Lender on or prior to the
date of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 3 hereof as if all of such Requesting Lender's
Loans were being prepaid in full on such date) and (ii) if such Requesting
Lender has requested compensation pursuant to Section 3.6, 3.7 or 3.10 or 3.13
hereof, such Proposed Lender's aggregate requested compensation, if any,
pursuant to said Section 3.6, 3.7 or 3.10 with respect to such Requesting
Lender's Loans is lower than that of the Requesting Lender. Subject to the
provisions of Section 10.3 hereof, such Proposed Lender shall be a "Lender" for
all purposes hereunder. Without prejudice to the survival of any other agreement
of the Borrower hereunder the agreements of the Borrower contained in Sections
3.6, 3.7, 3.10, 3.13 and 10.5 hereof (without duplication of any payments made
to such Requesting Lender by the Borrower or the Proposed Lender) shall survive
for the benefit of such Requesting Lender under this Section 3.12 with respect
to the time prior to such replacement.
3.13 Taxes.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding (A) taxes measured by or imposed upon the overall net income
of any Lender or its applicable lending office, or any branch or affiliate
thereof, and (B) all franchise taxes, branch taxes, taxes on doing business or
taxes on the overall capital or net worth of any Lender or its applicable
lending office, or any branch or affiliate thereof, in each case imposed in lieu
of net income taxes, imposed: (i) by the jurisdiction under the laws of which
such Lender, applicable lending office, branch or affiliate is organized or is
located, or in which its principal executive office is located, or any nation
within which such jurisdiction is located or any political subdivision thereof;
or (ii) by reason of any present or former connection between the jurisdiction
imposing such tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender having
executed, delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Notes, (A) the
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Credit
Agreement and any Notes, provided, however, that the Borrower shall be entitled
to deduct and withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X) (i) on or before the date of any payment by the Borrower
under this Credit Agreement or Notes to such Lender, deliver
to the Borrower and the Administrative Agent (A) two (2) duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case
may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction or
withholding of any United States federal income taxes and (B)
an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding
tax;
(ii) deliver to the Borrower and the Administrative
Agent two (2) further copies of any such form or certification
on or before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i)
represent to the Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) agree to
furnish to the Borrower on or before the date of any payment by the
Borrower, with a copy to the Administrative Agent two (2) accurate and
complete original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and the
Administrative Agent two (2) further copies of such form on or before
the date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Administrative Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms
as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a participant of a Lender pursuant to subsection 10.3 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection, provided
that in the case of a participant of a Lender the obligations of such
participant of a Lender pursuant to this subsection (b) shall be determined as
if the participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and statements to
the Lender from which the related participation shall have been purchased.
3.14 Indemnity.
The Borrower shall pay to each Lender and hold each Lender harmless
from any loss or expense which such Lender may sustain or incur (excluding loss
of profit and other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of LIBOR Loans and Competitive
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Credit Agreement, (b) default by the Borrower in
making any prepayment of a LIBOR Loan or a Competitive Loan after the Borrower
has given a notice thereof in accordance with the provisions of this Credit
Agreement or (c) the making of a prepayment of LIBOR Loans or Competitive Loans
on a day which is not the last day of an Interest Period with respect thereto.
With respect to LIBOR Loans and Competitive Loans, such payment may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank LIBOR market (but
excluding loss of profits). The covenants of the Borrower set forth in this
Section 3.14 shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
3.15 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan, each payment or prepayment of principal
of any Revolving Loan, each payment of interest on the Revolving Loans, each
payment of Facility Fees, each reduction of the Revolving Committed Amount and
each conversion or extension of any Revolving Loan, shall be allocated pro rata
among the Lenders in accordance with the respective principal amounts of their
outstanding Revolving Loans and Participation Interests. With respect to
Competitive Loans, if the Borrower fails to specify the particular Competitive
Loan or Loans as to which any payment or other amount should be applied and it
is not otherwise clear as to the particular Competitive Loan or Loans to which
such payment or other amounts relate, or any such payment or other amount is to
be applied to Competitive Loans without regard to any such direction by the
Borrower, then each payment or prepayment of principal on Competitive Loans and
each payment of interest or other amount on or in respect of Competitive Loans,
shall be allocated to (i) the Competitive Loan bearing the highest interest
rate, (ii) if two or more Competitive Loans each bear the same interest rate,
which is the highest interest rate among all Competitive Loans then outstanding,
then pro rata among such Competitive Loans (iii) should such prepayment
extinguish such Competitive Loans, then any remaining prepayment shall be
applied to each of the remaining Competitive Loans with the highest interest
rate and (iv) any remaining payment or prepayment shall be allocated pro rata
among the relevant Competitive Loan Lenders in accordance with the then
outstanding amounts of their respective Competitive Loans.
(b) Advances. No Lender shall be responsible for the failure or delay
by any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its ratable share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by such Lender within the time period specified therefor hereunder, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the Federal Funds Rate for a period of two
(2) Business Days, and thereafter at the Base Rate, for the period until such
Lender makes such amount immediately available to the Administrative Agent. If
such Lender does not pay such amounts to the Administrative Agent forthwith upon
demand, the Administrative Agent may notify the Borrower and request the
Borrower to pay such amount to the Administrative Agent with interest at the
Base Rate not later than 4:00 P.M. on the following Business Day. A certificate
of the Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. Nothing in the preceding shall act or be construed as a waiver of any
claims or right of action that the Borrower may have against any Lender that
defaults on the payment to the Administrative Agent thereby causing the Borrower
to repay the Administrative Agent such amount advanced.
3.16 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a participation in such Loans and other obligations in such amounts, and
make such other adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Credit Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Administrative Agent or
such other Lender at a rate per annum equal to the Federal Funds Rate. If under
any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.16 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.16 to share in the benefits of any recovery on such secured claim.
3.17 Payments, Computations, Etc.
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Administrative Agent in Dollars and in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at the Administrative Agent's office specified in
Section 11.1 not later than 2:00 P.M. (Charlotte, North Carolina time) on the
date when due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Borrower shall, at the time it
makes any payment under this Credit Agreement, specify to the Administrative
Agent the Loans, Fees, interest or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it fails
so to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall distribute such payment to the Lenders
subject to the terms of Section 3.15(a)). The Administrative Agent will
distribute such payments to such Lenders, if any such payment is received prior
to 12:00 Noon (Charlotte, North Carolina time) on a Business Day in like funds
as received prior to the end of such Business Day and otherwise the
Administrative Agent will distribute such payment to such Lenders on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day (subject to accrual of interest and Fees for
the period of such extension), except that in the case of LIBOR Loans, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of interest
and fees shall be made on the basis of actual number of days elapsed over a year
of 360 days, except with respect to computation of interest on Base Rate Loans
which (unless the Base Rate is determined by reference to the Federal Funds
Rate) shall be calculated based on a year of 365 or 366 days, as appropriate.
Interest shall accrue from and include the date of borrowing, but exclude the
date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account of the Loans or
any other amounts outstanding under any of the Credit Documents shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents with respect to the Loans owing to such Lender;
FOURTH, to the payment of all accrued interest and fees on or
in respect of the Loans;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
held by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH" and "FIFTH" above.
3.18 Obligation of Lenders to Mitigate.
Each Lender agrees that, as promptly as practicable after such Lender
becomes aware of the occurrence of an event or the existence of a condition that
would cause such Lender to become an Affected Lender or that would entitle such
Lender to receive payments under Sections 3.7 or 3.13, it will, to the extent
not inconsistent with any applicable legal or regulatory restrictions, use
reasonable efforts (i) to make, issue, fund or maintain the Commitments of such
Lender or the affected Loans of such Lender through another lending office of
such Lender, or (ii) take such other measures as such Lender may deem
reasonable, if as a result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise be required to be paid to such Lender pursuant to Sections
3.7 or 3.13 would be reduced and if, as determined by such Lender in its sole
discretion, the making, issuing, funding or maintaining of such Commitments or
Loans through such other lending office or in accordance with such other
measures, as the case may be, would not otherwise materially adversely affect
such Commitments or Loans or would not be otherwise disadvantageous to the
interests of such Lender.
3.19 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make diligent efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 10.3(c) hereof, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof. The Administrative
Agent will make diligent efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.19 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded evidenced by the applicable Notes; provided, however, that the
failure of any Lender or the Administrative Agent to maintain any such account,
such Register or such subaccount, as applicable, or any error therein, shall not
in any manner affect the obligation of the Borrower to repay the Loans made by
such Lender in accordance with the terms hereof.
SECTION 4
CONDITIONS
4.1 Conditions to Closing.
This Credit Agreement shall become effective, and the initial Loans may
be made, upon the satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt of (i)
multiple counterparts of this Credit Agreement, (ii) a Revolving Note for each
Lender, in each case executed by a duly authorized officer of each party thereto
and in each case conforming to the requirements of this Credit Agreement, and
(iii) multiple counterparts of the Three Year Credit Agreement.
(b) Legal Opinions. Receipt of multiple counterparts of opinions of
counsel of the Borrower relating to the Credit Documents and the transactions
contemplated herein, in substantially the form of Schedule 4.1(b).
(c) Financial Information. Receipt by the Administrative Agent of the
consolidated financial statements of the Borrower and its subsidiaries for the
fiscal years 1996 and 1997, including balance sheets, income and cash flow
statements audited by independent public accountants of recognized national
standing and prepared in conformity with GAAP. The Administrative Agent and
Lenders shall also have received the unaudited consolidated condensed balance
sheets and income and cash flow statements of the Borrower for the 3-month
period ending September 30, 1997.
(d) Absence of Legal Proceedings. The absence of any action, suit,
investigation or proceeding pending in any court or before any arbitrator or
governmental instrumentality which is reasonably likely to have a Material
Adverse Effect on the Consolidated Group taken as a whole.
(e) Corporate Documents. Receipt of the following (or their equivalent)
for the Borrower:
(i) Articles of Incorporation. Copies of the articles of
incorporation or charter documents certified to be true and complete as
of a recent date by the appropriate governmental authority of the state
of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board of
Directors approving and adopting the respective Credit Documents, the
transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary as of
the Closing Date to be true and correct and in force and effect as of
such date.
(iii) Bylaws. Copies of the bylaws certified by a secretary or
assistant secretary as of the Closing Date to be true and correct and
in force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of certificates
of good standing, existence or its equivalent certified as of a recent
date by the appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so qualify
and be in good standing would be reasonably likely to have a Material
Adverse Effect.
(v) Secretary's Certificate. A Secretary's certificate for the
Borrower dated as of the Closing Date substantially in the form of
Schedule 4.1(i)(v) with appropriate insertions and attachments.
(f) Fees. Receipt of all fees, if any, then owing pursuant to the
Administrative Agent's Fee Letter, Section 3.5 or pursuant to any Credit
Documents.
(g) Subsection 4.2 Conditions. The conditions specified in Section 4.2
shall be satisfied.
(h) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Agents and the Required
Lenders.
4.2 Conditions to All Loans.
The obligation of each Lender to make any Loan advance hereunder
(including the initial Loan advance to be made hereunder) is subject to the
satisfaction of the following conditions precedent on the date of making such
Loan advance:
(a) Representations and Warranties. The representations and warranties
made by the Borrower herein or in any other Credit Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Loan advance as if made on and as of such date (except for those
which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to the
Loan advance to be made on such date unless such Default or Event of Default
shall have been waived in accordance with this Credit Agreement.
(c) No Material Adverse Effect. No circumstances, events or conditions
shall have occurred since the date of the audited financial statements
referenced in Section 6.1 which would have a Material Adverse Effect.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan is
made pursuant to Section 2.1, all conditions set forth therein shall have been
satisfied.
(e) Additional Conditions to Competitive Loans. If a Competitive Loan
is made pursuant to Section 2.2, all conditions set forth therein shall have
been satisfied.
Each request for a Loan advance (including extensions and conversions)
and each acceptance by the Borrower of a Loan advance (including extensions and
conversions) shall be deemed to constitute a representation and warranty by the
Borrower as of the date of such Loan advance that the applicable conditions in
paragraphs (a), (b) and (c), and in (d) or (e) of this subsection have been
satisfied.
SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
Loans herein provided for, the Borrower hereby represents and warrants to the
Administrative Agent and to each Lender that:
5.1 Financial Condition.
Each of the financial statements described below (copies of which have
heretofore been provided to the Administrative Agent for distribution to the
Lenders), have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all material
respects and present fairly the financial condition and results from operations
of the entities and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments:
(i) audited consolidated balance sheet of the Borrower and its
consolidated subsidiaries dated as June 30, 1997, together with related
statements of income and cash flows certified by Ernst & Young LLP,
certified public accountants; and
(ii) a company-prepared consolidated condensed balance sheet
of the Borrower and its consolidated subsidiaries dated as of September
30, 1997, together with related consolidated condensed statements of
income and cash flows.
5.2 No Changes or Restricted Payments.
Since June 30, 1997, there has not occurred a change in the business,
assets, operations, condition (financial or otherwise) or prospects of the
Consolidated Group taken as a whole which is reasonably likely to have a
Material Adverse Effect.
5.3 Organization; Existence; Compliance with Law.
The Borrower and each Significant Subsidiary (a) is duly incorporated,
existing in good standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate or other necessary power and authority, and
the legal right to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign entity and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not, in the aggregate, have a Material Adverse Effect, and (d) is in compliance
with all Requirements of Law, except to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations.
The Borrower has the corporate or other necessary power and authority,
and the legal right, to make, deliver and perform the Credit Documents to which
it is a party and has taken all necessary corporate or other action to authorize
the execution, delivery and performance by it of the Credit Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with acceptance of extensions of credit by the Borrower
or the making of the guaranties hereunder or with the execution, delivery or
performance of any Credit Documents by the Borrower (other than those which have
been obtained, such filings as are required by the Securities and Exchange
Commission (or the laws, rules and regulations administered by it), and to
fulfill other reporting requirements with Governmental Authorities) or with the
validity or enforceability of any Credit Document against the Borrower. Each
Credit Document to which it is a party constitutes a valid and legally binding
obligation of the Borrower enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
5.5 No Legal Bar.
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the proceeds of the Loans will not violate
any Requirement of Law applicable to the Borrower or any Significant Subsidiary
(except those as to which waivers or consents have been obtained), and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law.
5.6 No Material Litigation.
Except as set forth on Schedule 5.6, no claim, litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the best knowledge of the Borrower, threatened by or
against the Borrower or any Significant Subsidiary or against any of their
respective properties which (a) relates to the Credit Documents or any of the
transactions contemplated hereby or thereby or (b) is reasonably likely to have
a Material Adverse Effect.
5.7 No Default.
No Default or Event of Default has occurred and is continuing.
5.8 Taxes.
Except for such tax-related litigation disclosed on Schedule 5.6, the
Borrower and each Significant Subsidiary has filed or caused to be filed all
United States federal income tax returns and all other material tax returns
which, to the best knowledge of the Borrower, are required to be filed and has
paid (a) all taxes shown to be due and payable on said returns or (b) all taxes
shown to be due and payable on any assessments of which it has received notice
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any (i) taxes, fees or other charges with respect to which the
failure to pay, in the aggregate, would not have a Material Adverse Effect or
(ii) taxes, fees or other charges the amount or validity of which are currently
being contested and with respect to which reserves in conformity with GAAP have
been provided on the books of such Person), and no tax Lien has been filed, and,
to the best knowledge of the Borrower, no claim is being asserted, with respect
to any such tax, fee or other charge.
5.9 ERISA
Except as is not reasonably likely to have a Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Borrower, no event or condition has occurred or exists
as a result of which any ERISA Event could reasonably be expected to occur, with
respect to any Plan; (ii) no "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) No member of the Consolidated Group nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Borrower, could be reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. No member of the Consolidated Group nor any
ERISA Affiliate would become subject to any withdrawal liability under ERISA if
any member of the Consolidated Group or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No member of the Consolidated Group nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best knowledge of the
Borrower, reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any member of
the Consolidated Group or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
(e) No member of the Consolidated Group nor any ERISA Affiliates has
any material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects of such sections.
5.10 Governmental Regulations, Etc.
(a) No part of the proceeds of the Loans hereunder will be used,
directly or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation G or Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by any Lender
or the Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U. No indebtedness
being reduced or retired out of the proceeds of the Loans hereunder was or will
be incurred for the purpose of purchasing or carrying any margin stock within
the meaning of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meanings of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the Borrower
and its Subsidiaries. Neither the execution and delivery hereof by the Borrower,
nor the performance by it of any of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation G, T, U or X.
(b) The Borrower is not (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
5.11 Subsidiaries.
Set forth on Schedule 5.11 is a list of all the Subsidiaries of the
Borrower at the Closing Date that are required to be disclosed in the Borrower's
filings with the Securities and Exchange Commission pursuant to Regulation S-K,
the jurisdiction of their incorporation and the direct or indirect ownership
interest of the Borrower therein.
5.12 Purpose of Loans.
The Loans will be used for commercial paper backup and other general
corporate purposes.
SECTION 6
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on the Closing Date, and so long
as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or in
connection herewith have been paid in full, the Borrower shall:
6.1 Financial Statements.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Audited Financial Statements. As soon as available, but in any
event within 100 days after the end of each fiscal year, an audited consolidated
balance sheet of the Borrower and its subsidiaries as of the end of the fiscal
year and the related consolidated statements of income, retained earnings,
shareholders' equity and cash flows for the year, audited by an independent
certified public accounting firm of nationally recognized standing, setting
forth in each case in comparative form the figures for the previous year,
reported without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to permit
such independent certified public accountants to certify such financial
statements without such qualification.
(b) Company-Prepared Financial Statements. As soon as available, but in
any event within 50 days after the end of each of the first three fiscal
quarters, a company-prepared consolidated balance sheet of the Borrower and its
subsidiaries as of the end of the quarter and related company-prepared
consolidated statements of income, retained earnings, shareholders' equity and
cash flows for such quarterly period and for the fiscal year to date; in each
case setting forth in comparative form the consolidated figures for the
corresponding period or periods of the preceding fiscal year or the portion of
the fiscal year ending with such period, as applicable, in each case subject to
normal recurring year-end audit adjustments.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and shall be prepared in reasonable detail and, in
the case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change in the application of accounting principles as provided in
Section 1.3.
6.2 Certificates; Other Information.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the
delivery of the financial statements referred to in subsection 6.1(a) above, a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of the
financial statements referred to in Sections 6.1(a) and 6.1(b) above, a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge and belief, (i) the financial statements fairly
present in all material respects the financial condition of the parties covered
by such financial statements, (ii) during such period the Borrower has observed
or performed in all material respects its covenants and other agreements
hereunder and under the other Credit Documents, and satisfied in all material
respects the conditions, contained in this Credit Agreement to be observed,
performed or satisfied by it (except to the extent waived in accordance with the
provisions hereof), and (iii) such Responsible Officer has obtained no knowledge
of any Default or Event of Default except as specified in such certificate. Such
certificate shall include the calculations required to indicate compliance with
Section 6.7. A form of Officer's Certificate is attached as Schedule 6.2(b).
(c) Public Information. Within thirty days after the same are sent,
copies of all reports (other than those otherwise provided pursuant to
subsection 6.1) and other financial information which the Borrower sends to its
public stockholders, and within thirty days after the same are filed, copies of
all financial statements and non-confidential reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any successor
or analogous United States Governmental Authority.
(d) Other Information. Promptly, such additional financial and other
information as the Administrative Agent, at the request of any Lender, may from
time to time reasonably request.
6.3 Notices.
Give notice to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) Defaults. Promptly (but in any event within three (3) Business
Days) after the Borrower knows thereof, the occurrence of any Default or Event
of Default.
(b) Legal Proceedings. Promptly following the Borrower's receipt of
written notification relating thereto, any litigation, or any investigation or
proceeding (including without limitation, any environmental proceeding) known to
the Borrower relating to the Borrower or any Significant Subsidiary, or any
material development in respect thereof, affecting the Borrower or any
Significant Subsidiary which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect.
(c) ERISA. Promptly, after any Responsible Officer of the Borrower
knows or has reason to know of (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably lead to,
an ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability assessed
against any of their ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which the members of the
Consolidated Group or any ERISA Affiliate are required to contribute to each
Plan pursuant to its terms and as required to meet the minimum funding standard
set forth in ERISA and the Code with respect; or (iv) any change in the funding
status of any Plan that reasonably could be expected to have a Material Adverse
Effect; together with a description of any such event or condition or a copy of
any such notice and a statement by the chief financial officer of the Borrower
briefly setting forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is proposed to be
taken by the Borrower with respect thereto. Promptly upon request, the Borrower
and Significant Subsidiaries shall furnish the Administrative Agent and the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of the most recent
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively.
(d) Other. Promptly, any other development or event which a Responsible
Officer of the Borrower determines is reasonably likely to have a Material
Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
6.4 Maintenance of Existence and Compliance with Law.
Preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights, privileges,
licenses and franchises necessary or desirable in the normal conduct of its
business; and comply with all Requirements of Law applicable to it except to the
extent that failure to comply therewith would not, in the aggregate, have a
Material Adverse Effect.
6.5 Maintenance of Property; Insurance.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability and such other insurance (which may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice; and furnish to the Administrative Agent, upon written request, full
information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent, the Administrative Agent to visit and inspect any
of its properties and examine and make abstracts (including photocopies) from
any of its books and records (other than materials protected by the
attorney-client, work product or other privilege and materials which the
Borrower may not disclose without violation of a confidentiality obligation
binding upon the Borrower or any Significant Subsidiary) at any reasonable time,
and to discuss the business, operations, properties and financial and other
condition of the members of the Consolidated Group with officers and employees
of the members of the Consolidated Group and with their independent certified
public accountants. The cost of the inspection referred to in the preceding
sentence shall be for the account of the Lenders unless an Event of Default has
occurred and is continuing, in which case the cost of such inspection shall be
for the account of the Borrower.
6.7 Financial Covenants.
(a) Consolidated Tangible Net Worth. Consolidated Tangible Net Worth
shall not at any time be less than the sum of (i) $225 million plus (ii) on the
last day of each fiscal year beginning June 30, 1998, an amount equal to twenty
percent (20%) of Consolidated Net Income for the fiscal year then ended (but not
less than zero), such increases to be cumulative.
(b) Consolidated Working Capital. As of the end of each fiscal quarter,
Consolidated Working Capital shall not be less than $150 million.
(c) Consolidated Leverage Ratio. As of the end of each fiscal quarter,
the Consolidated Leverage Ratio shall not be greater than sixty percent (60%).
6.8 Use of Proceeds.
The Loans will be used solely for the purposes provided in Section
5.12.
SECTION 7
NEGATIVE COVENANTS
The Borrower covenants and agrees that on the Closing Date, and so long
as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or in
connection herewith have been paid in full, the Borrower shall not and shall not
permit any Significant Subsidiary to:
7.1 Indebtedness.
Create, incur, assume or suffer to exist or permit any Subsidiary to
create, incur, assume or suffer to exist any liabilities on short-term notes
payable if after giving effect thereto the aggregate consolidated current
liabilities for notes payable and overdrafts and commercial paper of the
Consolidated Group taken as a whole will exceed One Billion Dollars
($1,000,000,000) as of the end of any fiscal quarter.
