United States
Securities and Exchange Commission
Washington, D.C. 20549
Form 10-Q/A
AMENDMENT NO. 1 TO
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 1997
Commission File No. 1-123
BROWN-FORMAN CORPORATION
(Exact name of registrant as specified in its Charter)
Delaware 61-0143150
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
850 Dixie Highway 40210
Louisville, Kentucky (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code (502) 585-1100
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable
date: December 5, 1997
Class A Common Stock ($.15 par value, voting) 28,988,091
Class B Common Stock ($.15 par value, nonvoting) 40,008,147
This Form 10-Q/A is being filed to include Exhibit 10, which was inadvertently
excluded from the Registrant's Form 10-Q for the quarterly period ended
October 31, 1997.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
- -----------------------------------------
(a)Exhibits:
Exhibit
Number Exhibit
------- -------
3(ii) By-laws (amended to increase the mandatory retirement age
for outside directors)
10 Credit Agreement dated as of October 29, 1997, among the
company and a group of United States and international banks
27 Financial Data Schedule
(b) Reports on Form 8-K: None.
SIGNATURES
As required by the Securities Exchange Act of 1934, the registrant
has caused this report to be signed on its behalf by the undersigned
authorized officer.
BROWN-FORMAN CORPORATION
(Registrant)
/s/ Steven B. Ratoff
Date: December 5, 1997 By:____________________________
Steven B. Ratoff
Executive Vice President and
Chief Financial Officer
(On behalf of the Registrant and
as Principal Financial Officer)
CREDIT AGREEMENT
among
BROWN-FORMAN CORPORATION,
THE BANKS NAMED HEREIN,
FIRST CHICAGO CAPITAL MARKETS, INC.,
as Syndication Agent,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
dated as of October 29, 1997
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS
ARTICLE II - THE FACILITY
2.1. The Facility
2.1.1 Description of Facility
2.1.2 Availability of Facility
2.2. Ratable Advances
2.2.1. Ratable Advances
2.2.2. Ratable Advance Rate Options
2.2.3. Method of Selecting Rate Options and Interest Periods
for Ratable Advances
2.2.4. Conversion and Continuation of Outstanding Ratable
Advances
2.3. Competitive Bid Advances
2.3.1. Competitive Bid Option
2.3.2. Competitive Bid Quote Request
2.3.3. Invitation for Competitive Bid Quotes
2.3.4. Submission and Contents of Competitive Bid Quotes
2.3.5. Notice to Company
2.3.6. Acceptance and Notice by Company
2.3.7. Allocation by Administrative Agent
2.4. General Facility Terms
2.4.1. Method of Borrowing
2.4.2. Minimum Amount of Each Advance
2.4.3. Required Payments; Termination
2.4.4. Optional Principal Payments
2.4.5. Fees; Pricing Schedule
2.4.6. Increases and Reductions in Aggregate Commitment;
Principal Payments
2.4.7. Interest Periods
2.4.8. Rate after Maturity
2.4.9. Interest Payment Dates; Interest and Fee Basis
2.4.10. Method of Payment
2.4.11. Notes; Telephonic Notices
2.4.12. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions
2.4.13. Lending Installations
2.4.14. Non-Receipt of Funds by the Administrative Agent
2.4.15. Withholding Tax Exemption
ARTICLE III - CHANGE IN CIRCUMSTANCES
3.1. Yield Protection
3.2. Capital Adequacy
3.3. Availability of Fixed Rate Options
3.4. Funding Indemnification
3.5. Bank Certificates; Survival of Indemnity
ARTICLE IV - CONDITIONS PRECEDENT
4.1. Initial Advance
4.2. Each Advance
ARTICLE V - REPRESENTATIONS AND WARRANTIES
5.1. Corporate Existence and Standing
5.2. Authorization and Validity
5.3. No Conflict; Government Consent
5.4. Financial Statements
5.5. Material Adverse Change
5.6. Taxes
5.7. Litigation
5.8. Subsidiaries
5.9. ERISA
5.10. Accuracy of Information
5.11. Compliance with Laws
5.12. Regulations U and X
5.13. Investment Company Act
5.14. Public Utility Holding Company Act
ARTICLE VI - COVENANTS
6.1. Financial Reporting
6.2. Use of Proceeds
6.3. Notice of Default
6.4. Corporate Existence and Standing
6.5. Taxes
6.6. Insurance
6.7. Compliance with Laws
6.8. Inspection
6.9. Merger
6.10. Sale and Leaseback
6.11. Liens
6.12. Affiliates
6.13. Total Indebtedness Ratio
6.14. Net Worth
6.15. Notification of Change in Ratings
ARTICLE VII - DEFAULTS
ARTICLE VIII - ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration
8.2. Amendments
8.3. Preservation of Rights
ARTICLE IX - GENERAL PROVISIONS
9.1. Survival of Representations
9.2. Governmental Regulation
9.3. Taxes
9.4. Headings
9.5. Entire Agreement
9.6. Several Obligations
9.7. Expenses; Indemnification
9.8. Number of Documents
9.9. Accounting
9.10. Severability of Provisions
9.11. Nonliability of Banks
9.12. Nonreliance
9.13. Confidentiality
ARTICLE X - THE AGENTS
10.1. Appointment
10.2. Powers
10.3. General Immunity
10.4. No Responsibility for Loans, Recitals, Etc.
10.5. Action on Instructions of Banks
10.6. Employment of Administrative Agent and Counsel
10.7. Reliance on Documents; Counsel
10.8. Administrative Agent's Reimbursement and Indemnification
10.9. Rights as a Bank
10.10. Bank Credit Decision
10.11. Successor Administrative Agent
ARTICLE XI - SETOFF; RATABLE PAYMENTS
11.1. Setoff
11.2. Ratable Payments
ARTICLE XII - BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns
12.2. Participations
12.2.1. Permitted Participants; Effect
12.2.2. Voting Rights
12.2.3. Benefit of Setoff
12.3. Assignments
12.3.1. Permitted Assignments
12.3.2. Effect; Effective Date
12.4. Dissemination of Information
12.5. Tax Treatment
ARTICLE XIII - NOTICES
13.1. Giving Notice
13.2. Change of Address
ARTICLE XIV - COUNTERPARTS
ARTICLE XV - CHOICE OF LAW; JURISDICTION; JURY TRIAL WAIVER
15.1. CHOICE OF LAW
15.2. CONSENT TO JURISDICTION
15.3. WAIVER OF JURY TRIAL
(EXHIBITS AND SCHEDULES OMITTED)
CREDIT AGREEMENT
This Agreement, dated as of October 29, 1997 is among BROWN-FORMAN
CORPORATION, a Delaware corporation; THE BANKS NAMED HEREIN; FIRST CHICAGO
CAPITAL MARKETS, INC., as Syndication Agent; MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent; and THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a given
Bank for the relevant Absolute Rate Interest Period, the rate of interest per
annum (rounded upwards to the next higher 1/100 of 1%) offered by such Bank
and accepted by the Company.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of
the Banks to the Company at the same time and for the same Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance, a period of not less than seven and not more than two hundred
seventy days commencing on a Business Day selected by the Company pursuant to
this Agreement. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall end on
the next succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at the Absolute Rate.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Company or
any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency), or a majority (by percentage or voting power) of
the outstanding partnership interests of a partnership, or a majority (by
percentage or voting power) of the outstanding equity interests of any other
entity.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as administrative agent for the Banks pursuant to Article X, and not
in its individual capacity as a Bank, and any successor Administrative Agent
appointed pursuant to Article X.
"Advance" means a Ratable Advance or a Competitive Bid Advance, or both, as
the case may be.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
such Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Banks hereunder, as from time to time increased or reduced pursuant to the
terms hereof.
"Agreement" means this credit agreement, as it may be amended or modified
from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles in effect at the time of the preparation of the financial
statements referred to in Section 5.4, applied in a manner consistent with
that used in preparing such statements.
"Alternate Base Rate" means, for any day, a rate of interest per annum equal
to the higher of (i) the Corporate Base Rate for such day and (ii) the sum of
the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means (i) for any day on which Level I Status exists,
0.095 of 1% per annum, (ii) for any day on which Level II Status exists, 0.12
of 1% per annum, (iii) for any day on which Level III Status exists, 0.13 of
1% per annum, and (iv) for any day on which Level IV Status exists, 0.25 of
1% per annum. Reference is hereby made to the Pricing Schedule set forth in
Section 2.4.5(c) for an illustration of the relationship between the
Applicable Margin and the Status Levels.
