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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): May 15, 1998
HUSSMANN INTERNATIONAL, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 1-13407 43-1791715
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
12999 St. Charles Rock Road, Bridgeton, Missouri 63044-2483
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (314) 291-2000
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On May 15, 1998, Hussmann International, Inc., a Delaware corporation
(the "Company"), and Hussmann Corporation, a Missouri corporation and a
wholly owned subsidiary of the Company ("Hussmann Corp."), entered into
the First Amendment dated as of May 29, 1998 to the Credit Agreement
dated as of January 23, 1998 among the Company, Hussmann Corp., various
financial institutions and Bank of America National Trust and Savings
Association, as administrative agent. The Credit Agreement and the First
Amendment are attached as Exhibit 4 hereto and incorporated by reference
herein.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
4 Credit Agreement dated as of January 23, 1998, as amended by the First
Amendment thereto dated as of May 29, 1998.
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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.
HUSSMANN INTERNATIONAL, INC.
Date: May 26, 1998 By:________________________________
Name:
Title:
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EXHIBIT INDEX
The following exhibits are filed herewith:
Exhibit No.
4 Credit Agreement dated as of January 23, 1998, as amended by the First
Amendment thereto dated as of May 29, 1998.
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EXHIBIT 4
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CREDIT AGREEMENT
Dated as of January 23, 1998
among
HUSSMANN INTERNATIONAL, INC.
and
HUSSMANN CORPORATION,
as Borrowers,
THE FIRST NATIONAL BANK OF CHICAGO,
NATIONSBANK, N.A.
and
CREDIT SUISSE FIRST BOSTON,
as Co-Agents,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
Swing Line Lender
and
Letter of Credit Issuing Lender,
and
VARIOUS OTHER FINANCIAL INSTITUTIONS
Arranged by
BANCAMERICA ROBERTSON STEPHENS
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SECTION 1 DEFINITIONS
1.1 Certain Defined Terms........................................... 1
1.2 Other Interpretive Provisions................................... 21
1.3 Accounting Principles........................................... 22
SECTION 2 THE CREDITS
2.1 Amounts and Terms of Commitments................................ 23
2.2 Loan Accounts................................................... 23
2.3 Procedure for Committed Borrowing............................... 24
2.4 Conversion and Continuation Elections for Committed
Borrowings...................................................... 24
2.5 Bid Borrowings.................................................. 26
2.6 Procedure for Bid Borrowings.................................... 26
2.7 Voluntary Termination or Reduction of Commitments............... 30
2.8 Optional Prepayments............................................ 30
2.9 Repayment....................................................... 31
2.10 Interest........................................................ 31
2.11 Fees............................................................ 32
(a) Arrangement, Agency Fees ................................. 32
(b) Facility Fees ............................................ 32
2.12 Computation of Fees and Interest................................ 33
2.13 Payments by the Borrowers....................................... 33
2.14 Payments by the Lenders to the Administrative Agent............. 34
2.15 Sharing of Payments, Etc........................................ 35
2.16 Extension of Scheduled Termination Date; Substitution
of Lenders...................................................... 37
2.17 Optional Increase in Commitments................................ 38
2.18 Swing Line Commitment........................................... 39
2.19 Borrowing Procedures for Swing Line Loans....................... 39
2.20 Prepayment or Refunding of Swing Line Loans..................... 40
2.21 Participations in Swing Line Loans.............................. 40
2.22 Participation Obligations Unconditional......................... 41
2.23 Conditions to Swing Line Loans.................................. 42
SECTION 3 THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility................................ 42
3.2 Issuance, Amendment and Renewal of Letters of Credit............ 43
3.3 Risk Participations, Drawings and Reimbursements................ 46
3.4 Repayment of Participations..................................... 48
3.5 Role of the Issuing Lenders..................................... 49
3.6 Obligations Absolute............................................ 50
3.7 Cash Collateral Pledge.......................................... 51
3.8 Letter of Credit Fees........................................... 51
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3.9 Uniform Customs and Practice..................................... 51
SECTION 4 TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes............................................................ 52
4.2 Illegality....................................................... 53
4.3 Increased Costs and Reduction of Return.......................... 54
4.4 Funding Losses................................................... 55
4.5 Inability to Determine Rates..................................... 56
4.6 Certificates of Lenders.......................................... 56
4.7 Substitution of Lenders.......................................... 56
4.8 Survival......................................................... 57
SECTION 5 CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions.......................... 57
(a) Credit Agreement and Notes.................................. 57
(b) Resolutions; Incumbency..................................... 57
(c) Legal Opinions.............................................. 58
(d) Payment of Fees............................................. 58
(e) Certificate................................................. 58
(f) Other Documents............................................. 58
5.2 Conditions to All Credit Extensions.............................. 58
(a) Notice, Application......................................... 59
(b) Continuation of Representations and
Warranties................................................. 59
(c) No Existing Default......................................... 59
SECTION 6 REPRESENTATIONS AND WARRANTIES
6.1 Corporate Existence and Power.................................... 59
6.2 Corporate Authorization; No Contravention........................ 60
6.3 Governmental Authorization....................................... 60
6.4 Binding Effect................................................... 60
6.5 Litigation....................................................... 60
6.6 ERISA Compliance................................................. 61
6.7 Use of Proceeds; Margin Regulations.............................. 62
6.8 Title to Properties.............................................. 62
6.9 Taxes............................................................ 62
6.10 Financial Condition.............................................. 62
6.11 Environmental Matters............................................ 63
6.12 Regulated Entities............................................... 63
6.13 Subsidiaries..................................................... 63
6.14 Insurance........................................................ 63
6.15 Full Disclosure.................................................. 63
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SECTION 7 AFFIRMATIVE COVENANTS
7.1 Financial Statements............................................. 64
7.2 Certificates; Other Information.................................. 64
7.3 Notice of Default................................................ 65
7.4 Preservation of Corporate Existence, Etc......................... 65
7.5 Maintenance of Property.......................................... 66
7.6 Insurance........................................................ 66
7.7 Payment of Taxes................................................. 66
7.8 Compliance with Laws............................................. 66
7.9 Compliance with ERISA............................................ 66
7.10 Inspection of Property and Books and Records..................... 67
7.11 Environmental Laws............................................... 67
7.12 Use of Proceeds.................................................. 67
SECTION 8 NEGATIVE COVENANTS
8.1 Financial Condition Covenants.................................... 67
(a) Leverage Ratio ............................................ 67
(b) Interest Coverage Ratio ................................... 67
8.2 Limitation on Liens.............................................. 67
8.3 Disposition of Assets............................................ 70
8.4 Consolidations and Mergers....................................... 70
8.5 Limitation on Subsidiary Indebtedness............................ 71
8.6 Transactions with Affiliates..................................... 71
8.7 Use of Proceeds.................................................. 71
8.8 ERISA............................................................ 72
8.9 Nature of Business............................................... 72
SECTION 9 EVENTS OF DEFAULT
9.1 Event of Default................................................. 72
(a) Non-Payment................................................ 72
(b) Representation or Warranty................................. 72
(c) Specific Defaults.......................................... 72
(d) Other Defaults............................................. 72
(e) Cross-Default.............................................. 72
(f) Insolvency; Voluntary Proceedings.......................... 73
(g) Involuntary Proceedings.................................... 73
(h) ERISA...................................................... 73
(i) Judgments.................................................. 74
(j) Change of Control.......................................... 74
(k) Ownership of Hussmann Corp................................. 74
9.2 Remedies......................................................... 74
9.3 Rights Not Exclusive............................................. 75
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SECTION 10 THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization; "Administrative Agent"............. 75
10.2 Delegation of Duties.............................................. 76
10.3 Liability of Administrative Agent................................. 76
10.4 Reliance by Administrative Agent.................................. 77
10.5 Notice of Default................................................. 77
10.6 Credit Decision................................................... 78
10.7 Indemnification of Administrative Agent........................... 79
10.8 Administrative Agent in Individual Capacity....................... 79
10.9 Successor Administrative Agent.................................... 79
10.10 Withholding Tax................................................... 80
10.11 Co-Agents......................................................... 82
SECTION 11 GUARANTIES
11.1 Guaranties........................................................ 82
11.2 Guaranty Unconditional............................................ 82
11.3 Discharge only upon Payment in Full; Reinstatement in
Certain Circumstances............................................. 83
11.4 Waivers by the Borrower........................................... 84
11.5 Subrogation....................................................... 84
11.6 Stay of Acceleration.............................................. 84
11.7 Limitation on Guaranty Obligations................................ 84
11.8 Effect of Merger or Consolidation................................. 84
SECTION 12 MISCELLANEOUS
12.1 Amendments and Waivers............................................ 85
12.2 Notices........................................................... 86
12.3 No Waiver; Cumulative Remedies.................................... 87
12.4 Costs and Expenses................................................ 87
12.5 Indemnification by Borrowers...................................... 88
12.6 Payments Set Aside................................................ 88
12.7 Successors and Assigns............................................ 89
12.8 Assignments, Participations, etc.................................. 89
12.9 Confidentiality................................................... 91
12.10 Notification of Addresses, Lending Offices, Etc................... 91
12.11 Counterparts...................................................... 92
12.12 Severability...................................................... 92
12.13 No Third Parties Benefited........................................ 92
12.14 Governing Law and Jurisdiction.................................... 92
12.15 Waiver of Jury Trial.............................................. 92
12.16 Entire Agreement.................................................. 93
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SCHEDULES
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Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 6.5 Litigation
Schedule 6.6 ERISA
Schedule 6.10 Material Liabilities
Schedule 6.11 Environmental Matters
Schedule 6.13 Subsidiaries and Minority Interests
Schedule 8.2 Permitted Liens
Schedule 12.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Committed Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Competitive Bid Request
Exhibit D Form of Invitation for Competitive Bid
Exhibit E Form of Competitive Bid
Exhibit F Form of Notice of Swing Line Loan
Exhibit G Form of Compliance Certificate
Exhibit H-1 Form of Opinion of General Counsel of the
Parent
Exhibit H-2 Form of Opinion of Special Counsel to the
Borrowers
Exhibit I Form of Opinion of Special Counsel to the
Administrative Agent
Exhibit J Form of Assignment and Acceptance
Exhibit K Form of Promissory Note
Exhibit L Form of Request for Extension of Termination
Date
Exhibit M Form of Request for Increase in Commitments
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of January 23, 1998 among
HUSSMANN INTERNATIONAL, INC., a Delaware corporation (the "Parent"), HUSSMANN
CORPORATION, a Missouri corporation ("Hussmann Corp." and, together with the
Parent, collectively the "Borrowers" and individually each a "Borrower"), the
several financial institutions from time to time party to this Agreement
(collectively the "Lenders"; individually each a "Lender"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as swing line lender and letter of
credit issuing lender, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent for the Lenders.
WHEREAS, the Lenders have agreed to extend a revolving credit facility
(with swing line and letter of credit subfacilities) to the Borrowers;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
SECTION 1 DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following
meanings:
Absolute Rate - see subsection 2.6(c)(ii)(D).
Absolute Rate Auction means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.6.
Absolute Rate Bid Loan means a Bid Loan that bears interest at a
rate determined with reference to the Absolute Rate.
Adjusted Pro Rata Share means for any Lender at any time the
proportion (expressed as a decimal, rounded to the ninth decimal place)
which such Lender's Commitment constitutes of the combined Commitments
(or, after the Commitments have terminated, which (i) the principal
amount of such Lender's Loans plus (without duplication) the
participation of such Lender in (or in the case of an Issuing Lender or
the Swing Line Lender, its unparticipated portion of) the Effective
Amount of all L/C Obligations and the principal amount of all Swing Line
Loans constitutes of (ii) the aggregate principal amount of all Loans
plus
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(without duplication) the Effective Amount of all L/C Obligations).
Administrative Agent means BofA in its capacity as administrative
agent for the Lenders hereunder, and any successor administrative agent
arising under Section 10.9.
Administrative Agent-Related Persons means BofA, in its capacity as
Administrative Agent, and any successor administrative agent arising
under Section 10.9, together with their respective Affiliates (including,
in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
Administrative Agent's Payment Office means the address for payments
set forth on Schedule 12.2 or such other address as the Administrative
Agent may from time to time specify.
Affiliate means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities or
membership interests, by contract or otherwise.
Agreement means this Credit Agreement.
Applicable Margin means, at any time,
(i) with respect to Base Rate Committed Loans, 0%; and
(ii) with respect to LIBOR Committed Loans, the percentage per
annum determined pursuant to Schedule 1.1 based on
then-current Credit Ratings.
Arranger means BancAmerica Robertson Stephens, a Delaware
corporation.
Assignee - see subsection 12.8(a).
Assignment and Acceptance - see subsection 12.8(a).
Attorney Costs means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services and
all reasonable disbursements of internal counsel.
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Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in
San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate.) Any change in the
reference rate announced by BofA shall take effect at the opening of
business on the day specified in the public announcement of such change.
Base Rate Committed Loan means a Committed Loan, or an L/C Advance,
that bears interest based on the Base Rate.
Bid Borrowing means a Borrowing hereunder consisting of one or more
Bid Loans made to the same Borrower on the same day by one or more
Lenders.
Bid Loan means a Loan by a Lender to a Borrower under Section 2.6,
which may be a LIBOR Bid Loan or an Absolute Rate Bid Loan.
BofA means Bank of America National Trust and Savings Association, a
national banking association.
Borrower - see the Preamble.
Borrowing means a borrowing hereunder consisting of Committed Loans
of the same Type, or LIBOR Bid Loans or Absolute Rate Bid Loans, made to
the same Borrower on the same day by one or more Lenders under Section 2
and, other than in the case of Base Rate Committed Loans, having the same
Interest Period. A Borrowing may be a Bid Borrowing or a Committed
Borrowing.
Borrowing Date means any date on which a Borrowing occurs under
Section 2.3 or 2.6 or a Swing Line Loan is made under Section 2.19.
Business Day means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City, Chicago or San Francisco
are authorized or required by law to close and, if the applicable
Business Day relates to any LIBOR Loan, means such a day on which
dealings are carried on in the London interbank eurodollar market.
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Capital Adequacy Regulation means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law, in
each case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
Cash Collateralize means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the Administrative Agent,
the Issuing Lenders and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative Agent and the
Required Lenders. Derivatives of such term shall have corresponding
meanings. Cash collateral shall be maintained in blocked accounts at
BofA or, with BofA's consent, the applicable Issuing Lender.
Change of Control means any of the following events:
(a) any Person or group (within the meaning of Rule 13d-5 of the
SEC under the Securities Exchange Act of 1934 as in effect on the date
hereof, but excluding Whitman prior to the date of the Distribution)
shall become the Beneficial Owner (as defined in Rule 13d-3 of the SEC
under the Securities Exchange Act of 1934 as in effect on the date
hereof) of 20% or more of the capital stock or other equity interests of
the Parent the holders of which are entitled under ordinary circumstances
(irrespective of whether at the time the holders of such stock or other
equity interests shall have or might have voting power by reason of the
happening of any contingency) to vote for the election of the directors
of the Parent; or
(b) a majority of the members of the Board of Directors of the
Parent shall cease to be Continuing Members.
Code means the Internal Revenue Code of 1986.
Commitment - see Section 2.1. As of the Effective Date, the amount
of the combined Commitments of all Lenders is $350,000,000.
Committed Borrowing means a Borrowing hereunder consisting of
Committed Loans of the same type made to the same Borrower by the Lenders
ratably according to their respective Pro Rata Shares.
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Committed Loan means a Loan by a Lender to a Borrower under Section
2.1, which may be a Base Rate Committed Loan or a LIBOR Committed Loan
(each a "Type" of Committed Loan).
Competitive Bid means an offer by a Lender to make a Bid Loan in
accordance with subsection 2.6(c).
Competitive Bid Request - see subsection 2.6(a).
Compliance Certificate means a certificate substantially in the form
of Exhibit G.
Consolidated Total Assets means the consolidated total assets of the
Parent and its Subsidiaries.
Contingent Obligation means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of such
Person (i) to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or provide funds
for the payment or discharge of any such primary obligation, or to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation, or (iv) otherwise to assure or hold harmless the holder of
any such primary obligation against loss in respect thereof (each a
"Guaranty Obligation"); (b) with respect to any Surety Instrument issued
for the account of such Person or as to which such Person is otherwise
liable for reimbursement of drawings or payments; or (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered; or (d) in
respect of any Swap Contract. The amount of any Contingent Obligation
shall (a) in the case of Guaranty Obligations, be deemed equal to the
stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
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thereof, and (b) in the case of other Contingent Obligations, be equal to
the maximum reasonably anticipated liability in respect thereof.
Continuing Member means a member of the Board of Directors of the
Parent who either (a) was a member of the Parent's Board of Directors on
the Effective Date and has been such continuously thereafter or (b)
became a member of such Board of Directors after the Effective Date and
whose election or nomination for election was approved by a vote of the
majority of the Continuing Members then members of the Parent's Board of
Directors.
Contractual Obligation means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other document to which
such Person is a party or by which it or any of its property is bound.
Conversion/Continuation Date means any date on which, under Section
2.4, a Borrower (a) converts Committed Loans of one Type to the other
Type or (b) continues LIBOR Committed Loans for a new Interest Period.
Credit Extension means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
Credit Rating means the rating by Moody's or S&P for the Parent's
senior, unsecured, non-credit-enhanced, long-term debt.
Declining Lender - see subsection 2.16(b).
Distribution means the distribution by Whitman to its stockholders
of all of the outstanding shares of common stock of the Parent as
described in the Form 10.
Dollars, dollars and $ each mean lawful money of the United States.
EBITDA means, for any period, the Parent's consolidated net income
for such period (excluding Extraordinary Items) plus, to the extent
deducted in determining such net income, Interest Expense, income tax
expense, depreciation and amortization for such period.
Effective Amount means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any Issuances of Letters of Credit occurring on
such date, any
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other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letter of Credit or any reduction in the maximum
amount available for drawing under Letters of Credit taking effect on
such date.
Effective Date means the date on which all conditions precedent set
forth in Section 5.1 have been satisfied or waived by all Lenders (or, in
the case of subsection 5.1(d), waived by the Person entitled to receive
any applicable payment).
Eligible Assignee means (a) if the Parent's Credit Rating is
Investment Grade and no Event of Default or Unmatured Event of Default
exists, (i) a Lender or (ii) a Person that is primarily engaged in the
business of commercial lending and that is (x) a Subsidiary of a Lender,
(y) a Subsidiary of a Person of which a Lender is a Subsidiary or (z) a
Person of which a Lender is a Subsidiary; and (b) if the Parent's Credit
Rating is not Investment Grade or an Event of Default or Unmatured Event
of Default exists, (i) any Person described in clause (a), (ii) any
Person organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$200,000,000 and (iii) any Person organized under the laws of any other
country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $200,000,000, provided
that such Person is acting through a branch or agency located in the
United States.