7.2 Liens.
Contract, create, incur, assume or permit to exist any Lien with
respect to any of their respective property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
7.3 Consolidation, Merger, Sale or Purchase of Assets, Capital
Expenditures, etc.
Enter into a transaction of merger or consolidation with any Person,
firm, joint venture, or corporation, or sell, lease, or otherwise dispose of all
or substantially all of its assets, except (i) in the ordinary course of its
business or (ii) a Significant Subsidiary may be merged or consolidated with, or
may sell, lease or dispose of all or substantially all of its assets to, (a) a
wholly-owned Significant Subsidiary of the Borrower, (b) any other corporation
which is or will upon the consummation of such merger or consolidation be a
Significant Subsidiary of which not less than eighty percent (80%) of the
capital stock is owned directly or indirectly by the Borrower, or (c) any other
corporation may be merged or consolidated into the Borrower, provided in the
case of any such merger or consolidation with the Borrower, the Borrower is the
surviving corporation and the management of the Borrower continues as the
management of the surviving corporation; provided, further, that in any event
such merger or consolidation does not violate any other provision of this
Agreement and upon the effective date of the merger or consolidation there
exists no Default or Event of Default hereunder. Notwithstanding the foregoing,
a Significant Subsidiary may be merged into or with any other Person, or all or
substantially all of a Significant Subsidiary's assets may be transferred to any
other Person, if such merger, consolidation or transfer does not violate any
other provision of this Agreement and immediately before and immediately after
such merger, consolidation or transfer is consummated (i) there shall exist no
Default or Event of Default, (ii) no Material Adverse Effect shall have
occurred, and (iii) the representations and warranties contained in Section 5 of
this Agreement shall, except to the extent that they relate solely to an earlier
date, be true with the same effect as though such representations and warranties
had been made at such time.
7.4 Sale Leasebacks.
Enter into sale and lease-back transactions relating to the same or
similar Property for a term of more than three (3) years, unless any liability
incurred as a result of such transaction is permitted by Section 7.1 hereof and
the sum of the aggregate amount of such transactions, measured using in each
case the greater of (a) the fair market value of the assets sold or (b) the
selling price, sold after September 30, 1997, and the aggregate principal amount
then outstanding secured by liens described in Section 7.2 does not exceed
Twenty-Five Million Dollars ($25,000,000).
7.5 Sale of Significant Subsidiaries.
Notwithstanding anything to the contrary in Section 7.4, the Borrower
shall have the right to sell or otherwise dispose of any Subsidiary or
Significant Subsidiary (or all or substantially all of the assets thereof),
provided that such sale or other disposition does not violate any other
provision of this Credit Agreement and immediately before and immediately after
such sale or other disposition (i) there shall exist no Default or Event of
Default, (ii) no Material Adverse Effect shall result therefrom, and (iii) the
representations and warranties contained in Section 5 of this Agreement shall,
except to the extent that they relate solely to an earlier date, be true with
the same effect as though such representations and warranties had been made at
such time.
SECTION 8
EVENTS OF DEFAULT
8.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment.
(i) Default in the payment when due of any principal of any of
the Loans; or
(ii) Default, and such defaults shall continue for five (5) or
more Business Days, in the payment when due of any interest on the Loans
or of any Fees or other amounts owing hereunder, under any of the other
Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made in
any of the Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made; or
(c) Covenants.
(i) Default in the due performance or observance of any term,
covenant or agreement contained in Section 6.3(a), 6.7, 6.8 or 7.1
through 7.5, inclusive; or
(ii) Default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 8.1) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a responsible officer
of the Borrower becoming aware of such default or notice thereof by the
Administrative Agent; or
(iii) The occurrence of an Event of Default under the Three
Year Credit Agreement; or
(d) Other Credit Documents. Any material provision of a Credit Document
shall fail to be in full force and effect; or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
the Borrower or a Significant Subsidiary; or
(f) Defaults under Other Agreements. (i) Any default made in the
payment (beyond the applicable grace period with respect thereto, if any) in
respect of any Indebtedness of the Borrower or any Significant Subsidiary in an
aggregate principal amount of Fifteen Million Dollars ($15,000,000), or more,
provided that Indebtedness of a Significant Subsidiary organized under the laws
of a jurisdiction other than the United States of America or a political
subdivision thereof shall not be included in the calculation of such Fifteen
Million Dollars ($15,000,000) so long as the obligation to make such payment is
being actively contested in good faith and such Significant Subsidiary is
holding in escrow an amount of cash equal to or greater than the disputed
payment, and provided further that Indebtedness of the Borrower or any
Significant Subsidiary owed to a Subsidiary organized under the laws of a
jurisdiction other than the United States of America or a political subdivision
thereof shall not be included in the calculation of such Fifteen Million Dollars
($15,000,000) if:
(a) the Borrower or such Significant Subsidiary is
unable to realize the benefits of ownership of such foreign Subsidiary
because of war, civil commotion, insurrection, revolution, riot,
confiscation, or force majure actions caused by a government or actions
against a government,
(b) the Borrower or such Significant Subsidiary has a
colorable claim in the nature of common law, equitable or statutory
set-off against the person to whom such Indebtedness is owing, and
(c) the aggregate amount of all such obligations does
not exceed Twenty-Five Million Dollars ($25,000,000); or
(ii) The maturity of any Indebtedness of the Borrower or any
Significant Subsidiary in an aggregate principal amount of Fifteen Million
Dollars ($15,000,000) or more shall be accelerated, provided that Indebtedness
of a Significant Subsidiary organized under the laws of a jurisdiction other
than the United States of America or a political subdivision thereof shall not
be included in the calculation of such Fifteen Million Dollars ($15,000,000) so
long as the obligation to make such payment is being actively contested in good
faith and such Significant Subsidiary is holding in escrow an amount of cash
equal to or greater than the disputed payment, and provided further that
indebtedness of the Borrower or any Significant Subsidiary owed to a Subsidiary
organized under the laws of a jurisdiction other than the United States of
America or a political subdivision thereof shall not be included in the
calculation of such Fifteen Million Dollars ($15,000,000) if:
(a) the Borrower or such Significant Subsidiary is
unable to realize the benefits of ownership of such foreign Subsidiary
because of war, civil commotion, insurrection, revolution, riot,
confiscation, or force majure actions caused by a government or actions
against a government,
(b) the Borrower or such Significant Subsidiary has a
colorable claim in the nature of common law, equitable or statutory
set-off against the person to whom such Indebtedness is owing, and
(c) the aggregate amount of all such obligations does
not exceed Twenty-Five Million Dollars ($25,000,000); or
(g) Judgments. The Borrower or any Significant Subsidiary shall fail
within 30 days of the date due and payable to pay, bond or otherwise discharge
any judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $15,000,000 (in excess insurance
or other indemnity reasonably acceptable to the Required Lenders), and which is
not stayed on appeal (or for which no motion for stay is pending) or is not
otherwise being executed; provided that judgments resulting from the failure of
the Borrower or any Significant Subsidiary to honor its obligations in respect
of a guaranty of obligations of a subsidiary organized under the laws of a
jurisdiction other than the United States of America or a political subdivision
thereof shall not be included in the calculation of such Fifteen Million Dollars
($15,000,000) if
(i) the Borrower or such Significant Subsidiary is unable to
realize the benefits of ownership of such foreign subsidiary because of
war, civil commotion, insurrection, revolution, riot, confiscation, or
force majeure actions caused by a government or actions against a
government,
(ii) the Borrower or such Significant Subsidiary has a
colorable claim in the nature of common law, equitable or statutory
set-off against the person in favor of which such judgment was entered,
and
(iii) the aggregate amount of all such obligations does not
exceed Twenty-Five Million Dollars ($25,000,000); or
(h) ERISA. Any of the following events or conditions, if such event or
condition could reasonably be expected to have a Material Adverse Effect: (1)
any "accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of a member of the
Consolidated Group or any ERISA Affiliate in favor of the PBGC or a Plan; (2) an
ERISA Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Administrative Agent, likely to
result in (i) the termination of such Plan for purposes of Title IV of ERISA, or
(ii) a member of the Consolidated Group or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency of (within the meaning of
Section 4245 of ERISA) such Plan; or (4) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject a member of the
Consolidated Group or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which a member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
8.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of Default,
the Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrower take any of the following actions:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the Borrower
to the Administrative Agent and/or any of the Lenders hereunder to be
due, whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, whether at
law or in equity.
Notwithstanding the foregoing, if an Event of Default specified in Section
8.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Administrative Agent and/or any
of the Lenders hereunder automatically shall immediately become due and payable
without presentment, demand, protest or the giving of any notice or other action
by the Administrative Agent or the Lenders, all of which are hereby waived by
the Borrower.
SECTION 9
AGENCY PROVISIONS
9.1 Appointment.
Each Lender hereby designates and appoints NationsBank, N.A. as
administrative agent (in such capacity, the "Administrative Agent") of such
Lender to act as specified herein and the other Credit Documents, and each such
Lender hereby authorizes the Administrative Agent as the Administrative Agent
for such Lender, to take such action on its behalf under the provisions of this
Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Each Lender further directs and authorizes the
Administrative Agent to execute releases (or similar agreements) to give effect
to the provisions of this Credit Agreement and the other Credit Documents.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Administrative Agent. The provisions of this Section are solely for
the benefit of the Administrative Agent and the Lenders and the Borrower shall
have any rights as a third party beneficiary of the provisions hereof. In
performing its functions and duties under this Credit Agreement and the other
Credit Documents, the Administrative Agent shall act solely as Administrative
Agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation or relationship of agency or trust with or for the Borrower or
any of its affiliates. The title of Documentation Agent is bestowed in
recognition of the Documentation Agent's participation in this credit, and such
title shall not impose or imply any duties or responsibilities hereunder of a
fiduciary nature or otherwise, in its capacity as such.
9.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through Administrative Agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
9.3 Exculpatory Provisions.
The Administrative Agent and its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall not be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person in good faith under
or in connection herewith or in connection with any of the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower
contained herein or in any of the other Credit Documents or in any certificate,
report, document, financial statement or other written or oral statement
referred to or provided for in, or received by the Administrative Agent under or
in connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit Documents, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Borrower in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by the
Administrative Agent to the Lenders or by or on behalf of the Borrower to the
Administrative Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the
Borrower or any of its affiliates.
9.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Borrower, independent accountants and other
experts selected by the Administrative Agent with reasonable care). The
Administrative Agent may deem and treat the Lenders as the owners of their
respective interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent in accordance with Section 10.3(b) hereof. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance with
a request of the Required Lenders (or to the extent specifically provided in
Section 10.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
9.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to the Credit Document, describing such Default or Event of Default and stating
that such notice is a "notice of default." In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that each of the Administrative
Agent and its officers, directors, employees, Administrative Agents,
attorneys-in-fact or affiliates has not made any representations or warranties
to it and that no act by the Administrative Agent or any affiliate thereof
hereinafter taken, including any review of the affairs of the Borrower or any of
its affiliates, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower or its
affiliates and made its own decision to make its Loans hereunder and enter into
this Credit Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its affiliates. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower or any of its
affiliates which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, Administrative Agents, attorneys-in-fact
or affiliates.
9.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity
as such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitments (or if the Commitments have expired or been terminated, in
accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the final payment of all of
the obligations of the Borrower hereunder and under the other Credit Documents)
be imposed on, incurred by or asserted against the Administrative Agent in its
capacity as such in any way relating to or arising out of this Credit Agreement
or the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Administrative Agent. If any
indemnity furnished to the Administrative Agent for any purpose shall, in the
opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section shall survive the repayment of the
Loans and other obligations under the Credit Documents and the termination of
the Commitments hereunder.
9.8 Administrative Agent in its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower,
its Subsidiaries or their affiliates as though the Administrative Agent were not
the Administrative Agent hereunder. With respect to the Loans made by and all
obligations of the Borrower hereunder and under the other Credit Documents, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent.
The Administrative Agent may, at any time, resign upon 20 Business
Days' written notice to the Lenders and the Borrower, and may be removed, upon
show of cause, by the Required Lenders upon 30 days' written notice to the
Administrative Agent. Upon any such resignation or removal, the Required Lenders
and the Borrower shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the notice of resignation or notice of removal, as appropriate, then the
retiring Administrative Agent shall select a successor Administrative Agent
provided such successor is a Lender hereunder or a commercial bank organized
under the laws of the United States of America or of any State thereof and has a
combined capital and surplus of at least $400,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations as Administrative Agent, as appropriate, under this Credit Agreement
and the other Credit Documents and the provisions of this Section 9.9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Credit Agreement.
SECTION 10
MISCELLANEOUS
10.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower and the Administrative Agent, set forth
below, and, in the case of the Lenders, set forth on Schedule 2.1(a), or at such
other address as such party may specify by written notice to the other parties
hereto:
if to the Borrower:
Universal Corporation
1501 N. Hamilton
Richmond, Virginia 23230
Attn: Karen M.L. Whelan
Telephone: (804) 254-8689
Telecopy: (804) 254-3594
with a copy to:
Universal Corporation
1501 N. Hamilton
Richmond, Virginia 23230
Attn: James M. White, III
Telephone: (804) 254-3753
Telecopy: (804) 254-3594
if to the Administrative Agent:
NationsBank, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Telephone: (704) ________
Telecopy: (704) 386-9923
with a copy to:
NationsBank, N.A.
12th and Main
4th Floor Pavilion
Richmond, Virginia 23219
Attn: Hugh S. Miles
Telephone: (804) 788-2244
Telecopy: (804) 788-3669
10.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or affiliates of such Lender wherever located) to
or for the credit or the account of the Borrower against obligations and
liabilities of the Borrower to such Lender hereunder, under the Notes or the
other Credit Documents, irrespective of whether such Lender shall have made any
demand hereunder and although such obligations, liabilities or claims, or any of
them, may be contingent or unmatured, and any such set-off shall be deemed to
have been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender subsequent
thereto. Any Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Section 3.16 or Section 10.3(d) may exercise all rights of
set-off with respect to its participation interest as fully as if such Person
were a Lender hereunder.
10.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that the Borrower may neither assign nor transfer
any of its interests without prior written consent of the Lenders; provided
further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited as
set forth in this Section 10.3, provided however that nothing herein shall
prevent or prohibit any Lender from (i) pledging its Loans hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) granting assignments or selling participations in
such Lender's Loans and/or Commitments hereunder to its parent company and/or to
any affiliate or Subsidiary of such Lender.
(b) Assignments. Each Lender may assign all or a portion of its rights
and obligations hereunder, pursuant to an assignment agreement substantially in
the form of Schedule 10.3(b), to (i) any Lender or any affiliate or Subsidiary
of a Lender, or (ii) any other commercial bank, financial institution or
"accredited investor" (as defined in Regulation D of the Securities and Exchange
Commission) reasonably acceptable to the Administrative Agent and, so long as no
Default or Event of Default has occurred and is continuing, with the approval of
the Borrower (which approval in the case of a commercial bank or financial
institution shall not be unreasonably withheld or delayed); provided that (i)
any such assignment (other than any assignment to an existing Lender) shall be
in a minimum aggregate amount of $5,000,000 (or, if less, the remaining amount
of the Commitment being assigned by such Lender) of the Commitments and in
integral multiples of $1,000,000 above such amount and (ii) each such assignment
(other than Competitive Loans) shall be of a constant, not varying, percentage
of all such Lender's rights and obligations under this Credit Agreement. Any
assignment hereunder shall be effective upon delivery to the Administrative
Agent of written notice of the assignment together with a transfer fee of $3,500
payable to the Administrative Agent for its own account from and after the later
of (i) the effective date specified in the applicable assignment agreement and
(ii) the date of recording of such assignment in the Register pursuant to the
terms of subsection (c) below. The assigning Lender will give prompt notice to
the Administrative Agent and the Borrower of any such assignment. Upon the
effectiveness of any such assignment (and after notice to, and (to the extent
required pursuant to the terms hereof), with the consent of, the Borrower as
provided herein), the assignee shall become a "Lender" for all purposes of this
Credit Agreement and the other Credit Documents and, to the extent of such
assignment, the assigning Lender shall be relieved of its obligations hereunder
to the extent of the Loans and Commitment components being assigned. Along such
lines the Borrower agrees that upon notice of any such assignment and surrender
of the appropriate Note or Notes, it will promptly provide to the assigning
Lender and to the assignee separate promissory notes in the amount of their
respective interests substantially in the form of the original Note (but with
notation thereon that it is given in substitution for and replacement of the
original Note or any replacement notes thereof). By executing and delivering an
assignment agreement in accordance with this Section 10.3(b), the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim; (ii) except
as set forth in clause (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement, any
of the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of the Borrower or any of
its affiliates or the performance or observance by the Borrower of any of its
obligations under this Credit Agreement, any of the other Credit Documents or
any other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (iv) such assignee confirms that it has received
a copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such assignment agreement; (v) such assignee
will independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Credit Agreement and
the other Credit Documents; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise such
powers under this Credit Agreement or any other Credit Document as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender (including without limitation the requirements of
Section 3.13).
(c) Maintenance of Register. The Administrative Agent shall maintain at
one of its offices in Charlotte, North Carolina a copy of each Lender assignment
agreement delivered to it in accordance with the terms of subsection (b) above
and a register for the recordation of the identity of the principal amount, type
and Interest Period of each Loan outstanding hereunder, the names, addresses and
the Commitments of the Lenders pursuant to the terms hereof from time to time
(the "Register"). The Administrative Agent will make diligent efforts to
maintain the accuracy of the Register and to promptly update the Register from
time to time, as necessary. The entries in the Register shall be conclusive in
the absence of manifest error and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
each Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Each Lender may sell, transfer, grant or assign
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
purposes under this Credit Agreement (such selling Lender's obligations under
the Credit Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to this Credit
Agreement or the other Credit Documents except to the extent any such amendment
or waiver would (A) reduce the principal of or rate of interest on or Fees in
respect of any Loans in which the participant is participating or (B) postpone
the date fixed for any payment of principal (including extension of the
Termination Date or the date of any mandatory prepayment), interest or Fees in
which the participant is participating, and (iii) sub-participations by the
participant (except to an affiliate, parent company or affiliate of a parent
company of the participant) shall be prohibited. In the case of any such
participation, the participant shall not have any rights under this Credit
Agreement or the other Credit Documents (the participant's rights against the
selling Lender in respect of such participation to be those set forth in the
participation agreement with such Lender creating such participation) and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation, provided, however, that such participant shall
be entitled to receive additional amounts under Sections 3.6, 3.7, 3.9, 3.10,
3.13 and 3.14 on the same basis as if it were a Lender (but in no event shall
such additional amounts exceed the amount which would have been payable to the
relevant Lender in the absence of such participation, and subject to limitations
on such participant comparable to those contained in Section 3.12 with respect
to Requesting Lenders).
10.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Administrative Agent or any
Lender and the Borrower shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
10.5 Payment of Expenses, etc.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and expenses of
Moore & Van Allen, PLLC, special counsel to the Administrative Agent) and any
amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Borrower under this Credit Agreement, provided, however, the Borrower's
obligations under this subsection (A) shall be limited to those of one law firm,
and (B) of the Administrative Agent and the Lenders in connection with
enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the
Administrative Agent and each of the Lenders); (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such
Lender) to pay such taxes; and (iii) reimburse each Lender, its officers,
directors, employees, representatives and Administrative Agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of any investigation, litigation or other
proceeding (whether or not any Lender is a party thereto) related to the
entering into and/or performance of any Credit Document or the use of proceeds
of any Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
10.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
(a) the consent of each Lender affected thereby is required to
(i) Subject to Section 2.1, extend the final maturity of any
or extend or waive any principal amortization payment of any Loan, or
any portion thereof, or waive application of any mandatory prepayment,
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any increase in
interest rates after the occurrence of an Event of Default or on
account of a failure to deliver financial statements on a timely basis)
thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any Loan,
(iv) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or mandatory reduction in the Commitments
shall not constitute a change in the terms of any Commitment of any
Lender),
(v) except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under
Section 7.4, release the Borrower from its or their obligations under
the Credit Documents,
(vi) amend, modify or waive any provision of this Section 10.6
or Sections 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.13, 3.14, 3.15, 3.16,
8.1(a), 10.2, 10.3, 10.5 or 10.9,
(vii) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders, or
(viii) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under (or in respect of) the
Credit Documents except as permitted thereby;
(b) without the consent of the Agent, no provision of Section 9 may be
amended;
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow
the Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
10.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
10.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
10.9 Survival.
All indemnities set forth herein, including, without limitation, in
Sections 3.10, 3.13, 3.14, 9.7 or 10.5 shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the repayment of the Loans
and other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the
Borrower herein shall survive delivery of the Notes and the making of the Loans
hereunder.
10.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the state or federal courts in the City
of Richmond, Commonwealth of Virginia and, by execution and delivery of this
Credit Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. The Borrower further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
10.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent to serve
process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) hereof
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT,
THE LENDERS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
10.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.12 Entirety.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
10.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or
after the Closing Date when it shall have been executed by the Borrower and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each Lender
and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans or any
other amounts payable hereunder or under any of the other Credit Documents shall
remain outstanding and until all of the Commitments hereunder shall have expired
or been terminated.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Credit Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: UNIVERSAL CORPORATION,
a Virginia corporation
By: /s/Karen M. L. Whelan
Name: Karen M. L. Whelan
Title: Vice President & Treasurer
LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/Hugh S. Miles, III
Name: Hugh S. Miles, III
Title: Executive Vice President
ABN-AMRO BANK, N.V.,
individually in its capacity as a
Lender and in its capacity as Syndication Agent
By: /s/George Dugan
Name: George Dugan
Title: Vice President
By: /s/Craig Vachris
Name: Craig Vachris
Title: Corporate Banking Officer
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION individually in its capacity as
a Lender and in its capacity as
Documentation Agent
By: /s/G. Burton Queen
Name: G. Burton Queen
Title: Managing Director
CRESTAR BANK
individually in its capacity as a
Lender and in its capacity as Managing Agent
By: /s/C. Gray Key
Name: C. Gray Key
Title: Vice President
FIRST UNION NATIONAL BANK
individually in its capacity as a
Lender and in its capacity as Co-Agent
By: /s/Bonnie A. Banks
Name: Bonnie A. Banks
Title: Vice President
WACHOVIA BANK, N.A.
individually in its capacity as a
Lender and in its capacity as Co-Agent
By: /s/Haywood Edmundson, V
Name: Haywood Edmundson
Title: Senior Vice President
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/J. A. Don
Name: J. A. Don
Title: Vice President & Manger
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/Stephanie Finnen
Name: Stephanie Finnene
Title: Vice President
By: /s/Stephen K. Hunter
Name: Stephen K. Hunter
Title: Senior Vice President
STANDARD CHARTERED BANK
By: /s/Kristina McDavid
Name: Krtistina McDavid
Title: Vice President
By: /s/F. D. Bowles
Name: F. D. Bowles
Title: Vice President
BANCA COMMERCIALE ITALIANA
By: /s/Charles Dougherty
Name: Charles Dougherty
Title: Vice President
By: /s/Karen Purelis
Name: Karen Purelis
Title: Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/David M. Cawrse
Name: David M. Cawrse
Title: First Vice President & Manger
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/Bertram Tang
Name: Bertram Tang
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/Jarrette A. White, III
Name: Jarrette A. White, III
Title: GVP/Group Manager
By: /s/Linda L. Dash
Name: Linda L. Dash
Title: Vice President
KREDIETBANK, N.V.