"Article" means an article of this Agreement.
"Attributable Debt" means, with respect to any Sale and Lease-Back
Transaction, as of any particular time, the present value, discounted at the
rate of interest implicit in the terms of the lease, of the obligations of
the lessee under such lease for net rental payments during the remaining term
of the lease (including any period for which such lease has been extended or
may, at the option of the Company, be extended).
"Authorized Officer" means any of the Chairman of the Board, the Chief
Executive Officer, any Vice Chairman, the Executive Vice President, any
Senior Vice President, any Vice President, the Secretary, the Treasurer, or
any Assistant Treasurer of the Company, acting singly.
"Banks" means the lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" means a Ratable Borrowing Notice or a Competitive Bid
Borrowing Notice, or both, as the case may be.
"Business Day" means (i) with respect to a borrowing, payment or rate
selection of Eurodollar Advances or Eurodollar Bid Rate Advances, a day other
than Saturday or Sunday on which banks generally are open in Chicago and New
York for the conduct of substantially all of their commercial lending
activities and on which dealings in U.S. dollars are carried on in the London
interbank market and (ii) for all other purposes, a day other than Saturday
or Sunday on which banks generally are open in Chicago and New York for the
conduct of substantially all of their commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such Person as
lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person, prepared in accordance with
Agreement Accounting Principles.
"Change in Law" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after
the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Bank or any Lending Installation or any
corporation controlling any Bank.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Bank, the obligation of the Bank to make Loans
not exceeding the amount set forth opposite its signature below, as such
amount may be modified from time to time pursuant to Articles II and VII
hereunder.
"Company" means Brown-Forman Corporation, a Delaware corporation, and its
successors and assigns.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of
the Banks to the Company at the same time, at the same interest basis, and
for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute Rate
Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded upwards to the next higher 1/100 of 1%) to be added or
subtracted from such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form of
Exhibit "B" hereto, with appropriate insertions, duly executed and delivered
to the Administrative Agent by the Company and payable to the order of a
Bank, including any amendment, modification, renewal or replacement of such
promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit "E" hereto completed and delivered by a Bank to the
Administrative Agent in accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "C" hereto completed and delivered by
the Company to the Administrative Agent in accordance with Section 2.3.2.
"Condemnation" is defined in Section 7.8.
"Consolidated Assets" means all of the assets of the Company and its
Subsidiaries which in accordance with Agreement Accounting Principles would
be shown as assets on a consolidated balance sheet of the Company and its
Subsidiaries.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common
control which, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
"Corporate Base Rate" means a rate per annum equal to the corporate base rate
of interest announced by First Chicago from time to time, changing when and
as said corporate base rate changes.
"Default" means an event described in Article VII.
"Documentation Agent" means Morgan Guaranty Trust Company of New York in its
capacity as documentation agent for the Banks pursuant to Article X, and not
in its individual capacity as a Bank.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means a Ratable Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes setting
forth Eurodollar Bid Rates based on the Eurodollar Base Rate pursuant to
Section 2.3.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance or
Eurodollar Bid Rate Advance, as the case may be, for the relevant Eurodollar
Interest Period or Eurodollar Bid Rate Interest Period, as the case may be,
the rate determined by the Administrative Agent to be the arithmetic average
of the rates reported to the Administrative Agent by each Reference Bank as
the rate at which deposits in U.S. dollars are offered by such Reference Bank
in the case of a Eurodollar Advance, or in the case of a Eurodollar Bid Rate
Loan, by a Bank(s) submitting a Competitive Bid Quote, to first-class banks
in the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Eurodollar Interest Period or
Eurodollar Bid Rate Interest Period, as the case may be, in the approximate
amount of such Reference Bank's or such Bank's, as the case may be, relevant
Eurodollar Loan or Eurodollar Bid Rate Loan, as the case may be, and having a
maturity approximately equal to such Eurodollar Interest Period, as the case
may be. If any Reference Bank fails to provide such quotation to the
Administrative Agent, then the Administrative Agent shall determine the
Eurodollar Base Rate on the basis of the quotations of the remaining
Reference Bank(s).
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan made
by a given Bank for the relevant Eurodollar Bid Rate Interest Period, the sum
of (a) the Eurodollar Base Rate and (b) the Competitive Bid Margin offered by
such Bank and accepted by the Company.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Interest Period" means, with respect to a Eurodollar Bid
Rate Advance, a period of one, two, three or six months commencing on a
Business Day selected by the Company pursuant to this Agreement. Such
Eurodollar Bid Rate Interest Period shall end on (but exclude) the day in the
next, second, third or sixth succeeding calendar month, as the case may be,
which corresponds numerically to the beginning day of such Eurodollar Bid Rate
Interest Period; provided, however, that if there is no such numerically
corresponding day in such succeeding month, such Eurodollar Bid Rate Interest
Period shall end on the last Business Day of such succeeding month. If a
Eurodollar Bid Rate Interest Period would otherwise end on a day which is not
a Business Day, such Eurodollar Bid Rate Interest Period shall end on the next
succeeding Business Day; provided, however, that if said next succeeding
Business Day falls in a new month, such Eurodollar Bid Interest Rate Period
shall end on the immediately preceding Business Day. Any Eurodollar Bid Rate
Interest Period that begins before the Termination Date and would otherwise
end after the Termination Date shall end on the Termination Date.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at the
Eurodollar Bid Rate.
"Eurodollar Interest Period" means, with respect to a Eurodollar Advance, a
period of one, two, three or six months commencing on a Business Day selected
by the Company pursuant to this Agreement. Such Eurodollar Interest Period
shall end on (but exclude) the day in the next, second, third or sixth
succeeding calendar month, as the case may be, which corresponds numerically
to the beginning day of such Eurodollar Interest Period; provided, however,
that if there is no such numerically corresponding day in such succeeding
month, such Eurodollar Interest Period shall end on the last Business Day of
such succeeding month. If a Eurodollar Interest Period would otherwise end
on a day which is not a Business Day, such Eurodollar Interest Period shall
end on the next succeeding Business Day; provided, however, that if said
next succeeding Business Day falls in a new month, such Eurodollar Interest
Period shall end on the immediately preceding Business Day. Any Eurodollar
Interest Period that begins before the Termination Date and would otherwise
end after the Termination Date shall end on the Termination Date.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the relevant
Eurodollar Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to that Eurodollar Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to that
Eurodollar Interest Period, plus (ii) the Applicable Margin per annum. The
Eurodollar Rate shall be rounded, if necessary to the next higher 1/100 of 1%.
"Facility Fee" is defined in Section 2.4.5(a).
"Federal Funds Effective Rate" means, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately
10:00 a.m. (Chicago time) on such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors and assigns.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
Absolute Rate, as the case may be.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate Advance" means a Ratable Advance which bears interest at the
Alternate Base Rate.
"Floating Rate Loan" means a Loan which bears interest at the Alternate Base
Rate.
"Form 10-K Report" is defined in Section 6.1(a).
"Form 10-Q Report" is defined in Section 6.1(b).
"Guaranties" of a Person means all guaranties and other contingent obligations
of such Person with respect to the liability of any other Person which would
be Indebtedness if the liability guaranteed by such guaranty were a liability
of such Person; provided, however, that (i) the endorsement by the Company and
the Subsidiaries of instruments for deposit or collection in the ordinary
course of its business, and (ii) Guaranties by the Company or any Subsidiary
of the Indebtedness of the Company or any other Subsidiary, as the case may
be, shall not be deemed to be a Guaranty as defined herein.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed
money (including, without limitation, all notes payable and drafts accepted
representing extensions of credit and all obligations evidenced by bonds,
debentures, notes or other similar instruments), (ii) obligations representing
the deferred purchase price of property or services, other than accounts
payable arising in, and on terms customary in, the ordinary course of such
Person's business, (iii) obligations under conditional sales agreements, other
title retention agreements, and agreements creating a Lien on the property
subject thereto, (iv) Capitalized Lease Obligations, (v) obligations
representing Unfunded Liabilities, (vi) obligations that arise in connection
with letters of credit, other than commercial letters of credit arising in,
and on customary terms in, the ordinary course of such Person's business, (vii)
Rate Hedging Obligations in an aggregate amount exceeding $50,000,000 for all
such Rate Hedging Obligations, and (viii) Guaranties; excluding however, for
purposes of this definition, obligations of the Company or any Subsidiary to
the Company or any other Subsidiary.