Environmental Claims means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment.
Environmental Laws means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and
land use matters.
ERISA means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Parent
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within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section
412 of the Code).
ERISA Event means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Parent or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a substantial cessation of operations which is treated as such a
withdrawal; (c) a complete or partial withdrawal by the Parent or any
ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Pension Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV
of ERISA, other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Parent or any ERISA Affiliate.
Eurodollar Reserve Percentage means for any day the maximum reserve
percentage (expressed as a decimal, rounded upward, if necessary, to the
next 1/100th of 1%) in effect on such day (whether or not applicable to
any Lender) under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
Event of Default means any of the events or circumstances specified
in Section 9.1.
Extension Response Date - see subsection 2.16(a).
Extraordinary Items means (a) for any period, all extraordinary
gains and extraordinary losses recorded or recognized during such period;
and (b) for any period ending on or prior to September 30, 1998, (i) all
restructuring charges relating to, or arising in connection with, the
Distribution, which charges were recorded or recognized prior to or on
the date of the Distribution, provided that the aggregate amount of all
such restructuring charges at any time included in "Extraordinary Items"
shall not exceed an amount equal to $60,000,000; and (ii) all "Whitman
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charges" (determined in the same manner as set forth in the Parent's pro
forma combined statement of income for the year ended December 31, 1996
included in the Form 10) which were recorded or recognized during such
period (but not including interest paid to Whitman).
Facility Fee Rate means, at any time, the percentage per annum
determined pursuant to Schedule 1.1 based on the then-current Credit
Ratings.
Federal Funds Rate means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite
the caption "Federal Funds (Effective)"; or, if for any relevant day such
rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Administrative
Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of
three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent.
Form 10 means the Form 10/A No. 2 Registration Statement of the
Parent filed with the SEC on December 17, 1997.
FRB means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
Further Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account
of amounts payable or paid pursuant to subsection 4.1 (b) or 4.1(c).
GAAP means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature
and authority within the U.S. accounting profession), which are
applicable to the circumstances as of the date of determination.
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<PAGE> 16
Governmental Authority means any nation or government, any state or
other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, and any corporation or other entity owned
or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
Guaranty Obligation has the meaning specified in the definition of
Contingent Obligation.
Honor Date has the meaning specified in subsection 3.3(b).
Hussmann Corp. - see the Preamble.
Indebtedness of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into in
the ordinary course of business on ordinary terms); (c) all reimbursement
or payment obligations of such Person with respect to Surety Instruments;
(d) all obligations of such Person evidenced by notes, bonds, debentures
or similar instruments; (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to property acquired
by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations of such
Person with respect to capital leases which should be recorded on a
balance sheet of such Person in accordance with GAAP; (g) all
indebtedness of the types referred to in clauses (a) through (f) above
secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment
of such Indebtedness, provided that the amount of any such Indebtedness
shall be deemed to be the lesser of the face principal amount thereof and
the fair market value of the property subject to such Lien; and (h) all
Guaranty Obligations of such Person in respect of indebtedness or
obligations of others. For all purposes of this Agreement, Indebtedness
of any Person shall include all Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint venturer
(other than any such
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<PAGE> 17
Indebtedness which is expressly non-recourse to such Person).
Indemnified Liabilities - see Section 12.5.
Indemnified Person - see Section 12.5.
Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court
or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief
of debtors or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case undertaken under any U.S. Federal,
state or foreign law, including the Bankruptcy Code.
Interest Coverage Ratio means, for any period of four consecutive
fiscal quarters of the Parent ending on the last day of a fiscal quarter,
the ratio of (a) the Parent's consolidated net income for such period
(excluding Extraordinary Items) plus, to the extent deducted in
determining such consolidated net income, Interest Expense and income tax
expense for such period to (b) Interest Expense for such period.
Interest Expense means, for any period, the consolidated interest
expense of the Parent and its Subsidiaries for such period (including all
imputed interest on capital leases) plus (without duplication)
consolidated yield or discount accrued during such period on the
aggregate outstanding investment or claim held by purchasers, assignees
or other transferees of (or of interests in) receivables of the Parent
and its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
Interest Payment Date means, as to any Loan other than a Base Rate
Committed Loan or Swing Line Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Committed Loan or Swing
Line Loan, the last Business Day of each calendar quarter, provided that
if any Interest Period for a LIBOR Loan exceeds three months, each
three-month anniversary of the first day of such Interest Period also
shall be an Interest Payment Date.
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Interest Period means, (a) as to any LIBOR loan, the period
commencing on the Borrowing Date of such Loan or, in the case of any
LIBOR Committed Loan, on the Conversion/Continuation Date on which the
Loan is converted into or continued as a LIBOR Committed Loan, and ending
on the date one, two, three or six months thereafter as selected by the
applicable Borrower in its Notice of Borrowing, Notice of
Conversion/Continuation or Competitive Bid Request, as the case may be;
and (b) as to any Absolute Rate Bid Loan, a period of not less than 7
days and not more than 183 days as selected by the applicable Borrower in
the applicable Competitive Bid Request; provided that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to
the following Business Day unless, in the case of a LIBOR Loan, the
result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(ii) any Interest Period for a LIBOR Loan that begins on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period for any Loan shall extend beyond the
Termination Date.
Investment Grade means that the Parent's Credit Rating is Baa3 or
higher by Moody's or BBB- or higher by S&P.
Invitation for Competitive Bids means a solicitation for Competitive
Bids, substantially in the form of Exhibit D.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date has the meaning specified in subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter
of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
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Issuing Lender means each of BofA in its capacity as issuer of one
or more Letters of Credit hereunder, together with (i) any replacement
letter of credit issuer arising under subsection 10.1(b) or Section 10.9
and (ii) any other Lender or any Affiliate of a Lender which the
Administrative Agent and the Parent have approved in writing as an
"Issuing Lender" hereunder.
L/C Advance means each Lender's participation in any L/C Borrowing
in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for amendment of
an outstanding standby letter of credit as shall at any time be in use by
the applicable Issuing Lender, as such Issuing Lender shall request.
L/C Application means an application form for issuance of a standby
letter of credit as shall at any time be in use by the applicable Issuing
Lender, as such Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the
date when made nor converted into a Borrowing of Committed Loans under
subsection 3.3(c).
L/C Commitment means the commitment of the Issuing Lenders to Issue,
and the commitment of the Lenders severally to participate in, Letters of
Credit from time to time Issued or outstanding under Section 3 in an
aggregate amount not to exceed on any date the lesser of $25,000,000 and
the combined Commitments; it being understood that the L/C Commitment is
a part of the combined Commitments rather than a separate, independent
commitment.
L/C Fee Rate means, at any time, the percentage per annum determined
pursuant to Schedule 1.1 based on the then-current Credit Ratings;
provided that upon notice to the Borrowers from the Administrative Agent
(acting at the request or with the consent of the Required Lenders)
during the existence of any Event of Default, and for so long as such
Event of Default continues, such rate shall be increased by 1%.
L/C Obligations means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit,
including all outstanding L/C Borrowings.
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<PAGE> 20
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the applicable Issuing
Lender's standard form documents for letter of credit issuances.
Lender - see the Preamble. References to the "Lenders" shall
include BofA in its capacity as Swing Line Lender and each Issuing Lender
in its capacity as such; for purposes of clarification only, to the
extent that the Swing Line Lender or any Issuing Lender may have any
rights or obligations in addition to those of the other Lenders due to
its status as Swing Line Lender or Issuing Lender, its status as such
will be specifically referenced.
Lending Office means, as to any Lender, the office or offices of
such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "LIBOR Lending Office", as the case may be, on Schedule 12.2,
or such other office or offices as such Lender may from time to time
notify the Borrowers and the Administrative Agent.
Letter of Credit means any standby letter of credit Issued by an
Issuing Lender pursuant to Section 3.
Leverage Ratio means at any time the ratio of (a) Total Indebtedness
to (b) EBITDA for the period of four consecutive fiscal quarters ending
on the last day of the most recent fiscal quarter for which the Parent
has delivered financial statements pursuant to Section 7.1.
LIBOR means, for any Interest Period, with respect to LIBOR Loans
comprising part of the same Borrowing, the rate of interest per annum
determined by the Administrative Agent as the rate at which dollar
deposits in the approximate amount of the LIBOR Loan of BofA (or, in the
case of a Bid Borrowing in which BofA is not participating, in the
approximate amount of the largest Loan included in such Borrowing) for
such Interest Period would be offered by BofA's London office to prime
banks in the offshore dollar interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
LIBOR Auction means a solicitation of Competitive Bids setting forth
a LIBOR Bid Margin pursuant to Section 2.6.
LIBOR Bid Loan means any Bid Loan that bears interest at a rate
based upon LIBOR.
LIBOR Bid Margin - see subsection 2.6(c)(ii)(C).
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<PAGE> 21
LIBOR Committed Loan means a Committed Loan that bears interest
based on LIBOR (Reserve Adjusted).
LIBOR Loan means a LIBOR Committed Loan or a LIBOR Bid Loan.
LIBOR (Reserve Adjusted) means, for any Interest Period, with
respect to LIBOR Committed Loans comprising part of the same Borrowing,
the rate of interest per annum (rounded upward to the next 1/16th of 1%)
determined by the Agent as follows:
LIBOR
LIBOR = -------------------------------------
(Reserve Adjusted) 1.00-Eurodollar Reserve Percentage.
Lien means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or other) or preferential arrangement of any kind or
nature whatsoever in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease, or
any financing lease having substantially the same economic effect as any
of the foregoing, but not including the interest of a lessor under an
operating lease).
Loan means an extension of credit by a Lender to a Borrower under
Section 2 or 3 in the form of a Committed Loan, Bid Loan, Swing Line Loan
or L/C Advance.
Loan Documents means this Agreement, any Notes, the L/C-Related
Documents and all other documents delivered to the Administrative Agent
or any Lender in connection herewith.
Margin Stock means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
Material Adverse Effect means a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
assets, condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries taken as a whole.
Material Financial Obligations means Indebtedness or Contingent
Obligations of either Borrower or any Subsidiary of either Borrower, or
obligations of either Borrower or any Subsidiary of either Borrower in
respect of any Securitization Transaction, in an aggregate principal
amount (for all applicable Indebtedness, Contingent Obligations and
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<PAGE> 22
obligations in respect of Securitization Transactions) equal to the
greater of $25,000,000 or 5% of Net Worth.
Moody's means Moody's Investors Service, Inc., or any successor
thereto.
Multiemployer Plan means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, with respect to which the Parent or any
ERISA Affiliate may have any liability.
Net Worth means the Parent's consolidated shareholders' equity.
Note means a promissory note executed by a Borrower in favor of a
Lender pursuant to subsection 2.2(b), in substantially the form of
Exhibit K.
Notice of Committed Borrowing means a notice in substantially the
form of Exhibit A.
Notice of Conversion/Continuation means a notice in substantially
the form of Exhibit B.
Notice of Swing Line Loan means a notice substantially in the form
of Exhibit F.
Obligations means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by either
Borrower to any Lender, the Administrative Agent or any other Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, or now
existing or hereafter arising.
Organization Documents means (i) for any corporation, the
certificate of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation, (ii) for any partnership or joint venture,
the partnership or joint venture agreement and any other organizational
document of such entity, (iii) for any limited liability company, the
certificate or articles of organization, the operating agreement and any
other organizational document of such limited liability company, (iv) for
any trust, the declaration of trust, the trust agreement and any other
organizational document of such trust and (v) for any other entity, the
document or
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<PAGE> 23
agreement pursuant to which such entity was formed and any other
organizational document of such entity.
Other Taxes means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Document.
Parent - see the Preamble.
Participant - see subsection 12.8(d).
Payment Sharing Notice means a written notice from either Borrower
or any Lender informing the Administrative Agent that an Event of Default
has occurred and is continuing and directing the Administrative Agent to
allocate payments received from or on behalf of the Borrowers in
accordance with subsection 2.15(b).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
Pension Plan means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA, other than a Multiemployer Plan,
with respect to which the Parent or any ERISA Affiliate may have any
liability.
Permitted Liens - see Section 8.2.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section 3(3) of
ERISA), other than a Multiemployer Plan, with respect to which the Parent
or any ERISA Affiliate may have any liability, and includes any Pension
Plan.
Pro Rata Share means for any Lender at any time the proportion
(expressed as a decimal, rounded to the ninth decimal place) which such
Lender's Commitment constitutes of the combined Commitments (or, after
the Commitments have terminated, which (i) the principal amount of such
Lender's Committed Loans plus (without duplication) the participation of
such Lender in (or in the case of an Issuing Lender or the Swing Line
Lender, the unparticipated portion of) the Effective Amount of all L/C
Obligations and the principal
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<PAGE> 24
amount of all Swing Line Loans constitutes of (ii) the aggregate
principal amount of all Committed Loans and Swing Line Loans plus
(without duplication) the Effective Amount of all L/C Obligations).
Reportable Event means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
Required Lenders means Lenders holding Adjusted Pro Rata Shares
aggregating more than 50%; provided that if and so long as any Lender
fails to fund any Committed Loan when required by Section 2.20 or Section
3.3 or a participation in a Swing Line Loan or an L/C Borrowing pursuant
to Section 2.21 or Section 3.3, as the case may be, such Lender's
Adjusted Pro Rata Share shall be deemed for purposes of this definition
to be reduced by the percentage which the defaulted amount constitutes of
the combined Commitments (or, if the Commitments have terminated, the
Total Outstandings), and the Adjusted Pro Rata Share of the applicable
Issuing Lender or the Swing Line Lender, as the case may be, shall be
deemed for purposes of this definition to be increased by such
percentage.
Requirement of Law means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
of a Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
Responsible Officer means, with respect to either Borrower, the
chief executive officer, the president or any vice president of such
Borrower, or any other officer of such Borrower having substantially the
same authority and responsibility; or, with respect to financial matters,
the chief financial officer or the treasurer of such Borrower, or any
other officer of such Borrower having substantially the same authority
and responsibility.
S&P means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
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<PAGE> 25
Securitization Transaction means any sale, assignment or other
transfer by the Parent or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Parent or any
Subsidiary or any interest in any of the foregoing, together in each case
with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or other
property or claims in favor of the Parent or such Subsidiary supporting
or securing payment by the obligor thereon of, or otherwise related to,
any such receivables.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the Parent.
Successor Lender - see subsection 2.16(b).
Surety Instruments means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, surety bonds and
similar instruments.
Swap Contract means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index
swap or option, bond, note or bill option, interest rate option, forward
foreign exchange transaction, cap, collar or floor transaction, currency
swap, cross-currency rate swap, swaption, currency option or any other,
similar transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing
any or all of the foregoing.
Swing Line Commitment means the commitment of the Swing Line Lender
to make Swing Line Loans hereunder.
Swing Line Lender means BofA in its capacity as swing line lender
hereunder, together with any replacement swing line lender arising under
Section 10.9.
Swing Line Loan - see Section 2.18.
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<PAGE> 26
Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on or measured
by its net income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Lender or the Administrative Agent,
as the case may be, is organized or maintains a lending office.
Termination Date means the earlier to occur of:
(a) January 23, 2003 (or such later date to which the
Termination Date may be extended pursuant to Section 2.16); and
(b) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
Total Indebtedness means, at any time, the sum (determined on a
consolidated basis and without duplication) of (i) all Indebtedness of
the Parent and its Subsidiaries of the types described in clauses (a),
(b), (d), (e), (f) and (g) of the definition of Indebtedness, (ii) all
non-contingent obligations of the Parent and its Subsidiaries with
respect to Surety Instruments, (iii) all contingent obligations of the
Parent and its Subsidiaries with respect to letters of credit issued for
the account of the Parent or any Subsidiary to support, and all Guaranty
Obligations of the Parent and its Subsidiaries in respect of, obligations
of any Affiliate of the Parent (other than any Subsidiary) or any
partnership or joint venture in which the Parent or any Subsidiary is a
partner or joint venturer and (iv) to the extent not included in the
definition of Indebtedness, the aggregate outstanding investment or claim
held at such time by purchasers, assignees or other transferees of (or of
interests in) receivables or other rights to payment of the Parent and
its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
Total Outstandings means the sum of the aggregate principal amount
of all outstanding Loans (whether Committed Loans, Bid Loans or Swing
Line Loans) plus the Effective Amount of all L/C Obligations.
Type has the meaning specified in the definition of "Committed
Loan."
Unfunded Pension Liability means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of such Plan's assets, determined in accordance with the
assumptions used for funding such Pension Plan pursuant to Section 412 of
the Code for the applicable plan year.
United States and U.S. each means the United States of America.
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Unmatured Event of Default means any event or circumstance which,
with the giving of notice, the lapse of time or both, will (if not cured
or otherwise remedied during such time) constitute an Event of Default.
Whitman means Whitman Corporation, a Delaware corporation.
Whitman Payments means (i) the repayment by Hussmann Corp. of all
intercompany debt owed to Whitman as described in the Form 10 and (ii) a
dividend by Hussmann Corp. to Whitman as described in the Form 10,
provided that the aggregate amount of all Whitman Payments will not
exceed $270,000,000.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means "to
and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters.
All such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided
herein, any reference to any action of the Administrative Agent, the
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Lenders or the Required Lenders by way of consent, approval or waiver shall be
deemed modified by the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Borrowers and the other parties, and are the products of all
parties. Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied; provided that if the Parent notifies the
Administrative Agent that the Parent wishes to amend any covenant in Section 8
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies the Parent that the Required Lenders
wish to amend Section 8 for such purpose), then the Parent's compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice
is withdrawn or such covenant is amended in a manner satisfactory to the Parent
and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Parent.
SECTION 2 THE CREDITS
2.1 Amounts and Terms of Commitments. Each Lender severally agrees, on
the terms and conditions set forth herein, to make Committed Loans to the
Borrowers from time to time on any Business Day during the period from the
Effective Date to the Termination Date, in an aggregate amount not to exceed at
any time outstanding the amount set forth on Schedule 2.1 (such amount, as
reduced pursuant to Section 2.7, increased pursuant to Section 2.17 or changed
by one or more assignments under Section 12.8, such Lender's "Commitment");
provided, however, that, after giving effect to any Committed Borrowing, the
Total Outstandings shall not exceed the combined Commitments; and provided,
further, that the aggregate principal amount of the Committed Loans of any
Lender plus the participation of such Lender in the principal amount of all
outstanding Swing Line Loans and in the Effective Amount of all L/C Obligations
shall not at any time exceed such Lender's Commitment. Within the limits of
each Lender's Commitment, and subject to the other terms and conditions hereof,
the Borrowers may borrow under this Section 2.1, prepay under Section 2.8 and
reborrow under this Section 2.1.