By: /s/Robert Snauffer
Name: Robert Snauffer
Title: Vice President
By: /s/Tod R. Angus
Name: Tod R. Angus
Title: Vice President
<PAGE>
<TABLE>
<S> <C>
Schedule 2.1(a)
Schedule of Lenders and Commitments
<CAPTION>
Notice Revolving Revolving
Lender Address Committed Amount Commitment Percentage
------ ------- ---------------- ---------------------
NationsBank, N.A. NationsBank, N.A. $20,000,000
One Independence Center
101 N. Tryon Street, 15th Floor
Charlotte, NC 28255
Attn:
Ph:
Fx: (704) 386-9923
with a copy to:
NationsBank, N.A.
12th and Main
4th Floor Pavilion
Richmond, VA 23219
Attn: Hugh S. Miles
Ph: (804) 788-2244
Fx: (804) 788-3669
ABN-AMRO Bank, N.V. ABN-AMRO Bank, N.V. $17,500,000
500 Park Avenue
New York, NY 10022
Attn: John Deegan
Ph: (212) 446-4263
Fx: (212) 759-4792
Bank of America National Trust And Bank of America National Trust And $17,500,000
Savings Association Savings Association
281 South LaSalle Street
Suite 912
Chicago, IL 60697
Attn: Michael Rogers
Ph: (312) 828-5797
Fx: (312) 987-1278
Crestar Bank Crestar Bank $17,500,000
919 East Main Street
Richmond, VA 28261
Attn: C. Gray Key
Ph: (804) 782-5237
Fx: (804) 782-6418
First Union National Bank First Union National Bank $15,000,000
901 East Cary Street, 2nd Floor
Richmond, VA 28219
Attn: Martin Rust
Ph: (804) 788-9705
Fx: (804) 788-9605
Wachovia Bank, N.A. Wachovia Bank, N.A. $15,000,000
300 North Main Street
Winston-Salem, NC 27301
Attn: Haywood Edmundson
Ph: (910) 732-7614
Fx: (910)
Bank of Tokyo - Mitsubishi Trust Bank of Tokyo - Mitsubishi Trust $10,000,000
Company Company
2000 K Street, N.W., Suite 701
Washington, DC 20006
Attn: Andrew Don
Ph: (202) 463-0175
Fx: (202) 293-3416
Nord LB Nord LB $7,500,000
1270 Avenue of the Americas
14th Floor
New York, NY 10020
Attn: Stephanie Hoeverman
Ph: (212) 332-6606
Fx: (212) 332-6060
Standard Chartered Bank Standard Chartered Bank $7,500,000
7 World Trade Center
New York, NY 10048
Attn: Francois Bordes
Ph: (212) 667-0223
Fx: (212) 667-0780
Banca Commerciale Italiana Banca Commerciale Italiana $5,000,000
1 William Street, 7th Floor
New York, NY 10004
Attn: John Michalisin
Ph: (212) 607-3918
Fx: (212) 809-9780
Credit Lyonnias Atlanta Agency Credit Lyonnais Atlanta Agency $5,000,000
One Peachtree Street, 44th Floor
303 Peachtree Street, NE
Atlanta, GA 30308
Attn: Walter Robinson
Ph: (404) 524-3700
Fx: (404) 584-5219
The Dai-Ichi Kangyo Bank, Ltd. The Dai-Ichi Kangyo Bank, Ltd. $5,000,000
One World Trade Center
49th Floor
New York, NY 10048
Attn: Bertram Tang
Ph: (212) 432-8639
Fx: (212) 912-1879
SunTrust Bank, Atlanta SunTrust Bank, Atlanta $5,000,000
25 Park Place, 24th Floor
Mail Code 118
Atlanta, GA 30302
Attn: Brian Peters
Ph: (404) 827-6118
Fx: (404) 658-4905
KredietBank, N.V. KredietBank, N.V. $2,500,000
Two Midtown Plaza
Suite 1750
Atanta, GA 30309
Attn: Jackie Brunetto
Ph: (404) 876-2556
Fx: (404) 876-3212
</TABLE>
<PAGE>
Schedule 2.1(b)(i)
FORM OF NOTICE OF BORROWING
NationsBank, N.A.
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
RE: Credit Agreement dated as of December 18, 1997 (as amended and
modified, the "Credit Agreement") among Universal Corporation
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
herein shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice of a request for Revolving Loan pursuant to
Section 2.1(b) of the Credit Agreement as follows:
(A) Date of Borrowing
(which is a Business Day)
(B) Principal Amount of
Borrowing
(C) Interest rate basis
(D) Interest Period and the
last day thereof
In accordance with the requirements of Section 4.2 of the Credit Agreement, the
undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects as of the date of this request, and will be true and correct after
giving effect to the requested Loan advance (except for those which expressly
related to an earlier date).
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Loan advance.
(c) No circumstances, events or conditions have occurred since the date
of the audited financial statements referenced in Section 5.1 of the Credit
Agreement which is reasonably likely to have a Material Adverse Effect.
(d) All conditions set forth in Section 2.1 as to the making of
Revolving Loans have been satisfied.
Very truly yours,
UNIVERSAL CORPORATION
By:
Name:
Title:
<PAGE>
Schedule 2.1(e)
FORM OF REVOLVING NOTE
December 18, 1997
FOR VALUE RECEIVED, the undersigned Borrower, hereby promises to pay to the
order of ______________________, and its successors and assigns, to the office
of the Administrative Agent in immediately available funds as provided in the
Credit Agreement,
(i) in the case of Revolving Loans, on or before the Maturity
Date, such Lender's Revolving Committed Amount or, if less, the
aggregate unpaid principal amount of all Revolving Loans made by such
Lender to the undersigned; and
(ii) in the case of Competitive Loans, on or before the date
specified in the Competitive Bid, the aggregate unpaid principal amount
of all Competitive Loans made by such Lender to the undersigned;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of December 18, 1997 (as amended and modified, the "Credit
Agreement") among UNIVERSAL CORPORATION, a Virginia corporation and the Lenders
identified therein and NationsBank, N.A., as Administrative Agent. Terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence and during the continuance of an Event of Default,
all amounts evidenced by this Note may, or shall, become immediately due and
payable as provided in the Credit Agreement without presentment, demand, protest
or notice of any kind, all of which are waived by the undersigned Borrower. In
the event payment of amounts evidenced by this Note is not made at any stated or
accelerated maturity, the undersigned Borrower agrees to pay, in addition to
principal and interest, all costs of collection, including reasonable attorneys'
fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
In WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
UNIVERSAL CORPORATION,
a Virginia corporation
By:
Name:
Title:
<PAGE>
Schedule 2.2(b)-1
FORM OF COMPETITIVE BID REQUEST
NationsBank, N.A.,
as Administrative Agent for the Lenders
101 North Tryon Street
Independence Center, 15th Floor
NC1-005-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives you notice pursuant to Section 2.2(b) of
the Credit Agreement it requests solicitation of Competitive Bids under the
Credit Agreement, and in connection therewith sets forth below the terms on
which the related Competitive Loan borrowing is requested to be made:
(A) Date of Competitive Loan Borrowing
(which is a Business Day)
(B) Principal Amount of
Competitive Loan borrowing
(C) Interest Period and the last
day thereof
In accordance with the requirements of Section 4.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (a) of such Section, and confirms that the matters
referenced in subsections (b), (c) and (e) of such Section, are true and
correct.
UNIVERSAL CORPORATION
By:
Name:
Title:
<PAGE>
Schedule 2.2(b)-2
FORM OF NOTICE OF RECEIPT OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Dear Sirs:
UNIVERSAL CORPORATION, a Virginia corporation, being Borrower under the
above-referenced Credit Agreement made a Competitive Bid Request on
__________________, 19__, pursuant to Section 2.2(b) of the Credit Agreement,
and in that connection you are invited to submit a Competitive Bid by 10:00 A.M.
(Charlotte, North Carolina time) , 19__ [Date of Proposed Competitive Loan
Borrowing]. Your Competitive Bid must comply with Section 2.2(c) of the Credit
Agreement and the terms of set forth below on which the Competitive Bid Request
was made:
(A) Date of Competitive Borrowing
(B) Principal Amount of Competitive Borrowing
(C) Interest Period and the last day thereof
NATIONSBANK, N.A., as Administrative Agent
By:
Name:
Title:
<PAGE>
Schedule 2.2(c)
FORM OF COMPETITIVE BID
NationsBank, N.A.,
as Agent for the Lenders
101 North Tryon Street
Independence Center, 15th Floor
NC1-005-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned [Name of Lender], hereby makes a Competitive Bid
pursuant to Section 2.2(c) of the Credit Agreement, in response to the
Competitive Bid Request made by the Borrower on ____________, 19__, and in that
connection sets forth below the terms on which such Competitive Bid is made:
(A) Principal Amount
(B) Competitive Bid Rate
(C) Interest Period and the last day thereof
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.2(e) of
the Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
<PAGE>
Schedule 2.2(e)
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
NationsBank, N.A.,
as Agent for the Lenders
101 North Tryon Street
Independence Center, 15th Floor
NC1-005-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
In accordance with Section 2.2(e) of the Credit Agreement, in
connection with our Competitive Bid Request dated __________________ and in
accordance with Section 2.2(e) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Principal Amount Competitive Bid Rate Lender
$ [%]
$ [%]
We hereby reject the following bids:
Principal Amount Competitive Bid Rate Lender
$ [%]
$ [%]
UNIVERSAL CORPORATION
By:_____________________________________
Name:
Title:
<PAGE>
Schedule 3.2
Form of Notice of Extension/Conversion
NationsBank, N.A.,
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified, the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
herein shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 3.2 of the
Credit Agreement that it requests an extension or conversion of a Revolving Loan
outstanding under the Credit Agreement, and in connection therewith sets forth
below the terms on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which is the last day of the
applicable Interest Period) _______________________________
(B) Principal Amount of
Extension or Conversion _______________________________
(C) Interest rate basis _______________________________
(D) Interest Period and the
last day thereof _______________________________
In accordance with the requirements of Section 4.2 of the Credit
Agreement, the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects as of the date of this request, and will be true and
correct after giving effect to the requested Loan advance (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default exists, or will exist after
giving effect to the requested Loan advance.
(c) No circumstances, events or conditions have occurred since
the date of the audited financial statements referenced in Section 5.1
of the Credit Agreement which would have a Material Adverse Effect.
Very truly yours,
UNIVERSAL CORPORATION
By:__________________________________
Name:
Title:
<PAGE>
Schedule 4.1(b)
Form of Legal Opinion
<PAGE>
Schedule 4.1(i)(v)
Secretary's Certificate
Pursuant to Section 4.1(i)(v) of the Credit Agreement (the "Credit
Agreement"), dated as of December 18, 1997, among UNIVERSAL CORPORATION, a
Virginia corporation, and the Lenders identified therein and NationsBank, N.A.,
as Administrative Agent, the undersigned ___________________________ Secretary
of ____________________ (the "Corporation") hereby certifies as follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Corporation on
_______________________, 1997. The attached resolutions have not been rescinded
or modified and remain in full force and effect. The attached resolutions are
the only corporate proceedings of the Corporation now in force relating to or
affecting the matters referenced to therein.
2. Attached hereto as Annex II is a true and complete copy of the
By-laws of the Corporation as in effect on the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto as in
effect on the date hereof.
4. The following persons are now duly elected and qualified officers of
the Corporation, holding the offices indicated, and the signature appearing
opposite his name below is his true and genuine signature, and such officer is
duly authorized to execute and deliver on behalf of the Corporation, the Credit
Agreement, the Notes to be issued pursuant thereto and the other Credit
Documents to act as a Responsible Officer on behalf of the Corporation under the
Credit Agreement.
Name Office Signature
------------------------
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name and
affixed the corporate seal of the Corporation.
-----------------------------
Secretary
(CORPORATE SEAL)
Date: _______________________, 1997
I, _____________________, ___________________ of
_________________________, hereby certify that _____________________, whose
genuine signature appears above, is, and has been at all times since
______________________, a duly elected, qualified and acting
____________________ of
_______________________________ of
__________________________________
______________________________, 1997
<PAGE>
Schedule 5.6
Description of Legal Proceedings
NONE
<PAGE>
Schedule 5.11
Subsidiaries
<PAGE>
Schedule 6.2(b)
Form of Officer's Compliance Certificate
This Certificate is delivered in accordance with the provisions of
Section 7.2(b) of that Credit Agreement dated as of December 18, 1997 (as
amended, modified and supplemented, the "Credit Agreement") among UNIVERSAL
CORPORATION, a Virginia corporation, and the Lenders identified therein, and
NationsBank, N.A., as Administrative Agent. Terms used but not otherwise defined
herein shall have the same meanings provided in the Credit Agreement.
The undersigned, being a Responsible Officer of Universal Corporation,
a Virginia corporation, hereby certifies, in my official capacity and not in my
individual capacity, that to the best of my knowledge and belief:
(a) the financial statements fairly present the financial condition of
the parties covered by such financial statements in all material respects;
(b) during the period the Borrower has observed or performed all of its
covenants and other agreements in all material respects, and satisfied in all
material respects every material condition, contained in this Credit Agreement
to be observed, performed or satisfied by it;
(c) the undersigned has no actual knowledge of any Default or Event of
Default; and
(d) detailed calculations demonstrating compliance with the financial
covenants set out in Section 6.7 of the Credit Agreement.
This the _______________ day of ________________________, 199_.
UNIVERSAL CORPORATION
By:___________________________________
Name:
Title:
<PAGE>
Attachment to Officer's Certificate
Computation of Financial Covenants
<PAGE>
Schedule 10.3(b)
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of , 1997 is entered into
between THE LENDER IDENTIFIED ON THE SIGNATURE PAGES AS THE "ASSIGNOR" (the
"Assignor") and THE PARTIES IDENTIFIED ON THE SIGNATURE PAGES AS "ASSIGNEES"
("Assignee").
Reference is made to that Credit Agreement dated as of December 18,
1997 (as amended and modified, the "Credit Agreement") among UNIVERSAL
CORPORATION, a Virginia corporation (the "Borrower"), and the Lenders identified
therein and NationsBank, N.A., as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignees, and the Assignees hereby purchase and assume, without recourse, from
the Assignor, effective as of the Effective Date shown below, those rights and
interests of the Assignor under the Credit Agreement identified below (the
"Assigned Interests"), including the Loans and Commitments relating thereto,
together with unpaid interest and fees relating thereto accruing from the
Closing Date. The Assignor represents and warrants that it owns interests
assigned hereby free and clear of liens, encumbrances or other claims. Each of
the Assignees represents that it is an eligible assignee under Section 10.3 the
Credit Agreement. The Assignor and each of the Assignees hereby makes and agrees
to be bound by all the representations, warranties and agreements set forth in
Section 10.3 of the Credit Agreement, a copy of which has been received by each
such party. From and after the Closing Date (i) each Assignee, if it is not
already a Lender under the Credit Agreement, shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) each Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement (other than the rights
of indemnification referenced in Section 10.9 of the Credit Agreement). Schedule
2.1(a) is deemed modified and amended to the extent necessary to give effect to
this Assignment.
2. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
3. Terms of Assignment
(a) Date of Assignment: , 199__
--------------------------
(b) Legal Name of Assignor: SEE SIGNATURE PAGE
(c) Legal Name of Assignee: SEE SIGNATURE PAGE
(d) Effective Date of Assignment: , 199__
--------------------------
See Schedule I attached for a description of the Loans and Commitments (and the
percentage interests therein and relating thereto) which are the subject of this
Assignment and Acceptance.
4. The fee payable to the Administrative Agent in connection with this
Assignment is enclosed.
IN WITNESS WHEREOF, the parties hereto have caused the execution of
this instrument by their duly authorized officers as of the date first above
written.
ASSIGNOR: ASSIGNEE:
By: By:
Name: Name:
Title: Title:
Address for Notices:
ACKNOWLEDGMENT AND CONSENT
NATIONSBANK, N.A., UNIVERSAL CORPORATION
as Administrative Agent
By: By:
Name: Name:
Title: Title:
<PAGE>
<TABLE>
<S> <C>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
UNIVERSAL CORPORATION
REVOLVING LOANS PRIOR TO ASSIGNMENT
<CAPTION>
Revolving Revolving Revolving
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEES
-------------------- -------------------- --------------------
--
$ $
<PAGE>
REVOLVING LOANS INTERESTS SUBJECT TO THIS ASSIGNMENT
<CAPTION>
Revolving Revolving Revolving
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEES
-------------------- -------------------- --------------------
$ $
<PAGE>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
UNIVERSAL CORPORATION
REVOLVING LOANS AFTER ASSIGNMENT
<CAPTION>
Revolving Revolving Revolving
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEES
-------------------- -------------------- --------------------
$ $
</TABLE>
Exhibit 10.28
THREE-YEAR CREDIT AGREEMENT
Dated as of December 18, 1997
among
UNIVERSAL CORPORATION
as Borrower,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
as Administrative Agent,
ABN-AMRO BANK, N.V.,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent,
CRESTAR BANK,
as Managing Agent,
FIRST UNION NATIONAL BANK
and
WACHOVIA BANK, N.A.
as Co-Agents,
<PAGE>
<TABLE>
<S> <C>
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.............................................................................................1
1.1 Definitions..........................................................................................1
1.2 Computation of Time Periods and Dollar Equivalents..................................................17
1.3 Accounting Terms....................................................................................17
SECTION 2 CREDIT FACILITIES......................................................................................17
2.1 Revolving Loans.....................................................................................17
2.2 Competitive Loan Subfacility........................................................................21
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.........................................................23
3.1 Default Rate........................................................................................23
3.2 Extension and Conversion............................................................................23
3.3 Prepayments.........................................................................................24
3.4 Termination and Reduction of Commitments............................................................25
3.5 Fees................................................................................................25
3.6 LIBOR Reserve Compensation..........................................................................25
3.7 Capital Adequacy....................................................................................26
3.8 Unavailability......................................................................................26
3.9 Illegality..........................................................................................27
3.10 Requirements of Law................................................................................28
3.11 Inability To Determine Interest Rate...............................................................29
3.12 Replacement of Lenders.............................................................................29
3.13 Taxes..............................................................................................30
3.14 Indemnity..........................................................................................32
3.15 Pro Rata Treatment.................................................................................32
3.16 Sharing of Payments................................................................................33
3.17 Payments, Computations, Etc........................................................................34
3.18 Obligation of Lenders to Mitigate..................................................................36
3.19 Evidence of Debt...................................................................................36
SECTION 4 CONDITIONS.............................................................................................37
4.1 Conditions to Closing...............................................................................37
4.2 Conditions to All Loans.............................................................................38
SECTION 5 REPRESENTATIONS AND WARRANTIES.........................................................................39
5.1 Financial Condition.................................................................................39
5.2 No Changes or Restricted Payments...................................................................40
5.3 Organization; Existence; Compliance with Law........................................................40
5.4 Power; Authorization; Enforceable Obligations.......................................................40
5.5 No Legal Bar........................................................................................41
5.6 No Material Litigation..............................................................................41
5.7 No Default..........................................................................................41
5.8 Taxes...............................................................................................41
5.9 ERISA...............................................................................................41
5.10 Governmental Regulations, Etc......................................................................42
5.11 Subsidiaries.......................................................................................43
5.12 Purpose of Loans...................................................................................43
SECTION 6 AFFIRMATIVE COVENANTS..................................................................................43
6.1 Financial Statements................................................................................43
6.2 Certificates; Other Information.....................................................................44
6.3 Notices.............................................................................................45
6.4 Maintenance of Existence and Compliance with Law....................................................46
6.5 Maintenance of Property; Insurance..................................................................46
6.6 Inspection of Property; Books and Records; Discussions..............................................46
6.7 Financial Covenants.................................................................................47
6.8 Use of Proceeds.....................................................................................47
SECTION 7 NEGATIVE COVENANTS.....................................................................................47
7.1 Indebtedness........................................................................................47
7.2 Liens...............................................................................................47
7.3 Consolidation, Merger, Sale or Purchase of Assets, Capital Expenditures, etc........................48
7.4 Sale Leasebacks.....................................................................................48
7.5 Sale of Significant Subsidiaries....................................................................48
SECTION 8 EVENTS OF DEFAULT......................................................................................49
8.1 Events of Default...................................................................................49
8.2 Acceleration; Remedies..............................................................................52
SECTION 9 AGENCY PROVISIONS......................................................................................52
9.1 Appointment.........................................................................................52
9.2 Delegation of Duties................................................................................53
9.3 Exculpatory Provisions..............................................................................53
9.4 Reliance on Communications..........................................................................54
9.5 Notice of Default...................................................................................54
9.6 Non-Reliance on Administrative Agent and Other Lenders..............................................54
9.7 Indemnification.....................................................................................55
9.8 Administrative Agent in its Individual Capacity.....................................................55
9.9 Successor Administrative Agent......................................................................56
SECTION 10 MISCELLANEOUS.........................................................................................56
10.1 Notices............................................................................................56
10.2 Right of Set-Off...................................................................................57
10.3 Benefit of Agreement...............................................................................58
10.4 No Waiver; Remedies Cumulative.....................................................................60
10.5 Payment of Expenses, etc...........................................................................61
10.6 Amendments, Waivers and Consents...................................................................61
10.7 Counterparts.......................................................................................62
10.8 Headings...........................................................................................63
10.9 Survival...........................................................................................63
10.10 Governing Law; Submission to Jurisdiction; Venue..................................................63
10.11 Severability......................................................................................64
10.12 Entirety..........................................................................................64
10.13 Binding Effect; Termination.......................................................................64
</TABLE>
<PAGE>
SCHEDULES
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(b)-1 Form of Competitive Bid Request
Schedule 2.2(b)-2 Form of Notice of Receipt of Competitive Bid Request
Schedule 2.2(c) Form of Competitive Bid
Schedule 2.2(e) Form of Competitive Bid Accept/Reject Letter
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 4.1(b) Form of Legal Opinion
Schedule 4.1(i)(v) Secretary's Certificate
Schedule 5.6 Description of Legal Proceedings
Schedule 5.11 Subsidiaries
Schedule 6.2(b) Form of Officer's Compliance Certificate
Schedule 10.3 Form of Assignment and Acceptance
<PAGE>
THREE-YEAR CREDIT AGREEMENT
THIS THREE-YEAR CREDIT AGREEMENT dated as of December 18, 1997 (the
"Credit Agreement"), is by and among UNIVERSAL CORPORATION, a Virginia
corporation (the "Borrower"), the lenders named herein and such other lenders as
may become a party hereto (the "Lenders"), NATIONSBANK, N.A., as Administrative
Agent (in such capacity, the "Administrative Agent"), ABN-AMRO BANK, N.V., as
Syndication Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Documentation Agent, CRESTAR BANK, as Managing Agent, and FIRST UNION NATIONAL
BANK and WACHOVIA BANK, N.A., as Co-Agents.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a $150
million credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.