"Interest Period" means a Eurodollar Interest Period, a Eurodollar Bid Rate
Interest Period, or an Absolute Rate Interest Period, as the case may be.
"Invitation for Competitive Bid Quotes" means an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit "D" hereto, completed and
delivered by the Administrative Agent to the Banks in accordance with
Section 2.3.3.
"Lending Installation" means any office, branch, subsidiary or affiliate of
any Bank or the Administrative Agent.
"Level I Status" exists at any date if, at such date, the Company's S&P
Rating is higher than A+ or the Company's Moody's Rating is higher than A1.
"Level II Status" exists at any date if, at such date, (i) the Company's S&P
Rating is at least A+ or the Company's Moody's Rating is at least A1 and (ii)
Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the Company's S&P
Rating is A- or higher or the Company's Moody's Rating is A3 or higher and
(ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, no other Status Level
exists.
"Lien" means any security interest, mortgage, pledge, lien, claim, charge,
encumbrance, title retention agreement, lessor's interest under a Capitalized
Lease or analogous instrument, in, of or on any Person's assets or properties
in favor of any other Person.
"Loan" means, with respect to a Bank, such Bank's portion of any Advance.
"Loan Documents" means this Agreement and the Notes.
"Material Adverse Effect" means a material adverse effect on (i) the financial
condition or results of operations of the Company and its Subsidiaries taken
as a whole, or (ii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Banks
thereunder.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" means, at any time, the rating issued by Moody's and then in
effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Worth" means, as of any date of determination, the consolidated net worth
of the Company and its Subsidiaries as determined in accordance with
Agreement Accounting Principles.
"Notes" means, collectively, the Ratable Notes and the Competitive Bid Notes;
"Note" means any one of the Notes.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Notes, all accrued and unpaid facility fees and all other obligations
of the Company to the Banks or to any Bank or to the Administrative Agent
arising under the Loan Documents.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the fifteenth day of each January, April, July and
October after the date hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and its successors and
assigns.
"Person" means any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise, government or
any department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Company or any Subsidiary may have any liability.
"Principal Property" means all property located within the United States of
America directly engaged in the manufacturing activities of the Company and
its Subsidiaries, including manufacturing and processing facilities, except
any such property which the Board of Directors of the Company declares is not
material to the business of the Company and its Subsidiaries taken as a whole.
"Ratable Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Ratable Loans made by the Banks to the Company at the
same time, at the same Rate Option and, in the case of Fixed Rate Advances,
for the same Interest Period.
"Ratable Borrowing Notice" is defined in Section 2.2.3.
"Ratable Loan" means a Loan made by a Bank pursuant to Section 2.2.
"Ratable Note" means a promissory note in substantially the form of
Exhibit "A" hereto, with appropriate insertions, duly executed and delivered
to the Administrative Agent by the Company for the account of a Bank and
payable to the order of such Bank in the amount of its Commitment, including
any amendment, modification, renewal or replacement of such promissory note.
"Rate Hedging Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or cross-
currency interest-rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
"Rate Option" means the Eurodollar Rate or the Alternate Base Rate.
"Reference Banks" means First Chicago and Morgan Guaranty Trust Company of
New York.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulations U and X" means Regulations U and X of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by banks for the purpose of
purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such Section with respect to a Plan
that would materially adversely affect the business, financial condition, or
results of operations of the Company or the ability of the Company to perform
its obligations under the Loan Documents, excluding, however, such events as
to which the PBGC by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event;
provided that a failure to meet the minimum funding standard of Section 412 of
the Code and of Section 302 of ERISA shall be a reportable event regardless
of the issuance of any such waivers in accordance with Section 412(d) of
the Code.
"Required Banks" means Banks in the aggregate having at least 67% of the
Aggregate Commitment, or, if the Aggregate Commitment shall have been
terminated pursuant to this Agreement, holding Notes evidencing at least 67%
of the aggregate outstanding principal amount of the Advances.
"Reserve Requirement" means, with respect to a Eurodollar Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) that is imposed under Regulation D on
Eurocurrency liabilities (in the case of Eurodollar Advances).
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines
in effect in the United States on the date of this Agreement, including
transition rules, and (ii) the corresponding capital regulations promulgated
by regulatory authorities outside the United States implementing the July
1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
"Sale and Lease-Back Transaction" is defined in Section 6.10.
"S&P" means Standard & Poor's Rating Services, a division of The McGraw Hill
Companies, Inc.
"S&P Rating" means, at any time, the rating issued by S&P and then in effect
with respect to the Borrower's senior unsecured long-term debt securities
without third-party credit enhancement.
"SEC" means the United States Securities and Exchange Commission, and any
successor thereto.
"Section" means a numbered section of this Agreement, unless another document
is specifically referenced.
"Significant Subsidiary" means each Subsidiary which is a "significant
subsidiary" as defined in Rule 1-02(v) of Regulation S-X of the SEC, as such
rule may be amended or modified and in effect from time to time.
"Single Employer Plan" means a Plan maintained by the Company or any member
of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Status Level" means any or all, as the case may be, of Level I Status,
Level II Status, Level III Status or Level IV Status.
"Subsidiary" means any corporation more than 50% of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by the Company or by one or more Subsidiaries or by the Company
and one or more Subsidiaries, or any partnership, association, joint venture
or similar business organization which is so owned or controlled.
"Substantial Portion" means, with respect to the property of the Company and
the Subsidiaries, property which (i) represents more than 25% of the
Consolidated Assets of the Company and the Subsidiaries as would be shown in
the consolidated financial statements of the Company and the Subsidiaries as
at the beginning of the twelve-month period ending with the month in which
such determination is made, or (ii) is responsible for more than 25% of the
consolidated net sales or of the consolidated net income of the Company and
the Subsidiaries as reflected in the financial statements referred to in
clause (i) above.
"Syndication Agent" means First Chicago Capital Markets, Inc. in its capacity
as syndication agent for the Banks pursuant to Article X.
"Termination Date" means October 28, 2002 unless the Commitments are earlier
terminated pursuant to the terms of this Agreement.
"Total Indebtedness" means, at any date, the sum of all Indebtedness of the
Company and its Subsidiaries on a consolidated basis (including without
limitation the Loans).
"Transferee" is defined in Section 12.3.
"Unfunded Liabilities" means, (i) in the case of Single Employer Plans, the
amount (if any) by which the present value of all vested nonforfeitable
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, and (ii) in the case of Multiemployer Plans,
the withdrawal liability of the Company and its Subsidiaries.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by the Company or one or more Wholly-Owned Subsidiaries, or by
the Company and one or more Wholly-Owned Subsidiaries, or any similar
business organization which is so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE FACILITY
2.1. The Facility.
2.1.1. Description of Facility. Each Bank severally grants to the Company a
revolving credit facility pursuant to which, and upon the terms and subject
to the conditions herein set out:
(a) each Bank severally agrees to make Ratable Loans to the Company in
accordance with Section 2.2; and
(b) each Bank may, in its sole discretion, make bids to make Competitive Bid
Loans to the Company in accordance with Section 2.3.
2.1.2. Availability of Facility. Subject to the terms hereof, the
Commitments to lend hereunder shall expire on the Termination Date. Subject
to the terms of this Agreement, the Company may borrow, repay and reborrow at
any time prior to the Termination Date. In no event may the aggregate
principal amount of all outstanding Advances exceed the Aggregate Commitment.
2.2. Ratable Advances.
2.2.1. Ratable Advances. From and including the date of this Agreement and
prior to the Termination Date, each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make Ratable Loans to the Company
from time to time in amounts not to exceed in the aggregate at any one time
outstanding the amount of its Commitment. Each Ratable Advance hereunder
shall consist of borrowings made from several Banks ratably in proportion to
the ratio that their respective Commitments bear to to the Aggregate
Commitment. The Ratable Advances shall be evidenced by the Ratable Notes.