2.2 Loan Accounts. (a) The Loans made by each Lender and the Letters of
Credit Issued by each Issuing Lender shall be evidenced by one or more accounts
or records maintained by such
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Lender or Issuing Lender, as the case may be, in the ordinary course of
business. The accounts or records maintained by the Administrative Agent, each
Issuing Lender and each Lender shall be rebuttable presumptive evidence of the
amount of the Loans made by the Lenders to the Borrowers and the Letters of
Credit Issued for the account of the Borrowers, and the interest and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the applicable Borrower hereunder
to pay any amount owing with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Lender made through the Administrative
Agent, the Loans made by such Lender to a Borrower may be evidenced by one or
more Notes of such Borrower, instead of or in addition to loan accounts. Each
such Lender shall endorse on the schedules annexed to its Note(s) the date,
amount and maturity of each Loan evidenced thereby and the amount of each
payment of principal made by the applicable Borrower with respect thereto.
Each such Lender is irrevocably authorized by the Borrowers to endorse its
Note(s) and each Lender's record shall be rebuttable presumptive evidence of
the amount of the Loans evidenced thereby, and the interest and payments
thereon; provided, however, that the failure of a Lender to make, or an error
in making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of the applicable Borrower hereunder or under
any such Note to such Lender.
2.3 Procedure for Committed Borrowing. (a) Each Committed Borrowing
shall be made upon irrevocable written notice delivered to the Administrative
Agent by the applicable Borrower in the form of a Notice of Committed
Borrowing, which notice must be received by the Administrative Agent prior to
(i) 10:30 a.m. Chicago time three Business Days prior to the requested
Borrowing Date, in the case of LIBOR Committed Loans, and (ii) 10:30 a.m.
Chicago time on the requested Borrowing Date, in the case of Base Rate
Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which shall be in
an aggregate amount of $5,000,000 or a higher multiple of
$1,000,000;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising such Committed Borrowing; and
(D) in the case of LIBOR Committed Loans, the duration of the
initial Interest Period applicable to such Loans.
(b) The Administrative Agent will promptly notify each Lender of its
receipt of any Notice of Committed Borrowing and of the amount of such Lender's
Pro Rata Share of such Borrowing.
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(c) Each Lender will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Administrative Agent for the account of the
applicable Borrower at the Administrative Agent's Payment Office by 12:00 noon
Chicago time on the Borrowing Date requested by such Borrower in funds
immediately available to the Administrative Agent. The proceeds of all such
Loans will then be made available to the applicable Borrower by the
Administrative Agent by wire transfer in accordance with written instructions
provided to the Administrative Agent by such Borrower of like funds as received
by the Administrative Agent.
(d) After giving effect to any Committed Borrowing, unless the
Administrative Agent otherwise consents, there may not be more than 20 different
Interest Periods in effect for all Borrowings.
2.4 Conversion and Continuation Elections for Committed Borrowings. (a)
A Borrower may, upon irrevocable written notice to the Administrative Agent in
accordance with subsection 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest Period,
in the case of LIBOR Committed Loans, to convert such Loans (or any part
thereof in an aggregate amount of $5,000,000 or a higher integral multiple
of $1,000,000) into Committed Loans of the other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any LIBOR Committed Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of
$5,000,000 or a higher integral multiple of $1,000,000) for another
Interest Period;
provided that if at any time the aggregate amount of LIBOR Committed Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
any part thereof, to be less than $5,000,000, such LIBOR Committed Loans shall
automatically convert into Base Rate Committed Loans.
(b) The applicable Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than 10:30 a.m. Chicago time at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted into or
continued as LIBOR Committed Loans; and (ii) on the Conversion/Continuation
Date, if the Committed Loans are to be converted into Base Rate Committed Loans,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be converted or
continued;
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(C) the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(D) in the case of conversion into or continuation of LIBOR
Committed Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to LIBOR
Committed Loans, the applicable Borrower has failed to select timely a new
Interest Period to be applicable to such LIBOR Committed Loans, such Borrower
shall be deemed to have elected to convert such LIBOR Committed Loans into Base
Rate Committed Loans effective as of the expiration date of such Interest
Period.
(d) The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the applicable Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All conversions
and continuations shall be made ratably according to the respective outstanding
principal amounts of the Committed Loans with respect to which the notice was
given held by each Lender.
(e) Unless the Required Lenders otherwise consent, neither Borrower
may elect to have a Loan converted into or continued as a LIBOR Committed Loan
during the existence of an Event of Default or Unmatured Event of Default.
(f) After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent otherwise consents, there may not be more than
20 different Interest Periods in effect for all Borrowings.
2.5 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.3, each Lender severally agrees that either Borrower may, as set forth
in Section 2.6, from time to time request the Lenders prior to the Termination
Date to submit offers to make Bid Loans to such Borrower; provided that the
Lenders may, but shall have no obligation to, submit such offers and the
applicable Borrower may, but shall have no obligation to, accept any such
offers; and provided, further, that (a) after giving effect to any Bid
Borrowing, the Total Outstandings shall not exceed the combined Commitments and
(b) after giving effect to any Bid Borrowing, unless the Administrative Agent
otherwise consents, there may not be more than 20 different Interest Periods in
effect for all Borrowings.
2.6 Procedure for Bid Borrowings.
(a) When a Borrower wishes to request the Lenders to submit offers to
make Bid Loans hereunder, it shall transmit to the Administrative Agent by
telephone call followed promptly by facsimile transmission a notice in
substantially the form of Exhibit C (a "Competitive Bid Request") so as to be
received no later than 9:00 a.m. (Chicago time) (x) four Business Days
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prior to the date of a proposed Bid Borrowing in the case of a LIBOR Auction or
(y) one Business Day prior to the date of a proposed Bid Borrowing in the case
of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be
$5,000,000 or a higher integral multiple of $1,000,000;
(iii) whether the Competitive Bids requested are to be for LIBOR
Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period" herein.
A Borrower may not request Competitive Bids for more than six Interest Periods
in a single Competitive Bid Request.
(b) Upon receipt of a Competitive Bid Request, the Administrative
Agent will promptly send to the Lenders by facsimile transmission an Invitation
for Competitive Bids, which shall constitute an invitation by such Borrower to
each Lender to submit Competitive Bids offering to make the Bid Loans to which
such Competitive Bid Request relates in accordance with this Section 2.6.
(c) (i) Each Lender may at its discretion submit a Competitive Bid
containing an offer or offers to make Bid Loans to the applicable
Borrower in response to any Invitation for Competitive Bids. Each
Competitive Bid must comply with the requirements of this subsection
2.6(c) and must be submitted to the Administrative Agent by facsimile
transmission at the Administrative Agent's office for notices not later
than 8:30 a.m. (Chicago time) (1) three Business Days prior to the
proposed date of Borrowing, in the case of a LIBOR Auction, or (2) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction;
provided that Competitive Bids submitted by the Administrative Agent (or
any Affiliate of the Administrative Agent) in the capacity of a Lender
may be submitted, and may only be submitted, if the Administrative Agent
or such Affiliate notifies the applicable Borrower of the terms of the
offer or offers contained therein not later than 8:15 a.m. (Chicago time)
(A) three Business Days prior to the proposed date of Borrowing, in the
case of a LIBOR Auction, or (B) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit E, specifying therein:
(A) the proposed date of Borrowing;
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(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be
equal to, greater than or less than the Commitment of the quoting
Lender, (y) must be $5,000,000 or a higher integral multiple of
$1,000,000 and (z) may not exceed the principal amount of Bid Loans
for which Competitive Bids were requested;
(C) if the applicable Borrower elects a LIBOR Auction, the
margin above or below LIBOR (the "LIBOR Bid Margin") offered for
each such Bid Loan, expressed as a percentage (which shall be an
integral multiple of 1/10,000th of 1%) to be added to or subtracted
from the applicable LIBOR, and the Interest Period applicable
thereto;
(D) if the applicable Borrower elects an Absolute Rate
Auction, the rate of interest per annum (which shall be an integral
multiple of 1/10,000th of 1%) (the "Absolute Rate") offered for
each such Bid Loan; and
(E) the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the quoting
Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit E or does
not specify all of the information required by subsection (c)(ii) of
this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i) of
this Section.
(d) Promptly on receipt and not later than 9:00 a.m. (Chicago time)
three Business Days prior to the proposed date of Borrowing, in the case of a
LIBOR Auction, or on the proposed date of Borrowing, in the case of an Absolute
Rate Auction, the Administrative Agent will notify the applicable Borrower of
the terms of (i) any Competitive Bid submitted by a Lender that is in accordance
with subsection 2.6(c) and (ii) any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid submitted by such Lender
with respect to the same Competitive Bid Request. Any such subsequent
Competitive Bid shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid is submitted solely to correct a manifest error in
such former Competitive Bid and only if received within the
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times set forth in subsection 2.6(c). The Administrative Agent's notice to the
applicable Borrower shall specify (1) the aggregate principal amount of Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Request; and (2) the respective principal amounts
and LIBOR Bid Margins or Absolute Rates, as the case may be, so offered.
Subject only to the provisions of Sections 4.2, 4.5 and 5 hereof and the
provisions of this subsection (d), any Competitive Bid shall be irrevocable
except with the written consent of the Administrative Agent given on the written
instructions of the applicable Borrower.
(e) Not later than 9:30 a.m. (Chicago time) three Business Days prior
to the proposed date of Borrowing, in the case of a LIBOR Auction, or on the
proposed date of Borrowing, in the case of an Absolute Rate Auction, the
applicable Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection 2.6(d).
Such Borrower shall be under no obligation to accept any offer and may choose to
reject all offers. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that is accepted.
The applicable Borrower may accept any Competitive Bid in whole or in part;
provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) the principal amount of each Bid Borrowing must be
$5,000,000 or a higher integral multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending LIBOR Bid Margins or Absolute Rates, as the case may be, within
each Interest Period; and
(iv) such Borrower may not accept any offer that is described in
subsection 2.6(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two or more Lenders with the same LIBOR Bid
Margins or Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which such offers are accepted for the
related Interest Period, the principal amount of Bid Loans in respect of which
such offers are accepted shall be allocated by the Administrative Agent among
such Lenders as nearly as possible (in such multiples, not less than $1,000,000,
as the Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Administrative Agent of
the amount of Bid Loans shall be conclusive in the absence of manifest error.
(g) (i) The Administrative Agent will promptly notify each Lender
having submitted a Competitive Bid if its offer has been accepted and, if
its offer has been accepted, of the amount of the Bid Loan or Bid Loans to
be made by it on the date of the Bid Borrowing.
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(ii) Each Lender which has received notice pursuant to subsection
2.6(g)(i) that its Competitive Bid has been accepted shall make the
amounts of such Bid Loans available to the Administrative Agent for the
account of the applicable Borrower at the Administrative Agent's Payment
Office by 12:00 noon (Chicago time) on such date of Bid Borrowing, in
immediately available funds.
(iiiA Promptly following each Bid Borrowing, the Administrative
Agent shall notify each Lender of the ranges of bids submitted and the
highest and lowest Bids accepted for each Interest Period requested by
the applicable Borrower and the aggregate amount borrowed pursuant to
such Bid Borrowing.
2.7 Voluntary Termination or Reduction of Commitments. The Parent may,
upon not less than five Business Days' prior notice to the Administrative Agent,
terminate the Commitments, or permanently reduce the Commitments by a minimum
amount of $5,000,000 or a higher integral multiple of $1,000,000; unless, after
giving effect thereto and to any prepayments of Loans made on the effective date
thereof, the Total Outstandings would exceed the amount of the combined
Commitments then in effect. Once reduced in accordance with this Section, the
Commitments may not be increased (except pursuant to Section 2.17). Any
reduction of the Commitments shall be applied to reduce the Commitment of each
Lender according to its Pro Rata Share. If the Parent terminates the
Commitments or reduces the Commitments to zero, the Borrowers shall pay all
accrued and unpaid interest, fees and other amounts payable hereunder on the
date of such termination.
2.8 Optional Prepayments. (a) Subject to the proviso to subsection 2.4(a)
and to Section 4.4, either Borrower may, from time to time, upon irrevocable
notice to the Administrative Agent, which notice must be received by the
Administrative Agent prior to 10:30 a.m. Chicago time (i) three Business Days
prior to the date of prepayment, in the case of LIBOR Committed Loans, and (ii)
on the date of prepayment, in the case of Base Rate Committed Loans, ratably
prepay Committed Loans in whole or in part, in an aggregate amount of $5,000,000
or a higher integral multiple of $1,000,000 (or, if any Base Rate Committed
Loans have been made pursuant to subsection 2.20(b) or subsection 3.3(c), in an
aggregate amount equal to the aggregate amount of such Base Rate Committed
Loans). Such notice of prepayment shall specify the date and amount of such
prepayment and the Committed Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of any such notice and of such
Lender's Pro Rata Share of such prepayment. If such notice is given by a
Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein,
together with, in the case of LIBOR Committed Loans, accrued interest to such
date on the amount prepaid and any amounts required pursuant to Section 4.4.
(b) No Bid Loan may be voluntarily prepaid without the written consent of
the applicable Lender.
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2.9 Repayment. Each Borrower shall repay each Bid Loan to such Borrower
on the last day of the Interest Period therefor. The Borrower shall repay all
Loans (including any outstanding Bid Loans and Swing Line Loans) on the
Termination Date.
2.10 Interest. (a) Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to (i) the applicable LIBOR (Reserve Adjusted) plus the
Applicable Margin or (ii) the Base Rate, as the case may be (and subject to the
applicable Borrower's right to convert to the other Type of Committed Loan under
Section 2.4). Each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Base Rate or such other rate as may be agreed to from time to time
by the applicable Borrower and the Swing Line Lender. Each Bid Loan shall bear
interest on the outstanding principal amount thereof from the relevant Borrowing
Date at LIBOR plus (or minus) the LIBOR Bid Margin or equal to the applicable
Absolute Rate, as the case may be.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest also shall be paid on the date of any conversion of
LIBOR Committed Loans under Section 2.4 and prepayment of LIBOR Committed Loans
under Section 2.8, in each case for the portion of the Loans so converted or
prepaid.
(c) Notwithstanding the foregoing provisions of this Section, upon
notice to the Borrowers from the Administrative Agent (acting at the request or
with the consent of the Required Lenders) during the existence of any Event of
Default, and for so long as such Event of Default continues, each Borrower shall
pay interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans to such
Borrower and, to the extent permitted by applicable law, on any other amount
payable hereunder or under any other Loan Document, at a rate per annum which is
determined by adding 1% per annum to the rate otherwise applicable thereto
pursuant to the terms hereof or such other Loan Document (or, if no such rate is
specified, the Base Rate). All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding, the obligations
of each Borrower to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event such Borrower shall pay such Lender interest at the highest rate permitted
by applicable law.
2.11 Fees. In addition to certain fees described in Section 3.8:
(a) Arrangement, Agency Fees. The Borrowers agree to pay to the
Administrative Agent and the Arranger such fees at such times and in such
amounts as are
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mutually agreed to from time to time by the Borrowers and the Administrative
Agent or the Arranger, as the case may be.
(b) Facility Fees. The Borrowers jointly and severally agree to pay
to the Administrative Agent for the account of each Lender a facility fee
computed at the Facility Fee Rate per annum on the amount of such Lender's
Commitment as in effect from time to time (whether used or unused) or, if the
Commitments have terminated, on the sum (without duplication) of (i) the
principal amount of such Lender's outstanding Committed Loans plus (ii) the
participation of such Lender in (or in the case of an Issuing Lender or the
Swing Line Lender, its unparticipated portion of) the Effective Amount of all
L/C Obligations and the outstanding principal amount of all Swing Line Loans.
Such facility fee shall accrue from the date of the execution and delivery of
this Agreement by all of the parties hereto to the Termination Date, and
thereafter until all Committed Loans, Swing Line Loans and L/C Obligations are
paid in full, and shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter, with the final payment to be made on the
Termination Date (or, if later, on the date all Committed Loans, Swing Line
Loans and L/C Obligations are paid in full).
2.12 Computation of Fees and Interest. (a) All computations of interest
for Base Rate Committed Loans (and Swing Line Loans bearing interest at the Base
Rate) when the Base Rate is determined by BofA's "reference rate" shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of interest and fees shall be made on the basis
of a 360-day year and actual days elapsed. Interest and fees shall accrue
during each period during which such interest or such fees are computed from the
first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative Agent
shall be conclusive and binding on the Borrowers and the Lenders in the absence
of manifest error. The Administrative Agent will, at the request of either
Borrower or any Lender, deliver to such Borrower or such Lender, as the case may
be, a statement showing the quotations used by the Administrative Agent in
determining any interest rate and the resulting interest rate.
2.13 Payments by the Borrowers. (a) All payments to be made by the
Borrowers hereunder shall be made without set-off, recoupment or counterclaim.
Except as otherwise expressly provided herein, all payments by the Borrowers
shall be made to the Administrative Agent for the account of the Lenders at the
Administrative Agent's Payment Office, and shall be made in Dollars and in
immediately available funds, no later than 1:00 p.m. Chicago time on the date
specified herein (it being understood that the Administrative Agent shall be
deemed to have received a payment prior to 1:00 p.m. if the applicable Borrower
has provided the Administrative Agent with a Fed reference number confirming
such payment prior to such time). The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Administrative Agent later than 1:00 p.m. Chicago time
shall be deemed
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to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day (unless, in the case of
a payment with respect to a LIBOR Loan, the following Business Day is in another
calendar month, in which case such payment shall be made on the preceding
Business Day), and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
applicable Borrower prior to the date on which any payment is due from such
Borrower to the Lenders that such Borrower will not make such payment in full as
and when required, the Administrative Agent may assume that such Borrower has
made such payment in full to the Administrative Agent on such date in
immediately available funds and the Administrative Agent may (but shall not be
so required), in reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower has not made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender, together with interest thereon at the Federal Funds
Rate for each day from the date such amount is distributed to such Lender until
the date repaid.
2.14 Payments by the Lenders to the Administrative Agent. (a) Unless
the Administrative Agent receives notice from a Lender at least one Business
Day prior to the date of a Borrowing of LIBOR Committed Loans, or by 11:30 a.m.