"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 3.5(c).
"Administrative Agent's Fee Letter" means that certain letter
agreement, dated as of October 17, 1997, between the Agent and the
Borrower, as amended, modified, supplemented or replaced from time to
time.
"Affected Lender" means such term as defined in Section
3.9(a).
"Agency Services Address" means NationsBank, N.A.,
NC1-001-15-04, 101 North Tryon Street, Charlotte, North Carolina 28255,
Attn: Agency Services, or such other address as may be identified by
written notice from the Administrative Agent to the Borrower.
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect from time to time, being
initially ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).
"Anniversary Date" shall have the meaning assigned to such
term in Section 2.1(g).
"Applicable Percentage" means for any day, the rate per annum
set forth below opposite the applicable rating for the Borrower's
senior unsecured (non-credit enhanced) long term debt then in effect,
it being understood that the Applicable Percentage for (i) Base Rate
Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) LIBOR Loans shall be the percentage set forth under the
column "LIBOR Margin", and (iii) the Facility Fee shall be the
percentage set forth under the column "Facility Fee":
<TABLE>
<CAPTION>
Pricing S&P Moody's LIBOR Base Rate
Level Rating Rating Margin Margin Facility Fee
----- ------ ------ ------ ------ ------------
<S> <C>
I > A or above > A2 or above 0.175% 0% 0.075%
- -
II > A- > A3 0.200% 0% 0.100%
- -
III > BBB > Baa2 0.250% 0% 0.125%
- -
IV > BBB- > Baa3 0.350% 0% 0.150%
- -
V < BB+ < Ba1 0.500% 0% 0.200%
- -
</TABLE>
The numerical classification set forth under the column "Pricing Level"
shall be established based on the better of ratings by S&P and Moody's
for the Borrower's senior unsecured (non-credit enhanced) long term
debt, provided that such ratings are not more than one Pricing Level
apart; and an average of the Applicable Percentages in the event the
ratings are more than one Pricing Level apart. The Applicable
Percentage shall be determined and adjusted quarterly on the date five
(5) Business Days after the end of each calendar quarter (each a "Rate
Determination Date") based on the debt rating in effect on the last day
of the preceding calendar quarter and shall be effective until the next
Rate Determination Date. Adjustments in the Applicable Percentage shall
be effective as to all Loans, existing and prospective, from the date
of adjustment. The Administrative Agent shall promptly notify the
Lenders of changes in the Applicable Percentage.
"Available Foreign Currency" means (i) British Pounds
Sterling, French Francs, Swiss Francs, Deutsche Marks, Japanese Yen,
Netherlands Guilders and Italian Lire and (ii) any other freely
available currency which is freely transferrable and freely convertible
into Dollars and in which dealings in deposits are carried on in the
London interbank market, which shall be requested by the Borrower and
approved by each Lender.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) (A) such Person shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or make any general
assignment for the benefit of creditors or (B) the board of directors
of such Person shall authorize such Person to take any of the actions
set forth in subsection (A); or (iv) such Person shall be unable to, or
shall admit in writing its inability to, pay its debts generally as
they become due.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Administrative Agent shall have reasonably determined
(which determination shall be conclusive absent manifest error) that it
is unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means Universal Corporation, a Virginia
corporation, as referenced in the opening paragraph, its successors and
permitted assigns.
"Business Day" means any day other than a Saturday, Sunday or
legal holiday on which commercial banks are open for business in
Charlotte, North Carolina, Richmond, Virginia and New York, New York;
except that when used in connection with a LIBOR Loan, such day shall
also be a day on which dealings between banks are carried on in London,
England in deposits of U.S. Dollars or Available Foreign Currencies, as
applicable. "Business Day" shall also exclude any day on which banks
are closed for dealings when used in connection with Foreign Currency
Loans. "Business Day" shall also exclude any day on which banks are not
open for foreign exchange dealings between banks in the exchange of
their home country of such foreign currency.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Commitment" means the Revolving Commitment.
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the Termination
Date, or (ii) the date on which the Commitments terminate in accordance
with the provisions of this Credit Agreement.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan pursuant to the terms of Section 2.2.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.2, the fixed
rate of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.2(b).
"Competitive Bid Request Fee" means such fee, if any, agreed
upon by the Borrower and the Administrative Agent payable in connection
with each Competitive Bid Request.
"Competitive Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.2.
"Competitive Loan Lenders" means, at any time, those Lenders
which have Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning
assigned to such term in Section 2.2(a).
"Consolidated Funded Debt" means Funded Debt of the
Consolidated Group determined on a consolidated basis in accordance
with GAAP applied on a consistent basis.
"Consolidated Group" means the Borrower and its consolidated
subsidiaries as determined in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated Funded Debt to Consolidated
Total Capitalization.
"Consolidated Net Income" means for any period for the
Consolidated Group, net income on a consolidated basis determined in
accordance with GAAP applied on a consistent basis.
"Consolidated Tangible Net Worth" means, for the Consolidated
Group at any time, Consolidated Total Tangible Assets minus
Consolidated Total Liabilities as determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Consolidated Total Capitalization" means, for the
Consolidated Group at any time, the sum of Consolidated Funded Debt
plus consolidated shareholders' equity as determined in accordance with
GAAP applied on a consistent basis.
"Consolidated Total Liabilities" means for the Consolidated
Group at any time, total liabilities determined on a consolidated basis
in accordance with GAAP applied on a consistent basis.
"Consolidated Total Tangible Assets" means, for the
Consolidated Group at any time, consolidated total assets minus (i)
goodwill and (ii) other items properly classified as "intangible
assets", in each case as determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Consolidated Working Capital" means, for the Consolidated
Group at any time, consolidated current assets minus consolidated
current liabilities, in each case as determined on a consolidated basis
in accordance with GAAP applied on a consistent basis.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the Administrative Agent's Fee Letter, and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (i) has failed to make a Loan advance required pursuant to
the terms of this Credit Agreement, (ii) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of the Credit Agreement or any other of the
Credit Documents, or (iii) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar proceeding.
"Determination Date" means with respect to any Foreign
Currency Loan:
(a) in connection with the origination of any new
Loan advance, the Business Day which is the earliest of the
date such credit is extended, the date the rate is set or the
date the bid is accepted, as applicable;
(b) in connection with any extension or conversion or
continuation of an existing Loan, the last Business Day of
each month or the Business Day which is the earlier of the
date such advance is extended, converted or continued, or the
date the rate is set, as applicable, in connection with any
extension, conversion or continuation; or
(c) the date of any reduction of the Revolving
Committed Amount pursuant to the terms of Section 3.4; and
in addition to the foregoing, such additional dates not more frequently
than once a month as may be determined by the Agent. For purposes of
determining availability hereunder, the rate of exchange for Available
Foreign Currency shall be the spot rate for such Foreign Currency as
quoted by the Administrative Agent at or about 10:00 A.M. (Charlotte,
North Carolina time) on the day of determination.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount
of any Foreign Currency or an amount denominated in such Foreign
Currency, the Dollar Equivalent of such amount on the applicable date
contemplated in this Credit Agreement.
"Dollar Equivalent" means, on any date, with respect to an
amount denominated in a Foreign Currency, the amount of Dollars into
which the Agent could, in accordance with its practice from time to
time in the interbank foreign exchange market, convert such amount of
such Foreign Currency at its spot rate of exchange (inclusive of all
reasonable related costs of conversion, if any, that are actually
incurred) at or about 10:00 A.M., Charlotte, North Carolina time, on
such date.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity which is under common
control with the Borrower within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes the Borrower and which
is treated as a single employer under Sections 414(b) or (c) of the
Code.
"ERISA Event" means, except as would not reasonably be
expected to have a Material Adverse Effect, (i) with respect to any
Plan, the occurrence of a Reportable Event; (ii) the withdrawal by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (iii) the distribution of
a notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (v) any event or condition which
could reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (vi) the complete or partial withdrawal of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiemployer Plan; (vii) the conditions for imposition of a lien under
Section 302(f) of ERISA exist with respect to any Plan; or (vii) the
adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Event of Default" means such term as defined in Section 8.1.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as reasonably determined by the
Administrative Agent.
"Foreign Currency" means Available Foreign Currency.
"Foreign Currency Equivalent" means, on any date, with respect
to an amount denominated in Dollars, the amount of any applicable
Available Foreign Currency into which the Agent could, in accordance
with its practice from time to time in the interbank foreign exchange
market, convert such amount of Dollars at its spot rate of exchange
(inclusive of all reasonable related costs of conversion, if any are
actually incurred) applicable to the relevant transaction at or about
10:00 A.M., Charlotte, North Carolina time, on such date.
"Foreign Currency Loan" means any Loan denominated in an
Available Foreign Currency.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money
having a maturity at the time of determination of more than one year or
which is renewable or extendible at the option of the Borrower for a
period of more than one year from the date of determination, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily
made having a maturity at the time of determination of more than one
year or which is renewable or extendible at the option of the Borrower
for a period of more than one year from the date of determination,
(iii) all purchase money Indebtedness (including for purposes hereof,
indebtedness and obligations described in clauses (iii) and (iv) of the
definition of "Indebtedness") of such Person, having a maturity at the
time of determination of more than one year or which is renewable or
extendible at the option of the Borrower for a period of more than one
year from the date of determination, including without limitation the
principal portion of all obligations of such Person under Capital
Leases having a maturity at the time of determination of more than one
year or which is renewable or extendible at the option of the Borrower,
(iv) all Support Obligations of such Person with respect to Funded Debt
of another Person, (v) the attributed principal amount outstanding
under any securitization transaction with a maturity at the time of
determination of more than one year, and (vi) the principal balance
outstanding under any synthetic lease or tax retention operating lease
with a maturity at the time of determination of more than one year to
which such Person is a party, where such transaction is considered
borrowed money indebtedness for tax purposes, but is classified as an
operating lease in accordance with GAAP. The Funded Debt of such Person
shall include the Funded Debt of any partnership or joint venture in
which such Person is a general partner or joint venturer, but only to
the extent there is recourse to such Person for the payment of such
Funded Debt.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Indebtedness" of any Person means, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made,
(iii) all obligations of such Person under conditional sale or other
title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such
Person (other than trade debt incurred in the ordinary course of
business and due within one year of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person, (v) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (vi) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, provided that for purposes hereof the amount of such
Indebtedness shall be limited to the greater of (A) the amount of such
Indebtedness as to which there is recourse to such Person and (B) the
fair market value of the property which is subject to the Lien, (vii)
all Support Obligations of such Person, (viii) the principal portion of
all obligations of such Person under Capital Leases, (ix) the maximum
outstanding amount of all standby letters of credit (excluding
performance standby letters of credit) issued or bankers' acceptances
created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (x) the
outstanding attributed principal amount under any securitization
transaction and (xi) the principal balance outstanding under any
synthetic lease or tax retention operating lease to which such Person
is a party, where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP. The Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, but only to the extent
to which there is recourse to such Person for payment of such
Indebtedness.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each March, June, September and December, the date of
repayment of principal of such Loan and the Termination Date and (ii)
as to any LIBOR Loan or Competitive Loan, the last day of each Interest
Period for such Loan, the date of repayment of principal of such Loan
and on the Termination Date, and in addition where the applicable
Interest Period is more than three months, then also on the date three
months from the beginning of the Interest Period, and each three months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of LIBOR Loans where
the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" means (i) as to any LIBOR Loan, a period of
one, two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals) and (ii) as to any Competitive
Loan, a period of not less than 7 nor more than 180 days' duration, as
the Borrower may request and the Competitive Lender may agree in
accordance with the provisions of Section 2.2; provided, however, (A)
if any Interest Period would end on a day which is not a Business Day,
such Interest Period shall be extended to the next succeeding Business
Day (except that in the case of LIBOR Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (B) no Interest Period shall extend
beyond the Termination Date, and (C) in the case of LIBOR Loans, where
an Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is
to end, such Interest Period shall end on the last day of such calendar
month.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and their successors and assigns.
"LIBOR Loan" means any Loan bearing interest at a rate
determined by reference to the LIBOR Rate.
"LIBOR Rate" means, for any LIBOR Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) appearing on Telerate Page 3750 (or any
successor or equivalent page) as the London interbank offered rate for
deposits in Dollars or applicable Available Foreign Currency, as
appropriate, at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR Rate" shall mean, for any LIBOR Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars
or applicable Available Foreign Currency, as appropriate, at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"LIBOR Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (
or other applicable authority or any successor thereof), as such
regulation may be amended from time to time or any successor
regulation, as the maximum reserve requirement (including, without
limitation, any basic, supplemental, emergency, special, or marginal
reserves) applicable with respect to eurocurrency liabilities as that
term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest
rate of LIBOR Loans is determined), whether or not Lender has any
eurocurrency liabilities subject to such reserve requirement at that
time. LIBOR Loans shall be deemed to constitute eurocurrency
liabilities and as such shall be deemed subject to reserve requirements
without benefits of credits for proration, exceptions or offsets that
may be available from time to time to a Lender. The LIBOR Rate shall be
adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
conditional sale or other title retention agreement, any financing or
similar statement or notice filed under the Uniform Commercial Code as
adopted and in effect in the relevant jurisdiction or other similar
recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or Competitive
Loans.
"Material Adverse Effect" means an event or condition which
has resulted (A) in the provision of a loss contingency in the
consolidated financial statements of the Borrower and the notes
thereto, (B) in a reduction in the shareholders' equity determined on a
consolidated basis for the Borrower which has resulted in, or (C) in
(A) and (B) such a provision or reduction respectively, which in any
case as determined in accordance with GAAP, shall be equal to or
greater than twenty percent (20%) of the total shareholders' equity as
shown in the most recent annual financial statements for the Borrower
on a consolidated basis to constitute a "Material Adverse Effect".
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such Borrower in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. and its successors.
"Non-Excluded Taxes" means such term as is defined in Section
3.13.
"Note" or "Notes" means any Revolving Note.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Participation Interest" means the purchase by a Lender of a
participation in Loans as provided in Section 3.16.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Liens" means:
(1) Liens existing at the date of this Agreement and
securing indebtedness outstanding on the date of this
Agreement;
(2) Liens securing indebtedness owing by any
Subsidiary to the Borrower or a Significant Subsidiary;
(3) Liens on assets of any corporation existing at
the time such corporation becomes a Significant Subsidiary;
(4) Liens on assets existing at the time of
acquisition thereof; provided such Lien shall not extend to
any other property of the Borrower or a Significant
Subsidiary;
(5) Liens to secure indebtedness incurred or
guaranteed by the Borrower or a Subsidiary to finance the
purchase price of land, buildings or equipment or improvements
to or construction of land, buildings or equipment, which
indebtedness is incurred or guaranteed prior to, at the time
of, or within 180 days after such acquisition (or in the case
of real property, completion of such improvement or
construction or commencement of full operation of such
property, whichever is later); provided that such Lien shall
extend only to the asset to be acquired or improved with such
financing;
(6) Liens on any assets of a corporation existing at
the time such corporation is merged into or consolidated with
the Borrower or a Significant Subsidiary; provided such Lien
shall not extend to any other property of the Borrower or a
Significant Subsidiary;
(7) Liens on any assets in favor of the United States
of America or any State thereof, or in favor of any other
country, or political subdivision thereof and created to
secure (a) payments pursuant to any contract or statute; or
(b) any indebtedness incurred or guaranteed by the Borrower or
any Significant Subsidiary to finance the purchase price (or
in the case of real property, the cost of construction) of the
assets subject to any such Lien (including, but not limited
to, Liens incurred in connection with pollution control,
industrial revenue or similar finances);
(8) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or
in part, of any Lien referred to in the foregoing paragraphs
(1) to (7), inclusive;
(9) Liens for property taxes and assessments or
governmental charges or levies and Liens securing claims or
demands of mechanics, suppliers, carriers, landlords and other
like Persons;
(10) Liens incurred or deposits made in the ordinary
course of business (a) in connection with worker's
compensation, unemployment insurance, social security and
other like laws, or (b) to secure the performance of letters
of credit, bids, sales contracts, leases, statutory
obligations, surety, appeal and performance bonds and other
similar obligations, in each case not incurred in connection
with the borrowing of money, the obtaining of advances or the
payment of the deferred purchase price of property;
(11) attachment, judgment and other similar Liens
arising in connection with court proceedings, provided that
execution and other enforcement of such Liens are effectively
stayed and all claims which the Liens secure are being
actively contested in good faith and by appropriate
proceedings;
(12) Liens arising in the ordinary course of the
business or incidental to the conduct of such business or the
ownership of the assets of the Borrower or any Significant
Subsidiary which Liens arise out of transactions involving the
sale or purchase of goods or services and which do not, in the
opinion of the Borrower, materially impair the use of such
assets in the operations of the business of the Borrower of
such Significant Subsidiary.
(13) Liens arising out of sale and lease-back
transactions not prohibited by Subsection 7.4; and
(14) Liens other than those described in clause (1)
through (13) above provided the sum of (a) the aggregate
principal amount secured thereby at any time outstanding and
(b) the aggregate amount of sale and lease-back transactions
measured as provided in Subsection 7.4 consummated after
September 30, 1997 does not exceed Twenty-Five Million Dollars
($25,000,000).
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate in effect
at its principal office in Charlotte, North Carolina, with each change
in the Prime Rate being effective on the date such change is publicly
announced as effective (it being understood and agreed that the Prime
Rate is a reference rate used by NationsBank in determining interest
rates on certain loans and is not intended to be the lowest rate of
interest charged on any extension of credit by NationsBank to any
debtor).
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Proposed Lender" means such term as defined in Section 3.12.
"Register" shall have the meaning given such term in Section
10.3(c).
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Requesting Lender" shall have the meaning assigned to such
term in Section 3.12.
"Required Lenders" means, at any time, Lenders having more
than fifty percent (50%) of the Commitments, or if the Commitments have
been terminated, Lenders having more than fifty percent (50%) of the
aggregate principal Dollar Amount (determined as of the most recent
Determination Date) of Loans outstanding (taking into account in each
case Participation Interests or obligation to participate therein);
provided that the Commitments of, and outstanding principal Dollar
Amount (determined as of the most recent Determination Date) of Loans
(taking into account Participation Interests therein) owing to, a
Defaulting Lender shall be excluded for purposes hereof in making a
determination of Required Lenders.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property is subject.
"Responsible Officer" means the Chief Financial Officer, the
Controller, any Vice President and the Treasurer.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal Dollar Amount at any time outstanding of up to such Lender's
Revolving Commited Amount as specified in Schedule 2.1(a), as such
amount may be reduced from time to time in accordance with the
provisions hereof.
"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a decimal) the numerator of which is the
Revolving Commitment of such Lender at such time and the denominator of
which is the Aggregate Revolving Committed Amount at such time. The
initial Revolving Commitment Percentages are set out on Schedule
2.1(a).
"Revolving Committed Amount" means, collectively, the
aggregate amount of all of the Revolving Commitments and, individually,
the amount of each Lender's Revolving Commitment as specified in
Schedule 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans and Competitive Loans in substantially the form
attached as Schedule 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Significant Subsidiary" means each corporation organized
under the laws of the United States of America or Brazil, or any
political subdivision of either, which is now or hereafter becomes a
consolidated Subsidiary and any other consolidated Subsidiary which (i)
as of the end of any of the three then most recently ended fiscal years
of the Company owns assets determined on a consolidated basis for such
Subsidiary and its Subsidiaries constituting more than 10% of the total
assets of the Consolidated Group taken as a whole determined on a
consolidated basis as of the end of the same fiscal year and (ii) has
during any of the three then most recently ended fiscal years of the
Borrower, net income determined on a consolidated basis for such
Subsidiary and its Subsidiaries in excess of 10% of the net income of
the Consolidated Group taken as a whole determined on a consolidated
basis for the same fiscal year.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50% of
the voting interests at any time. Unless otherwise identified,
"Subsidiary" or "Subsidiaries" shall mean Subsidiaries of the Borrower.
"Support Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Support Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Support Obligation is made.
"Termination Date" means, as to each Lender, December 18,
2000, or if extended with the written consent of such Lender, such
later date as to which the Termination Date may be extended.
"364-Day Credit Agreement" means that 364-Day Credit Agreement
dated as of the date hereof, as amended and modified, among the
Borrower, the Lenders identified therein and NationsBank, N.A., as
Administrative Agent.
1.2 Computation of Time Periods and Dollar Equivalents.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
References herein to minimum Dollar Amounts and integral multiples
stated in U.S. dollars, where they shall also be applicable to Foreign Currency,
shall be deemed to refer to approximate Foreign Currency Equivalents.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 6.1
hereof (or, prior to the delivery of the first financial statements pursuant to
Section 6.1 hereof, consistent with the annual audited financial statements
referenced in Section 5.1(i) hereof); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements, then such calculations shall be made on a basis consistent
with the most recent financial statements delivered by the Borrower to the
Lenders as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans in Dollars and Available Foreign Currencies (the "Revolving Loans")
to the Borrower from time to time in the amount of such Lender's Revolving
Commitment Percentage of such Revolving Loans for the purposes hereinafter set
forth; provided that (i) with regard to the Lenders collectively, the aggregate
principal Dollar Amount (determined as of the most recent Determination Date) of
Loans outstanding at any time shall not exceed the Aggregate Revolving Committed
Amount, and (ii) with regard to each Lender individually, the aggregate
principal Dollar Amount (determined as of the most recent Determination Date) of
such Lender's Revolving Commitment Percentage of Revolving Loans outstanding at
any time shall not exceed such Lender's Revolving Committed Amount. Revolving
Loans may consist of Base Rate Loans or LIBOR Loans, or a combination thereof,
as the Borrower may request, and Revolving Loans denominated in Available
Foreign Currencies shall consist solely of LIBOR Loans, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone notice
promptly confirmed in writing) to the Administrative Agent not later
than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day
prior to the date of the requested borrowing in the case of Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of LIBOR Loans. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Revolving Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the currency and aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, LIBOR Loans or a combination thereof, and if LIBOR Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail
to specify in any such Notice of Borrowing (I) an applicable Interest
Period in the case of a LIBOR Loan, then such notice shall be deemed to
be a request for an Interest Period of one month, or (II) the type of
Revolving Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan hereunder, in the case of Revolving Loans
denominated in Dollars or a LIBOR Loan, in any other case. The
Administrative Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section 2.1(b)(i),
the contents thereof and each such Lender's share of any borrowing to
be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a
minimum aggregate principal Dollar Amount of $5,000,000, in the case of
LIBOR Loans, or $1,000,000 (or the remaining Revolving Committed
Amount, if less), in the case of Base Rate Loans, and integral
multiples of $1,000,000 in excess thereof.