2.2.2. Ratable Advance Rate Options. The Ratable Advances may be Floating
Rate Advances or Eurodollar Advances, or a combination thereof, selected by
the Company in accordance with Section 2.2.3.
2.2.3. Method of Selecting Rate Options and Interest Periods for Ratable
Advances. The Company shall select the Rate Option and, in the case of each
Eurodollar Advance, Interest Period applicable to each Ratable Advance from
time to time. The Company shall give the Administrative Agent irrevocable
notice (a "Ratable Borrowing Notice") not later than 10:00 a.m. Chicago time
on the Borrowing Date of each Floating Rate Advance and 10:00 a.m. Chicago
time on the third Business Day prior to the Borrowing Date of each Eurodollar
Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day, of such Ratable
Advance,
(b) the aggregate amount of such Ratable Advance,
(c) the Rate Option selected for such Ratable Advance, and
(d) in the case of each Fixed Rate Advance, the Interest Period applicable
thereto (which may not end after the Termination Date).
2.2.4. Conversion and Continuation of Outstanding Ratable Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless and
until such Floating Rate Advances are converted into Eurodollar Advances.
Each Eurodollar Advance shall continue as a Eurodollar Advance until the end
of the then applicable Eurodollar Interest Period therefor, at which time
such Eurodollar Advance shall be automatically converted into a Floating Rate
Advance unless the Company shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end of such
Eurodollar Interest Period, such Eurodollar Advance either continue as a
Eurodollar Advance for the same or another Eurodollar Interest Period or be
converted into a Floating Rate Advance. Subject to the terms of
Section 2.4.2, the Company may elect from time to time to convert all or any
part of a Ratable Advance of one Rate Option into a Ratable Advance of another
Rate Option(s); provided that any conversion of any Eurodollar Advance shall
be made on, and only on, the last day of the Eurodollar Interest Period
applicable thereto and no portion of the outstanding principal amount of any
Ratable Advance may be continued as, or be converted into, a Eurodollar
Advance when any Default or Unmatured Default has occurred and is continuing.
The Company shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Ratable Advance or
continuation of a Eurodollar Advance not later than 10:00 a.m. (Chicago time)
at least one Business Day, in the case of a conversion into a Floating Rate
Advance, or three Business Days, in the case of a conversion into or
continuation of a Eurodollar Advance, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such conversion or
continuation;
(ii) the aggregate amount and Rate Option of the Ratable Advance which is to
be converted or continued; and
(iii) the amount and Rate Option(s) of Ratable Advance(s) into which such
Ratable Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurodollar Advance, the duration of the
Eurodollar Interest Period applicable thereto.
2.3. Competitive Bid Advances.
2.3.1. Competitive Bid Option. In addition to Ratable Advances pursuant to
Section 2.2, but subject to the terms and conditions of this Agreement
(including, without limitation, the limitation set forth in Section 2.1.2 as
to the maximum aggregate principal amount of all outstanding Advances
hereunder), the Company may, as set forth in this Section 2.3, request the
Banks prior to the Termination Date to make offers to make Competitive Bid
Advances to the Company. Each Bank may, but shall have no obligation to,
make such offers and the Company may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.3. Competitive
Bid Advances shall be evidenced by Competitive Bid Notes.
2.3.2. Competitive Bid Quote Request. When the Company wishes to request
offers to make Competitive Bid Loans under this Section 2.3, it shall transmit
to the Administrative Agent by telex or telecopy a Competitive Bid Quote
Request substantially in the form of Exhibit "C" hereto so as to be received
no later than (x) 10:00 a.m. Chicago time at least four Business Days prior
to the Borrowing Date proposed therein, in the case of a Eurodollar Auction
or (y) 10:00 a.m. Chicago time at least one Business Day prior to the
Borrowing Date proposed therein, in the case of an Absolute Rate Auction (or,
in either case upon reasonable prior notice to the Banks, such other time and
date as the Company and the Administrative Agent may agree), specifying:
(a) the proposed Borrowing Date, which shall be a Business Day, for the
proposed Competitive Bid Advance,
(b) subject to Section 2.4.2 hereof, the aggregate principal amount of such
Competitive Bid Advance,
(c) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or an Absolute Rate, or both, and
(d) the Interest Period applicable thereto (which may not end after the
Termination Date).
The Company may request offers to make Competitive Bid Loans for more than
one Interest Period and for a Eurodollar Auction and an Absolute Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall
be given within five Business Days (or such other number of days as the
Company and the Administrative Agent may agree) of any other Competitive Bid
Quote Request. A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit "C" hereto shall be rejected, and the
Administrative Agent shall promptly notify the Company of such rejection by
telex or telecopy.
2.3.3. Invitation for Competitive Bid Quotes. Promptly upon receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.3.2.,
the Administrative Agent shall send to each of the Banks by telex or telecopy
an Invitation for Competitive Bid Quotes substantially in the form of Exhibit
"D" hereto, which shall constitute an invitation by the Company to each Bank
to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this
Section 2.3.
2.3.4. Submission of Contents of Competitive Bid Quotes
(a) Each Bank may, in its sole discretion, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response to any
Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply
with the requirements of this Section 2.3.4 and must be submitted to the
Administrative Agent by telex or telecopy at its offices specified in or
pursuant to Article XIII not later than (x) 1:00 p.m. Chicago time at least
three Business Days prior to the proposed Borrowing Date, in the case of a
Eurodollar Auction or (y) 9:00 a.m. Chicago time on the proposed Borrowing
Date, in the case of an Absolute Rate Auction (or, in either case upon
reasonable prior notice to the Banks, such other time and date as the
Company and the Administrative Agent may agree); provided that Competitive
Bid Quotes submitted by First Chicago may be submitted, and may only be
submitted, if the Administrative Agent or First Chicago notifies the Company
of the terms of the offer or offers contained therein not later than (x)
12:45 p.m. Chicago time at least three Business Days prior to the proposed
Borrowing Date, in the case of a Eurodollar Auction or (y) 8:45 a.m. Chicago
time on the proposed Borrowing Date, in the case of an Absolute Rate Auction.
Subject to Articles IV and VII, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given
on the instructions of the Company.
(b) Each Competitive Bid Quote shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same as that set forth in
the applicable Invitation for Competitive Bid Quotes;
(ii) the principal amount of the Competitive Bid Loan for which each such
offer is being made, which principal amount (1) may be greater than, less
than or equal to the Commitment of the quoting Bank, (2) must be at least
$10,000,000 and an integral multiple of $5,000,000, and (3) may not exceed
the principal amount of Competitive Bid Loans for which offers were requested;
(iii) in the case of a Eurodollar Auction, the Eurodollar Bid Rate offered
for each such Competitive Bid Loan;
(iv) in the case of an Absolute Auction, the Absolute Rate offered for each
such Competitive Bid Loan;
(v) the minimum amount, if any, of the Competitive Bid Loan that may be
accepted by the Company and/or the limit, if any, as to the aggregate
principal amount of the Competitive Bid Loans from such Bank that may be
accepted by the Company;
(vi) the applicable Eurodollar Bid Rate Interest Period or Absolute Rate
Interest Period, as the case may be; and
(vii) the identity of the quoting Bank.
(c) The Administrative Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit "E" hereto or does not
specify all of the information required by Section 2.3.4(b);
(ii) contains qualifying, conditional or similar language, other than any
such language contained in Exhibit "E";
(iii) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 2.3.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this
Section 2.3.4(c), then the Administrative Agent shall notify the relevant Bank
of such rejection as soon as practical.
2.3.5 Notice to Company. The Administrative Agent shall promptly notify the
Company of the terms (i) of any Competitive Bid Quote submitted by a Bank
that is in accordance with Section 2.3.4 and (ii) of any Competitive Bid
Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote
shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to
correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent's notice to the Company shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote
Request and the respective principal amounts and Eurodollar Bid Rates or
Absolute Rates, as the case may be, so offered.