Chicago time on the day of any Borrowing of Base Rate Committed Loans, that
such Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the applicable Borrower the amount of
such Lender's Pro Rata Share of such Committed Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent in immediately available funds on the Borrowing Date and
the Administrative Agent may (but shall not be so required), in reliance upon
such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent any Lender shall not have made its
full amount available to the Administrative Agent in immediately available
funds and the Administrative Agent in such circumstances has made available to
the applicable Borrower such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the Administrative
Agent, together with interest at the Federal Funds Rate. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing
under this subsection (a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Administrative Agent shall
constitute such Lender's Committed Loan to the applicable Borrower on the date
of Borrowing for all purposes of this Agreement. If such amount is not made
available to the Administrative Agent on the Business Day following the
Borrowing Date, the Administrative Agent will notify the applicable Borrower of
such failure to fund and, upon demand by the Administrative Agent, such
Borrower shall pay such amount to the Administrative Agent for the
Administrative Agent's account, together with interest thereon for
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each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Committed Loans comprising such
Committed Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan on
such Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on any Borrowing
Date.
2.15 Sharing of Payments, Etc. (a) Except as otherwise expressly
provided herein, whenever any payment received by the Administrative Agent to be
distributed to the Lenders is insufficient to pay in full the amounts then due
and payable to the Lenders, and the Administrative Agent has not received a
Payment Sharing Notice, such payment shall be distributed to the Lenders (and
for purposes of this Agreement shall be deemed to have been applied by the
Lenders, notwithstanding the fact that any Lender may have made a different
application in its books and records) in the following order: first, to the
payment of reimbursement obligations of the Borrowers in respect of any Letter
of Credit; second, to the payment of the principal amount of the Loans which is
then due and payable, ratably among the Lenders in accordance with the aggregate
principal amount owed to each Lender; third, to the payment of interest then due
and payable on the Loans and on the reimbursement obligations in respect of
Letters of Credit, ratably among the Lenders in accordance with the aggregate
amount of interest owed to each Lender; fourth, to the payment of the facility
fees payable under subsection 2.11(b) and letter of credit fees payable under
Section 3.8, ratably among the Lenders in accordance with the amount of such
fees owed to each Lender; and fifth, to the payment of any other amount payable
under this Agreement, ratably among the Lenders in accordance with the aggregate
amount owed to each Lender.
(b) After the Administrative Agent has received a Payment Sharing
Notice, and for so long thereafter as any Event of Default exists, all payments
received by the Administrative Agent to be distributed to the Lenders shall be
distributed to the Lenders (and for purposes of this Agreement shall be deemed
to have been applied by the Lenders, notwithstanding the fact that any Lender
may have made a different application in its books and records) in the following
order: first, to the payment of amounts payable under Sections 12.4 and 12.5,
ratably among the Lenders in accordance with the aggregate amount owed to each
Lender; second, to the payment of facility fees payable under subsection 2.11(b)
and letter of credit fees payable under Section 3.8, ratably among the Lenders
in accordance with the amount of such fees owed to each Lender; third, to the
payment of the interest accrued on and the principal amount of all of the Loans
and reimbursement obligations (including contingent reimbursement obligations)
regardless of whether any such amount is then due and payable, ratably among the
Lenders in accordance with the aggregate accrued interest plus the aggregate
principal amount owed to each Lender; and fourth, to the payment of any other
amount payable under this Agreement, ratably among the Lenders in accordance
with the aggregate amount owed to each Lender.
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(c) If, other than as expressly provided elsewhere herein (including
in Section 2.16 with respect to any payment to a Declining Lender, in Section
2.17 with respect to any prepayment made to give effect to a non-pro-rata
subscription for an increase in the Commitments, or with respect to payments of
principal of and interest on Swing Line Loans), any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of principal of or interest on
any Loan, or any other amount payable hereunder, in excess of the share of
payments and other recoveries such Lender would have received if such payment or
other recovery had been distributed pursuant to the provisions of subsection
2.15(a) or (b) (whichever is applicable at the time of such payment or other
recovery), such Lender shall immediately (i) notify the Administrative Agent of
such fact and (ii) purchase from the other Lenders such participations in the
Loans made by (or other Obligations owed to) them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery pro rata
with each of them in accordance with the order of payments set forth in
subsection 2.15(a) or (b), as the case may be; provided that if all or any
portion of such excess payment or other recovery is thereafter recovered from
the purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Lenders following any such purchases or repayments.
(d) Any amount that would be applied to a contingent obligation of a
Borrower in respect of a Letter of Credit under clause third of subsection
2.15(b) shall be held by the Administrative Agent as Cash Collateral hereunder.
If such Letter of Credit is thereafter drawn upon, the Administrative Agent
shall pay the applicable Issuing Lender an amount equal to the lesser of the
amount of such drawing and the amount of the funds so held as Cash Collateral
for such Letter of Credit. If and to the extent that such Letter of Credit
expires or terminates (or the maximum amount available for drawing thereunder is
reduced), the funds so held as Cash Collateral for such Letter of Credit (or the
portion thereof in excess of the maximum amount available for drawing
thereunder) shall be applied by the Administrative Agent as set forth in
subsection 2.15(a) or 2.15(b), as applicable.
2.16 Extension of Scheduled Termination Date; Substitution of Lenders.
(a) At any time after January 31, 2000 (but not more than once in any
calendar year and not more than twice during the term of this Agreement), the
Parent may, at its option, request all Lenders to extend the scheduled
Termination Date by one year by means of a letter,
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addressed to each Lender and the Administrative Agent, substantially in the
form of Exhibit L. Each Lender electing (in its sole and complete discretion)
so to extend the scheduled Termination Date shall deliver signed counterparts of
such letter to the Parent and the Administrative Agent no later than 30 days
after the date of such request by the Parent (such 30th day, the "Extension
Response Date"). Any Lender which does not deliver such counterparts by the
Extension Response Date shall be deemed to have declined to extend the scheduled
Termination Date. If all Lenders elect to extend the scheduled Termination
Date, the scheduled Termination Date shall be extended for an additional
one-year period on the date on which the Administrative Agent has received
signed counterparts of such letter from all Lenders (and the Administrative
Agent shall promptly notify the Parent and the Lenders of such extension). If
all Lenders do not elect to extend the scheduled Termination Date, the
provisions of subsection (b) below shall apply.
(b) If the scheduled Termination Date is not extended pursuant to
subsection (a) above after a request by the Parent, then the Parent may, at any
time prior to the 30th day after the Extension Response Date for such request,
arrange for any Lender that did not elect to extend the Termination Date (a
"Declining Lender") to assign its Loans, its Commitment and all of its other
rights and obligations hereunder to one or more other Lenders and/or Eligible
Assignees (any such Person, a "Successor Lender"); provided that no assignment
to an Eligible Assignee which is not a Lender shall be effective without the
prior written consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed). Any such assignment shall be made pursuant
to an Assignment and Acceptance between the Declining Lender and each applicable
Successor Lender (it being understood that no Declining Lender shall be required
to make any such assignment unless all of such Declining Lender's Loans,
Commitment and other rights and obligations hereunder are being assigned
concurrently pursuant to one or more assignments). On the date of any such
assignment, (i) the Successor Lender(s) shall pay to the Declining Lender an
amount equal to the principal amount of all of such Declining Lender's
outstanding Loans, (ii) the Borrowers shall pay to the Declining Lender an
amount equal to all accrued interest, fees and other amounts then owed to such
Declining Lender hereunder or in connection herewith (including any amount
payable pursuant to Section 4.4, assuming for such purpose that such Declining
Lender's LIBOR Committed Loans and Bid Loans were prepaid on the date of such
assignment) and (iii) the Declining Lender shall cease to be a Lender hereunder.
If BofA shall become a Declining Lender and is replaced as a Lender (and as
Issuing Lender and Swing Line Lender) pursuant to this subsection (b), BofA
shall resign as Administrative Agent and the provisions of Section 10.9 shall
apply.
(c) If all Declining Lenders have been replaced pursuant to subsection
(b) on or before the 30th day after the applicable Extension Response Date, then
the scheduled Termination Date shall be extended for an additional one-year
period (and the Administrative Agent shall promptly notify the Parent and the
Lenders of such extension).
2.17 Optional Increase in Commitments. The Parent may at any time, by
means of a letter to the Administrative Agent and each Lender substantially in
the form of Exhibit M, request that the Lenders increase the combined
Commitments; provided that (i) such letter shall be
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accompanied by evidence reasonably satisfactory to the Administrative Agent
that the board of directors of each Borrower has approved such increase and (ii)
in no event shall the aggregate amount of the combined Commitments exceed
$450,000,000 without the written consent of all Lenders. Each Lender shall have
the option (in its sole and complete discretion) to subscribe for its
proportionate share of such increase, according to its then-existing Pro Rata
Share. Each Lender shall respond to the Parent's request within 20 Business
Days by submitting a response in the form of Attachment 1 to Exhibit M to the
Administrative Agent (and any Lender not responding within such period shall be
deemed to have declined such request). At the option of the Parent, any part of
the proposed increase not so subscribed may be assumed, within 10 Business Days
after all Lenders have responded to (or are deemed to have declined) such
request, by one or more existing Lenders and/or by one or more Persons meeting
the qualifications of an Eligible Assignee, in amounts which are acceptable to
the Parent; it being understood that any assumption by a Person which is not an
existing Lender shall be subject to consent of the Administrative Agent (which
consent shall not be unreasonably withheld or delayed). Any increase in the
combined Commitments pursuant to this Section 2.17 shall become effective on the
earliest to occur of (a) the date on which the proposed increase has been fully
subscribed, (b) 10 Business Days after the date on which all Lenders have
responded to (or are deemed to have declined) the Parent's request for an
increase and (c) the date, which shall not be earlier than the date on which all
Lenders have responded to (or are deemed to have declined) the Parent's request
for an increase, on which the Parent notifies the Administrative Agent that the
Parent accepts an increase in the combined Commitments which is less than the
full amount of the requested increase. The Administrative Agent shall promptly
notify the Parent and the Lenders of any increase in the amount of the combined
Commitments pursuant to this Section 2.17 and of the Commitment and Pro Rata
Share of each Lender after giving effect thereto. The Borrowers acknowledge
that, in order to maintain Committed Loans in accordance with each Lender's Pro
Rata Share, a reallocation of the Commitments as a result of a non-pro-rata
subscription to an increase in the combined Commitments may require prepayment
of all or portions of certain Committed Loans on the date of such increase (and
any such prepayment shall be subject to the provisions of Section 4.4).
2.18 Swing Line Commitment. Subject to the terms and conditions of this
Agreement, the Swing Line Lender agrees to make loans to the Borrowers on a
revolving basis (each such loan, a "Swing Line Loan") from time to time on any
Business Day during the period from the Effective Date to the Termination Date
in an aggregate principal amount at any one time outstanding not to exceed
$10,000,000; provided that after giving effect to any proposed Swing Line Loan,
the Total Outstandings shall not exceed the combined Commitments.
2.19 Borrowing Procedures for Swing Line Loans. The applicable Borrower
shall provide a Notice of Swing Line Loan or telephonic notice (followed by a
confirming Notice of Swing Line Loan) of a proposed Swing Line Loan to the
Administrative Agent and the Swing Line Lender not later than 12:00 noon
Chicago time on the proposed Borrowing Date. Each such notice shall be
effective upon receipt by the Administrative Agent and the Swing Line Lender
and shall specify the date and the principal amount of such Swing Line Loan.
Unless the Swing Line
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Lender has received written notice prior to 11:00 a.m. Chicago time on the
proposed Borrowing Date from the Administrative Agent or any Lender that one or
more of the conditions precedent set forth in Section 5 with respect to such
Swing Line Loan is not then satisfied, the Swing Line Lender shall pay over the
requested principal amount to the applicable Borrower on the requested Borrowing
Date in immediately available funds. Each Swing Line Loan shall be made on a
Business Day and shall be in the amount of $1,000,000 or a higher integral
multiple thereof. The Swing Line Lender will promptly notify the Administrative
Agent of the making and amount of each Swing Line Loan.
2.20 Prepayment or Refunding of Swing Line Loans. (a) Either Borrower
may, at any time and from time to time, prepay any Swing Line Loan to such
Borrower in whole or in part, in an amount equal to $1,000,000 or a higher
integral multiple thereof. The applicable Borrower shall deliver a notice of
prepayment in accordance with Section 12.2 to be received by the Administrative
Agent and the Swing Line Lender not later than 11:00 a.m. Chicago time on the
Business Day of such prepayment, specifying the date and amount of such
prepayment. If such notice is given by a Borrower, the payment amount
specified in such notice shall be due and payable on the date specified
therein.
(b) The Swing Line Lender may, at any time in its sole and absolute
discretion, on behalf of either Borrower (each of which hereby irrevocably
directs the Swing Line Lender to act on its behalf), request each Lender to make
a Committed Loan in an amount equal to such Lender's Pro Rata Share of the
principal amount of the Swing Line Loans to such Borrower outstanding on the
date such notice is given. Unless any of the events described in subsection
9.1(f) or (g) shall have occurred (in which event the procedures of Section 2.21
shall apply), and regardless of whether the conditions precedent set forth in
this Agreement to the making of Committed Loans are then satisfied or the
aggregate amount of such Committed Loans is not in the minimum or integral
amount otherwise required hereunder, each Lender shall make the proceeds of its
Committed Loan available to the Administrative Agent for the account of the
Swing Line Lender at the Administrative Agent's Payment Office prior to 12:00
noon Chicago time in immediately available funds on the Business Day next
succeeding the date such notice is given. The proceeds of such Committed Loans
shall be immediately applied to repay the outstanding Swing Line Loans of the
applicable Borrower. All Committed Loans made pursuant to this Section 2.20
shall be Base Rate Committed Loans (but, subject to the other provisions of this
Agreement, may be converted to LIBOR Committed Loans).
2.21 Participations in Swing Line Loans. (a) If an event described in
subsection 9.1(f) or (g) exists (or for any reason the Lenders may not make
Committed Loans pursuant to Section 2.20), each Lender will, upon notice from
the Administrative Agent, purchase from the Swing Line Lender (and the Swing
Line Lender will sell to each Lender) an undivided participation interest in
all outstanding Swing Line Loans in an amount equal to its Pro Rata Share of
the outstanding principal amount of the Swing Line Loans (and each Lender will
immediately transfer to the Administrative Agent, for the account of the Swing
Line Lender, in immediately available funds, the amount of its participation).
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(b) Whenever, at any time after the Swing Line Lender has received payment
for any Lender's participation interest in the Swing Line Loans pursuant to
subsection 2.21(a), the Swing Line Lender receives any payment on account
thereof, the Swing Line Lender will distribute to the Administrative Agent for
the account of such Lender its participation interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participation interest was outstanding and
funded) in like funds as received; provided, however, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Administrative Agent for the account of the Swing Line
Lender any portion thereof previously distributed by the Swing Line Lender to it
in like funds as such payment is required to be returned by the Swing Line
Lender.
2.22 Participation Obligations Unconditional. (a) Each Lender's
obligation to make Committed Loans pursuant to Section 2.20 and/or to purchase
participation interests in Swing Line Loans pursuant to Section 2.21 shall be
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including (a) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, either
Borrower or any other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default or Unmatured Event of Default; (c) any
adverse change in the condition (financial or otherwise) of either Borrower or
any other Person; (d) any breach of this Agreement or any other Loan Document
by either Borrower or any other Person; (e) any inability of the Borrowers to
satisfy the conditions precedent to borrowing set forth in this Agreement on
the date upon which any such Loan is to be made or any participation interest
therein is to be purchased; or (f) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(b) Notwithstanding the provisions of subsection 2.22(a), no Lender shall
be required to make any Committed Loan to either Borrower to refund a Swing Line
Loan pursuant to Section 2.20 or to purchase a participation interest in a Swing
Line Loan pursuant to Section 2.21 if, prior to the making by the Swing Line
Lender of such Swing Line Loan, the Swing Line Lender received written notice
from any Lender specifying that such Lender believed in good faith that one or
more of the conditions precedent to the making of such Swing Line Loan were not
satisfied and, in fact, such conditions precedent were not satisfied at the time
of the making of such Swing Line Loan; provided that the obligation of such
Lender to make such Committed Loans and to purchase such participation interests
shall be reinstated upon the earlier to occur of (i) the date on which such
Lender notifies the Swing Line Lender that its prior notice has been withdrawn
and (ii) the date on which all conditions precedent to the making of such Swing
Line Loan have been satisfied (or waived by the Required Lenders or all Lenders,
as applicable).
2.23 Conditions to Swing Line Loans. Notwithstanding any other provision
of this Agreement, the Swing Line Lender shall not be obligated to make any
Swing Line Loan if an Event of Default or Unmatured Event of Default exists or
would result therefrom or any other applicable condition set forth in Section 5
has not been satisfied.
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SECTION 3 THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms and conditions
set forth herein (i) each Issuing Lender agrees, (A) from time to time on any
Business Day during the period from the Effective Date to the Termination Date
to issue standby Letters of Credit for the account of either Borrower, and to
amend or renew standby Letters of Credit previously issued by it, in accordance
with subsections 3.2(c) and 3.2(d), and (B) to honor properly drawn drafts
under the Letters of Credit issued by it; and (ii) the Lenders severally agree
to participate in standby Letters of Credit Issued for the account of either
Borrower; provided that no Issuing Lender shall be obligated to Issue, and no
Lender shall be obligated to participate in, any Letter of Credit if as of the
date of Issuance of such Letter of Credit (the "Issuance Date") (1) the Total
Outstandings exceed the combined Commitments, (2) the Effective Amount of all
L/C Obligations would exceed the L/C Commitment or (3) the participation of any
Lender in the Effective Amount of all L/C Obligations plus the participation of
such Lender in the principal amount of all outstanding Swing Line Loans plus
the outstanding principal amount of the Committed Loans of such Lender would
exceed such Lender's Commitment. Within the foregoing limits, and subject to
the other terms and conditions hereof, the ability of the Borrower to obtain
Letters of Credit shall be fully revolving, and, accordingly, the Borrowers
may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit which have expired or which have been drawn upon and reimbursed.