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower as specified in
Section 3.17(b), or in such other manner as the Administrative Agent
may specify in writing, by 12:00 noon (Charlotte, North Carolina time
or local time where the deposit is to be made in Available Foreign
Currency) on the date specified in the applicable Notice of Borrowing
in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account designated by the
Borrower with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by
the Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1:
(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Base
Rate plus the Applicable Percentage;
(ii) LIBOR Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of LIBOR Loans, such LIBOR Loans shall
bear interest at a per annum rate equal to the LIBOR Rate plus the
Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
executed Revolving Note in favor of each Lender.
(f) Maximum Number of LIBOR Loans. The Borrower will be limited to a
maximum number of five (5) LIBOR Loans outstanding at any time. For purposes
hereof, LIBOR Loans with separate or different Interest Periods will be
considered as separate LIBOR Loans even if their Interest Periods expire on the
same date.
(g) Extension of Termination Date. The Borrower may, within 60 days,
but not less than 45 days, prior to each anniversary date of the original
Closing Date (each anniversary date being referred to as an "Anniversary Date"),
by notice to the Administrative Agent, make written request of the Lenders to
extend the Termination Date for an additional period of one year. The
Administrative Agent will give prompt notice to each of the Lenders of its
receipt of any such request for extension of the Termination Date. Each Lender
shall make a determination not later than 30 days prior to the then applicable
Anniversary Date (the "Extension Consent Date") as to whether or not it will
agree to extend the Termination Date as requested (such approval of an extension
shall be an "Extension Consent"); provided, however, that failure by any Lender
to make a timely response to the Borrower's request for extension of the
Termination Date shall be deemed to constitute a refusal by such Lender to
extension of the Termination Date.
(h) Lender Not Consenting. If by any Extension Consent Date the
Borrower and the Administrative Agent have not received an Extension Consent
from any Lender, the Termination Date, as it relates to such Lender, shall not
be extended, the Commitment of such Lender shall terminate on the Termination
Date applicable to it and any Loans made by such Lender and all accrued and
unpaid interest thereon shall be due and payable on such Termination Date. Upon
the termination of the Commitment of any such Lender, unless this Agreement is
amended as provided in Subsections 2.1(k) or 2.1(l), the aggregate amount of the
Commitments shall be reduced by the amount of such terminated Commitment, and
the Revolving Commitment Percentage of each other Lender shall be adjusted to
that percentage obtained by dividing the Commitment of such Lender by the
aggregate amount of the Commitments after giving effect to such reduction as
provided in the definition of "Revolving Commitment Percentage".
(i) Other Lenders. No refusal by any one Lender to consent to any
extension of the Termination Date shall affect the extension of the Termination
Date as it may relate to the Commitment and Loans of any Lender which consents
to such extension as provided in Subsection 2.1(g), and one or more Lenders may
consent to the extension of the Termination Date as it relates to them
notwithstanding any refusal by any other Lenders so to consent; provided that
even as to the consenting Lenders the Termination Date will be extended only
upon consent to such an extension by Lenders holding more than 50% of the
aggregate Commitments.
(j) Termination of Commitment. If any Lender does not deliver an
Extension Consent as provided in Subsection 2.1(g) and no Loans are then
outstanding, the Borrower may upon at least three (3) Business Days' prior
notice to such Lender and to the Administrative Agent terminate the Commitment
of such Lender. Upon any such termination the Revolving Commitment Percentage of
each other Lender shall be adjusted, if necessary, to that percentage obtained
by dividing the Commitment of such Lender by the aggregate amount of the
Commitments after giving effect to such termination and any increases in the
aggregate amount of the Commitments under the provisions of Subsection 2.1(k) or
Subsection 2.1(l).
(k) Increase in Commitment of Other Lender or Lenders. If any Lender
does not deliver an Extension Consent as provided in Subsection 2.1(g), upon the
expiration of the Commitment of such Lender, or upon its termination as provided
in Subsection 2.1(j), the Borrower may offer each Lender which has delivered an
Extension Consent as provided in Subsection 2.1(g) a reasonable opportunity to
increase its Commitment by an amount equal to its pro-rata share (based on its
Commitment before such increase) of the Commitment of the Lender which does not
deliver an Extension Consent as provided in Subsection 2.1(g). After giving such
Lenders such an opportunity, the Borrower may with the approval of the
Administrative Agent amend this Agreement to increase the Commitment of any
other Lender or Lenders with the consent of such Lender or Lenders provided that
such increase does not increase the aggregate amount of the Commitments to an
amount greater than the aggregate amount of Commitments in effect immediately
before such expiration or termination.
(l) Additional Lender or Lenders. If any Lender does not deliver an
Extension Consent as provided in Section 2.1(g), upon the expiration of the
Commitment of such Lender, or upon its termination as provided in Subsection
2.1(j), the Borrower may with the approval of the Administrative Agent amend
this Agreement as provided in Subsections 10.3 and 10.6 to add one or more other
Lenders as parties, with such Commitment or Commitments as may be agreed to by
the Administrative Agent and such other Lender or Lenders, provided that such
additions do not increase the aggregate amount of the Commitments to an amount
greater than the aggregate amount of Commitments in effect immediately before
such expiration or termination.
(m) Notice. The Administrative Agent shall promptly advise each Lender
of any change in Revolving Commitment Percentages made pursuant to Subsection
2.1(j) and shall promptly provide each of the Lenders with a copy of any
amendment made pursuant to Subsection 2.1(k) or Subsection 2.1(l).
2.2 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, the
Borrower may, during the Commitment Period, request and each Lender may, in its
sole discretion, agree to make, Competitive Loans in Dollars and Available
Foreign Currencies to the Borrower; provided, however, that (i) the aggregate
principal Dollar Amount (determined as of the most recent Determination Date) of
outstanding Competitive Loans shall not at any time exceed the lesser of (A) ONE
HUNDRED FIFTY MILLION DOLLARS ($150,000,000) or (B) the Revolving Committed
Amount (the "Competitive Loan Maximum Amount"), and (ii) with regard to the
Lenders collectively, the aggregate principal Dollar Amount (determined as of
the most recent Determination Date) of Loans outstanding at any time shall not
exceed the Aggregate Revolving Committed Amount. Each Competitive Loan shall be
in an aggregate principal Dollar Amount not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining portion of the
Competitive Loan Maximum Amount, if less).
(b) Competitive Bid Requests. The Borrower may solicit Competitive Bids
by delivery of a Competitive Bid Request substantially in the form of Exhibit
2.2(b)-1 to the Agent by 12:00 Noon (Charlotte, North Carolina time) on a
Business Day not less than three (3) nor more than four (4) Business Days prior
to the date of a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing (which
shall be a Business Day), (ii) the currency and amount of the requested
Competitive Loan borrowing and (iii) the applicable Interest Periods requested.
The Agent shall, promptly following its receipt of a Competitive Bid Request
under this subsection (b), notify the affected Lenders of its receipt and the
contents thereof and invite the Lenders to submit Competitive Bids in response
thereto. The form of such notice is provided in Exhibit 2.2(b)-2. No more than
three (3) Competitive Bid Requests (e.g., the Borrower may request Competitive
Bids for no more than three (3) different Interest Periods at any one time)
shall be submitted at any one time and Competitive Bid Requests may be made no
more frequently than once every five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole discretion,
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid must be received by the Agent not later than
10:00 A.M. (Charlotte, North Carolina time) on the Business Day next succeeding
the date of receipt by the Agent of the related Competitive Bid Request. A
Lender may offer to make all or part of the requested Competitive Loan borrowing
and may submit multiple Competitive Bids in response to a Competitive Bid
Request. The Competitive Bid shall specify (i) the particular Competitive Bid
Request as to which the Competitive Bid is submitted, (ii) the currency and the
minimum (which shall be not less than $1,000,000 and integral multiples of
$500,000 in excess thereof) and maximum principal Dollar Amounts of the
requested Competitive Loan or Loans as to which the Lender is willing to make,
and (iii) the applicable interest rate or rates and Interest Period or Periods
therefor. The form of such Competitive Bid is provided in Exhibit 2.2(c). A
Competitive Bid submitted by a Lender in accordance with the provisions hereof
shall be irrevocable. The Agent shall promptly notify, but in no event later
than 10:00 A.M. (Charlotte, North Carolina time), the Borrower of all
Competitive Bids made and the terms thereof. The Agent shall send a copy of each
of the Competitive Bids to the Borrower for its records as soon as practicable
(and in any event within two (2) Business Days following receipt of the bids).
(d) Submission of Competitive Bids by Agent. If the Agent, in its
capacity as a Lender, elects to submit a Competitive Bid in response to any
Competitive Bid Request, it shall submit such Competitive Bid directly to the
Borrower one-half of an hour earlier than the latest time at which the other
Lenders are required to submit their Competitive Bids to the Agent in response
to such Competitive Bid Request pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its sole and
absolute discretion, subject only to the provisions of this subsection (e),
accept or refuse any Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give telephone notification, which shall be binding, by 11:00
A.M. (Charlotte, North Carolina time) and confirmed with written notification
substantially in the form of Exhibit 2.2(e) of its acceptance of any or all such
Competitive Bids to the Agent by 1:00 P.M. (Charlotte, North Carolina time) on
the latest date on which notice of election to make a Competitive Bid is to be
given to the Agent by the Lenders; provided, however, (i) the failure by the
Borrower to give timely notice of its acceptance of a Competitive Bid shall be
deemed to be a refusal thereof, (ii) the Borrower may accept Competitive Bids
within any one Interest Period only in ascending order of rates, (iii) the
aggregate amount of Competitive Bids accepted by the Borrower shall not exceed
the principal amount specified in the Competitive Bid Request, (iv) the Borrower
may accept a portion of a Competitive Bid in the event, and to the extent,
acceptance of the entire amount thereof would cause the Borrower to exceed the
principal amount specified in the Competitive Bid Request, subject however to
the minimum amounts provided herein (and provided that where two or more Lenders
submit such a Competitive Bid at the same Competitive Bid Rate and for the same
Interest Period, then pro rata between or among such Lenders) and (v) no bid
shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal Dollar Amount of $1,000,000 and integral multiples of $500,000
in excess thereof, except that where a portion of a Competitive Bid is accepted
in accordance with the provisions of subsection (iv) hereof, then in a minimum
principal Dollar Amount of $500,000 and integral multiples of $100,000 in excess
thereof (but not in any event less than the minimum amount specified in the
Competitive Bid), and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
subsection (iv) hereof, the amounts shall be rounded to integral multiples of
$100,000 in a manner which shall be in the discretion of the Borrower. A notice
of acceptance of a Competitive Bid given by the Borrower in accordance with the
provisions hereof shall be irrevocable. The Agent shall, not later than 12:00
Noon (Charlotte, North Carolina time) on the date of receipt by the Agent of a
notification from the Borrower of its acceptance and/or refusal of Competitive
Bids, notify each affected Lender of its receipt and the contents thereof. Upon
its receipt from the Agent of notification of the Borrower's acceptance of its
Competitive Bid in accordance with the terms of this subsection (e), each
successful bidding Lender will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make a
Competitive Loan shall make its Competitive Loan borrowing available to the
Agent for the account of the Borrower at the office of the Agent specified in
Schedule 2.1(a), or at such other office as the Agent may designate in writing,
by 1:30 P.M. (Charlotte, North Carolina time) on the date specified in the
Competitive Bid Request in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by crediting the account
designated by the Borrower.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature
and be due and payable in full on the last day of the Interest Period applicable
thereto, unless accelerated sooner pursuant to Section 8.2. Unless the Borrower
shall give notice to the Agent otherwise, the Borrower shall be deemed to have
requested a Revolving Loan borrowing in the principal amount and currency of the
maturing Competitive Loan, the proceeds of which will be used to repay such
Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions of Section
3.1, Competitive Loans shall bear interest in each case at the Competitive Bid
Rate applicable thereto. Interest on Competitive Loans shall be payable in
arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans made by each Lender
shall be evidenced by the Revolving Note.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of
Default, any overdue principal of and, to the extent permitted by law, overdue
interest on the Loans and any other amounts then due and owing hereunder or
under the other Credit Documents shall bear interest, payable on demand, at a
per annum rate 2% greater than the rate which would otherwise be applicable
thereto (or if no rate is applicable, whether in respect of interest, fees or
other amounts, then 2% greater than the Base Rate).
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another interest rate type; provided, however, that (i) except as
provided in Section 3.8, 3.9 and 3.11, LIBOR Loans may be converted into Base
Rate Loans only on the last day of the Interest Period applicable thereto, (ii)
LIBOR Loans may be extended, and Base Rate Loans may be converted into LIBOR
Loans, only if the conditions in Section 4.2 have been satisfied, (iii) Loans
extended as, or converted into, LIBOR Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in such
minimum amounts as provided in Section 2.1(b)(ii), and (iv) any request for
extension or conversion of a LIBOR Loan which shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one month. Each
such extension or conversion shall be effected by the Borrower by giving a
Notice of Extension/Conversion (or telephone notice promptly confirmed in
writing) to the Administrative Agent prior to 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion of a LIBOR
Loan into a Base Rate Loan, and on the third Business Day prior to, in the case
of the extension of a LIBOR Loan as, or conversion of a Base Rate Loan into, a
LIBOR Loan, the date of the proposed extension or conversion, specifying the
date of the proposed extension or conversion, the Loans to be so extended or
converted, the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
subsections (a) through (e) of Section 4.2. In the event the Borrower fails to
request extension or conversion of any LIBOR Loan in accordance with this
Section, or any such conversion or extension is not permitted or required by
this Section, then (i) in the case of a LIBOR Loan denominated in Dollars, such
LIBOR Loan shall be continued as a LIBOR Loan denominated in Dollars at the end
of the Interest Period applicable thereto for an Interest Period of one month,
and (ii) in the case of LIBOR Loans in an Available Foreign Currency, such LIBOR
Loan shall be automatically continued as a LIBOR Loan in the same Available
Foreign Currency for an Interest Period of one month. The Administrative Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. Revolving Loans may be repaid in whole or in
part without premium or penalty; provided that (i) LIBOR Loans and Competitive
Loans may be prepaid only upon three (3) Business Days' prior written notice to
the Administrative Agent and must be accompanied by payment of any amounts owing
under Section 3.14, and (ii) partial prepayments shall be in minimum principal
Dollar Amounts of $5,000,000, in the case of LIBOR Loans, and $1,000,000, in the
case of Base Rate Loans, and in integral multiples of $1,000,000 in excess
thereof.
(b) Mandatory Prepayments. If at any time, (A) the aggregate principal
Dollar Amount (determined as of the most recent Determination Date) of Loans
shall exceed the Aggregate Revolving Committed Amount, or (B) the aggregate
principal Dollar Amount (determined as of the most recent Determination Date) of
Competitive Loans shall exceed the Competitive Loan Maximum Amount, the Borrower
shall immediately make payment on the Loans in an amount sufficient to eliminate
the deficiency.
(c) Application. Unless otherwise specified by the Borrower,
prepayments made hereunder shall be applied first to Revolving Loans which are
Base Rate Loans, then to Revolving Loans which are LIBOR Loans in direct order
of Interest Period maturities and then to Competitive Loans in direct order of
Interest Period maturities. Amounts prepaid hereunder may be reborrowed in
accordance with the provisions hereof.
3.4 Termination and Reduction of Commitments
(a) Voluntary Reductions. The Revolving Commitments may be terminated
or permanently reduced by the Borrower in whole or in part upon three (3)
Business Days' prior written notice to the Administrative Agent, provided that
(i) after giving effect to any voluntary reduction the aggregate principal
Dollar Amount (determined as of the most recent Determination Date) of Loans
shall not exceed the Aggregate Revolving Committed Amount, as reduced, and (ii)
partial reductions shall be in minimum principal Dollar Amounts of $5,000,000,
and in integral multiples of $1,000,000 in excess thereof.
(b) Mandatory Reduction. The Commitments hereunder shall terminate on
the Termination Date.
3.5 Fees.
(a) Facility Fee. In consideration of the Commitments hereunder, the
Borrower agrees to pay to the Administrative Agent for the ratable benefit of
the Lenders a facility fee (the "Facility Fee") equal to the Applicable
Percentage per annum on the average daily Aggregate Revolving Committed Amount
in effect from time to time. The Facility Fee shall be payable quarterly in
arrears on the 15th day following the last day of each calendar quarter for the
immediately preceding quarter (or portion thereof) beginning with the first such
date to occur after the Closing Date and on the Termination Date.
(b) Competitive Bid Request Fee. The Borrower agrees to pay to the
Administrative Agent such fees (the "Competitive Bid Request Fee") in connection
with Competitive Bid Requests hereunder as may be agreed upon between the
Borrower and the Administrative Agent in the Administrative Agent's Fee Letter
or elsewhere. Unless otherwise agreed, the Competitive Bid Request Fee shall be
paid quarterly in arrears.
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual administrative fee and such
other fees, if any, referred to in the Administrative Agent's Fee Letter
(collectively, the "Administrative Agent Fees").
3.6 LIBOR Reserve Compensation.
For so long as any Lender maintains reserves against "eurocurrency
liabilities" (or any other category of liabilities which includes deposits by
reference to which the interest rate on any LIBOR Loans is determined), and, as
a result, the cost to such Lender of making or maintaining any of its LIBOR
Loans is increased, then such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on such LIBOR Loans of such
Lender, additional interest at a rate per annum up to but not exceeding the
excess of (i) (A) the applicable LIBOR Rate divided by (B) one minus the LIBOR
Reserve Percentage over (ii) the applicable LIBOR Rate. Any Lender wishing to
require payment of such additional interest (x) shall so notify the Borrower and
the Administrative Agent, in which case such additional interest on the LIBOR
Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three (3)
Business Days after the giving of such notice and (y) shall furnish to the
Borrower at least five (5) Business Days prior to each date on which interest is
payable on the LIBOR Loans a certificate setting forth the amount to which such
Lender is then entitled under this Section 3.6 (which shall be consistent with
such Lender's good faith estimate of the level at which the related reserves are
maintained by it). Each such certificate shall be accompanied by such
information as the Borrower may reasonably request as to the computation set
forth therein.
3.7 Capital Adequacy.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto. The Lender will, upon request, provide a certificate in
reasonable detail as to the amount of such increased cost or reduction in amount
received and method of calculation.
3.8 Unavailability.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any Interest Period for a LIBOR Loan of any
amount, Interest Period or currency, the Administrative Agent shall have
determined or shall have been notified by the Required Lenders (a) that deposits
in the relevant amount in the relevant currency and for the relevant Interest
Period are not available in the relevant market to any Lender, or that
reasonable means do not exist for ascertaining the LIBOR Rate for any such Loan,
or (b) that the rates at which such deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its LIBOR Loan during such Interest Period, the Administrative Agent shall
promptly give written or telecopy notice of such determination to the Borrower
and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a LIBOR Loan of the affected amount, Interest Period or currency,
or a conversion to or continuation of a LIBOR Loan of the affected amount,
Interest Period or currency, shall be deemed rescinded. Each determination by
the Administrative Agent hereunder shall be conclusive absent manifest error.
3.9 Illegality.
(a) Notwithstanding any other provision herein, if (i) the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain LIBOR Loans as contemplated by this Credit Agreement, or
(ii) there shall have occurred any change in national or international
financial, political or economic conditions (including the imposition of or any
change in exchange controls) or currency exchange rates which would make it
unlawful or impossible for any Lender to make Loans denominated in any Available
Foreign Currency to the Borrower, as contemplated by this Credit Agreement, then
such Lender, together with Lenders giving notice under Section 3.8 and 3.10,
shall be an "Affected Lender" and by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that LIBOR Loans (in the affected
currency or currencies) will not thereafter (for the duration of such
unlawfulness or impossibility) be made by such Lender hereunder,
whereupon any request for a LIBOR Loan (in the affected currency or
currencies) shall, as to such Lender only, (A) if such Loan is not a
Foreign Currency Loan, be deemed a request for a Base Rate Loan, unless
such declaration shall be subsequently withdrawn and (B) if such Loan
is a Foreign Currency Loan, be deemed to have been withdrawn, unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding LIBOR Loans
or Foreign Currency Loans (in the affected currency or currencies), as
the case may be, made by it be (A) if such Loans are not Foreign
Currency Loans, converted to Base Rate Loans, in which event all such
LIBOR Loans shall be automatically converted to Base Rate Loans as of
the effective date of such notice as provided in paragraph (b) below or
(B) if such Loans are Foreign Currency Loans, repaid immediately, in
which event all such Foreign Currency Loans (in the affected currency
or currencies) shall be required to be repaid in full by the Borrower
as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above with
respect to any Loans which are not Foreign Currency Loans, all payments and
prepayments of principal which would otherwise have been applied to repay the
LIBOR Loans that would have been made by such Lender or the converted LIBOR
Loans of such Lender shall instead be applied to repay the Base Rate Loans made
by such Lender in lieu of, or resulting from the conversion, of such LIBOR
Loans.
(b) For purposes of this Section 3.9, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
3.10 Requirements of Law.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any LIBOR Loans made by it or its obligation to make LIBOR Loans, or
change the basis of taxation of payments to such Lender in respect thereof
(except for (i) Non-Excluded Taxes covered by Section 3.12 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.12(b)) and (ii) changes in taxes
measured by or imposed upon the overall net income, or franchise tax (imposed in
lieu of such net income tax), of such Lender or its applicable lending office,
branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the LIBOR
Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any tax
of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable, provided that, in any such case,
the Borrower may elect to convert the LIBOR Loans made by such Lender hereunder
to Base Rate Loans by giving the Administrative Agent at least one Business
Day's notice of such election, in which case the Borrower shall promptly pay to
such Lender, upon demand, without duplication, such amounts, if any, as may be
required pursuant to Section 3.13. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall provide prompt notice
thereof to the Borrower, through the Administrative Agent, certifying (x) that
one of the events described in this paragraph (a) has occurred and describing in
reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount resulting from such event and (z) as to the additional amount
demanded by such Lender and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the Administrative Agent, to
the Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.11 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative
Agent shall have reasonably determined that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period, the Administrative Agent
shall give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. If such notice is given (a) any Foreign
Currency Loans requested shall be made, at the sole option of the Borrower, in
Dollars as Base Rate Loans or such request shall be canceled, (b) any affected
LIBOR Loans requested to be made on the first day of such Interest Period shall
be made, at the sole option of the Borrower, in Dollars as Base Rate Loans and
(c) any affected Loans that were to have been converted on the first day of such
Interest Period to or continued as LIBOR Loans shall be converted to or
continued, at the sole option of the Borrower, in Dollars as Base Rate Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
LIBOR Loans in the affected currency shall be made or continued as such, nor
shall the Borrower have the right to convert Base Rate Loans to such affected
LIBOR Loans.