2.3.6. Acceptance and Notice by Company. Not later than (x) 2:00 p.m.
Chicago time at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (y) 10:00 a.m. Chicago time on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Banks, such other time and
date as the Company and the Administrative Agent may agree), the Company
shall notify the Administrative Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to Section 2.3.5; provided, however,
that the failure by the Company to give such notice to the Administrative
Agent shall be deemed to be a rejection of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Borrowing Notice") shall specify
the aggregate principal amount of offers for each Interest Period that are
accepted. The Company may accept any Competitive Bid Quote in whole or in
part; provided that:
(a) the aggregate principal amount of each Competitive Bid Advance may not
exceed the applicable amount set forth in the related Competitive Bid Quote
Request,
(b) acceptance of offers may only be made on the basis of ascending
Competitive Bid Margins or Absolute Rates, as the case may be, and
(c) the Company may not accept any offer of the type described in
Section 2.3.4(c) or that otherwise fails to comply with the requirements of
this Agreement.
2.3.7. Allocation by Administrative Agent. If offers are made by two or more
Banks with the same Competitive Bid Margins or Absolute Rates, as the case may
be, for a greater principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as nearly as possible
(in such multiples, not greater than $500,000, as the Administrative Agent
may deem appropriate) in proportion to the aggregate principal amount of such
offers; provided, however, that no Bank shall be allocated a portion of any
Competitive Bid Advance that is less than the minimum amount that such Bank
has indicated that it is willing to accept. Allocations by the Administrative
Agent of the amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error. The Administrative Agent shall promptly, but in
any event on the same Business Day in the case of Eurodollar Bid Rate
Advances and by 11:00 a.m. (Chicago time) in the case of Absolute Rate
Advances, notify each Bank of its receipt of a Competitive Bid Borrowing
Notice and the aggregate principal amount of such Competitive Bid Advance
allocated to each participating Bank.
2.4. General Facility Terms.
2.4.1. Method of Borrowing. Not later than 12:00 noon Chicago time on each
Borrowing Date, each Bank shall make available its Loan or Loans in funds
immediately available in Chicago, to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent shall deposit
the funds so received from the Banks in the Company's account at the
Administrative Agent's main office in Chicago. Notwithstanding the foregoing
provisions of this Section 2.4.1, to the extent that a Loan made by a Bank
matures on the Borrowing Date of a requested Loan, such Bank shall apply the
proceeds of the Loan it is then making to the repayment of the maturing Loan.
2.4.2. Minimum Amount of Each Advance. Each Advance shall be in the minimum
amount of $10,000,000 (and in integral multiples of $5,000,000 if in excess
thereof); provided, however, that any Floating Rate Advance may be in the
aggregate amount of the unused Aggregate Commitment.
2.4.3. Required Payments; Termination.
(a) All outstanding Ratable Advances and all other unpaid Obligations shall
be paid in full by the Company on the Termination Date.
(b) Each Competitive Bid Advance shall mature and be paid in full by the
Company on the last day of the Interest Period applicable thereto.
2.4.4. Optional Principal Payments. The Company may from time to time pay
all outstanding Floating Rate Advances, or, in a minimum aggregate amount of
$1,000,000 (and in multiples of $1,000,000 if in excess thereof), any portion
of the outstanding Floating Rate Advances upon one Business Day's prior notice
to the Administrative Agent. The Company may from time to time pay, subject
to the payment of any funding indemnification amounts required by Section 3.4
but without penalty or premium, all outstanding Eurodollar Advances, or, in
a minimum aggregate amount of $10,000,000 or any integral multiple of
$5,000,000 in excess thereof, any portion of the outstanding Eurodollar
Advances upon three Business Days' prior notice to the Administrative Agent.
A Fixed Rate Advance (other than a Eurodollar Advance) may not be paid prior
to the last day of the applicable Interest Period; provided, however, that,
if for any reason Section 3.1 hereof is applicable to any such Fixed Rate
Advance, such Fixed Rate Advance may be paid, subject to Section 3.4 hereof,
prior to the last day of the applicable Interest Period therefor upon five
Business Days' prior notice to the Administrative Agent.
2.4.5. Fees; Pricing Schedule.
(a) Facility Fees. The Company hereby agrees to pay to the Administrative
Agent for the account of each Bank a facility fee (the "Facility Fee") of (a)
for any day on which Level I Status exists, 0.055 of 1% per annum, (b) for
any day on which Level II Status exists, 0.06 of 1% per annum, (c) for any
day on which Level III Status exists, 0.07 of 1% per annum, and (d) for any
day on which Level IV Status exists, 0.10 of 1% per annum, on the Aggregate
Commitment for the period from the date of this Agreement, to but excluding
the Termination Date (or such earlier date on which the Aggregate Commitment
shall terminate), payable in arrears on each Payment Date (the first such
payment to be made on January 15, 1998) and on the Termination Date (or such
earlier date on which the Aggregate Commitment shall terminate) for any
period then ending for which such fee shall not have been theretofore paid.
The Company shall give prompt notice to the Administrative Agent of any
changes in the Status Level in accordance with Section 6.15.
(b) Agents' Fees. The Company agrees to pay to (i) the Administrative Agent
and the Syndication Agent, for their own account, the fees agreed to by the
Company, the Administrative Agent and the Syndication Agent pursuant to that
certain letter agreement dated September 3, 1997, or as otherwise agreed from
time to time and (ii) the Documentation Agent, for its own account, the fees
agreed to by the Company and the Documentation Agent from time to time.
(c) The following schedule illustrates how the Applicable Margin and
Facility Fees will apply to the Company in different Status Levels:
PRICING SCHEDULE (expressed in basis points per annum)
Status Level Level I Level II Level III Level IV
- ------------ ------- -------- --------- --------
At least Lower than
equal to Level II and
Higher A+ or A1 higher than
Ratings than A+ but not in or equal to Lower than
S&P/Moody's or A1 Level I A- or A3 A- and A3
Facility Fee 5.5 6 7 10
Applicable Margin 9.5 12 13 25
2.4.6. Increases and Reductions in Aggregate Commitment; Principal Payments.
(a) Increases to Aggregate Commitment. The Company shall have the right, no
more frequently than once in any twelve month period, to request that the
Aggregate Commitment be increased (each a "Commitment Increase Request") in a
minimum amount of $50,000,000 by obtaining additional Commitments, either
from one or more of the Banks or another lending institution, provided that
the Aggregate Commitment shall in no event exceed $500,000,000 without the
consent of all of the Lenders. In the event of such a Commitment Increase
Request each of the Banks shall be given the opportunity to participate in
the requested increase ratably in the proportions that their respective
Commitments bear to the aggregate Commitment. No Bank shall have any
obligation to increase its Commitment pursuant to a request by the Company
hereunder. To the extent that all of the Banks do not elect to participate
in such requested increase after being afforded an opportunity to do so,
then the Company shall consult with the Administrative Agent as to the number,
identity and requested Commitments of additional financial institutions which
the Company may, upon the written consent of the Administrative Agent (which
consent shall not be unreasonably withheld), invite to participate in the
Aggregate Commitment. In the event that the Company and one or more of the
Banks (or other financial institutions) shall agree upon such an increase in
the Aggregate Commitment (i) the Company, the Administrative Agent and each
Bank or other financial institution increasing its Commitment or extending a
new Commitment shall enter into an amendment to this Agreement setting forth
the amounts of the Commitments, as so increased, providing that the financial
institutions extending new commitments shall be Banks for all purposes of
this Agreement and the other Loan Documents, and setting forth such additional
provisions as the Administrative Agent shall consider reasonably appropriate
and (ii) the Company shall furnish new Notes to each financial institution
that is extending a new Commitment. No such amendment shall require the
approval or consent of any Bank whose Commitment is not being increased.
Upon the execution and delivery of such amendment as provided above, and upon
satisfaction of such other conditions as the Administrative Agent may
reasonably specify upon the request of the financial institutions that are
increasing or extending new Commitments (including the delivery of
certificates, evidence of corporate authority and legal opinions on behalf of
the Company), this Agreement shall be deemed to be amended accordingly.
Notwithstanding anything in this Section 2.4.6 to the contrary, no such
increase in the Aggregate Commitment shall be effective if (A) a Default or
Unmatured Default shall exist on the date any such Commitment Increase Request
is made or after giving effect to the requested increase or (B) the Company
shall have voluntarily reduced the Aggregate Commitment at any time prior to
the making of such Commitment Increase Request.