(b) No Issuing Lender shall be under any obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such
Issuing Lender from Issuing such Letter of Credit, or any Requirement of
Law applicable to such Issuing Lender or any request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the Issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect on the Effective Date, or shall
impose upon such Issuing Lender any unreimbursed loss, cost or expense
which was not applicable on the Effective Date and which such Issuing
Lender in good faith deems material to it (it being understood that the
applicable Issuing Lender shall promptly notify the Borrowers and the
Administrative Agent of any of the foregoing events or circumstances);
(ii) such Issuing Lender has received written notice from any
Lender, the Administrative Agent or either Borrower, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in Section
5 is not then satisfied;
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(iii) the expiry date of such requested Letter of Credit is
after the Termination Date, unless all of the Lenders have approved such
expiry date in writing;
(iv) such Letter of Credit does not provide for drafts, or is
not otherwise in form and substance acceptable to such Issuing Lender, or
the Issuance of a Letter of Credit shall violate any applicable policies
of such Issuing Lender; or
(v) such Letter of Credit is denominated in a currency other
than Dollars.
3.2 Issuance, Amendment and Renewal of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of a
Borrower received by the applicable Issuing Lender (with a copy sent by such
Borrower to the Administrative Agent) at least one Business Day (or such shorter
time as the applicable Issuing Lender and the Administrative Agent may agree in
a particular instance in their sole discretion) prior to the proposed date of
issuance. Each such request for issuance of a Letter of Credit shall be by
facsimile, confirmed immediately (by messenger or overnight courier) in an
original writing, in the form of an L/C Application, and shall specify in form
and detail satisfactory to the applicable Issuing Lender: (i) the face amount of
the Letter of Credit; (ii) the expiry date of the Letter of Credit; (iii) the
name and address of the beneficiary thereof; (iv) the documents to be presented
by the beneficiary of the Letter of Credit in case of any drawing thereunder;
(v) the full text of any certificate to be presented by the beneficiary in case
of any drawing thereunder; (vi) the Borrower requesting the Issuance of such
Letter of Credit; and (vii) such other matters as such Issuing Lender may
require.
(b) Promptly upon receipt of any L/C Application or L/C Amendment
Application, the applicable Issuing Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such L/C Application or L/C Amendment Application from the applicable
Borrower and, if not, such Issuing Lender will provide the Administrative Agent
with a copy thereof. Unless the applicable Issuing Lender has received on or
before the Business Day immediately preceding the date such Issuing Lender is to
issue a requested Letter of Credit, (A) notice from the Administrative Agent
directing such Issuing Lender not to issue such Letter of Credit because such
issuance is not then permitted under subsection 3.1(a) as a result of the
limitations set forth in clauses (1) through (3) thereof or (B) a notice
described in subsection 3.1(b)(ii), then, subject to the terms and conditions
hereof, such Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the applicable Borrower in accordance with such
Issuing Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Termination Date, the applicable Issuing Lender will, upon the
written request of the applicable Borrower received by such Issuing Lender (with
a copy sent by such Borrower to the Administrative Agent) at least one Business
Day (or such shorter time as the applicable Issuing Lender and the
Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of amendment, amend any Letter of Credit
issued by it. Each such
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request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately (by messenger or overnight courier) in an original
writing, made in the form of an L/C Amendment Application and shall specify in
form and detail satisfactory to such Issuing Lender: (i) the Letter of Credit
to be amended; (ii) the proposed date of amendment of such Letter of Credit
(which shall be a Business Day); (iii) the nature of the proposed amendment; and
(iv) such other matters as such Issuing Lender may require. No Issuing Lender
shall have any obligation to amend any Letter of Credit if: (A) such Issuing
Lender would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit. The Administrative Agent will promptly notify the Lenders of any
Issuance of a Letter of Credit.
(d) The Issuing Lenders and the Lenders agree that, while a Letter of
Credit is outstanding and prior to the Termination Date, at the option of the
applicable Borrower and upon the written request of such Borrower received by
the applicable Issuing Lender (with a copy sent by such Borrower to the
Administrative Agent) at least one Business Day (or such shorter time as the
applicable Issuing Lender and the Administrative Agent may agree in a particular
instance in their sole discretion) prior to the proposed date of notification of
renewal, the applicable Issuing Lender shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed immediately
in an original writing, in the form of an L/C Amendment Application, and shall
specify in form and detail satisfactory to the applicable Issuing Lender: (i)
the Letter of Credit to be renewed; (ii) the proposed date of notification of
renewal of such Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of such Letter of Credit (which, unless all Lenders
otherwise consent in writing, shall be prior to the Termination Date); and (iv)
such other matters pertaining to such Letter of Credit as such Issuing Lender
may reasonably require. No Issuing Lender shall be under any obligation to
renew any Letter of Credit if: (A) such Issuing Lender would have no obligation
at such time to issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement; or (B) the beneficiary of such Letter of Credit
does not accept the proposed renewal of such Letter of Credit. If any
outstanding Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the applicable
Issuing Lender that such Letter of Credit shall not be renewed, and if at the
time of renewal such Issuing Lender would be entitled to authorize the automatic
renewal of such Letter of Credit in accordance with this subsection 3.2(d) upon
the request of the applicable Borrower but such Issuing Lender shall not have
received any L/C Amendment Application from such Borrower with respect to such
renewal or other written direction by such Borrower with respect thereto, such
Issuing Lender shall nonetheless be permitted to allow such Letter of Credit to
renew, and the Borrowers and the Lenders hereby authorize any such renewal, and,
accordingly, such Issuing Lender shall be deemed to have received an L/C
Amendment Application from the applicable Borrower requesting such renewal.
(e) Each Issuing Lender may, at its election (or as required by the
Administrative Agent at the direction of the Required Lenders), deliver any
notice of termination
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or other communication to any Letter of Credit beneficiary or transferee, and
take any other action as necessary or appropriate, at any time and from time to
time, in order to cause the expiry date of such Letter of Credit to be a date
not later than the Termination Date.
(f) This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Lender will deliver to the Administrative Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of such Letter of Credit or of such
amendment or renewal.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit on or after
the Effective Date, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the applicable Issuing Lender a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to the product of (i) such Lender's Pro Rata Share times (ii) the maximum
amount available to be drawn under such Letter of Credit and the amount of such
drawing, respectively. For purposes of Section 2.1, each Issuance of a Letter
of Credit shall be deemed to utilize the Commitment of each Lender by an amount
equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the applicable Issuing Lender
will promptly notify the applicable Borrower and the Administrative Agent. Such
Borrower shall (subject, if applicable, to its right to obtain Base Rate
Committed Loans as provided below) reimburse the applicable Issuing Lender prior
to 10:30 a.m. Chicago time on each date that any amount is paid by such Issuing
Lender under any Letter of Credit (each such date, an "Honor Date") in an amount
equal to the amount so paid by such Issuing Lender; provided that, to the extent
that any Issuing Lender accepts a drawing under a Letter of Credit after 10:30
a.m. Chicago time, the applicable Borrower will not be obligated to reimburse
such Issuing Lender until the next Business Day and the "Honor Date" for such
Letter of Credit shall be such next Business Day. If the applicable Borrower
fails to reimburse an Issuing Lender for the full amount of any drawing under
any Letter of Credit by 10:30 a.m. Chicago time on the Honor Date, such Issuing
Lender will promptly notify the Administrative Agent and the Administrative
Agent will promptly notify each Lender thereof, and such Borrower shall be
deemed to have requested that Base Rate Committed Loans be made by the Lenders
to be disbursed on the Honor Date under such Letter of Credit, subject to the
amount of the unutilized portion of the combined Commitments and subject to the
conditions set forth in Section 5.2 other than Section 5.2(a). Any notice given
by an Issuing Lender or the Administrative Agent pursuant to this subsection
3.3(b) may be oral if immediately confirmed in writing (including by facsimile);
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
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(c) Each Lender shall upon any notice pursuant to subsection 3.3(b)
make available to the Administrative Agent for the account of the applicable
Issuing Lender an amount in Dollars and in immediately available funds equal to
its Pro Rata Share of the amount of the drawing, whereupon the Lenders shall
(subject to subsection 3.3(d)) each be deemed to have made a Committed Loan
consisting of a Base Rate Committed Loan to the applicable Borrower in such
amount. If any Lender so notified fails to make available to the Administrative
Agent for the account of the applicable Issuing Lender the amount of such
Lender's Pro Rata Share of the amount of such drawing by no later than 1:00 p.m.
Chicago time on the Honor Date, then interest shall accrue on such Lender's
obligation to make such payment, from the Honor Date to the date such Lender
makes such payment, at a rate per annum equal to the Federal Funds Rate in
effect from time to time during such period. The Administrative Agent will
promptly give notice of the occurrence of the Honor Date, but failure of the
Administrative Agent to give any such notice on the Honor Date or in sufficient
time to enable any Lender to effect such payment on such date shall not relieve
such Lender from its obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is not converted
into Base Rate Committed Loans in whole or in part, because of the failure of
the applicable Borrower to satisfy the conditions set forth in Section 5.2
(other than subsection 5.2(a) which need not be satisfied) or for any other
reason, the applicable Borrower shall be deemed to have incurred from the
applicable Issuing Lender an L/C Borrowing in the amount of such drawing, which
L/C Borrowing shall be due and payable on demand and shall bear interest
(payable on demand) at a rate per annum equal to the Base Rate plus 1%, and each
Lender's payment to such Issuing Lender pursuant to subsection 3.3(c) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 3.3.
(e) Each Lender's obligation in accordance with this Agreement to
make the Committed Loans or L/C Advances, as contemplated by this Section 3.3,
as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to any Issuing Lender and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
applicable Issuing Lender, the applicable Borrower or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of an Event of Default, an
Unmatured Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided that each Lender's obligation to make Committed Loans
under this Section 3.3 is subject to the conditions set forth in Section 5.2
(other than subsection 5.2(a)).
3.4 Repayment of Participations. (a) Upon (and only upon) receipt by the
Administrative Agent for the account of an Issuing Lender of immediately
available funds from or on behalf of the applicable Borrower (i) in
reimbursement of any payment made by such Issuing Lender under a Letter of
Credit with respect to which any Lender has paid the Administrative Agent for
the account of such Issuing Lender for such Lender's participation in such
Letter of Credit pursuant
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to Section 3.3 or (ii) in payment of interest thereon, the Administrative Agent
will pay to each Lender, in the same funds as those received by the
Administrative Agent for the account of such Issuing Lender, the amount of such
Lender's Pro Rata Share of such funds, and such Issuing Lender shall receive the
amount of the Pro Rata Share of such funds of any Lender that did not so pay the
Administrative Agent for the account of such Issuing Lender.
(b) If the Administrative Agent or an Issuing Lender is required at
any time to return to either Borrower, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion of any
payment made by or on behalf of such Borrower to the Administrative Agent for
the account of an Issuing Lender pursuant to subsection 3.4(a) in reimbursement
of a payment made under a Letter of Credit or interest or fee thereon, each
Lender shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the applicable Issuing Lender the amount of its Pro Rata
Share of any amount so returned by the Administrative Agent or such Issuing
Lender plus interest thereon from the date such demand is made to the date such
amount is returned by such Lender to the Administrative Agent or such Issuing
Lender, at a rate per annum equal to the Federal Funds Rate in effect from time
to time.
3.5 Role of the Issuing Lenders. (a) Each Lender and each Borrower
agree that, in paying any drawing under a Letter of Credit, the applicable
Issuing Lender shall not have any responsibility to obtain any document (other
than any sight draft and certificate expressly required by such Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.
(b) No Issuing Lender or Administrative Agent-Related Person, nor any
of their respective correspondents, participants or assignees, shall be liable
to any Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Borrowers hereby assume all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude either
Borrower's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. No Issuing
Lender or Administrative Agent-Related Person, nor any of their respective
correspondents, participants or assignees, shall be liable or responsible for
any of the matters described in clauses (i) through (vii) of Section 3.6;
provided that, anything in such clauses to the contrary notwithstanding, the
applicable Borrower may have a claim against an Issuing Lender, and such Issuing
Lender may be liable to the applicable Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which such Borrower proves were caused by such Issuing
Lender's willful misconduct or gross negligence or such Issuing Lender's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with
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the terms and conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) an Issuing Lender may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary (absent
such Issuing Lender's willful misconduct or gross negligence); and (ii) no
Issuing Lender shall be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason
(absent such Issuing Lender's gross negligence or willful misconduct).
3.6 Obligations Absolute. The obligations of the applicable Borrower
under this Agreement and any L/C-Related Document to reimburse the applicable
Issuing Lender for a drawing under a Letter of Credit issued for the account of
such Borrower, and to repay any L/C Borrowing and any drawing under any such
Letter of Credit converted into Committed Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement or any
L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the applicable Borrower
in respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that either Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the applicable Issuing
Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by any L/C-Related Document or any
unrelated transaction;
(iv) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by an Issuing Lender under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by an
Issuing Lender under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any
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beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guarantee, for all or any of the obligations of either Borrower in
respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, such
Borrower.
3.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Termination Date, then the Borrowers
jointly and severally agree to immediately Cash Collateralize the L/C
Obligations in an amount equal to the maximum amount then available to be drawn
under all Letters of Credit.
3.8 Letter of Credit Fees. (a) The applicable Borrower shall pay to the
Administrative Agent for the account of each Lender a letter of credit fee with
respect to each Letter of Credit issued for the account of such Borrower in an
amount equal to the L/C Fee Rate per annum of the average daily maximum amount
available to be drawn on such Letter of Credit, computed on a quarterly basis
in arrears on the last Business Day of each calendar quarter and on the
Termination Date (or such later date on which such Letter of Credit shall
expire or be fully drawn).
(b) The letter of credit fees payable under subsection 3.8(a) shall
be due and payable quarterly in arrears on the last Business Day of each
calendar quarter during which Letters of Credit are outstanding, commencing on
the first such quarterly date to occur after the Effective Date, through the
Termination Date (or such later date upon which all outstanding Letters of
Credit shall expire or be fully drawn), with the final payment to be made on the
Termination Date (or such later date).
(c) The applicable Borrower shall pay to each applicable Issuing
Lender a letter of credit fronting fee at such times and in such amounts as are
mutually agreed to from time to time by such Borrower and such Issuing Lender.
(d) The applicable Borrower shall pay to each applicable Issuing
Lender from time to time on demand the normal issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of such Issuing
Lender relating to letters of credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the
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time of issuance of any Letter of Credit shall (unless otherwise expressly
provided in such Letter of Credit) apply to such Letter of Credit.
SECTION 4 TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Borrowers to any Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Borrowers shall pay all Other Taxes and Further Taxes.
(b) If a Borrower shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section),
such Lender or the Administrative Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and retained had
no such deductions or withholdings been made;
(ii) such Borrower shall make such deductions and withholdings;
and
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law.
(c) Each Borrower agrees to indemnify and hold harmless each Lender
and the Administrative Agent for the full amount of Taxes, Other Taxes and
Further Taxes in the amount that such Lender specifies as necessary to preserve
the after-tax yield such Lender would have received if such Taxes, Other Taxes
or Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were correctly
or legally asserted. Payment under this indemnification shall be made within 30
days after the date such Lender or the Administrative Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by a Borrower of any
Taxes, Other Taxes or Further Taxes pursuant to clause (b) above, such Borrower
shall furnish each applicable Lender and the Administrative Agent the original
or a certified copy of a receipt evidencing payment thereof, or other evidence
of payment reasonably satisfactory to such Lender and the Administrative Agent.
(e) If a Borrower is required to pay any amount to any Lender or the
Administrative Agent pursuant to subsection (b) or (c) of this Section, then
such Lender shall use
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reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such additional
payment by such Borrower which may thereafter accrue, if such change in the sole
judgment of such Lender is not otherwise disadvantageous to such Lender.
(f) Notwithstanding the foregoing provisions of this Section 4.1, (i)
if any Lender fails to notify the applicable Borrower of any event or
circumstance which will entitle such Lender to compensation pursuant to this
Section 4.1 within 60 days after such event or circumstance, then such Lender
shall not be entitled to compensation from such Borrower for any amount arising
prior to the date which is 60 days before the date on which such Lender notifies
such Borrower of such event or circumstance; and (ii) neither Borrower shall be
required to pay an additional amount to, or to indemnify, any Lender pursuant to
this Section 4.1 to the extent that (x) the obligation to withhold or pay such
amount existed on the Initial Date (as defined below) or (y) the obligation to
withhold or pay such amount would not have arisen but for the failure of such
Lender to comply with the provisions of Section 10.10 of this Agreement. For
purposes of clause (ii) of the foregoing sentence "Initial Date" means (A) in
the case of any Lender that is a signatory hereto, the date of this Agreement,
(B) in the case of any Person which subsequently becomes a Lender hereunder, the
date of the applicable Assignment and Acceptance, and (C) in the case of any
Participant, the date on which it becomes a Participant.
4.2 Illegality. (a) If any Lender determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Lender or its applicable Lending Office to make
LIBOR Loans, then, on notice thereof by such Lender to the Borrowers through
the Administrative Agent, any obligation of such Lender to make LIBOR Loans
(including in respect of any LIBOR Bid Loan as to which a Borrower has accepted
such Lender's Competitive Bid, but which has not been borrowed) shall be
suspended until such Lender notifies the Administrative Agent and the Borrowers
that the circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any LIBOR
Loan, the applicable Borrower shall, upon its receipt of notice of such fact and
demand from such Lender (with a copy to the Administrative Agent), prepay in
full such LIBOR Loan of such Lender, together with interest accrued thereon and
amounts required under Section 4.4, either on the last day of the current
Interest Period therefor or, if earlier, on the date on which such Lender may no
longer lawfully continue to maintain such LIBOR Loan. If a Borrower is required
to so prepay any LIBOR Committed Loan, then concurrently with such prepayment,
such Borrower shall borrow from the affected Lender, in the amount of such
repayment, a Base Rate Committed Loan (which shall be treated as part of the
same Borrowing as the Loan so repaid).
(c) If the obligation of any Lender to make or maintain LIBOR
Committed Loans has been so terminated or suspended, all Loans which would
otherwise be made by such Lender as LIBOR Committed Loans shall be instead Base
Rate Committed Loans.
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(d) Before giving any notice to the Administrative Agent under this
Section, the affected Lender shall designate a different Lending Office with
respect to its LIBOR Loans if such designation will avoid the need for giving
such notice or making such demand and will not, in the judgment of such Lender,
be illegal or otherwise disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. (a) If any Lender
determines that, due to either (i) the introduction of or any change (other
than any change by way of imposition of or increase in reserve requirements
included in the calculation of the LIBOR Rate (Reserve Adjusted)) in or in the
interpretation of any law or regulation or (ii) compliance by such Lender with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
LIBOR Loan or participating in any Letter of Credit, or, in the case of an
Issuing Lender, any increase in the cost to such Issuing Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the Borrowers shall be jointly and severally liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased cost.