3.12 Replacement of Lenders.
If any Lender requests compensation pursuant to Section 3.6, 3.7, 3.10
or 3.13 hereof, or any Lender's obligation to make or continue, or to convert
Loans of any type into the other type of Loan shall be suspended pursuant to
Section 3.8, 3.9 or 3.11 hereof (any such Lender requesting such compensation,
or whose obligations are so suspended, being herein called a "Requesting
Lender"), the Borrower, upon three Business Days' notice, may require that such
Requesting Lender transfer all of its right, title and interest under this
Agreement and such Requesting Lender's Revolving Note to any bank or other
financial institution (a "Proposed Lender") identified by the Borrowers that is
reasonably satisfactory to the Administrative Agent (i) if such Proposed Lender
agrees to assume all of the obligations of such Requesting Lender hereunder, and
to purchase all of such Requesting Lender's Loans hereunder for consideration
equal to the aggregate outstanding principal amount of such Requesting Lender's
Loans, together with interest accrued thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Requesting Lender of all
other amounts payable hereunder to such Requesting Lender on or prior to the
date of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 3 hereof as if all of such Requesting Lender's
Loans were being prepaid in full on such date) and (ii) if such Requesting
Lender has requested compensation pursuant to Section 3.6, 3.7 or 3.10 or 3.13
hereof, such Proposed Lender's aggregate requested compensation, if any,
pursuant to said Section 3.6, 3.7 or 3.10 with respect to such Requesting
Lender's Loans is lower than that of the Requesting Lender. Subject to the
provisions of Section 10.3 hereof, such Proposed Lender shall be a "Lender" for
all purposes hereunder. Without prejudice to the survival of any other agreement
of the Borrower hereunder the agreements of the Borrower contained in Sections
3.6, 3.7, 3.10, 3.13 and 10.5 hereof (without duplication of any payments made
to such Requesting Lender by the Borrower or the Proposed Lender) shall survive
for the benefit of such Requesting Lender under this Section 3.12 with respect
to the time prior to such replacement.
3.13 Taxes.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding (A) taxes measured by or imposed upon the overall net income
of any Lender or its applicable lending office, or any branch or affiliate
thereof, and (B) all franchise taxes, branch taxes, taxes on doing business or
taxes on the overall capital or net worth of any Lender or its applicable
lending office, or any branch or affiliate thereof, in each case imposed in lieu
of net income taxes, imposed: (i) by the jurisdiction under the laws of which
such Lender, applicable lending office, branch or affiliate is organized or is
located, or in which its principal executive office is located, or any nation
within which such jurisdiction is located or any political subdivision thereof;
or (ii) by reason of any present or former connection between the jurisdiction
imposing such tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender having
executed, delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Notes, (A) the
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Credit
Agreement and any Notes, provided, however, that the Borrower shall be entitled
to deduct and withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X) (i) on or before the date of any payment by the Borrower
under this Credit Agreement or Notes to such Lender, deliver
to the Borrower and the Administrative Agent (A) two (2) duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case
may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction or
withholding of any United States federal income taxes and (B)
an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding
tax;
(ii) deliver to the Borrower and the Administrative
Agent two (2) further copies of any such form or certification
on or before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i)
represent to the Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) agree to
furnish to the Borrower on or before the date of any payment by the
Borrower, with a copy to the Administrative Agent two (2) accurate and
complete original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and the
Administrative Agent two (2) further copies of such form on or before
the date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Administrative Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms
as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a participant of a Lender pursuant to subsection 10.3 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection, provided
that in the case of a participant of a Lender the obligations of such
participant of a Lender pursuant to this subsection (b) shall be determined as
if the participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and statements to
the Lender from which the related participation shall have been purchased.
3.14 Indemnity.
The Borrower shall pay to each Lender and hold each Lender harmless
from any loss or expense which such Lender may sustain or incur (excluding loss
of profit and other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of LIBOR Loans and Competitive
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Credit Agreement, (b) default by the Borrower in
making any prepayment of a LIBOR Loan or a Competitive Loan after the Borrower
has given a notice thereof in accordance with the provisions of this Credit
Agreement or (c) the making of a prepayment of LIBOR Loans or Competitive Loans
on a day which is not the last day of an Interest Period with respect thereto.
With respect to LIBOR Loans and Competitive Loans, such payment may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank LIBOR market (but
excluding loss of profits). The covenants of the Borrower set forth in this
Section 3.14 shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
3.15 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan, each payment or prepayment of principal
of any Revolving Loan, each payment of interest on the Revolving Loans, each
payment of Facility Fees, each reduction of the Revolving Committed Amount and
each conversion or extension of any Revolving Loan, shall be allocated pro rata
among the Lenders in accordance with the respective principal amounts of their
outstanding Revolving Loans and Participation Interests. With respect to
Competitive Loans, if the Borrower fails to specify the particular Competitive
Loan or Loans as to which any payment or other amount should be applied and it
is not otherwise clear as to the particular Competitive Loan or Loans to which
such payment or other amounts relate, or any such payment or other amount is to
be applied to Competitive Loans without regard to any such direction by the
Borrower, then each payment or prepayment of principal on Competitive Loans and
each payment of interest or other amount on or in respect of Competitive Loans,
shall be allocated to (i) the Competitive Loan bearing the highest interest
rate, (ii) if two or more Competitive Loans each bear the same interest rate,
which is the highest interest rate among all Competitive Loans then outstanding,
then pro rata among such Competitive Loans (iii) should such prepayment
extinguish such Competitive Loans, then any remaining prepayment shall be
applied to each of the remaining Competitive Loans with the highest interest
rate and (iv) any remaining payment or prepayment shall be allocated pro rata
among the relevant Competitive Loan Lenders in accordance with the then
outstanding amounts of their respective Competitive Loans.
(b) Advances. No Lender shall be responsible for the failure or delay
by any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its ratable share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by such Lender within the time period specified therefor hereunder, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the Federal Funds Rate for a period of two
(2) Business Days, and thereafter at the Base Rate, for the period until such
Lender makes such amount immediately available to the Administrative Agent. If
such Lender does not pay such amounts to the Administrative Agent forthwith upon
demand, the Administrative Agent may notify the Borrower and request the
Borrower to pay such amount to the Administrative Agent with interest at the
Base Rate not later than 4:00 P.M. on the following Business Day. A certificate
of the Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. Nothing in the preceding shall act or be construed as a waiver of any
claims or right of action that the Borrower may have against any Lender that
defaults on the payment to the Administrative Agent thereby causing the Borrower
to repay the Administrative Agent such amount advanced.
3.16 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a participation in such Loans and other obligations in such amounts, and
make such other adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Credit Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Administrative Agent or
such other Lender at a rate per annum equal to the Federal Funds Rate. If under
any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.16 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.16 to share in the benefits of any recovery on such secured claim.
3.17 Payments, Computations, Etc.
(a) Each payment on account of an amount due from the Borrower
hereunder or under any other Credit Document shall be made by the Borrower to
the Administrative Agent for the pro rata account of the Lenders entitled to
receive such payment as provided herein in the currency in which such amount is
denominated and in such funds as are customary at the place and time of payment
for the settlement of international payments in such currency. Without limiting
the terms of the preceding sentence, accrued interest on any Loans denominated
in a Foreign Currency shall be payable in the same Foreign Currency as such
Loan. Upon request, the Administrative Agent will give the Borrower a statement
showing the computation used in calculating such amount, which statement shall
be conclusive in the absence of manifest error. The obligation of the Borrower
to make each payment on account of such amount in the currency in which such
amount is denominated shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment, which is expressed in or converted into any
other currency, except to the extent such tender or recovery shall result in the
actual receipt by the Administrative Agent of the full amount in the appropriate
currency payable hereunder. The Borrower agrees that its obligation to make each
payment on account of such amount in the currency in which such amount is
denominated shall be enforceable as an additional or alternative claim for
recovery in such currency of the amount (if any) by which such actual receipt
shall fall short of the full amount of such currency payable hereunder, and
shall not be affected by judgment being obtained for such amount.
(b) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Administrative Agent in immediately available
funds, without offset, deduction, counterclaim or withholding of any kind, not
later than 2:00 P.M. (local time in the place where such payment is required to
be made pursuant to this subsection (b)), on the date when due, to the account
specified on Schedule 3.17(b) or at such other place as may be designated by the
Administrative Agent to the Borrower in writing. Payments received after such
time shall be deemed to have been received on the next succeeding Business Day.
The Borrower shall, at the time it makes any payment under this Credit
Agreement, specify to the Administrative Agent the Loans, Fees, interest or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Administrative Agent shall
distribute such payment to the Lenders subject to the terms of Section 3.15(a)).
The Administrative Agent will distribute such payments to such Lenders, if any
such payment is received prior to 12:00 Noon (Charlotte, North Carolina time) on
a Business Day in like funds as received prior to the end of such Business Day
and otherwise the Administrative Agent will distribute such payment to such
Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and Fees for the period of such extension), except that in
the case of LIBOR Loans, if the extension would cause the payment to be made in
the next following calendar month, then such payment shall instead be made on
the next preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 360 days, except with respect to
computation of interest on Base Rate Loans which (unless the Base Rate is
determined by reference to the Federal Funds Rate) shall be calculated based on
a year of 365 or 366 days, as appropriate. Interest shall accrue from and
include the date of borrowing, but exclude the date of payment.
(c) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account of the Loans or
any other amounts outstanding under any of the Credit Documents shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents with respect to the Loans owing to such Lender;
FOURTH, to the payment of all accrued interest and fees on or
in respect of the Loans;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
held by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH" and "FIFTH" above.
3.18 Obligation of Lenders to Mitigate.
Each Lender agrees that, as promptly as practicable after such Lender
becomes aware of the occurrence of an event or the existence of a condition that
would cause such Lender to become an Affected Lender or that would entitle such
Lender to receive payments under Sections 3.7 or 3.13, it will, to the extent
not inconsistent with any applicable legal or regulatory restrictions, use
reasonable efforts (i) to make, issue, fund or maintain the Commitments of such
Lender or the affected Loans of such Lender through another lending office of
such Lender, or (ii) take such other measures as such Lender may deem
reasonable, if as a result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise be required to be paid to such Lender pursuant to Sections
3.7 or 3.13 would be reduced and if, as determined by such Lender in its sole
discretion, the making, issuing, funding or maintaining of such Commitments or
Loans through such other lending office or in accordance with such other
measures, as the case may be, would not otherwise materially adversely affect
such Commitments or Loans or would not be otherwise disadvantageous to the
interests of such Lender.
3.19 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts and currencies of principal and interest payable and paid to such Lender
from time to time under this Credit Agreement. Each Lender will make diligent
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 10.3(c) hereof, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, currency, type
and Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from or for the account of the Borrower and each Lender's share
thereof. The Administrative Agent will make diligent efforts to maintain the
accuracy of the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.19 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such Lender in
accordance with the terms hereof.
SECTION 4
CONDITIONS
4.1 Conditions to Closing.
This Credit Agreement shall become effective, and the initial Loans may
be made, upon the satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt of (i)
multiple counterparts of this Credit Agreement, (ii) a Revolving Note for each
Lender, in each case executed by a duly authorized officer of each party thereto
and in each case conforming to the requirements of this Credit Agreement, and
(iii) an executed copy of the 364-Day Credit Agreement.
(b) Legal Opinions. Receipt of multiple counterparts of opinions of
counsel of the Borrower relating to the Credit Documents and the transactions
contemplated herein, in substantially the form of Schedule 4.1(b).
(c) Financial Information. Receipt by the Administrative Agent of the
consolidated financial statements of the Borrower and its subsidiaries for the
fiscal years 1996 and 1997, including balance sheets, income and cash flow
statements audited by independent public accountants of recognized national
standing and prepared in conformity with GAAP. The Administrative Agent and
Lenders shall also have received the unaudited consolidated condensed balance
sheets and income and cash flow statements of the Borrower for the 3-month
period ending September 30, 1997.
(d) Absence of Legal Proceedings. The absence of any action, suit,
investigation or proceeding pending in any court or before any arbitrator or
governmental instrumentality which is reasonably likely to have a Material
Adverse Effect on the Consolidated Group taken as a whole.
(e) Corporate Documents. Receipt of the following (or their equivalent)
for the Borrower:
(i) Articles of Incorporation. Copies of the articles of
incorporation or charter documents certified to be true and complete as
of a recent date by the appropriate governmental authority of the state
of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board of
Directors approving and adopting the respective Credit Documents, the
transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary as of
the Closing Date to be true and correct and in force and effect as of
such date.
(iii) Bylaws. Copies of the bylaws certified by a secretary or
assistant secretary as of the Closing Date to be true and correct and
in force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of certificates
of good standing, existence or its equivalent certified as of a recent
date by the appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so qualify
and be in good standing would be reasonably likely to have a Material
Adverse Effect.
(v) Secretary's Certificate. A Secretary's certificate for the
Borrower dated as of the Closing Date substantially in the form of
Schedule 4.1(i)(v) with appropriate insertions and attachments.
(f) Fees. Receipt of all fees, if any, then owing pursuant to the
Administrative Agent's Fee Letter, Section 3.5 or pursuant to any Credit
Documents.
(g) Subsection 4.2 Conditions. The conditions specified in Section 4.2
shall be satisfied.
(h) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Agents and the Required
Lenders.
4.2 Conditions to All Loans.
The obligation of each Lender to make any Loan advance hereunder
(including the initial Loan advance to be made hereunder) is subject to the
satisfaction of the following conditions precedent on the date of making such
Loan advance:
(a) Representations and Warranties. The representations and warranties
made by the Borrower herein or in any other Credit Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Loan advance as if made on and as of such date (except for those
which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to the
Loan advance to be made on such date unless such Default or Event of Default
shall have been waived in accordance with this Credit Agreement.
(c) No Material Adverse Effect. No circumstances, events or conditions
shall have occurred since the date of the audited financial statements
referenced in Section 6.1 which would have a Material Adverse Effect.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan is
made pursuant to Section 2.1, all conditions set forth therein shall have been
satisfied.
(e) Additional Conditions to Competitive Loans. If a Competitive Loan
is made pursuant to Section 2.2, all conditions set forth therein shall have
been satisfied.
Each request for a Loan advance (including extensions and conversions)
and each acceptance by the Borrower of a Loan advance (including extensions and
conversions) shall be deemed to constitute a representation and warranty by the
Borrower as of the date of such Loan advance that the applicable conditions in
paragraphs (a), (b) and (c), and in (d) or (e) of this subsection have been
satisfied.
SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
Loans herein provided for, the Borrower hereby represents and warrants to the
Administrative Agent and to each Lender that:
5.1 Financial Condition.
Each of the financial statements described below (copies of which have
heretofore been provided to the Administrative Agent for distribution to the
Lenders), have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all material
respects and present fairly the financial condition and results from operations
of the entities and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments:
(i) audited consolidated balance sheet of the Borrower and its
consolidated subsidiaries dated as June 30, 1997, together with related
statements of income and cash flows certified by Ernst & Young LLP,
certified public accountants; and
(ii) a company-prepared consolidated condensed balance sheet
of the Borrower and its consolidated subsidiaries dated as of September
30, 1997, together with related consolidated condensed statements of
income and cash flows.
5.2 No Changes or Restricted Payments.
Since June 30, 1997, there has not occurred a change in the business,
assets, operations, condition (financial or otherwise) or prospects of the
Consolidated Group taken as a whole which is reasonably likely to have a
Material Adverse Effect.
5.3 Organization; Existence; Compliance with Law.
The Borrower and each Significant Subsidiary (a) is duly incorporated,
existing in good standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate or other necessary power and authority, and
the legal right to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign entity and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not, in the aggregate, have a Material Adverse Effect, and (d) is in compliance
with all Requirements of Law, except to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations.
The Borrower has the corporate or other necessary power and authority,
and the legal right, to make, deliver and perform the Credit Documents to which
it is a party and has taken all necessary corporate or other action to authorize
the execution, delivery and performance by it of the Credit Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with acceptance of extensions of credit by the Borrower
or the making of the guaranties hereunder or with the execution, delivery or
performance of any Credit Documents by the Borrower (other than those which have
been obtained, such filings as are required by the Securities and Exchange
Commission (or the laws, rules and regulations administered by it), and to
fulfill other reporting requirements with Governmental Authorities) or with the
validity or enforceability of any Credit Document against the Borrower. Each
Credit Document to which it is a party constitutes a valid and legally binding
obligation of the Borrower enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
5.5 No Legal Bar.
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the proceeds of the Loans will not violate
any Requirement of Law applicable to the Borrower or any Significant Subsidiary
(except those as to which waivers or consents have been obtained), and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law.
5.6 No Material Litigation.
Except as set forth on Schedule 5.6, no claim, litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the best knowledge of the Borrower, threatened by or
against the Borrower or any Significant Subsidiary or against any of their
respective properties which (a) relates to the Credit Documents or any of the
transactions contemplated hereby or thereby or (b) is reasonably likely to have
a Material Adverse Effect.
5.7 No Default.
No Default or Event of Default has occurred and is continuing.
5.8 Taxes.
Except for such tax-related litigation disclosed on Schedule 5.6, the
Borrower and each Significant Subsidiary has filed or caused to be filed all
United States federal income tax returns and all other material tax returns
which, to the best knowledge of the Borrower, are required to be filed and has
paid (a) all taxes shown to be due and payable on said returns or (b) all taxes
shown to be due and payable on any assessments of which it has received notice
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any (i) taxes, fees or other charges with respect to which the
failure to pay, in the aggregate, would not have a Material Adverse Effect or
(ii) taxes, fees or other charges the amount or validity of which are currently
being contested and with respect to which reserves in conformity with GAAP have
been provided on the books of such Person), and no tax Lien has been filed, and,
to the best knowledge of the Borrower, no claim is being asserted, with respect
to any such tax, fee or other charge.
5.9 ERISA
Except as is not reasonably likely to have a Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Borrower, no event or condition has occurred or exists
as a result of which any ERISA Event could reasonably be expected to occur, with
respect to any Plan; (ii) no "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) No member of the Consolidated Group nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Borrower, could be reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. No member of the Consolidated Group nor any
ERISA Affiliate would become subject to any withdrawal liability under ERISA if
any member of the Consolidated Group or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No member of the Consolidated Group nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best knowledge of the
Borrower, reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any member of
the Consolidated Group or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
(e) No member of the Consolidated Group nor any ERISA Affiliates has
any material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects of such sections.
5.10 Governmental Regulations, Etc.
(a) No part of the proceeds of the Loans hereunder will be used,
directly or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation G or Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by any Lender
or the Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U. No indebtedness
being reduced or retired out of the proceeds of the Loans hereunder was or will
be incurred for the purpose of purchasing or carrying any margin stock within
the meaning of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meanings of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the Borrower
and its Subsidiaries. Neither the execution and delivery hereof by the Borrower,
nor the performance by it of any of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation G, T, U or X.
(b) The Borrower is not (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
5.11 Subsidiaries.
Set forth on Schedule 5.11 is a list of all the Subsidiaries of the
Borrower at the Closing Date that are required to be disclosed in the Borrower's
filings with the Securities and Exchange Commission pursuant to Regulation S-K,
the jurisdiction of their incorporation and the direct or indirect ownership
interest of the Borrower therein.
5.12 Purpose of Loans.
The Loans will be used for commercial paper backup and other general
corporate purposes.
SECTION 6
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on the Closing Date, and so long
as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or in
connection herewith have been paid in full, the Borrower shall:
6.1 Financial Statements.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Audited Financial Statements. As soon as available, but in any
event within 100 days after the end of each fiscal year, an audited consolidated
balance sheet of the Borrower and its subsidiaries as of the end of the fiscal
year and the related consolidated statements of income, retained earnings,
shareholders' equity and cash flows for the year, audited by an independent
certified public accounting firm of nationally recognized standing, setting
forth in each case in comparative form the figures for the previous year,
reported without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to permit
such independent certified public accountants to certify such financial
statements without such qualification.
(b) Company-Prepared Financial Statements. As soon as available, but in
any event within 50 days after the end of each of the first three fiscal
quarters, a company-prepared consolidated balance sheet of the Borrower and its
subsidiaries as of the end of the quarter and related company-prepared
consolidated statements of income, retained earnings, shareholders' equity and
cash flows for such quarterly period and for the fiscal year to date; in each
case setting forth in comparative form the consolidated figures for the
corresponding period or periods of the preceding fiscal year or the portion of
the fiscal year ending with such period, as applicable, in each case subject to
normal recurring year-end audit adjustments.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and shall be prepared in reasonable detail and, in
the case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change in the application of accounting principles as provided in
Section 1.3.
6.2 Certificates; Other Information.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the
delivery of the financial statements referred to in subsection 6.1(a) above, a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of the
financial statements referred to in Sections 6.1(a) and 6.1(b) above, a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge and belief, (i) the financial statements fairly
present in all material respects the financial condition of the parties covered
by such financial statements, (ii) during such period the Borrower has observed
or performed in all material respects its covenants and other agreements
hereunder and under the other Credit Documents, and satisfied in all material
respects the conditions, contained in this Credit Agreement to be observed,
performed or satisfied by it (except to the extent waived in accordance with the
provisions hereof) and (iii) such Responsible Officer has obtained no knowledge
of any Default or Event of Default except as specified in such certificate. Such
certificate shall include the calculations required to indicate compliance with
Section 6.7. A form of Officer's Certificate is attached as Schedule 6.2(b).
(c) Public Information. Within thirty days after the same are sent,
copies of all reports (other than those otherwise provided pursuant to
subsection 6.1) and other financial information which the Borrower sends to its
public stockholders, and within thirty days after the same are filed, copies of
all financial statements and non-confidential reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any successor
or analogous United States Governmental Authority.
(d) Other Information. Promptly, such additional financial and other
information as the Administrative Agent, at the request of any Lender, may from
time to time reasonably request.
6.3 Notices.
Give notice to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) Defaults. Promptly (but in any event within three (3) Business
Days) after the Borrower knows thereof, the occurrence of any Default or Event
of Default.
(b) Legal Proceedings. Promptly following the Borrower's receipt of
written notification relating thereto, any litigation, or any investigation or
proceeding (including without limitation, any environmental proceeding) known to
the Borrower relating to the Borrower or any Significant Subsidiary, or any
material development in respect thereof, affecting the Borrower or any
Significant Subsidiary which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect.
(c) ERISA. Promptly, after any Responsible Officer of the Borrower
knows or has reason to know of (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably lead to,
an ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability assessed
against any of their ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which the members of the
Consolidated Group or any ERISA Affiliate are required to contribute to each
Plan pursuant to its terms and as required to meet the minimum funding standard
set forth in ERISA and the Code with respect; or (iv) any change in the funding
status of any Plan that reasonably could be expected to have a Material Adverse
Effect; together with a description of any such event or condition or a copy of
any such notice and a statement by the chief financial officer of the Borrower
briefly setting forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is proposed to be
taken by the Borrower with respect thereto. Promptly upon request, the Borrower
and Significant Subsidiaries shall furnish the Administrative Agent and the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of the most recent
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively.