(b) Reductions to Aggregate Commitment. The Company may from time to time
prior to the Termination Date permanently reduce the Aggregate Commitment in
whole (upon payment in full of the Notes and other Obligations of the Company
hereunder), or in part in a minimum amount of $10,000,000 (and in multiples of
$5,000,000 if in excess thereof), upon at least three Business Days' prior
written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction.
(c) Mandatory Principal Payments. If, after giving effect to any reduction
or termination of the Aggregate Commitment pursuant to this Section 2.4.6,
the aggregate principal amount of all outstanding Advances would otherwise
exceed the aggregate amount of the Aggregate Commitment, the Company shall
pay or prepay the Loans in an aggregate principal amount equal to such excess,
together with all accrued and unpaid interest and fees and all other amounts
due and owing pursuant to Article III hereof to the date of payment or
prepayment, provided that the Company shall select the Loans to be paid or
prepaid, so that any partial payment or prepayment of the Loans of any type
on any day shall be in an aggregate principal amount at least equal to
$1,000,000 and so that, insofar as possible, no prepayment of a Loan shall be
made other than on the last day of an Interest Period therefor.
2.4.7. Interest Periods. Subject to Sections 2.2.4 and 2.4.8, (a) each
Fixed Rate Advance shall bear interest from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such
Fixed Rate Advance, and (b) each Floating Rate Advance shall bear interest on
the outstanding principal amount thereof, for each day from the date such
Floating Rate Advance is made until it becomes due, at a rate per annum equal
to the Alternate Base Rate for such day.
2.4.8. Rate after Maturity. Except as provided in the next sentence, any
Advance not paid at maturity, whether by acceleration or otherwise, shall bear
interest until paid in full at a rate per annum equal to the Alternate Base
Rate plus 2% per annum. In the case of a Fixed Rate Advance the maturity of
which is accelerated, such Fixed Rate Advance shall bear interest for the
remainder of the applicable Interest Period, at the higher of the rate
otherwise applicable to such Interest Period plus 2% per annum or the
Alternate Base Rate plus 2% per annum.
2.4.9. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted into a
Fixed Rate Advance on a day other than a Payment Date shall be payable on the
Payment Date. Interest accrued on each Fixed Rate Advance shall be payable on
the last day of its applicable Interest Period and on any date on which such
Fixed Rate Advance is prepaid, whether due to acceleration or otherwise.
Interest accrued on each Fixed Rate Advance having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest on Fixed Rate Advances shall
be calculated for the actual number of days elapsed on the basis of a year
consisting of 360 days. Interest on Floating Rate Advances and all fees shall
be calculated for the actual number of days elapsed on the basis of a year
consisting of 365, or when appropriate 366, days. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the
amount paid if payment is received prior to 1:00 p.m. (Chicago time) at the
place of payment. If any payment of principal of or interest on an Advance
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
2.4.10. Method of Payment. Subject to the last sentence of Section 2.4.1,
all payments of principal, interest, and fees hereunder shall be made,
without setoff, deduction, counterclaim or withholding for taxes, in
immediately available funds to the Administrative Agent at the Administrative
Agent's address specified pursuant to Article XIII (or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Company at least one Business Day prior to the
date of any such payment) by 1:00 p.m. (Chicago time) on the date when due
and shall be made ratably among all Banks in the case of fees and payments in
respect of Ratable Advances and ratably among the applicable Banks in respect
of Competitive Bid Advances. Each payment delivered to the Administrative
Agent for the account of any Bank shall be delivered promptly by the
Administrative Agent to such Bank in the same type of funds which the
Administrative Agent received at its address specified pursuant to Article
XIII or at any Lending Installation specified in a notice received by the
Administrative Agent from such Bank. Upon two Business Days' prior notice, by
telephone or telecopy, to the Company, the Administrative Agent is hereby
authorized to charge the account of the Company for each payment of
principal, interest and fees as it becomes due hereunder.
2.4.11. Notes; Telephonic Notices. Each Bank is hereby authorized to record
on the schedule attached to each of its Notes, or otherwise record in
accordance with its usual practice, the date and amount of each of its Loans
of the type evidenced by such Note; provided, however, that any such
recordations shall be conclusive and binding upon the Company, absent
manifest error, and failure to so record shall not affect the Company's
obligations under any Note. The Company hereby authorizes the Banks and
the Administrative Agent to extend, convert or continue Advances, effect Rate
Option selections, transfer funds and submit Competitive Bid Quotes based on
telephonic notices made by any person or persons the Administrative Agent or
any Bank in good faith believes to be an Authorized Officer. The Company
agrees to deliver promptly to the Administrative Agent a written confirmation
of each telephonic notice signed by any two Authorized Officers. If the
written confirmation differs in any material respect from the actions taken
by the Administrative Agent and the Banks, the records of the Administrative
Agent and the Banks shall govern absent manifest error.
2.4.12. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will
notify each Bank of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice and repayment notice received by it hereunder. The
Administrative Agent will notify each Bank of the interest rate applicable to
each Advance promptly upon determination of such interest rate and will give
each Bank prompt notice of each change in the Alternate Base Rate or the Status
Level. Each Reference Bank agrees to furnish timely information for the
purpose of determining the Eurodollar Base Rate and the Alternate Base Rate.
2.4.13. Lending Installations. Each Bank may book its Loans at any Lending
Installation selected by such Bank and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such
Lending Installation and the Notes shall be deemed held by each Bank for the
benefit of such Lending Installation. Each Bank may, by written telex or
telecopy notice to the Administrative Agent and the Company, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made. Each notice given pursuant to this
Section 2.4.13 shall be given prior to the time the Loans or payments
referred to in such notice are to be made.
2.4.14. Non-Receipt of Funds by the Administrative Agent. Unless the
Company or a Bank, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the
Administrative Agent of (a) in the case of a Bank, the proceeds of a Loan or
(b) in the case of the Company, a payment of principal, interest or fees to
the Administrative Agent for the account of the Banks, that it does not
intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Bank or the Company, as
the case may be, has not in fact made such payment to the Administrative
Agent, the recipient of such payment shall, on demand by the Administrative
Agent, repay to the Administrative Agent the amounts so made available together
with interest thereon in respect of each day during the period commencing on
the date such amount was so made available by the Administrative Agent until
the date the Administrative Agent recovers such amount at a rate per annum
equal to (i) in the case of payment by a Bank, the Federal Funds Effective
Rate for such day (as determined by the Administrative Agent) or (ii) in the
case of payment by the Company, the interest rate applicable to the relevant
Loan.
2.4.15. Withholding Tax Exemption. At least five Business Days prior to the
first date on which interest or fees are payable hereunder for the account of
any Bank, each Bank that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Company and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Company and the Administrative Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires (currently, three successive calendar years for Form 1001 and one
calendar year for Form 4224) or becomes obsolete or after the occurrence of
any event requiring a change in the most recent forms so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Administrative Agent, in each case certifying
that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or
which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Company and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If any law or any governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or
any interpretation thereof by any governmental authority or agency, or
compliance of any Bank with such,
(i) subjects any Bank or any applicable Lending Installation, directly or
indirectly, to any additional tax, duty, charge or withholding on or from
payments due from the Company (excluding taxation of the overall net income
of any Bank or applicable Lending Installation), or changes the basis of
taxation of payments to any Bank in respect of its Loans or other amounts due
it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank or any
applicable Lending Installation (other than reserves and assessments taken
into account in determining the interest rate applicable to Fixed Rate
Advances), or
(iii) imposes any other condition the result of which is to increase the
cost to any Bank or any applicable Lending Installation of making, funding or
maintaining loans or reduces any amount receivable by any Bank or any
applicable Lending Installation in connection with loans,
then, within 15 days of demand by such Bank, the Company shall pay such Bank
that portion of such increased expense incurred or reduction in an amount
received which such Bank determines is attributable to making, funding and
maintaining its Loans and its Commitment. At the time of such demand, such
Bank shall provide the Company with a written statement setting forth the
amount that would adequately compensate such Bank for such increased expense
or reduction and setting forth in reasonable detail the assumptions and
calculations upon which such Bank determined such amount; provided, however,
that the Company shall maintain, at all times, the confidentiality of any
such written statement, including without limitation its content, delivered
to the Company by any such Bank.