(b) If any Lender shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Lender (or its Lending Office) or any corporation controlling such Lender
with any Capital Adequacy Regulation affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, Loans or obligations under this
Agreement, then, upon demand of such Lender to the Borrowers through the
Administrative Agent, the Borrowers jointly and severally agree to pay to such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender for such increase.
(c) Notwithstanding the foregoing provisions of this Section 4.3, if
any Lender fails to notify the Borrowers of any event or circumstance which will
entitle such Lender to compensation pursuant to this Section 4.3 within 60 days
after such event or circumstance, then such Lender shall not be entitled to
compensation from the Borrowers for any amount arising prior to the date which
is 60 days before the date on which such Lender notifies the Borrowers of such
event or circumstance.
4.4 Funding Losses. The applicable Borrower shall reimburse each Lender
and hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
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(a) the failure of such Borrower to borrow, continue or convert a Loan
after such Borrower has given (or is deemed to have given) a Notice of Committed
Borrowing or a Notice of Conversion/Continuation or has accepted a Competitive
Bid for such Loan;
(b) the failure of such Borrower to make any prepayment in accordance
with any notice delivered under Section 2.8;
(c) the prepayment (including after acceleration thereof) of a LIBOR
Committed Loan or Bid Loan of such Borrower on a day that is not the last day of
the relevant Interest Period; or
(d) the automatic conversion under subsection 2.4(a) of any LIBOR Loan
to a Base Rate Committed Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Loans or Bid Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by a Borrower to any Lender under this
Section and under subsection 4.2(b), each LIBOR Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR for such LIBOR Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such LIBOR Loan is in fact
so funded.
4.5 Inability to Determine Rates. If (a) the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the LIBOR for any requested Interest Period with respect to a
proposed LIBOR Loan, or (b) the Required Lenders determine that the LIBOR
applicable pursuant to subsection 2.10(a) for any requested Interest Period
with respect to a proposed LIBOR Committed Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent
will promptly so notify the Borrowers and each Lender. Thereafter, the
obligation of the Lenders to make or maintain LIBOR Committed Loans hereunder
shall be suspended until the Administrative Agent (upon the instruction of the
Required Lenders in the case of clause (b)) revokes such notice in writing.
Upon receipt of such notice, each Borrower may revoke any Notice of Committed
Borrowing or Notice of Conversion/ Continuation then submitted by it (and, in
the case of clause (a), any notice of acceptance of offers to make Bid Loans
shall be automatically revoked). If a Borrower does not revoke any such
Notice, the Lenders shall make, convert or continue the applicable Loans, as
proposed by such Borrower, in the amount specified in the applicable notice
submitted by such Borrower, but such Loans shall be made, converted or
continued as Base Rate Committed Loans instead of LIBOR Committed Loans.
4.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Section 4 shall deliver to the applicable Borrower
(with a copy to the Administrative Agent) a certificate setting forth in
reasonable detail the amount payable to such Lender hereunder and the
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manner in which such amount has been calculated, and any such certificate shall
be conclusive and binding on the applicable Borrower in the absence of manifest
error.
4.7 Substitution of Lenders. Upon the receipt by either Borrower from
any Lender of a claim for compensation under Section 4.1 or 4.3 or a notice of
the type described in Section 4.2, the Parent may: (i) designate a replacement
bank or financial institution satisfactory to the Parent (a "Replacement
Lender") to acquire and assume all or a ratable part of all of such affected
Lender's Loans and Commitment; and/or (ii) request one or more of the other
Lenders to acquire and assume all or part of such affected Lender's Loans and
Commitment. Any designation of a Replacement Lender under clause (i) shall be
subject to the prior written consent of the Administrative Agent (which consent
shall not be unreasonably withheld).
4.8 Survival. The agreements and obligations of the Borrowers in this
Section 4 shall survive the termination of this Agreement and the payment of
all other Obligations.
SECTION 5 CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to the
conditions that the Administrative Agent shall have received, on or before
January 31, 1998, (i) a certificate of a Responsible Officer of the Parent to
the effect that the Whitman Payments and the Distribution each are scheduled to
be completed within five Business Days after the initial Credit Extension; and
(ii) all of the following, in form and substance satisfactory to the
Administrative Agent and each Lender, and (except for the Notes) in sufficient
copies for each Lender:
(a) Credit Agreement and Notes. This Agreement and the Notes executed
by each party hereto and thereto.
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of each
Borrower providing authorization for the execution and delivery of this
Agreement and the Notes to be issued by such Borrower and the consummation
of the transactions contemplated hereby, certified as of the Effective Date
by the Secretary or an Assistant Secretary of such Borrower; and
(ii) a certificate of the Secretary or Assistant Secretary of
each Borrower certifying the names and true signatures of the officers of
such Borrower authorized to execute and deliver this Agreement and the
Notes to be issued by such Borrower and to execute and deliver Notices of
Borrowing, Notices of Conversion/Continuation, Competitive Bid Requests,
Compliance Certificates, L/C Applications, L/C Amendment Applications and
similar documents on behalf of such Borrower.
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(c) Legal Opinions.
(i) An opinion of Burton Halpern, General Counsel of the Parent,
substantially in the form of Exhibit H-1;
(ii) an opinion of Sidley & Austin, special counsel to the
Borrowers, substantially in the form of Exhibit H-2; and
(iii) an opinion of Mayer, Brown & Platt, special counsel to the
Administrative Agent, substantially in the form of Exhibit I.
(d) Payment of Fees. Evidence of payment by the Borrowers of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Effective Date, together with Attorney Costs of BofA to the extent
invoiced prior to or on the Effective Date, plus such additional amounts of
Attorney Costs as shall constitute BofA's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts between
the Borrowers and BofA), including any such costs, fees and expenses arising
under or referenced in Sections 2.11 and 12.4.
(e) Certificate. A certificate signed by a Responsible Officer of the
Parent, dated as of the Effective Date, stating that:
(i) the representations and warranties contained in Section 6 are
true and correct on and as of such date, as though made on and as of such
date;
(ii) no Event of Default or Unmatured Event of Default exists or
would result from the initial Credit Extension; and
(iii) since December 31, 1996, no event or circumstance has
occurred that has resulted or could reasonably be expected to result in a
Material Adverse Effect (excluding the restructuring charge of $56,300,000
taken in the third and fourth quarters of 1997).
(f) Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may reasonably request.
5.2 Conditions to All Credit Extensions. The obligation of each Lender
to make any Loan to be made by it (including its initial Loan) and the
obligation of any Issuing Lender to Issue any Letter of Credit (including the
initial Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
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(a) Notice, Application. The Administrative Agent shall have received
a Notice of Committed Borrowing or notice of the acceptance by the applicable
Borrower of one or more Competitive Bids or, in the case of the Issuance of any
Letter of Credit, the applicable Issuing Lender and the Administrative Agent
shall have received an L/C Application or L/C Amendment Application, as required
under Section 3.2.
(b) Continuation of Representations and Warranties. The
representations and warranties in Section 6 (excluding subsection 6.10(b)) shall
be true and correct on and of such Borrowing Date or Issuance Date with the same
effect as if made on and as of such Borrowing Date or Issuance Date (except to
the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured Event of
Default shall exist or shall result from such Borrowing or Issuance.
Each Notice of Committed Borrowing, notice of acceptance of a Competitive Bid,
L/C Application and L/C Amendment Application submitted by a Borrower hereunder
shall constitute a representation and warranty by such Borrower that, as of the
date of each such notice and as of the relevant Borrowing Date or Issuance
Date, as applicable, the conditions in this Section 5.2 are satisfied.
SECTION 6 REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Administrative Agent and each
Lender that:
6.1 Corporate Existence and Power. Each Borrower and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business and (ii) in the case of each Borrower, to execute, deliver and perform
its obligations under the Loan Documents to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed 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
or license; and
(d) is in compliance with all Requirements of Law;
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except, in each case referred to in subclause (b)(i), clause (c) or clause (d),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
6.2 Corporate Authorization; No Contravention. The execution, delivery
and performance by each Borrower of the Loan Documents to which it is a party
have been duly authorized by all necessary corporate action, and do not and
will not:
(a) contravene the terms of any of such Borrower's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which such Borrower or any of its Subsidiaries is a party or any order,
injunction, writ or decree of any Governmental Authority to which such Borrower
or any of its Subsidiaries or any of its or their property is subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, either Borrower
of this Agreement or any other Loan Document.
6.4 Binding Effect. This Agreement and each other Loan Document to which
a Borrower is a party constitute legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
6.5 Litigation. Except as specifically disclosed on Schedule 6.5, there
is no pending or, to the knowledge of either Borrower, threatened action or
proceeding affecting the Parent or any of its Subsidiaries before any
Governmental Authority or arbitrator which could reasonably be expected to have
a material adverse effect on the financial condition or operations of the
Parent and its Subsidiaries taken as a whole or which purports to affect the
legality, validity or enforceability of this Agreement or any other Loan
Document.
6.6 ERISA Compliance. Except as specifically disclosed in Schedule 6.6:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law, except
to the extent that failure to be in such compliance, individually or in the
aggregate with all other such failures, would not reasonably be expected to have
a Material Adverse Effect. Each Plan which is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS
and to the knowledge of the Parent, nothing has occurred which would cause the
loss of such
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qualification (or, if no such determination letter has been received with
respect to a Plan, such a letter will be requested within such Plan's security
of amendment period within Section 401(b) of the Code). The Parent and each
ERISA Affiliate have made all required contributions to any Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the knowledge of the Parent,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur
which has resulted or could reasonably be expected to result in a Material
Adverse Effect; (ii) no contribution failure has occurred with respect to a
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA;
(iii) neither the Parent nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Parent nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in
any material liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Parent nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA which has resulted or could reasonably be expected to result in a Material
Adverse Effect.
6.7 Use of Proceeds; Margin Regulations. The proceeds of the Loans will
be used solely for the purposes set forth in and permitted by Section 7.12 and
Section 8.7. Neither the Parent nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.8 Title to Properties. As of the date of this Agreement, the Parent
and each Subsidiary have good record and marketable title in fee simple to, or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of their respective businesses, except for such defects in
title as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
6.9 Taxes. The Parent and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided
in accordance with GAAP.
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6.10 Financial Condition. (a)(1) The audited combined balance sheets of
the Parent dated December 31, 1996, and the related combined statements of
income and cash flows for the fiscal year ended on that date, and (2) the
unaudited combined balance sheets of the Parent dated September 30, 1997, and
the related combined statements of income and cash flows for the fiscal quarter
ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise expressly noted
therein (subject, in the case of the unaudited interim statements, to the
absence of footnotes and to ordinary, good faith year-end audit
adjustments);
(ii) fairly present (subject, in the case of the unaudited interim
statements, to ordinary, good faith year-end audit adjustments) the
financial condition of the Parent as of the dates thereof and the results
of operations and cash flows for the periods covered thereby; and
(iii) except as specifically disclosed in Schedule 6.10, show all
material indebtedness and other liabilities, absolute or contingent, of the
Parent and its Subsidiaries as of the dates thereof, including liabilities
for taxes and material Contingent Obligations.
(b) Since December 31, 1996, there has been no Material Adverse Effect
(excluding the restructuring charge of $56,300,000 taken in the third and fourth
quarters of 1997).
6.11 Environmental Matters. The Parent conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a
result thereof the Parent has reasonably concluded that, except as specifically
disclosed in Schedule 6.11, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.12 Regulated Entities. None of the Parent, any Person controlling the
Parent, or any Subsidiary is an "Investment Company" within the meaning of the
Investment Company Act of 1940. Neither Borrower is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act, any state public utilities code, or any other
Federal or state statute or regulation limiting its ability to incur
Indebtedness.
6.13 Subsidiaries. As of the date of the Distribution, the Borrowers
will have no Subsidiaries other than those specifically disclosed in part (a)
of Schedule 6.13 and will have no material equity investments in any other
corporation or entity other than those specifically disclosed in part (b) of
Schedule 6.13.
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6.14 Insurance. The properties of the Parent and each Subsidiary are
insured with financially sound and reputable insurance companies not Affiliates
of the Parent, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Parent or such Subsidiary
operates.
6.15 Full Disclosure. The representations and warranties made by the
Borrowers in the Loan Documents as of the date such representations and
warranties are made or deemed made, and the statements contained in any
exhibit, report or certificate furnished by or on behalf of either Borrower or
any Subsidiary thereof in connection with the Loan Documents, taken as a whole,
do not contain any untrue statement of a material fact or omit any material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
6.16 Distribution. The Form 10 accurately describes in all material
respects the proposed terms of the Distribution as of the effective date of the
filing thereof, and since such date there have been no material changes to such
terms.
SECTION 7 AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 Financial Statements. The Parent shall deliver to the Administrative
Agent (which shall promptly deliver to each Lender), in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but not later than 100 days after the end of
each fiscal year, a copy of the audited consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such year and the related consolidated
statements of income or operations and cash flows for such year, setting forth
in each case in comparative form the figures for the previous fiscal year, and
accompanied by the opinion of KPMG Peat Marwick LLP or another
nationally-recognized independent public accounting firm ("Independent
Auditor"), which opinion (i) shall state that such consolidated financial
statements present fairly the Parent's consolidated financial position, results
of operations and cash flows as of the end of such year and for the periods
indicated in conformity with GAAP and (ii) shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Parent's or any Subsidiary's records; and
(b) as soon as available, but not later than 55 days after the end of
each of the first three fiscal quarters of each fiscal year, a copy of the
unaudited consolidated balance sheet of
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the Parent and its Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for the period commencing on
the first day and ending on the last day of such quarter, and certified by a
Responsible Officer of the Parent as fairly presenting, in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the financial
position and the results of operations and cash flows of the Parent and its
Subsidiaries as of such date and for such period.
7.2 Certificates; Other Information. The Parent shall furnish to the
Administrative Agent (which shall promptly deliver to each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a Compliance Certificate executed by
a Responsible Officer of the Parent;
(b) promptly, copies of all regular, periodic or special reports that
the Parent or any Subsidiary makes to or files with the SEC (excluding exhibits
thereto, provided that the Parent shall promptly deliver any such exhibit to the
Administrative Agent or any Lender upon request therefor), copies of all
registration statements of the Parent or any Subsidiary filed with the SEC
(other than on Form S-8 or Form 11-K), and copies of all proxy statements or
other communications made to shareholders generally concerning material
developments in the business of the Parent or any Subsidiary;
(c) promptly (and in any event within three Business Days), notice of
any change in a Credit Rating by S&P or Moody's; and
(d) promptly, such additional information regarding the business or
financial condition of the Parent or any material Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 Notice of Default. The Parent shall promptly notify the
Administrative Agent and each Lender of the occurrence of any Event of Default
or Unmatured Event of Default known to the Parent. Each notice under this
Section shall be accompanied by a written statement by a Responsible Officer of
the Parent setting forth details of the occurrence referred to therein,
describing with particularity any and all clauses or provisions of this
Agreement or any other Loan Document that have been breached or violated and
stating what action the Parent or any affected Subsidiary proposes to take with
respect thereto.
7.4 Preservation of Corporate Existence, Etc. The Parent shall, and
shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its jurisdiction of organization
(except, in the case of a Subsidiary (other than Hussmann Corp.), to the extent
that failure to do so could not reasonably be expected
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to have a Material Adverse Effect), provided that the foregoing shall not
prohibit a merger between or consolidation of the Borrowers;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business (except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect); and
(c) preserve or renew all of its material registered patents,
trademarks, trade names and service marks.
7.5 Maintenance of Property. The Parent shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or useful
in its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.
7.6 Insurance. The Parent shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.7 Payment of Taxes. The Parent shall, and shall cause each Subsidiary
to, pay and discharge, as the same shall become due and payable, all material
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, except to the extent the same are being contested in good
faith by appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Parent or such Subsidiary.
7.8 Compliance with Laws. The Parent shall, and shall cause each
Subsidiary to, comply in all material respects with all material Requirements
of Law of any Governmental Authority having jurisdiction over it or its
business (including the Federal Fair Labor Standards Act, 29 U.S.C. Section
2.01 et seq.), except such as may be contested in good faith or as to which a
bona fide dispute may exist.
7.9 Compliance with ERISA. The Parent shall, and shall cause each of its
ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law, except for such non-compliances which would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code.
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7.10 Inspection of Property and Books and Records. The Parent shall, and
shall cause each Subsidiary to, maintain proper books of record and account, in
which full, true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP) shall be made of all
financial transactions and matters involving the assets and business of the
Parent and such Subsidiary. If the Parent's Credit Rating is not Investment
Grade or an Event of Default or Unmatured Event of Default exists, the Parent
shall permit, and shall cause each Subsidiary to permit, the Administrative
Agent, any Lender or their respective representatives, at any reasonable time
during normal business hours and from time to time at the request of the
Administrative Agent or the relevant Lender, to visit and inspect the
properties of the Parent or any Subsidiary, to examine their respective
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss the affairs, finances and accounts of the
Parent or any material Subsidiary with the appropriate officers of the Parent
or such Subsidiary.
7.11 Environmental Laws. The Parent shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all material Environmental Laws.
7.12 Use of Proceeds. The Borrowers shall use the proceeds of the Loans
to make the Whitman Payments and for working capital, capital expenditures and
other general corporate purposes.
SECTION 8 NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 Financial Condition Covenants.
(a) Leverage Ratio. The Parent shall not at any time permit the
Leverage Ratio to be greater than 3.0 to 1.
(b) Interest Coverage Ratio. The Parent shall not permit, as of the
last day of any fiscal quarter (beginning with the fiscal quarter ending March
31, 1998), the Interest Coverage Ratio to be less than 2.0 to 1.