(d) Other. Promptly, any other development or event which a Responsible
Officer of the Borrower determines is reasonably likely to have a Material
Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
6.4 Maintenance of Existence and Compliance with Law.
Preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights, privileges,
licenses and franchises necessary or desirable in the normal conduct of its
business; and comply with all Requirements of Law applicable to it except to the
extent that failure to comply therewith would not, in the aggregate, have a
Material Adverse Effect.
6.5 Maintenance of Property; Insurance.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability and such other insurance (which may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice; and furnish to the Administrative Agent, upon written request, full
information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent, the Administrative Agent to visit and inspect any
of its properties and examine and make abstracts (including photocopies) from
any of its books and records (other than materials protected by the
attorney-client, work product or other privilege and materials which the
Borrower may not disclose without violation of a confidentiality obligation
binding upon the Borrower or any Significant Subsidiary) at any reasonable time,
and to discuss the business, operations, properties and financial and other
condition of the members of the Consolidated Group with officers and employees
of the members of the Consolidated Group and with their independent certified
public accountants. The cost of the inspection referred to in the preceding
sentence shall be for the account of the Lenders unless an Event of Default has
occurred and is continuing, in which case the cost of such inspection shall be
for the account of the Borrower.
6.7 Financial Covenants.
(a) Consolidated Tangible Net Worth. Consolidated Tangible Net Worth
shall not at any time be less than the sum of (i) $225 million plus (ii) on the
last day of each fiscal year beginning June 30, 1998, an amount equal to twenty
percent (20%) of Consolidated Net Income for the fiscal year then ended (but not
less than zero), such increases to be cumulative.
(b) Consolidated Working Capital. As of the end of each fiscal quarter,
Consolidated Working Capital shall not be less than $150 million.
(c) Consolidated Leverage Ratio. As of the end of each fiscal quarter,
the Consolidated Leverage Ratio shall not be greater than sixty percent (60%).
6.8 Use of Proceeds.
The Loans will be used solely for the purposes provided in Section
5.12.
SECTION 7
NEGATIVE COVENANTS
The Borrower covenants and agrees that on the Closing Date, and so long
as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or in
connection herewith have been paid in full, the Borrower shall not and shall not
permit any Significant Subsidiary to:
7.1 Indebtedness.
Create, incur, assume or suffer to exist or permit any Subsidiary to
create, incur, assume or suffer to exist any liabilities on short-term notes
payable if after giving effect thereto the aggregate consolidated current
liabilities for notes payable and overdrafts and commercial paper of the
Consolidated Group taken as a whole will exceed One Billion Dollars
($1,000,000,000) as of the end of any fiscal quarter.
7.2 Liens.
Contract, create, incur, assume or permit to exist any Lien with
respect to any of its respective property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
7.3 Consolidation, Merger, Sale or Purchase of Assets, Capital
Expenditures, etc.
Enter into a transaction of merger or consolidation with any Person,
firm, joint venture, or corporation, or sell, lease, or otherwise dispose of all
or substantially all of its assets, except (i) in the ordinary course of its
business or (ii) a Significant Subsidiary may be merged or consolidated with, or
may sell, lease or dispose of all or substantially all of its assets to, (a) a
wholly-owned Significant Subsidiary of the Borrower, (b) any other corporation
which is or will upon the consummation of such merger or consolidation be a
Significant Subsidiary of which not less than eighty percent (80%) of the
capital stock is owned directly or indirectly by the Borrower, or (c) any other
corporation may be merged or consolidated into the Borrower, provided in the
case of any such merger or consolidation with the Borrower, the Borrower is the
surviving corporation and the management of the Borrower continues as the
management of the surviving corporation; provided, further, that in any event
such merger or consolidation does not violate any other provision of this
Agreement and upon the effective date of the merger or consolidation there
exists no Default or Event of Default hereunder. Notwithstanding the foregoing,
a Significant Subsidiary may be merged into or with any other Person, or all or
substantially all of a Significant Subsidiary's assets may be transferred to any
other Person, if such merger, consolidation or transfer does not violate any
other provision of this Agreement and immediately before and immediately after
such merger, consolidation or transfer is consummated (i) there shall exist no
Default or Event of Default, (ii) no Material Adverse Effect shall have
occurred, and (iii) the representations and warranties contained in Section 5 of
this Agreement shall, except to the extent that they relate solely to an earlier
date, be true with the same effect as though such representations and warranties
had been made at such time.
7.4 Sale Leasebacks.
Enter into sale and lease-back transactions relating to the same or
similar Property for a term of more than three (3) years, unless any liability
incurred as a result of such transaction is permitted by Section 7.1 hereof and
the sum of the aggregate amount of such transactions, measured using in each
case the greater of (a) the fair market value of the assets sold or (b) the
selling price, sold after September 30, 1997, and the aggregate principal amount
then outstanding secured by liens described in Section 7.2 does not exceed
Twenty-Five Million Dollars ($25,000,000).
7.5 Sale of Significant Subsidiaries.
Notwithstanding anything to the contrary in Section 7.4, the Borrower
shall have the right to sell or otherwise dispose of any Subsidiary or
Significant Subsidiary (or all or substantially all of the assets thereof),
provided that such sale or other disposition does not violate any other
provision of this Credit Agreement and immediately before and immediately after
such sale or other disposition (i) there shall exist no Default or Event of
Default, (ii) no Material Adverse Effect shall result therefrom, and (iii) the
representations and warranties contained in Section 5 of this Agreement shall,
except to the extent that they relate solely to an earlier date, be true with
the same effect as though such representations and warranties had been made at
such time.
SECTION 8
EVENTS OF DEFAULT
8.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment.
(i) Default in the payment when due of any principal of any of
the Loans; or
(ii) Default, and such defaults shall continue for five (5) or
more Business Days, in the payment when due of any interest on the Loans
or of any Fees or other amounts owing hereunder, under any of the other
Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made in
any of the Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made; or
(c) Covenants.
(i) Default in the due performance or observance of any term,
covenant or agreement contained in Section 6.3(a), 6.7, 6.8 or 7.1
through 7.5, inclusive; or
(ii) Default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 8.1) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a responsible officer
of the Borrower becoming aware of such default or notice thereof by the
Administrative Agent; or
(iii) The occurrence of an Event of Default under the 364-Day
Credit Agreement; or
(d) Other Credit Documents. Any material provision of a Credit Document
shall fail to be in full force and effect; or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
the Borrower or a Significant Subsidiary; or
(f) Defaults under Other Agreements. (i) Any default made in the
payment (beyond the applicable grace period with respect thereto, if any) in
respect of any Indebtedness of the Borrower or any Significant Subsidiary in an
aggregate principal amount of Fifteen Million Dollars ($15,000,000), or more,
provided that Indebtedness of a Significant Subsidiary organized under the laws
of a jurisdiction other than the United States of America or a political
subdivision thereof shall not be included in the calculation of such Fifteen
Million Dollars ($15,000,000) so long as the obligation to make such payment is
being actively contested in good faith and such Significant Subsidiary is
holding in escrow an amount of cash equal to or greater than the disputed
payment, and provided further that Indebtedness of the Borrower or any
Significant Subsidiary owed to a Subsidiary organized under the laws of a
jurisdiction other than the United States of America or a political subdivision
thereof shall not be included in the calculation of such Fifteen Million Dollars
($15,000,000) if:
(a) the Borrower or such Significant Subsidiary is
unable to realize the benefits of ownership of such foreign Subsidiary
because of war, civil commotion, insurrection, revolution, riot,
confiscation, or force majure actions caused by a government or actions
against a government,
(b) the Borrower or such Significant Subsidiary has a
colorable claim in the nature of common law, equitable or statutory
set-off against the person to whom such Indebtedness is owing, and
(c) the aggregate amount of all such obligations does
not exceed Twenty-Five Million Dollars ($25,000,000); or
(ii) The maturity of any Indebtedness of the Borrower or any
Significant Subsidiary in an aggregate principal amount of Fifteen Million
Dollars ($15,000,000) or more shall be accelerated, provided that Indebtedness
of a Significant Subsidiary organized under the laws of a jurisdiction other
than the United States of America or a political subdivision thereof shall not
be included in the calculation of such Fifteen Million Dollars ($15,000,000) so
long as the obligation to make such payment is being actively contested in good
faith and such Significant Subsidiary is holding in escrow an amount of cash
equal to or greater than the disputed payment, and provided further that
indebtedness of the Borrower or any Significant Subsidiary owed to a Subsidiary
organized under the laws of a jurisdiction other than the United States of
America or a political subdivision thereof shall not be included in the
calculation of such Fifteen Million Dollars ($15,000,000) if:
(a) the Borrower or such Significant Subsidiary is
unable to realize the benefits of ownership of such foreign Subsidiary
because of war, civil commotion, insurrection, revolution, riot,
confiscation, or force majure actions caused by a government or actions
against a government,
(b) the Borrower or such Significant Subsidiary has a
colorable claim in the nature of common law, equitable or statutory
set-off against the person to whom such Indebtedness is owing, and
(c) the aggregate amount of all such obligations does
not exceed Twenty-Five Million Dollars ($25,000,000); or
(g) Judgments. The Borrower or any Significant Subsidiary shall fail
within 30 days of the date due and payable to pay, bond or otherwise discharge
any judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $15,000,000 (in excess insurance
or other indemnity reasonably acceptable to the Required Lenders), and which is
not stayed on appeal (or for which no motion for stay is pending) or is not
otherwise being executed; provided that judgments resulting from the failure of
the Borrower or any Significant Subsidiary to honor its obligations in respect
of a guaranty of obligations of a subsidiary organized under the laws of a
jurisdiction other than the United States of America or a political subdivision
thereof shall not be included in the calculation of such Fifteen Million Dollars
($15,000,000) if
(i) the Borrower or such Significant Subsidiary is unable to
realize the benefits of ownership of such foreign subsidiary because of
war, civil commotion, insurrection, revolution, riot, confiscation, or
force majeure actions caused by a government or actions against a
government,
(ii) the Borrower or such Significant Subsidiary has a
colorable claim in the nature of common law, equitable or statutory
set-off against the person in favor of which such judgment was entered,
and
(iii) the aggregate amount of all such obligations does not
exceed Twenty-Five Million Dollars ($25,000,000); or
(h) ERISA. Any of the following events or conditions, if such event or
condition could reasonably be expected to have a Material Adverse Effect: (1)
any "accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of a member of the
Consolidated Group or any ERISA Affiliate in favor of the PBGC or a Plan; (2) an
ERISA Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Administrative Agent, likely to
result in (i) the termination of such Plan for purposes of Title IV of ERISA, or
(ii) a member of the Consolidated Group or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency of (within the meaning of
Section 4245 of ERISA) such Plan; or (4) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject a member of the
Consolidated Group or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which a member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
8.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of Default,
the Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrower take any of the following actions:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the Borrower
to the Administrative Agent and/or any of the Lenders hereunder to be
due, whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, whether at
law or in equity.
Notwithstanding the foregoing, if an Event of Default specified in Section
8.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Administrative Agent and/or any
of the Lenders hereunder automatically shall immediately become due and payable
without presentment, demand, protest or the giving of any notice or other action
by the Administrative Agent or the Lenders, all of which are hereby waived by
the Borrower.
SECTION 9
AGENCY PROVISIONS
9.1 Appointment.
Each Lender hereby designates and appoints NationsBank, N.A. as
administrative agent (in such capacity, the "Administrative Agent") of such
Lender to act as specified herein and the other Credit Documents, and each such
Lender hereby authorizes the Administrative Agent as the Administrative Agent
for such Lender, to take such action on its behalf under the provisions of this
Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Each Lender further directs and authorizes the
Administrative Agent to execute releases (or similar agreements) to give effect
to the provisions of this Credit Agreement and the other Credit Documents.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Administrative Agent. The provisions of this Section are solely for
the benefit of the Administrative Agent and the Lenders and the Borrower shall
have any rights as a third party beneficiary of the provisions hereof. In
performing its functions and duties under this Credit Agreement and the other
Credit Documents, the Administrative Agent shall act solely as Administrative
Agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation or relationship of agency or trust with or for the Borrower or
any of its affiliates. The title of Documentation Agent is bestowed in
recognition of the Documentation Agent's participation in this credit, and such
title shall not impose or imply any duties or responsibilities hereunder of a
fiduciary nature or otherwise, in its capacity as such.
9.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through Administrative Agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
9.3 Exculpatory Provisions.
The Administrative Agent and its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall not be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person in good faith under
or in connection herewith or in connection with any of the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower
contained herein or in any of the other Credit Documents or in any certificate,
report, document, financial statement or other written or oral statement
referred to or provided for in, or received by the Administrative Agent under or
in connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit Documents, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Borrower in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by the
Administrative Agent to the Lenders or by or on behalf of the Borrower to the
Administrative Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the
Borrower or any of its affiliates.
9.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Borrower, independent accountants and other
experts selected by the Administrative Agent with reasonable care). The
Administrative Agent may deem and treat the Lenders as the owners of their
respective interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent in accordance with Section 10.3(b) hereof. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance with
a request of the Required Lenders (or to the extent specifically provided in
Section 10.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
9.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to the Credit Document, describing such Default or Event of Default and stating
that such notice is a "notice of default." In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that each of the Administrative
Agent and its officers, directors, employees, Administrative Agents,
attorneys-in-fact or affiliates has not made any representations or warranties
to it and that no act by the Administrative Agent or any affiliate thereof
hereinafter taken, including any review of the affairs of the Borrower or any of
its affiliates, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower or its
affiliates and made its own decision to make its Loans hereunder and enter into
this Credit Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its affiliates. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower or any of its
affiliates which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, Administrative Agents, attorneys-in-fact
or affiliates.
9.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity
as such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitments (or if the Commitments have expired or been terminated, in
accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the final payment of all of
the obligations of the Borrower hereunder and under the other Credit Documents)
be imposed on, incurred by or asserted against the Administrative Agent in its
capacity as such in any way relating to or arising out of this Credit Agreement
or the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Administrative Agent. If any
indemnity furnished to the Administrative Agent for any purpose shall, in the
opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section shall survive the repayment of the
Loans and other obligations under the Credit Documents and the termination of
the Commitments hereunder.
9.8 Administrative Agent in its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower,
its Subsidiaries or their affiliates as though the Administrative Agent were not
the Administrative Agent hereunder. With respect to the Loans made by and all
obligations of the Borrower hereunder and under the other Credit Documents, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent.
The Administrative Agent may, at any time, resign upon 20 Business
Days' written notice to the Lenders and the Borrower, and may be removed, upon
show of cause, by the Required Lenders upon 30 days' written notice to the
Administrative Agent. Upon any such resignation or removal, the Required Lenders
and the Borrower shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the notice of resignation or notice of removal, as appropriate, then the
retiring Administrative Agent shall select a successor Administrative Agent
provided such successor is a Lender hereunder or a commercial bank organized
under the laws of the United States of America or of any State thereof and has a
combined capital and surplus of at least $400,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations as Administrative Agent, as appropriate, under this Credit Agreement
and the other Credit Documents and the provisions of this Section 9.9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Credit Agreement.
SECTION 10
MISCELLANEOUS
10.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower and the Administrative Agent, set forth
below, and, in the case of the Lenders, set forth on Schedule 2.1(a), or at such
other address as such party may specify by written notice to the other parties
hereto:
if to the Borrower:
Universal Corporation
1501 N. Hamilton
Richmond, Virginia 23230
Attn: Karen M.L. Whelan
Telephone: (804) 254-8689
Telecopy: (804) 254-3594
with a copy to:
Universal Corporation
1501 N. Hamilton
Richmond, Virginia 23230
Attn: James M. White, III
Telephone: (804) 254-3753
Telecopy: (804) 254-3594
if to the Administrative Agent:
NationsBank, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Telephone: (704) ________
Telecopy: (704) 386-9923
with a copy to:
NationsBank, N.A.
12th and Main
4th Floor Pavilion
Richmond, Virginia 23219
Attn: Hugh S. Miles
Telephone: (804) 788-2244
Telecopy: (804) 788-3669
10.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or affiliates of such Lender wherever located) to
or for the credit or the account of the Borrower against obligations and
liabilities of the Borrower to such Lender hereunder, under the Notes or the
other Credit Documents, irrespective of whether such Lender shall have made any
demand hereunder and although such obligations, liabilities or claims, or any of
them, may be contingent or unmatured, and any such set-off shall be deemed to
have been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender subsequent
thereto. Any Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Section 3.16 or Section 10.3(d) may exercise all rights of
set-off with respect to its participation interest as fully as if such Person
were a Lender hereunder.
10.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that the Borrower may neither assign nor transfer
any of its interests without prior written consent of the Lenders; provided
further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited as
set forth in this Section 10.3, provided however that nothing herein shall
prevent or prohibit any Lender from (i) pledging its Loans hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) granting assignments or selling participations in
such Lender's Loans and/or Commitments hereunder to its parent company and/or to
any affiliate or Subsidiary of such Lender.
(b) Assignments. Each Lender may assign all or a portion of its rights
and obligations hereunder, pursuant to an assignment agreement substantially in
the form of Schedule 10.3(b), to (i) any Lender or any affiliate or Subsidiary
of a Lender, or (ii) any other commercial bank, financial institution or
"accredited investor" (as defined in Regulation D of the Securities and Exchange
Commission) reasonably acceptable to the Administrative Agent and, so long as no
Default or Event of Default has occurred and is continuing, with the approval of
the Borrower (which approval in the case of a commercial bank or financial
institution shall not be unreasonably withheld or delayed); provided that (i)
any such assignment (other than any assignment to an existing Lender) shall be
in a minimum aggregate amount of $5,000,000 (or, if less, the remaining amount
of the Commitment being assigned by such Lender) of the Commitments and in
integral multiples of $1,000,000 above such amount and (ii) each such assignment
(other than Competitive Loans) shall be of a constant, not varying, percentage
of all such Lender's rights and obligations under this Credit Agreement. Any
assignment hereunder shall be effective upon delivery to the Administrative
Agent of written notice of the assignment together with a transfer fee of $3,500
payable to the Administrative Agent for its own account from and after the later
of (i) the effective date specified in the applicable assignment agreement and
(ii) the date of recording of such assignment in the Register pursuant to the
terms of subsection (c) below. The assigning Lender will give prompt notice to
the Administrative Agent and the Borrower of any such assignment. Upon the
effectiveness of any such assignment (and after notice to, and (to the extent
required pursuant to the terms hereof), with the consent of, the Borrower as
provided herein), the assignee shall become a "Lender" for all purposes of this
Credit Agreement and the other Credit Documents and, to the extent of such
assignment, the assigning Lender shall be relieved of its obligations hereunder
to the extent of the Loans and Commitment components being assigned. Along such
lines the Borrower agrees that upon notice of any such assignment and surrender
of the appropriate Note or Notes, it will promptly provide to the assigning
Lender and to the assignee separate promissory notes in the amount of their
respective interests substantially in the form of the original Note (but with
notation thereon that it is given in substitution for and replacement of the
original Note or any replacement notes thereof). By executing and delivering an
assignment agreement in accordance with this Section 10.3(b), the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim; (ii) except
as set forth in clause (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement, any
of the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of the Borrower or any of
its affiliates or the performance or observance by the Borrower of any of its
obligations under this Credit Agreement, any of the other Credit Documents or
any other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (iv) such assignee confirms that it has received
a copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such assignment agreement; (v) such assignee
will independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Credit Agreement and
the other Credit Documents; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise such
powers under this Credit Agreement or any other Credit Document as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender (including without limitation the requirements of
Section 3.13).
(c) Maintenance of Register. The Administrative Agent shall maintain at
one of its offices in Charlotte, North Carolina a copy of each Lender assignment
agreement delivered to it in accordance with the terms of subsection (b) above
and a register for the recordation of the identity of the principal amount, type
and Interest Period of each Loan outstanding hereunder, the names, addresses and
the Commitments of the Lenders pursuant to the terms hereof from time to time
(the "Register"). The Administrative Agent will make diligent efforts to
maintain the accuracy of the Register and to promptly update the Register from
time to time, as necessary. The entries in the Register shall be conclusive in
the absence of manifest error and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
each Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Each Lender may sell, transfer, grant or assign
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
purposes under this Credit Agreement (such selling Lender's obligations under
the Credit Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to this Credit
Agreement or the other Credit Documents except to the extent any such amendment
or waiver would (A) reduce the principal of or rate of interest on or Fees in
respect of any Loans in which the participant is participating or (B) postpone
the date fixed for any payment of principal (including extension of the
Termination Date or the date of any mandatory prepayment), interest or Fees in
which the participant is participating, and (iii) sub-participations by the
participant (except to an affiliate, parent company or affiliate of a parent
company of the participant) shall be prohibited. In the case of any such
participation, the participant shall not have any rights under this Credit
Agreement or the other Credit Documents (the participant's rights against the
selling Lender in respect of such participation to be those set forth in the
participation agreement with such Lender creating such participation) and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation, provided, however, that such participant shall
be entitled to receive additional amounts under Sections 3.6, 3.7, 3.9, 3.10,
3.13 and 3.14 on the same basis as if it were a Lender (but in no event shall
such additional amounts exceed the amount which would have been payable to the
relevant Lender in the absence of such participation, and subject to limitations
on such participant comparable to those contained in Section 3.12 with respect
to Requesting Lenders).
10.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Administrative Agent or any
Lender and the Borrower shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
10.5 Payment of Expenses, etc.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and expenses of
Moore & Van Allen, PLLC, special counsel to the Administrative Agent) and any
amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Borrower under this Credit Agreement, provided, however, the Borrower's
obligations under this subsection (A) shall be limited to those of one law firm,
and (B) of the Administrative Agent and the Lenders in connection with
enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the
Administrative Agent and each of the Lenders); (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such
Lender) to pay such taxes; and (iii) reimburse each Lender, its officers,
directors, employees, representatives and Administrative Agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of any investigation, litigation or other
proceeding (whether or not any Lender is a party thereto) related to the
entering into and/or performance of any Credit Document or the use of proceeds
of any Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
10.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
(a) the consent of each Lender affected thereby is required to
(i) Subject to Section 2.1, extend the final maturity of any
or extend or waive any principal amortization payment of any Loan, or
any portion thereof, or waive application of any mandatory prepayment,
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any increase in
interest rates after the occurrence of an Event of Default or on
account of a failure to deliver financial statements on a timely basis)
thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any Loan,
(iv) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or mandatory reduction in the Commitments
shall not constitute a change in the terms of any Commitment of any
Lender),
(v) except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under
Section 7.4, release the Borrower from its or their obligations under
the Credit Documents,
(vi) amend, modify or waive any provision of this Section 10.6
or Sections 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.13, 3.14, 3.15, 3.16,
8.1(a), 10.2, 10.3, 10.5 or 10.9,
(vii) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders, or
(viii) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under (or in respect of) the
Credit Documents except as permitted thereby;
(b) without the consent of the Agent, no provision of Section 9 may be
amended;
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow
the Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
10.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
10.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
10.9 Survival.
All indemnities set forth herein, including, without limitation, in
Sections 3.10, 3.13, 3.14, 9.7 or 10.5 shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the repayment of the Loans
and other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the
Borrower herein shall survive delivery of the Notes and the making of the Loans
hereunder.