3.2. Capital Adequacy. If a Bank determines the amount of capital required
or expected to be maintained by such Bank, any Lending Installation of such
Bank or any corporation controlling such Bank is increased as a result of a
Change in Law, then, such affected Bank shall so notify the Company and the
Administrative Agent within ninety (90) days of such Change in Law. At the
time of such notification such affected Bank shall provide the Company with a
written statement setting forth the amount that would adequately compensate
such affected Bank for any shortfall in the rate of return on the portion of
such increased capital which such affected Bank determines is attributable to
this Agreement, its Loans or its obligations to make Loans hereunder (after
taking into account such affected Bank's policies as to capital adequacy) and
setting forth in reasonable detail the assumptions and calculations upon
which such affected Bank determined such amount; provided, however, that the
Company shall maintain, at all times, the confidentiality of any such written
statement, including without limitation its content, delivered to the Company
by any such affected Bank. The Company and such affected Bank shall
thereafter negotiate in good faith an agreement to increase the facility fee
payable to the affected Bank under this Agreement which, in the opinion of
such affected Bank, will adequately compensate such affected Bank for such
shortfall so long as such Change in Law is in effect. If such increase is
approved in writing by the Company within forty-five (45) days from the date
of the notice to the Company from such affected Bank, the facility fee payable
by the Company under this Agreement shall, effective from the date of the
effective date of such Change in Law, include the amount of such agreed
increase and the Company will so notify the Administrative Agent. If the
Company and such affected Bank are unable to agree on such an increase within
forty-five (45) days from the date of the notice to the Company from such
affected Bank, the Company shall, by written notice to such affected Bank
within fifty (50) days from the date of the aforesaid notice to the Company
from such affected Bank, elect either to (a) terminate the Commitment of, or
replace, such affected Bank; provided, however, that, prior to or concurrent
with any such termination or replacement, all amounts due and owing to but
excluding the date of termination or replacement by the Company to such
affected Bank under this Agreement (including without limitation all amounts
due and owing under this Section 3.2) shall have been paid in full, or (b)
increase the facility fee payable to such affected Bank by the amount
requested by such affected Bank, effective from the date of the effective date
of such Change in Law. Without limiting the foregoing, if the Company elects
to take the action described in clause (b) of the preceding sentence, it may
simultaneously therewith reduce the Commitment of such affected Bank by an
amount chosen by the Company and if, after giving effect to any such
reduction, the aggregate principal amount of all outstanding Loans of such
affected Bank would otherwise exceed its Commitment, the Company shall pay or
prepay the Loans in an aggregate principal amount equal to such excess,
together with all accrued and unpaid interest and fees and all amounts due
and owing under Section 3.4 hereof to the date of payment or prepayment. If
the Company fails to provide notice to such affected Bank as described in the
second preceding sentence by such fiftieth day, the Company shall be deemed to
have taken the action described in clause (b) above. If the Company elects to
take the action with respect to replacement of such affected Bank described in
clause (a) above, it may, upon prior written notice to the Administrative
Agent and subject to the provisions hereof and of Section 12.3 hereof,
simultaneously therewith replace such affected Bank with another bank and
instruct such affected Bank to assign all of its interests hereunder to such
replacement bank in accordance with Section 12.3 hereof.
3.3. Availability of Fixed Rate Options. If any Bank determines that
maintenance of any of its Fixed Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or
not having the force of law, the Administrative Agent shall suspend the
availability of the affected Fixed Rate and require any Fixed Rate Advances
outstanding under an affected Fixed Rate to be repaid; or if the Required
Banks determine that (i) deposits of a type and maturity appropriate to
match fund Fixed Rate Advances are not available, the Administrative Agent
shall suspend the availability of the affected Fixed Rate with respect to any
Advances made after the date of any such determination, or (ii) a Fixed Rate
does not accurately reflect the cost of making a Fixed Rate Advance at such
Fixed Rate, then, if for any reason whatsoever the provisions of Sections 3.1
or 3.2 hereof are inapplicable, the Administrative Agent shall suspend the
availability of the affected Fixed Rate with respect to any Advances made
after the date of any such determination.
3.4. Funding Indemnification. If any payment of a Fixed Rate Advance occurs
on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Fixed Rate
Advance is not made or prepaid on the date specified by the Company for any
reason other than default by the Banks, the Company will indemnify each Bank
for any direct loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed Rate Advance.
3.5. Bank Certificates; Survival of Indemnity. To the extent reasonably
possible, each Bank shall designate an alternate Lending Installation with
respect to its Fixed Rate Loans to reduce any liability of the Company to
such Bank under Sections 3.1 or 3.2 hereof or to avoid the unavailability of
a Fixed Rate under Section 3.3, so long as such designation is not
disadvantageous to such Bank, in such Bank's sole determination and
discretion. Each Bank shall deliver a certificate of such Bank as to the
amount due, if any, under Sections 3.1 or 3.4 hereof. Determination of
amounts payable under such Sections in connection with a Fixed Rate Loan shall
be calculated as though each Bank funded its Fixed Rate Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Fixed Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein,
the amount specified in the certificate shall be payable on demand after
receipt by the Company of the certificate. The obligations of the Company
under Sections 3.1, 3.2 and 3.4 hereof shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Banks shall not be required to make the initial
Advance hereunder unless, on or before the date of execution hereof, the
Company has furnished or caused to be furnished to the Administrative Agent
with sufficient copies for the Banks:
(a) Copies of the Certificate of Incorporation of the Company, together with
all amendments, and a certificate of good standing, both certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of the Company,
of its By-Laws and of its Board of Directors' resolutions (and resolutions of
other bodies, if any are deemed necessary by counsel for any Bank)
authorizing the execution of the Loan Documents.
(c) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Company, which shall identify by name and title and bear the
signature of the officers of the Company authorized to sign the Loan
Documents and to make borrowings hereunder, upon which certificate the Banks
shall be entitled to rely until informed of any change in writing by the
Company.
(d) A certificate, signed by the chief financial officer of the Company,
stating that on the date of execution hereof no Default or Unmatured Default
has occurred and is continuing.
(e) A written opinion of the Company's counsel, addressed to the Banks in
substantially the form of Exhibit "F" hereto.
(f) A Ratable Note payable to the order of each of the Banks and a
Competitive Bid Note payable to the order of each of the Banks.
(g) A duly completed Loan/Credit Related Money Transfer Instruction in
substantially the form of Exhibit "G" hereto.
(h) Evidence, in form and substance satisfactory to the Administrative Agent
and the Banks, of the termination by the Company of those certain credit
facilities evidenced by that certain Credit Agreement, dated as of
November 30, 1994 (as heretofore amended or modified, the "Existing Credit
Agreement"), among the Company, the Banks named therein, and The First
National Bank of Chicago and Morgan Guaranty Trust Company of New York, as
Co-Agents, and The First National Bank of Chicago, as Administrative Agent,
and of the payment of all principal of and interest on any loans outstanding
under, and of all other amounts payable under, the Existing Credit Agreement.
(i) Such other documents as the Administrative Agent, any Bank or their
respective counsel may have reasonably requested.
4.2. Each Advance. No Bank shall be required to make any Advance (other
than an Advance that, after giving effect thereto and to the application of
the proceeds thereof, does not increase the aggregate amount of outstanding
Advances), unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default.
(b) The Company reaffirms the truth and correctness of the representations
and warranties contained in Article V, excluding (i) Section 5.5;
(ii) Section 5.8 as to Subsidiaries other than Significant Subsidiaries; and
(iii) changes in Schedule "1" hereto reflecting transactions permitted by
this Agreement.
(c) All legal matters incident to the making of such Advance shall be
satisfactory to the Administrative Agent and the Banks and their respective
counsel.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Company that the conditions contained in
Sections 4.2(a) and (b) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and the Banks
that:
5.1. Corporate Existence and Standing. Each of the Company and the
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and is duly
qualified and in good standing in each jurisdiction where, because of the
nature of its activities or properties, such qualification is required and
the failure so to qualify would have a Material Adverse Effect.
5.2. Authorization and Validity. The Company has the corporate power,
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the
Company of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings.
5.3. No Conflict; Government Consent. Neither the execution and delivery by
the Company of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or any Subsidiary or the Company's or any Subsidiary's
certificate or articles of incorporation or by-laws or the provisions of any
indenture, instrument or agreement to which the Company or any Subsidiary is
a party or is subject, or by which it, or its property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the property of the Company or a
Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents, or to the extent that any of the
foregoing is required, all such orders, consents, approvals, licenses,
authorizations, validations, filings, recordings, registrations, or exemptions
have been validly procured and have not been rescinded.