8.2 Limitation on Liens. The Parent shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
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(a) any Lien existing on property of the Parent or any Subsidiary on
the Effective Date and set forth in Schedule 8.2 securing Indebtedness
outstanding on such date, and any extension, renewal or replacement of any such
Lien so long as the principal amount secured thereby is not increased and the
scope of the property subject to such Lien is not extended;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 7.7;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of the Parent or any Subsidiary securing (i)
the non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) surety bonds (excluding appeal bonds
and other bonds posted in connection with court proceedings or judgments) and
(iii) other non-delinquent obligations of a like nature; in each case incurred
in the ordinary course of business, provided all such Liens in the aggregate
would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens and
liens securing contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, provided that (i) in the case of
judgment and judicial attachment liens, the enforcement of such Liens is
effectively stayed and (ii) all such liens in the aggregate at any time
outstanding for the Parent and its Subsidiaries do not exceed the greater of
$25,000,000 or 5% of Net Worth;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, individually or
in the aggregate, do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the businesses of the
Parent and its Subsidiaries;
(i) Liens in respect of property acquired or constructed by the Parent
or a Subsidiary after the Effective Date, which are created at the time of or
within 180 days after acquisition or completion of construction of such property
to secure Indebtedness assumed or
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incurred to finance all or any part of the purchase price or cost of
construction of such property, provided that in any such case
(i) no such Lien shall extend to or cover any other property
of the Parent or such Subsidiary, as the case may be, and
(ii) the aggregate principal amount of Indebtedness secured
by all such Liens in respect of any such property shall not exceed
the cost of the acquisition or construction, as applicable, of such
property;
(j) Liens in respect of property acquired by the Parent or a
Subsidiary after the Effective Date, existing on such property at the time of
acquisition thereof (and not created in anticipation thereof), or in the case of
any Person that after the Effective Date becomes a Subsidiary or is consolidated
with or merged with or into the Parent or a Subsidiary or sells, leases or
otherwise disposes of all or substantially all of its property to the Parent or
a Subsidiary, Liens existing at the time such Person becomes a Subsidiary or is
so consolidated or merged or effects such sale, lease or other disposition of
property (and not created in anticipation thereof), provided that in any such
case no such Lien shall extend to or cover any other property of the Parent or
any Subsidiary;
(k) Liens securing obligations in respect of capital leases on assets
subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
(l) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Parent in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Parent or any
Subsidiary to provide collateral to the depository institution;
(m) Liens arising in connection with Securitization Transactions;
provided that the aggregate investment or claim held at any time by all
purchasers, assignees or other transferees of (or of interests in) receivables
and other rights to payment in all Securitization Transactions shall not exceed
$100,000,000; and
(n) other Liens securing Indebtedness not at any time exceeding in the
aggregate the greater of $30,000,000 or 15% of Net Worth.
8.3 Disposition of Assets. The Parent shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
any property (including accounts receivable, lease receivables and
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other rights to payment, with or without recourse) or enter into any agreement
to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus equipment,
all in the ordinary course of business;
(b) the sale, assignment or other transfer of accounts receivable,
lease receivables or other rights to payment pursuant to any Securitization
Transaction; provided that the aggregate investment or claim held at any time by
all purchasers, assignees or other transferees of (or of interests in) such
receivables or other rights to payment shall not exceed $100,000,000; and
(c) other dispositions (excluding sales of accounts receivables, lease
receivables and other rights to payment); provided that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition and (ii) if at the time of any disposition the Parent's Credit
Rating is not Investment Grade, the aggregate value of all assets so disposed of
by the Parent and its Subsidiaries in any fiscal year shall not exceed 20% of
Consolidated Total Assets as of the last day of the preceding fiscal year.
8.4 Consolidations and Mergers. The Parent shall not merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of, any other Person, or purchase or otherwise acquire, or permit any
Subsidiary to purchase or otherwise acquire all or substantially all of the
assets of, or more than 5% of stock of or other equity interests in, any other
Person (any such purchase or other acquisition, an "Acquisition"), except that,
so long as no Event of Default or Unmatured Event of Default exists or will
result therefrom:
(a) the Parent may merge or consolidate with Hussmann Corp. so long as
the survivor of such merger or consolidation assumes, pursuant to documentation
reasonably satisfactory to the Administrative Agent, all of the obligations of
the other Borrower hereunder;
(b) the Parent may merge or consolidate with any Person other than
Hussmann Corp. so long as the Parent is the continuing or surviving corporation;
and
(c) the Parent or any Subsidiary may make any Acquisition so long as,
in the case of any Acquisition of stock or other equity interests, the Board of
Directors of the acquired Person has approved such Acquisition.
8.5 Limitation on Subsidiary Indebtedness. The Parent shall not permit
its Subsidiaries to create, incur, assume or suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness (excluding Indebtedness of Hussmann Corp. hereunder) at any time
outstanding in an aggregate amount in excess of the greater of $30,000,000 or
15% of Net
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Worth (excluding, to the extent constituting Indebtedness, obligations in
respect of Securitization Transactions so long as the aggregate investment or
claim held at any time by all purchasers, assignees or other transferees of (or
of interests in) receivables and other rights to payment in all Securitization
Transactions shall not exceed $100,000,000).
8.6 Transactions with Affiliates. The Parent shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Parent (other than the Parent or a Subsidiary), except upon fair and reasonable
terms no less favorable to the Parent or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Parent or such Subsidiary.
8.7 Use of Proceeds. The Borrowers shall not, and shall not suffer or
permit any of their respective Subsidiaries to, use any portion of the Loan
proceeds or any Letter of Credit, directly or indirectly, (i) to purchase or
carry Margin Stock in violation of any Requirement of Law (including Regulation
G, T, U or X of the FRB), (ii) to repay or otherwise refinance indebtedness of
either Borrower or others incurred to purchase or carry Margin Stock or (iii)
to extend credit for the purpose of purchasing or carrying any Margin Stock.
8.8 ERISA. The Parent shall not, and shall not permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in liability of the Parent in an
aggregate amount in excess of the greater of $25,000,000 or 5% of Net Worth; or
(b) engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
8.9 Nature of Business. The Parent shall not, and shall not permit any
Subsidiary to, engage in any material line of business substantially different
from those lines of business engaged in by the Parent and its Subsidiaries on
the Effective Date.
SECTION 9 EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. Either Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or (ii) within five days after the same becomes due, any interest,
fee or any other amount payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or warranty by
either Borrower made or deemed made herein or in any other Loan Document, or
which is contained in any certificate, document or financial or other statement
by either Borrower or any Responsible Officer of either Borrower furnished at
any time under this Agreement or under any other Loan Document, is incorrect in
any material respect on or as of the date made or deemed made.
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(c) Specific Defaults. Either Borrower fails to perform or observe
any term, covenant or agreement of such Borrower contained in subsection 7.3 or
Section 8.
(d) Other Defaults. Either Borrower fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such failure shall continue unremedied for a period of 30 days after the
date upon which written notice thereof is given to such Borrower by the
Administrative Agent or any Lender.
(e) Cross-Default. (i) The Parent and its Subsidiaries (A) fail
(subject to any applicable grace period) to make any payment in respect of
Material Financial Obligations when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise); or (B) fail to perform or
observe any other condition or covenant, or any other event shall occur or
condition shall exist, under any agreement or instrument relating to Material
Financial Obligations if the effect of such failure, event or condition is to
cause (or require), or to permit (subject to any applicable grace period) the
holder or holders of such Material Financial Obligations or the beneficiary or
beneficiaries of such Material Financial Obligations (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause (or
require), such Material Financial Obligations to become due and payable (or to
be purchased, repurchased or defeased) prior to the stated maturity thereof.
(f) Insolvency; Voluntary Proceedings. The Parent or any Subsidiary
(i) ceases or fails to be solvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Parent or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process is issued or
levied against a substantial part of the Parent's or any Subsidiary's
properties, and such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded, within 90 days after commencement, filing or
levy; (ii) the Parent or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under state or non-U.S. law) is ordered in any Insolvency
Proceeding with respect to the Parent or such Subsidiary; or (iii) the Parent or
any Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business.
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Parent under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an
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aggregate amount in excess of the greater of $25,000,000 or 5% of Net Worth;
(ii) a contribution failure shall occur with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; (iii) the
aggregate amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds the greater of $25,000,000 or 5% of Net Worth; or (iv) the Parent
or any ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period (or any period during which (x) the Parent is permitted
to contest its obligation to make such payment without incurring any liability
(other than interest) or penalty and (y) the Parent is contesting such
obligation in good faith and by appropriate proceedings), any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA or
any contribution obligation under Section 4243 of ERISA, in each case under a
Multiemployer Plan in an aggregate amount in excess of the greater of
$25,000,000 or 5% of Net Worth.
(i) Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Parent or any Subsidiary involving in the aggregate a liability (to the extent
not covered by independent third-party insurance as to which the insurer has not
denied coverage) as to any single or related series of transactions, incidents
or conditions in an amount equal to or more than the greater of $25,000,000 or
5% of Net Worth, and the same shall remain unvacated and unstayed pending appeal
for a period of 30 days after the entry thereof.
(j) Change of Control. Any Change of Control occurs.
(k) Ownership of Hussmann Corp. At any time after the date of the
Distribution, the Parent shall fail to own 100% of the capital stock of
Hussmann Corp. (other than as a result of a merger between or consolidation
of the Borrowers).
9.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans (including the
commitment of the Swing Line Lender to make Swing Line Loans) and any obligation
of each Issuing Lender to Issue Letters of Credit to be terminated, whereupon
such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is or
at any time thereafter may become available for drawing under all outstanding
Letters of Credit (whether or not any beneficiary shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under such Letters of Credit) to be immediately due and payable, and
declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; and
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(c) exercise on behalf of itself and the Lenders all other rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 9.1 (in the case of clause (i) of subsection
(g), upon the expiration of the 90-day period mentioned therein), the
obligation of each Lender to make Loans and any obligation of each Issuing
Lender to Issue Letters of Credit shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable without further act of the
Administrative Agent, the Issuing Lender or any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
SECTION 10 THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization; "Administrative Agent". (a) Each
Lender hereby irrevocably (subject to Section 10.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or be
deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) Each Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for such Issuing Lender with
respect thereto; provided, however, that each Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this
Section 10 with respect to any acts taken or omissions suffered by such Issuing
Lender in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the application and agreements
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for letters of credit pertaining to the Letters of Credit as fully as if the
term "Administrative Agent", as used in this Section 10, included such Issuing
Lender with respect to such acts or omissions, and (ii) as additionally provided
in this Agreement with respect to such Issuing Lender.
(c) The Swing Line Lender shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 10 with
respect to any acts taken or omissions suffered by the Swing Line Lender in
connection with Swing Line Loans made or proposed to be made by it as fully as
if the term "Administrative Agent", as used in this Section 10, included the
Swing Line Lender with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Swing Line Lender.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through
agents, employees 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 agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the Administrative
Agent-Related Persons shall (i) be liable to any Lender for any action taken or
omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by either Borrower or any Subsidiary or Affiliate of either
Borrower, or any officer thereof, contained in this Agreement or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of either Borrower or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of either Borrower or any Subsidiary or Affiliate of either Borrower.
10.4 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrowers), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests,
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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, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or a Borrower referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". If the Administrative Agent receives
such a notice, the Administrative Agent will notify the Lenders of its receipt
of such notice. The Administrative Agent shall take such action with respect
to such Event of Default or Unmatured Event of Default as may be requested by
the Required Lenders in accordance with this Section 10; provided, however,
that unless and until the Administrative Agent has received any such request,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest
of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the Administrative Agent hereinafter taken, including
any review of the affairs of either Borrower or any of their respective
Subsidiaries, shall be deemed to constitute any representation or warranty by
any Administrative Agent-Related Person to any Lender. Each Lender represents
to the Administrative Agent that it has, independently and without reliance
upon any Administrative Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of either Borrower or any of their
respective Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrowers hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis,
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appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly herein required to be furnished
to the Lenders by the Administrative Agent, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of either Borrower which may come into
the possession of any Administrative Agent-Related Person.
10.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Administrative Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrowers and without limiting the obligation
of the Borrowers to do so), pro rata (according to their Adjusted Pro Rata
Shares at the time of the occurrence of the event giving rise to such
indemnity), from and against any and all Indemnified Liabilities; provided,
however, that no Lender shall be liable for the payment to any Administrative
Agent-Related Person of any portion of the Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The undertaking
in this Section shall survive the termination of this Agreement, the payment of
all Obligations and the resignation or replacement of the Administrative Agent.
10.8 Administrative Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Borrowers and their Subsidiaries and Affiliates as though BofA were not the
Administrative Agent, the Swing Line Lender or an Issuing Lender hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, BofA or its Affiliates may receive information
regarding the Borrowers or their Subsidiaries or Affiliates (including
information that may be subject to confidentiality obligations in favor of
either Borrower or any such Subsidiary or Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information
to them. With respect to its Loans, BofA shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent, the Swing Line Lender or an Issuing Lender.
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10.9 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders (with, so long as no Event of Default
exists, the consent of the Parent, which shall not be unreasonably withheld or
delayed) shall appoint from among the Lenders a successor administrative agent
for the Lenders. If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Parent, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 and Sections 12.4 and
12.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor administrative agent as provided for above.
Notwithstanding the foregoing, however, BofA may not be removed as the
Administrative Agent at the request of the Required Lenders unless BofA and any
applicable Affiliate thereof shall also simultaneously be replaced as "Swing
Line Lender" and as an "Issuing Lender" hereunder pursuant to documentation in
form and substance reasonably satisfactory to BofA.
10.10 Withholding Tax. (a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Administrative
Agent and the Borrowers, to deliver to the Administrative Agent (with a copy to
the Parent):
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS
Forms 1001 and W-8 before the payment of any interest in the first calendar
year and before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this Agreement
is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Lender, two
properly completed and executed copies of IRS Form 4224 before the payment
of any interest is due in the first taxable year of such Lender and (unless
it is unable to do so because of a change in law) in each succeeding
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taxable year of such Lender during which interest may be paid under this
Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Borrowers to such Lender, such Lender agrees to notify
the Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrowers to such Lender. To the extent
of such percentage amount, the Administrative Agent will treat such Lender's IRS
Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Administrative Agent sells or assigns all
or part of the Obligations of the Borrowers to such Lender, such Lender agrees
to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation
required by subsection (a) of this Section are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall
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survive the payment of all Obligations and the resignation or replacement of
the Administrative Agent.
10.11 Co-Agents. None of the Lenders identified on the facing page or
signature pages of this Agreement or any related document as a "co-agent" shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified as a "co-agent" shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
SECTION 11 GUARANTIES
11.1 Guaranties. Each Borrower hereby unconditionally and irrevocably
guaranties (a) the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the other Borrower and (b) the full and punctual payment of all other
amounts payable by the other Borrower under or in connection with this
Agreement. Upon failure by either Borrower to pay punctually any such amount,
the other Borrower shall forthwith on demand pay the amount not so paid at the
place and in the manner specified in this Agreement. In addition (and without
limiting the foregoing), upon any Loan to a Borrower being declared or
otherwise becoming immediately due and payable pursuant to Section 9.2, the
other Borrower shall forthwith on demand pay all amounts payable under such
Loan at the place and in the manner specified in this Agreement.
11.2 Guaranty Unconditional. The obligations of each Borrower under this
Section 11 shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the other Borrower under this
Agreement or any Note, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement
or any Note of the other Borrower;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the other Borrower under
this Agreement or any Note;
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(d) any change in the corporate existence, structure or ownership of
the other Borrower or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the other Borrower or its assets or any
resulting release or discharge of any obligation of the other Borrower
contained in this Agreement or any Note;
(e) the existence of any claim, set-off or other right which such
Borrower may have at any time against the other Borrower, the
Administrative Agent, any Lender or any other Person, whether in connection
herewith or any unrelated transaction, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against the
other Borrower for any reason of this Agreement or any Note of the other
Borrower, or any provision of applicable law or regulation purporting to
prohibit the payment by the other Borrower of the principal of or interest
on any Note of the other Borrower or any other amount payable by the other
Borrower under this Agreement; or
(g) any other act or omission to act or delay of any kind by the
other Borrower, the Administrative Agent, any Lender or any other Person or
any other circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of such
Borrower's obligations as a guarantor hereunder.
11.3 Discharge only upon Payment in Full; Reinstatement in Certain
Circumstances. Each Borrower's obligations as a guarantor hereunder shall
remain in full force and effect until the Commitments shall have terminated and
all Obligations of the other Borrower under this Agreement and each Note of
such other Borrower shall have been paid in full. If at any time any payment
of principal, interest or any other amount payable by either Borrower under
this Agreement or any Note is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of such Borrower or
otherwise, the other Borrower's obligations under this Section 11 with respect
to such payment shall be reinstated as though such payment had been due but not
made at such time.
11.4 Waivers by the Borrower. Each Borrower irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the other Borrower or any other Person.
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11.5 Subrogation. Notwithstanding any payment made by a Borrower under
this Section 11, such Borrower shall not be subrogated to any right of the
Administrative Agent or any Lender until such time as the Administrative Agent
and the Lenders shall have received final payment in cash of the full amount of
all Obligations.
11.6 Stay of Acceleration. If acceleration of the time for payment of
any amount payable by a Borrower under this Agreement or any Note is stayed
upon the insolvency, bankruptcy or reorganization of such Borrower, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the other Borrower pursuant to this Section 11
forthwith on demand by the Administrative Agent made at the request of the
Required Lenders.
11.7 Limitation on Guaranty Obligations. Notwithstanding the foregoing
provisions of this Section 11, the obligations of each Borrower under this
Section 11 shall be limited to the maximum amount which such Borrower could
guaranty without violating any fraudulent conveyance, fraudulent transfer or
similar law.
11.8 Effect of Merger or Consolidation. Nothing in this Section 11 shall
prohibit a merger between or consolidation of the Borrowers permitted by
subsection 8.4(a), and upon completion of any such merger or consolidation (i)
the provisions of this Section 11 shall no longer be applicable and (ii) all
references to Parent and/or Hussmann Corp. herein shall be references to the
survivor of such merger or consolidation.
SECTION 12 MISCELLANEOUS
12.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by either Borrower or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required
Lenders (or by the Administrative Agent at the written request of the Required
Lenders) and the Borrowers and acknowledged by the Administrative Agent, and
then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such waiver, amendment or consent shall, unless in writing and signed by all
Lenders and the Borrowers and acknowledged by the Administrative Agent, do any
of the following:
(a) increase (except pursuant to Section 2.17) or extend the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 9.2);
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(b) postpone or delay any date fixed by this Agreement for any payment
of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan, or reduce any fees (other than the fees referred to in subsection
2.11(a) or subsections 3.8(c) and (d)) or other amounts payable hereunder or
under any other Loan Document;
(d) change the definition of "Required Lenders" or the percentage of
the Commitments or of the aggregate unpaid principal amount of the Loans which
is required for the Lenders or any of them to take any action hereunder;
(e) release either Borrower from its obligations under Section 11; or
(f) amend this Section, Section 2.15 or Section 11, or any provision
herein providing for consent or other action by all Lenders;
and provided, further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the applicable Issuing Lender in addition to the
Required Lenders or all Lenders, as the case may be, affect the rights or
duties of such Issuing Lender under this Agreement or any L/C-Related Document
relating to any Letter of Credit Issued or to be Issued by it, (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Required Lenders or all Lenders, as the
case may be, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document and (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to the
Required Lenders or all Lenders, as the case may be, affect the rights or
duties of the Swing Line Lender under this Agreement or any other Loan
Document.