10.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the state or federal courts in the City
of Richmond, Commonwealth of Virginia and, by execution and delivery of this
Credit Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. The Borrower further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
10.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent to serve
process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) hereof
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT,
THE LENDERS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
10.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.12 Entirety.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
10.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or
after the Closing Date when it shall have been executed by the Borrower and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each Lender
and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans or any
other amounts payable hereunder or under any of the other Credit Documents shall
remain outstanding and until all of the Commitments hereunder shall have expired
or been terminated.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: UNIVERSAL CORPORATION,
a Virginia corporation
By: /s/Karen M. L. Whelan
Name: Karen M. L. Whelan
Title: Vice President & Treasurer
LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/Hugh S. Miles, III
Name: Hugh S. Miles, III
Title: Executive Vice President
ABN-AMRO BANK, N.V.,
individually in its capacity as a
Lender and in its capacity as Syndication Agent
By: /s/George Dugan
Name: George Dugan
Title: Vice President
By: /s/Craig Vachris
Name: Craig Vachris
Title: Corporate Banking Officer
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION individually in its capacity as
a Lender and in its capacity as
Documentation Agent
By: /s/G. Burton Queen
Name: G. Burton Queen
Title: Managing Director
CRESTAR BANK
individually in its capacity as a
Lender and in its capacity as Managing Agent
By: /s/C. Gray Key
Name: C. Gray Key
Title: Vice President
FIRST UNION NATIONAL BANK
individually in its capacity as a
Lender and in its capacity as Co-Agent
By: /s/Bonnie A. Banks
Name: Bonnie A. Banks
Title: Vice President
WACHOVIA BANK, N.A.
individually in its capacity as a
Lender and in its capacity as Co-Agent
By: /s/Haywood Edmundson, V
Name: Haywood Edmundson
Title: Senior Vice President
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/J. A. Don
Name: J. A. Don
Title: Vice President & Manger
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/Stephanie Finnen
Name: Stephanie Finnene
Title: Vice President
By: /s/Stephen K. Hunter
Name: Stephen K. Hunter
Title: Senior Vice President
STANDARD CHARTERED BANK
By: /s/Kristina McDavid
Name: Krtistina McDavid
Title: Vice President
By: /s/F. D. Bowles
Name: F. D. Bowles
Title: Vice President
BANCA COMMERCIALE ITALIANA
By: /s/Charles Dougherty
Name: Charles Dougherty
Title: Vice President
By: /s/Karen Purelis
Name: Karen Purelis
Title: Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/David M. Cawrse
Name: David M. Cawrse
Title: First Vice President & Manger
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/Bertram Tang
Name: Bertram Tang
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/Jarrette A. White, III
Name: Jarrette A. White, III
Title: GVP/Group Manager
By: /s/Linda L. Dash
Name: Linda L. Dash
Title: Vice President
KREDIETBANK, N.V.
By: /s/Robert Snauffer
Name: Robert Snauffer
Title: Vice President
By: /s/Tod R. Angus
Name: Tod R. Angus
Title: Vice President
<PAGE>
<TABLE>
<S> <C>
Schedule 2.1(a)
Schedule of Lenders and Commitments
<CAPTION>
Notice Revolving Revolving
Lender Address Committed Amount Commitment Percentage
------ ------- ---------------- ---------------------
NationsBank, N.A. NationsBank, N.A. $20,000,000
One Independence Center
101 N. Tryon Street, 15th Floor
Charlotte, NC 28255
Attn:
Ph:
Fx: (704) 386-9923
with a copy to:
NationsBank, N.A.
12th and Main
4th Floor Pavilion
Richmond, VA 23219
Attn: Hugh S. Miles
Ph: (804) 788-2244
Fx: (804) 788-3669
ABN-AMRO Bank, N.V. ABN-AMRO Bank, N.V. $17,500,000
500 Park Avenue
New York, NY 10022
Attn: John Deegan
Ph: (212) 446-4263
Fx: (212) 759-4792
Bank of America National Trust And Bank of America National Trust And $17,500,000
Savings Association Savings Association
281 South LaSalle Street
Suite 912
Chicago, IL 60697
Attn: Michael Rogers
Ph: (312) 828-5797
Fx: (312) 987-1278
Crestar Bank Crestar Bank $17,500,000
919 East Main Street
Richmond, VA 28261
Attn: C. Gray Key
Ph: (804) 782-5237
Fx: (804) 782-6418
First Union National Bank First Union National Bank $15,000,000
901 East Cary Street, 2nd Floor
Richmond, VA 28219
Attn: Martin Rust
Ph: (804) 788-9705
Fx: (804) 788-9605
Wachovia Bank, N.A. Wachovia Bank, N.A. $15,000,000
300 North Main Street
Winston-Salem, NC 27301
Attn: Haywood Edmundson
Ph: (910) 732-7614
Fx: (910) 732-6935
Bank of Tokyo - Mitsubishi Trust Bank of Tokyo - Mitsubishi Trust $10,000,000
Company Company
2000 K Street, N.W., Suite 701
Washington, DC 20006
Attn: Andrew Don
Ph: (202) 463-0175
Fx: (202) 293-3416
Nord LB Nord LB $7,500,000
1270 Avenue of the Americas
14th Floor
New York, NY 10020
Attn: Stephanie Hoeverman
Ph: (212) 332-6606
Fx: (212) 332-6060
Standard Chartered Bank Standard Chartered Bank $7,500,000
7 World Trade Center
New York, NY 10048
Attn: Francois Bordes
Ph: (212) 667-0223
Fx: (212) 667-0780
Banca Commerciale Italiana Banca Commerciale Italiana $5,000,000
1 William Street, 7th Floor
New York, NY 10004
Attn: John Michalisin
Ph: (212) 607-3918
Fx: (212) 809-9780
Credit Lyonnias Atlanta Agency Credit Lyonnais Atlanta Agency $5,000,000
One Peachtree Street, 44th Floor
303 Peachtree Street, NE
Atlanta, GA 30308
Attn: Walter Robinson
Ph: (404) 524-3700
Fx: (404) 584-5219
The Dai-Ichi Kangyo Bank, Ltd. The Dai-Ichi Kangyo Bank, Ltd. $5,000,000
One World Trade Center
49th Floor
New York, NY 10048
Attn: Bertram Tang
Ph: (212) 432-8639
Fx: (212) 912-1879
SunTrust Bank, Atlanta SunTrust Bank, Atlanta $5,000,000
25 Park Place, 24th Floor
Mail Code 118
Atlanta, GA 30302
Attn: Brian Peters
Ph: (404) 827-6118
Fx: (404) 658-4905
KredietBank, N.V. KredietBank, N.V. $2,500,000
Two Midtown Plaza
Suite 1750
Atlanta, GA 30309
Attn: Jackie Brunetto
Ph: (404) 876-2556
Fx: (404) 876-3212
</TABLE>
<PAGE>
Schedule 2.1(b)(i)
FORM OF NOTICE OF BORROWING
NationsBank, N.A.
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
RE: Credit Agreement dated as of December 18, 1997 (as amended and
modified, the "Credit Agreement") among Universal Corporation
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
herein shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice of a request for Revolving Loan pursuant to
Section 2.1(b) of the Credit Agreement as follows:
(A) Date of Borrowing
(which is a Business Day)
(B) Currency
(C) Principal Amount of
Borrowing
(D) Interest rate basis
(E) Interest Period and the
last day thereof
In accordance with the requirements of Section 4.2 of the Credit Agreement, the
undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects as of the date of this request, and will be true and correct after
giving effect to the requested Loan advance (except for those which expressly
related to an earlier date).
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Loan advance.
(c) No circumstances, events or conditions have occurred since the date
of the audited financial statements referenced in Section 5.1 of the Credit
Agreement which is reasonably likely to have a Material Adverse Effect.
(d) All conditions set forth in Section 2.1 as to the making of
Revolving Loans have been satisfied.
Very truly yours,
UNIVERSAL CORPORATION
By:
Name:
Title:
<PAGE>
Schedule 2.1(e)
FORM OF REVOLVING NOTE
December 18, 1997
FOR VALUE RECEIVED, the undersigned Borrower, hereby promises to pay to
the order of ______________________, and its successors and assigns, to the
office of the Administrative Agent in immediately available funds as provided in
the Credit Agreement,
(i) in the case of Revolving Loans, on or before the
Termination Date, such Lender's Revolving Committed Amount or, if less,
the aggregate unpaid principal amount of all Revolving Loans made by
such Lender to the undersigned; and
(ii) in the case of Competitive Loans, on or before the date
specified in the Competitive Bid, the aggregate unpaid principal amount
of all Competitive Loans made by such Lender to the undersigned;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of December 18, 1997 (as amended and modified, the "Credit
Agreement") among UNIVERSAL CORPORATION, a Virginia corporation and the Lenders
identified therein and NationsBank, N.A., as Administrative Agent. Terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence and during the continuance of an Event of Default,
all amounts evidenced by this Note may, or shall, become immediately due and
payable as provided in the Credit Agreement without presentment, demand, protest
or notice of any kind, all of which are waived by the undersigned Borrower. In
the event payment of amounts evidenced by this Note is not made at any stated or
accelerated maturity, the undersigned Borrower agrees to pay, in addition to
principal and interest, all costs of collection, including reasonable attorneys'
fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
In WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
UNIVERSAL CORPORATION,
a Virginia corporation
By:
Name:
Title:
<PAGE>
Schedule 2.2(b)-1
FORM OF COMPETITIVE BID REQUEST
NationsBank, N.A.,
as Administrative Agent for the Lenders
101 North Tryon Street
Independence Center, 15th Floor
NC1-005-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives you notice pursuant to Section 2.2(b) of
the Credit Agreement it requests solicitation of Competitive Bids under the
Credit Agreement, and in connection therewith sets forth below the terms on
which the related Competitive Loan borrowing is requested to be made:
(A) Date of Competitive Loan Borrowing
(which is a Business Day)
(B) Currency
(C) Principal Amount of
Competitive Loan Borrowing
(D) Interest Period and the last
day thereof
In accordance with the requirements of Section 4.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (a) of such Section, and confirms that the matters
referenced in subsections (b), (c) and (e) of such Section, are true and
correct.
UNIVERSAL CORPORATION
By:
Name:
Title:
<PAGE>
Schedule 2.2(b)-2
FORM OF NOTICE OF RECEIPT OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Dear Sirs:
UNIVERSAL CORPORATION, a Virginia corporation, being Borrower under the
above-referenced Credit Agreement made a Competitive Bid Request on
__________________, 19__, pursuant to Section 2.2(b) of the Credit Agreement,
and in that connection you are invited to submit a Competitive Bid by 10:00 A.M.
(Charlotte, North Carolina time) , 19__ [Date of Proposed Competitive Loan
Borrowing]. Your Competitive Bid must comply with Section 2.2(c) of the Credit
Agreement and the terms of set forth below on which the Competitive Bid Request
was made:
(A) Date of Competitive Borrowing
(B) Currency
(C) Principal Amount of Competitive Borrowing
(D) Interest Period and the last day thereof
NATIONSBANK, N.A., as Administrative Agent
By:
Name:
Title:
<PAGE>
Schedule 2.2(c)
FORM OF COMPETITIVE BID
NationsBank, N.A.,
as Agent for the Lenders
101 North Tryon Street
Independence Center, 15th Floor
NC1-005-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned [Name of Lender], hereby makes a Competitive Bid
pursuant to Section 2.2(c) of the Credit Agreement, in response to the
Competitive Bid Request made by the Borrower on ____________, 19__, and in that
connection sets forth below the terms on which such Competitive Bid is made:
(A) Currency
(B) Principal Amount
(C) Competitive Bid Rate
(D) Interest Period and the last day thereof
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.2(e) of
the Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
<PAGE>
Schedule 2.2(e)
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
NationsBank, N.A.,
as Agent for the Lenders
101 North Tryon Street
Independence Center, 15th Floor
NC1-005-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
In accordance with Section 2.2(e) of the Credit Agreement, in
connection with our Competitive Bid Request dated __________________ and in
accordance with Section 2.2(e) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Currency Principal Amount Competitive Bid Rate Lender
$ [%]
$ [%]
We hereby reject the following bids:
Currency Principal Amount Competitive Bid Rate Lender
$ [%]
$ [%]
UNIVERSAL CORPORATION
By:_______________________
Name:
Title:
<PAGE>
Schedule 3.2
Form of Notice of Extension/Conversion
NationsBank, N.A.,
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Re: Credit Agreement dated as of December 18, 1997 (as amended and
modified, the "Credit Agreement") among UNIVERSAL CORPORATION
and the Lenders identified therein and NationsBank, N.A., as
Administrative Agent. Terms used but not otherwise defined
herein shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 3.2 of the
Credit Agreement that it requests an extension or conversion of a Revolving Loan
outstanding under the Credit Agreement, and in connection therewith sets forth
below the terms on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which is the last day of the
applicable Interest Period) __________________________
(B) Principal Amount of
Extension or Conversion __________________________
(C) Interest rate basis __________________________
(D) Interest Period and the
last day thereof __________________________
In accordance with the requirements of Section 4.2 of the Credit
Agreement, the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects as of the date of this request, and will be true and
correct after giving effect to the requested Loan advance (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default exists, or will exist after
giving effect to the requested Loan advance.
(c) No circumstances, events or conditions have occurred since
the date of the audited financial statements referenced in Section 5.1
of the Credit Agreement which would have a Material Adverse Effect.
Very truly yours,
UNIVERSAL CORPORATION
By:__________________________________
Name:
Title:
<PAGE>
Schedule 3.17(b)
Place of Payments
With respect to payment in Dollars:
NationsBank, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Agency Services
ABA Routing No.:
Account No.:
Reference: Universal Corporation
With respect to payment in British Pounds Sterling:
Midland Bank PLC, London
for the account of NationsBank, N.A.
Account No.: 00478549
Reference: Universal Corporation
With respect to payment in French Francs:
Societe Generale, Paris
for the account of NationsBank, N.A.
Account No. 000101442920003
Reference: Universal Corporation
With respect to payment in Swiss Francs:
Swiss Bank Zurich
for the account of NationsBank, N.A.
Account No: PO-115,607.0
Reference: Universal Corporation
With respect to payment in Deutsche Marks:
Commerzbank, Frankfurt
for the account of NationsBank, N.A.
Account No. 400887531200
Reference: Universal Corporation
with respect to payment in Japanese Yen:
Bank of Tokyo, Tokyo
for the account of NationsBank, N.A.
Account No. 653-0433101
Reference: Universal Corporation
With respect to payment in Netherlands Guilders:
International Nederlanden
for the account of NationsBank, N.A.
Account No. 0054005507
Reference: Universal Corporation
With respect to payment in Italian Lire:
Credito Italiano, Milan
for the account of NationsBank, N.A.
Account No. 84184-00
Reference: Universal Corporation
<PAGE>
Schedule 4.1(b)
Form of Legal Opinion
<PAGE>
Schedule 4.1(i)(v)
Secretary's Certificate
Pursuant to Section 4.1(i)(v) of the Credit Agreement (the "Credit
Agreement"), dated as of December 18, 1997, among UNIVERSAL CORPORATION, a
Virginia corporation, and the Lenders identified therein and NationsBank, N.A.,
as Administrative Agent, the undersigned ___________________________ Secretary
of ____________________ (the "Corporation") hereby certifies as follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Corporation on
_______________________, 1997. The attached resolutions have not been rescinded
or modified and remain in full force and effect. The attached resolutions are
the only corporate proceedings of the Corporation now in force relating to or
affecting the matters referenced to therein.
2. Attached hereto as Annex II is a true and complete copy of the
By-laws of the Corporation as in effect on the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto as in
effect on the date hereof.
4. The following persons are now duly elected and qualified officers of
the Corporation, holding the offices indicated, and the signature appearing
opposite his name below is his true and genuine signature, and such officer is
duly authorized to execute and deliver on behalf of the Corporation, the Credit
Agreement, the Notes to be issued pursuant thereto and the other Credit
Documents to act as a Responsible Officer on behalf of the Corporation under the
Credit Agreement.
Name Office Signature
------------------------
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name and
affixed the corporate seal of the Corporation.
-----------------------------
Secretary
(CORPORATE SEAL)
Date: _______________________, 1997
I, _____________________, ___________________ of
_________________________, hereby certify that _____________________, whose
genuine signature appears above, is, and has been at all times since
______________________, a duly elected, qualified and acting
____________________ of
_______________________________ of
_________________________________
______________________________, 1997
<PAGE>
Schedule 5.6
Description of Legal Proceedings
NONE
<PAGE>
Schedule 5.11
Subsidiaries
<PAGE>
Schedule 6.2(b)
Form of Officer's Compliance Certificate
This Certificate is delivered in accordance with the provisions of
Section 7.2(b) of that Credit Agreement dated as of December 18, 1997 (as
amended, modified and supplemented, the "Credit Agreement") among UNIVERSAL
CORPORATION, a Virginia corporation, and the Lenders identified therein, and
NationsBank, N.A., as Administrative Agent. Terms used but not otherwise defined
herein shall have the same meanings provided in the Credit Agreement.
The undersigned, being a Responsible Officer of Universal Corporation,
a Virginia corporation, hereby certifies, in my official capacity and not in my
individual capacity, that to the best of my knowledge and belief:
(a) the financial statements fairly present the financial condition of
the parties covered by such financial statements in all material respects;
(b) during the period the Borrower has observed or performed all of its
covenants and other agreements in all material respects, and satisfied in all
material respects every material condition, contained in this Credit Agreement
to be observed, performed or satisfied by it;
(c) the undersigned has no actual knowledge of any Default or Event of
Default; and
(d) detailed calculations demonstrating compliance with the financial
covenants set out in Section 6.7 of the Credit Agreement.
This the _______________ day of ________________________, 199_.
UNIVERSAL CORPORATION
By:_______________________
Name:
Title:
<PAGE>
Attachment to Officer's Certificate
Computation of Financial Covenants
<PAGE>
Schedule 10.3(b)
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of , 1997 is entered into
between THE LENDER IDENTIFIED ON THE SIGNATURE PAGES AS THE "ASSIGNOR" (the
"Assignor") and THE PARTIES IDENTIFIED ON THE SIGNATURE PAGES AS "ASSIGNEES"
("Assignee").
Reference is made to that Credit Agreement dated as of December 18,
1997 (as amended and modified, the "Credit Agreement") among UNIVERSAL
CORPORATION, a Virginia corporation (the "Borrower"), and the Lenders identified
therein and NationsBank, N.A., as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignees, and the Assignees hereby purchase and assume, without recourse, from
the Assignor, effective as of the Effective Date shown below, those rights and
interests of the Assignor under the Credit Agreement identified below (the
"Assigned Interests"), including the Loans and Commitments relating thereto,
together with unpaid interest and fees relating thereto accruing from the
Closing Date. The Assignor represents and warrants that it owns interests
assigned hereby free and clear of liens, encumbrances or other claims. Each of
the Assignees represents that it is an eligible assignee under Section 10.3 the
Credit Agreement. The Assignor and each of the Assignees hereby makes and agrees
to be bound by all the representations, warranties and agreements set forth in
Section 10.3 of the Credit Agreement, a copy of which has been received by each
such party. From and after the Closing Date (i) each Assignee, if it is not
already a Lender under the Credit Agreement, shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) each Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement (other than the rights
of indemnification referenced in Section 10.9 of the Credit Agreement). Schedule
2.1(a) is deemed modified and amended to the extent necessary to give effect to
this Assignment.
2. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
3. Terms of Assignment
(a) Date of Assignment: , 199__
--------------------------
(b) Legal Name of Assignor: SEE SIGNATURE PAGE
(c) Legal Name of Assignee: SEE SIGNATURE PAGE
(d) Effective Date of Assignment: , 199__
--------------------------
See Schedule I attached for a description of the Loans and Commitments (and the
percentage interests therein and relating thereto) which are the subject of this
Assignment and Acceptance.
4. The fee payable to the Administrative Agent in connection with this
Assignment is enclosed.
IN WITNESS WHEREOF, the parties hereto have caused the execution of
this instrument by their duly authorized officers as of the date first above
written.
ASSIGNOR: ASSIGNEE:
By: By:
Name: Name:
Title: Title:
Address for Notices:
ACKNOWLEDGMENT AND CONSENT
NATIONSBANK, N.A., UNIVERSAL CORPORATION
as Administrative Agent
By: By:
Name: Name:
Title: Title:
<PAGE>
<TABLE>
<S> <C>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
UNIVERSAL CORPORATION
REVOLVING LOANS PRIOR TO ASSIGNMENT
<CAPTION>
Revolving Revolving Revolving
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEES
-------------------- -------------------- --------------------
--
$ $
<PAGE>
REVOLVING LOANS INTERESTS SUBJECT TO THIS ASSIGNMENT
<CAPTION>
Revolving Revolving Revolving
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEES
-------------------- -------------------- --------------------
$ $
<PAGE>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
UNIVERSAL CORPORATION
REVOLVING LOANS AFTER ASSIGNMENT
<CAPTION>
Revolving Revolving Revolving
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEES
-------------------- -------------------- --------------------
$ $
</TABLE>
<TABLE>
EXHIBIT 12.
Universal Corporation and Subsidiaries
RATIO OF EARNINGS TO FIXED CHARGES
Six Months Ended December 31, 1997 and 1996
<CAPTION>
1997 1996
--------------------- ------------------
<S> <C>
Pretax income from continuing operations.............. $118,642 $89,888
Pretax income of unconsolidated affiliates............ 5,257 2,091
Fixed charges......................................... 30,034 34,600
--------------------- ------------------
Earnings.............................................. $153,933 $126,579
===================== ==================
Interest.............................................. $29,681 $34,255
Interest of unconsolidated affiliates................. 175 167
Debt discount amortization............................ 148 178
--------------------- ------------------
Fixed charges......................................... $30,004 $34,600
===================== ==================
Ratio of earnings to fixed charges.................... 5.1 3.7
===================== ==================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> DEC-31-1997
<CASH> 122,186
<SECURITIES> 0
<RECEIVABLES> 422,349
<ALLOWANCES> 0
<INVENTORY> 1,051,087
<CURRENT-ASSETS> 1,726,492
<PP&E> 717,214
<DEPRECIATION> 379,877
<TOTAL-ASSETS> 2,320,348
<CURRENT-LIABILITIES> 1,375,370
<BONDS> 280,304
<COMMON> 82,319
0
0
<OTHER-SE> 438,837
<TOTAL-LIABILITY-AND-EQUITY> 2,320,348
<SALES> 2,288,313
<TOTAL-REVENUES> 2,288,313
<CGS> 1,984,549
<TOTAL-COSTS> 1,984,549
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 29,681
<INCOME-PRETAX> 118,642
<INCOME-TAX> 47,637
<INCOME-CONTINUING> 70,858
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 70,858
<EPS-PRIMARY> 2.02
<EPS-DILUTED> 2.00
</TABLE>