12.2 Notices. (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by a Borrower by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 12.2, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 12.2; or, as directed to a Borrower or
the Administrative Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such party in a written
notice to the Borrowers and the Administrative Agent.
(b) All such notices, requests, consents, approvals, waivers and
communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Section 2, 3, or 10 to the
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Administrative Agent or the Swing Line Lender, as the case may be, shall not be
effective until actually received by the Administrative Agent or the Swing Line
Lender, as the case may be, and notices pursuant to Section 3 to the applicable
Issuing Lender shall not be effective until actually received by such Issuing
Lender at the address specified for such "Issuing Lender" on Schedule 12.2 (or
pursuant to subsection 12.2(a)).
(c) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrowers. The Administrative Agent and
the Lenders shall be entitled to rely on the authority of any Person purporting
to be a Person authorized by a Borrower to give such notice and the
Administrative Agent and the Lenders shall not have any liability to either
Borrower or any other Person on account of any action taken or not taken by the
Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice (except to the extent of any such Person's own gross negligence
or willful misconduct). The obligation of the Borrowers to repay the Loans and
L/C Obligations shall not be affected in any way or to any extent by any failure
by the Administrative Agent and the Lenders to receive written confirmation of
any telephonic or facsimile notice or the receipt by the Administrative Agent
and the Lenders of a confirmation which is at variance with the terms understood
by the Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
(d) Any notice to be given to Hussmann Corp. hereunder or in
connection herewith may be given to the Parent (and shall conclusively be deemed
to have been received by Hussmann Corp. when received, or deemed received, by
the Parent). Hussmann Corp. agrees that the Parent may give notices hereunder
on behalf of Hussmann Corp., and that any such notice given by the Parent on
behalf of Hussmann Corp. shall be binding upon Hussmann Corp.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
12.4 Costs and Expenses. The Borrowers jointly and severally agree to:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Administrative
Agent, Swing Line Lender and an Issuing Lender) and the Arranger within five
Business Days after demand (subject to subsection 5.1(d)) for all reasonable
costs and expenses incurred by BofA (in its capacity as Administrative Agent,
Swing Line Lender, an Issuing Lender and a Lender) and the Arranger in
connection with the negotiation, development, preparation, delivery,
syndication, documentation, administration and execution of this Agreement, any
other Loan Document and any other document prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby
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<PAGE> 84
and thereby, including Attorney Costs incurred by BofA (in its capacity as
Administrative Agent, Swing Line Lender, an Issuing Lender and a Lender) and the
Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent, the Arranger and each
Lender within five Business Days after demand for all reasonable costs and
expenses (including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document (including in connection with
any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding, but excluding any portion of any
such costs or expenses which are found by a final, non-appealable judgment of a
court of competent jurisdiction to have resulted solely from a claim which was
determined adversely to the party seeking such payment or reimbursement).
12.5 Indemnification by Borrowers. Whether or not the transactions
contemplated hereby are consummated, the Borrowers jointly and severally agree
to indemnify and defend the Administrative Agent-Related Persons and each
Lender and each of their respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each an "Indemnified Person") against, and hold
each Indemnified Person harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time (including at any time following repayment of the Loans,
the termination of the Letters of Credit and the termination, resignation or
replacement of the Administrative Agent or replacement of any Lender) be
imposed on, incurred by or asserted against any such Person in any way relating
to or arising out of this Agreement or any document contemplated by or referred
to herein, or the transactions contemplated hereby, or any action taken or
omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
neither Borrower shall have any obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities resulting solely from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive the termination of this Agreement and the payment of
all other Obligations.
12.6 Payments Set Aside. To the extent that either Borrower makes a
payment to the Administrative Agent or the Lenders, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, a receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
severally
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<PAGE> 85
agrees to pay to the Administrative Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Administrative Agent.
12.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither Borrower may assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Administrative Agent and each Lender.
12.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Parent (which consent shall not be unreasonably withheld
or delayed and shall not be required during the existence of an Event of
Default) and the Administrative Agent (which consent shall not be unreasonably
withheld or delayed), at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Parent or the Administrative
Agent shall be required in connection with any assignment and delegation by a
Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an
"Assignee") all, or any ratable part of all, of the Committed Loans, the
Commitments, the L/C Obligations and the other rights and obligations of such
Lender hereunder, in a minimum amount of $5,000,000 (or, if less, the amount of
such Lender's Commitment); provided, however, that the Borrowers and the
Administrative Agent may continue to deal solely and directly with such Lender
in connection with the interest so assigned to an Assignee until (i) written
notice of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given to the
Borrowers and the Administrative Agent by such Lender and the Assignee; (ii)
such Lender and the Assignee shall have delivered to the Parent and the
Administrative Agent an Assignment and Acceptance in the form of Exhibit J
("Assignment and Acceptance") and (iii) such Lender or the Assignee has paid to
the Administrative Agent a processing fee in the amount of $3,500.
(b) From and after the date that the Administrative Agent notifies the
assignor Lender that it has received and provided its consent (and, to the
extent required, received the consent of the Parent) with respect to an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under the Loan Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents.
(c) Within five Business Days after the effectiveness of any
assignment pursuant to subsection 12.8(a) to an Assignee which was not
previously a Lender hereunder, the Borrowers shall, if requested by such
Assignee, execute and deliver to the Administrative Agent new Notes in favor of
such Assignee (and, if the assignor Lender is no longer a party hereto, such
assignor Lender shall promptly deliver to the Borrowers the Notes issued to such
assignor Lender, marked to show that such Notes are no longer effective).
Immediately upon the effectiveness of any Assignment and Acceptance, this
Agreement shall be deemed to be amended
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<PAGE> 86
to the extent, but only to the extent, necessary to reflect the addition of the
Assignee and/or the resulting adjustment of the Commitments arising therefrom.
(d) Any Lender may at any time, with notice to the Parent (except that
no notice shall be required in connection with the sale of a participating
interest in a Bid Loan), sell to one or more commercial banks or other Persons
not Affiliates of the Borrowers (a "Participant") participating interests, in
whole or in part, in any Loans, the Commitment of such Lender and the other
interests of such Lender (the "originating Lender") hereunder and under the
other Loan Documents; provided, however, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of such obligations,
(iii) the Borrowers, each Issuing Lender, the Swing Line Lender and the
Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which a
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in the first proviso to Section 12.1. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections 4.1,
4.3, 4.4 and 12.5 as though it were also a Lender hereunder (provided that no
Participant shall be entitled to any greater amount pursuant to such Sections
than the originating Lender would have been entitled to receive if no such
participation had been sold).
(e) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and any Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
12.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information provided to it by either
Borrower or any Subsidiary thereof, or by the Administrative Agent on either
Borrower's or any such Subsidiary's behalf, under this Agreement or any other
Loan Document, and neither such Lender nor any of its Affiliates shall use any
such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with either Borrower or any such
Subsidiary; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by such Lender, or
(ii) was or becomes available on a non-confidential basis from a source other
than a Borrower or a Subsidiary thereof, provided that such source is not bound
by a confidentiality agreement with either Borrower or any such Subsidiary
known to such Lender; provided, however, that any Lender may disclose such
information (A) at the request or pursuant to any requirement of any
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<PAGE> 87
Governmental Authority to which such Lender is subject or in connection with an
examination of such Lender by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent or any Lender or any of their respective Affiliates may be
party; (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to such Lender's
independent auditors and other professional advisors; (G) to any Participant or
Assignee, actual or potential, provided that such Person agrees in writing prior
to receipt of such information to keep such information confidential to the same
extent required of the Lenders hereunder; (H) as to any Lender or any of its
Affiliates, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which either Borrower or any Subsidiary
thereof is party or is deemed party with such Lender or such Affiliate; or (I)
to its Affiliates.
12.10 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
12.11 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument.
12.12 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
12.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrowers, the Lenders,
the Administrative Agent and the Administrative Agent-Related Persons, and
their permitted successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents.
12.14 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR
OF THE UNITED STATES FOR THE
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<PAGE> 88
NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS.
EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
12.15 Waiver of Jury Trial. THE BORROWERS, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE BORROWERS, THE LENDERS AND THE ADMINISTRATIVE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.16 Entire Agreement. This Agreement, together with the other Loan
Documents (and any agreement relating to fees referred in subsection 2.11(a)),
embodies the entire agreement and understanding among the Borrowers, the
Lenders and the Administrative Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
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<PAGE> 89
HUSSMANN INTERNATIONAL, INC.
By: /s/ Michael D. Newman
------------------------------------
Title: Chief Financial Officer
---------------------------------
HUSSMANN CORPORATION
By: /s/ Michael D. Newman
------------------------------------
Title: Chief Financial Officer
---------------------------------
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<PAGE> 90
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent, as Swing Line
Lender, as an Issuing Lender and as a
Lender
By: /s/ R. Guy Stapleton
------------------------
Title: Managing Director
---------------------
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<PAGE> 91
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and as a Lender
By: /s/ Deborah Stevens
------------------------
Title: Authorized Agent
---------------------
85
<PAGE> 92
NATIONSBANK, N.A., as a Co-Agent
and as a Lender
By: /s/ Phil V. Hanel
-------------------------
Title: Senior Vice President
----------------------
86
<PAGE> 93
CREDIT SUISSE FIRST BOSTON, as a
Co-Agent and as a Lender
By: /s/ Chris Horgan
------------------
Title: Vice President
---------------
By: /s/ Daniel R. Wenger
---------------------
Title: Associate
------------------
87
<PAGE> 94
MERCANTILE BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Timothy W. Hassler
------------------------
Title: Vice President
---------------------
88
<PAGE> 95
THE BANK OF NEW YORK, as a Lender
By: /s/ William A. O'Daly
----------------------
Title: Vice President
-------------------
89
<PAGE> 96
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By: /s/ Tokutaro Sekine
---------------------
Title: General Manager
------------------
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<PAGE> 97
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Jo Ellen Bender
-------------------------
Title: Senior Vice President
----------------------
BANQUE NATIONAL DE PARIS, as a Lender
By: /s/ Frederick H. Moryl, Jr.
-----------------------------
Title: Senior Vice President
--------------------------
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<PAGE> 98
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: /s/ David Bouhl, F.V.P.
--------------------------------------
Title: Head of Corporate Banking Chicago
-----------------------------------
By: /s/ Katherine L. Abbott
----------------------------------
Title: First Vice President
-------------------------------
92
<PAGE> 99
MARINE MIDLAND BANK, as a Lender
By: /s/ Douglas F. Stolberg
---------------------------------
Title: SVP & Manager, ID 9136
------------------------------
93
<PAGE> 100
MELLON BANK, N.A., as a Lender
By: /s/ A. K. Marsh
-------------------------
Title: First Vice President
----------------------
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<PAGE> 101
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Lisa M. Taylor
---------------------
Title: Officer
------------------
95
<PAGE> 102
WACHOVIA BANK, N.A., as a Lender
By: /s/ Debra L. Coheley
--------------------------
Title: Senior Vice President
-----------------------
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<PAGE> 103
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Lender
By: /s/ Salvatore Battinelli
---------------------------------------
Title: Vice President Credit Department
---------------------------------------
By: /s/ Lisa Walker
------------------
Title: Associate
---------------
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<PAGE> 104
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "First Amendment") dated as of May 29, 1998 is
to the Credit Agreement (the "Credit Agreement") dated as of January 23, 1998
among HUSSMANN INTERNATIONAL, INC. ("Parent"), HUSSMANN CORPORATION ("Hussmann
Corp."), various financial institutions and Bank of America National Trust and
Savings Association, as administrative agent (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement which
provides for the Lenders to make Loans to, and to issue Letters of Credit for
the account of, the Borrowers from time to time; and
WHEREAS, Hussmann Corp. desires to cease to be a "Borrower" under the
Credit Agreement and to relinquish all of its rights and be released from all
of its obligations thereunder, and Parent has agreed to assume all of the
obligations of Hussmann Corp. under the Credit Agreement and the Notes issued
by Hussmann Corp. pursuant thereto (the "Corp. Notes");
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 ASSUMPTION. (a) Parent hereby unconditionally and irrevocably
assumes all obligations of Hussmann Corp. under or in connection with the Credit
Agreement, the Corp. Notes and the L/C Application for the Existing LC (as
defined below) and unconditionally and irrevocably agrees to pay and discharge
all outstanding Loans made to Hussmann Corp. under the Credit Agreement and all
obligations of Hussman Corp. under Letter of Credit No. C7346618 issued under
the Credit Agreement for the account of Old Republic Insurance Co. (the
"Existing LC").
(b) Hussmann Corp. hereby agrees that it shall no longer be a "Borrower"
under the Credit Agreement and that it shall have no right to borrow Loans, or
obtain Letters of Credit for its account, thereunder.
SECTION 2 CONSENT AND RELEASE. The Lenders hereby (a) consent to the
assumption by Parent of all obligations of Hussmann Corp. under the Credit
Agreement, the Corp. Notes and the L/C Application for the Existing LC and (b)
release Hussmann
<PAGE> 105
Corp. from all of its obligations under or in connection with the Credit
Agreement, the Corp. Notes and the L/C Application for the Existing LC.
SECTION 3 DELETION OF SECTION 11. The parties hereto agree that Section
11 of the Credit Agreement is amended in its entirety to read as follows:
"SECTION 11 (INTENTIONALLY DELETED]."
SECTION 4 REPRESENTATIONS AND WARRANTIES. Parent represents and warrants
to the Administrative Agent and each Lender that (a) each warranty set forth in
Section 6 of the Credit Agreement is true and correct as if made on the date
hereof and (b) this First Amendment and the Credit Agreement, as amended hereby,
are (and after giving effect hereto the Corp. Notes and the L/C Application for
the Existing LC will be) the legal, valid and binding obligations of Parent,
enforceable against Parent in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditor's rights or by general
principles of equity.
SECTION 5 EFFECTIVENESS. This First Amendment shall become effective on
May 29, 1998 if, on or before such date, (a) Hussmann Corp. shall have paid all
Bid Loans made to it under the Credit Agreement and (b) the Administrative Agent
shall have received (i) counterparts of this First Amendment executed by Parent,
Hussmann Corp. and all Lenders, (ii) copies, certified by the Secretary or an
Assistant Secretary of Parent, of resolutions of the Board of Directors of
Parent authorizing the execution and delivery of this First Amendment and the
assumption by Parent of Hussmann Corp.'s obligations under the Credit Agreement,
the Corp. Notes and the L/C Application for the Existing LC, (iii) a certificate
of the secretary or an assistant secretary of Parent as to the incumbency and
signature of the officer of Parent executing this First Amendment and (iv) the
opinion of Sidley & Austin, counsel to Parent, in form and substance
satisfactory to the Administrative Agent.
SECTION 6 MISCELLANEOUS.
6.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness hereof, all references in
the Credit Agreement or any other Loan Document to "Borrowers," "each Borrower,"
"either Borrower," or any similar term shall be deemed amended to reflect the
fact that Parent is the only Borrower.
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<PAGE> 106
6.2 Counterparts. This First Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same First Amendment.
6.3 Expenses. Parent agrees to pay all cost and expenses (including
Attorney Costs) of the Administrative Agent in connection with the negotiation,
execution and delivery of this First Amendment.
6.4 Governing Law. This First Amendment shall be a contract made under
and governed by the laws of the State of Illinois applicable to contracts made
and to be performed entirely within such State.
6.5 Successors and Assigns. This First Amendment shall be binding upon
the parties hereto and their respective successors and assigns, and shall inure
to the benefit of the parties hereto and the successors and assigns of the
Administrative Agent and the Lenders.
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<PAGE> 107
Delivered at Chicago, Illinois, as of the day and year first above written.
HUSSMANN INTERNATIONAL, INC.
By: /s/ Charles R. Snavely
--------------------------------
Title: Vice President - Treasurer
-----------------------------
HUSSMANN CORPORATION
By: /s/ Charles R. Snavely
--------------------------------
Title: Vice President - Treasurer
-----------------------------
<PAGE> 108
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent, as Swing Line
Lender, as an Issuing Lender and as a
Lender
By: /s/ William F. Sweeney
-------------------------------
Title: Vice President
----------------------------
-5-
<PAGE> 109
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and as a Lender
By: /s/ Deborah Stevens
-------------------------------
Title: Authorized Agent
----------------------------
-6-
<PAGE> 110
NATIONSBANK, N.A., as a Co-Agent
and as a Lender
By: /s/ Kenneth Schult
-------------------------------
Title: Vice President
----------------------------
-7-
<PAGE> 111
CREDIT SUISSE FIRST BOSTON, as a
Co-Agent and as a Lender
By: /s/ Chris T. Horgan
-------------------------------
Title: Vice President
----------------------------
By: /s/ Kristin Lepri
-------------------------------
Title: Associate
----------------------------
-8-
<PAGE> 112
MERCANTILE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Timothy W. Hassler
-------------------------------
Title: Vice President
----------------------------
-9-
<PAGE> 113
THE BANK OF NEW YORK, as a Lender
By: /s/ Steven Wilson
-------------------------------
Title: AVP
----------------------------
-10-
<PAGE> 114
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By: /s/ Hajime Watanabe
-------------------------------
Title: Deputy General Manager
----------------------------
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<PAGE> 115
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Arnoud Collin du Bocage
-------------------------------
Title: Executive Vice President
----------------------------
-12-
<PAGE> 116
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: /s/ Dean Balice
-------------------------------------------
Title: Senior Vice President and Branch Manager
----------------------------------------
By: /s/ Katherin L. Abbott
-------------------------------------------
Title: First Vice President
----------------------------------------
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<PAGE> 117
MARINE MIDLAND BANK, as a Lender
By: /s/ Michael Cutlip
-------------------------------
Title: Officer #9135
----------------------------
-14-
<PAGE> 118
MELLON BANK, N.A., as a Lender
By: /s/ Martin J. Randall
-------------------------------
Title: Assistant Vice President
----------------------------
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<PAGE> 119
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Lisa M. Taylor
-------------------------------
Title: Officer
----------------------------
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<PAGE> 120
WACHOVIA BANK, N.A., as a Lender
By: /s/ Walter R. Gillikin
-------------------------------
Title: Senior Vice President
----------------------------
-17-
<PAGE> 121
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Lender
By: /s/ Salvatore Battinelli
-------------------------------
Title: Director Credit Department
----------------------------
By: /s/ Lisa Walker
-------------------------------
Title: Vice President
----------------------------
-18-