5.4. Financial Statements. The April 30, 1997 consolidated financial
statements of the Company and the Subsidiaries heretofore delivered to the
Banks were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Company
and the Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
5.5. Material Adverse Change. Since April 30, 1997 through the date of
execution hereof, there has been no change in the business, property,
prospects, condition (financial or otherwise) or results of operations of the
Company and the Subsidiaries which would have a Material Adverse Effect.
5.6. Taxes. The Company and the Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed
and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves
have been provided. The United States income tax returns of the Company and
the Subsidiaries have been audited by the Internal Revenue Service through
the fiscal year ended April 30, 1992. No tax liens have been filed and no
claims are being asserted with respect to any such taxes which would have a
Material Adverse Effect. The charges, accruals and reserves on the books of
the Company and the Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.7. Litigation. There is no litigation, arbitration, or proceeding pending
or, to the knowledge of any of their officers, threatened against or
affecting the Company or any Subsidiary which would have a Material Adverse
Effect.
5.8. Subsidiaries. Schedule "1" hereto contains an accurate list of all of
the presently existing Subsidiaries of the Company, setting forth their
respective jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Company or other Subsidiaries. All of
the issued and outstanding shares of capital stock of such Subsidiaries have
been duly authorized and issued and are fully paid and non-assessable.
5.9. ERISA. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, and neither the Company nor any of its Subsidiaries has
withdrawn from any Plan or initiated steps to do so and no steps have been
taken to terminate any Plan where any such withdrawal or termination could
have a Material Adverse Effect.
5.10. Accuracy of Information. No information, exhibit or report furnished
by the Company or any Subsidiary to the Administrative Agent or to any
Co-Agent or Bank in connection with the negotiation of the Loan Documents
contains any material misstatement of fact or omits to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11. Compliance With Laws. The Company and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of
any domestic or foreign government or any instrumentality or agency thereof
having jurisdiction over the conduct of their respective businesses or the
ownership of their respective property, except where the failure so to comply
would not have a Material Adverse Effect. Neither the Company nor any
Subsidiary has received any notice to the effect that its operations are not
in material compliance with any of the requirements of the applicable federal,
state and local environmental, health and safety statutes and regulations,
which non-compliance would have a Material Adverse Effect.
5.12. Regulations U and X. Margin Stock (as defined in Regulations U and X)
constitutes less than 25% of those assets of the Company and its Subsidiaries
that are subject to any limitation on sale, pledge or other restriction
hereunder.
5.13. Investment Company Act. Neither the Company nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an
"investment company" within the meaning of Investment Company Act of 1940,
as amended.
5.14. Public Utility Holding Company Act. Neither the Company nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Banks shall otherwise
consent in writing:
6.1. Financial Reporting. The Company will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Banks:
(a) Within 120 days after the close of each of its fiscal years, a copy of
the then relevant Form 10-K report (such report, together with any successor
thereto, is hereinafter referred to as the "Form 10-K Report") regarding the
Company and its Subsidiaries filed with the SEC; provided, however, that, in
any event, the Company shall furnish to the Banks financial information that
is, in form and substance, materially the same as that which is required, as
of the date hereof, by the SEC to appear in a Form 10-K report, and such Form
10-K Report shall be accompanied by a certificate of independent certified
public accountants (acceptable to the Banks, which acceptance shall not be
unreasonably withheld) to the effect that, in the course of their examination
necessary for their certification of such financial information, they have
obtained no knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof. To the extent the Company already has
provided copies of the then relevant Form 10-K Report to the Banks pursuant
to Section 6.1(e) hereof, and, at that time the Company notified each Bank
that such Form 10-K Report was being furnished to satisfy the requirements of
Sections 6.1(a) and (e), then the Company need not furnish additional copies
of such Form 10-K Report to the Banks in order to satisfy the requirements of
this Section.
(b) Within 60 days after the close of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries, a copy of the then
relevant Form 10-Q report (such report, together with any successor thereto,
is hereinafter referred to as the "Form 10-Q Report") regarding the Company
and its Subsidiaries filed with the SEC; provided, however, that, in any
event, the Company shall furnish to the Banks financial information that is,
in form and substance, materially the same as that which is required, as of
the date hereof, by the SEC to appear in a Form 10-Q report, and such Form
10-Q Report shall be certified by its chief financial officer. To the extent
the Company already has provided copies of the then relevant Form 10-Q Report
to the Banks pursuant to Section 6.1(e) hereof, and, at that time the Company
notified each Bank that such Report was being furnished to satisfy the
requirements of Sections 6.1(b) and (e), then the Company need not furnish
additional copies of such Form 10-Q Report to the Banks in order to satisfy
the requirements of this Section.
(c) Together with the financial statements required hereunder, a compliance
certificate signed by its chief financial officer showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(d) Within 15 days of the furnishing thereof to the shareholders of the
Company, copies of all financial statements, reports and proxy statements so
furnished.
(e) Within 15 days of the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which the
Company or any Subsidiary files with the SEC unless furnished by the Company
pursuant to Section 6.1(a) or (b) hereof.
(f) Such other information (including non-financial information) as the
Administrative Agent or any Bank may from time to time reasonably request.
6.2. Use of Proceeds. The Company will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances for general corporate
purposes, including without limitation, Acquisitions, and to repay
outstanding Advances. The Company will not, nor will it permit any
Subsidiary to, use the proceeds of any Advance in violation of Regulations U
and X.
6.3. Notice of Default. The Company will, and will cause each of its
Subsidiaries to, give prompt notice in writing to the Banks of the occurrence
of any Default or Unmatured Default and of any other development, financial
or otherwise, which would have a Material Adverse Effect.
6.4. Corporate Existence and Standing. The Company will do all things
necessary to remain duly incorporated, validly existing and in good standing
as a domestic corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction where,
because of the nature of its activities or properties, failure to maintain
such authority would have a Material Adverse Effect.
6.5. Taxes. The Company will, and will cause each Subsidiary to, pay when
due all taxes, assessments and governmental charges and levies upon it or its
income, profits or property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside.
6.6. Insurance. The Company will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance
on all their property in such amounts and covering such risks as is
consistent with sound business practice.
6.7. Compliance with Laws. The Company will, and will cause each Subsidiary
to, comply with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure so to comply would not have a Material Adverse Effect.
6.8. Inspection. The Company will, and will cause each Subsidiary to,
permit the Administrative Agent and the Banks, by their respective
representatives and agents, to inspect any of the properties of the Company
and each Subsidiary and to discuss the affairs, finances and accounts of the
Company and each Subsidiary with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the
Administrative Agent or the Banks may designate. Upon the request of the
Administrative Agent or any Bank, the Company will provide to the
Administrative Agent and the Banks copies of those corporate documents which
the Banks reasonably believe to be relevant to this Agreement, the other
Loan Documents or the transactions contemplated hereby.
6.9. Merger. The Company will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except (a) that a
Subsidiary may merge with the Company or a Wholly-Owned Subsidiary, and
(b) that the Company may merge or consolidate with or into any other Person,
so long as (i) immediately after giving effect to any such merger or
consolidation, no Default, or Unmatured Default shall have occurred and be
continuing, (ii) the Person surviving the merger or consolidation is a
solvent corporation organized and existing under the laws of the United States
of America or any state thereof, and (iii) such surviving Person executes and
delivers to the Administrative Agent an agreement in form and substance
satisfactory to the Banks, containing an assumption by such Person of the due
and punctual payment and observance of all Obligations of the Company
hereunder and under the Notes with the same effect as if such Person had
originally been the Company hereunder and thereunder. Any such surviving
Person shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Agreement with the same effect as if
such surviving Person had been named as the Company herein. No such
transaction shall have the effect of releasing (A) the Company if the Company
shall be the surviving Person, or (B) if the Company shall not be the
surviving Person, any successor Person that shall have become a successor
Person in the manner prescribed in this Section 6.9, from its liability
hereunder and under the Notes.
6.10. Sale and Leaseback. The Company will not, nor will it permit any
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Company or a Subsidiary of any Principal Property, acquired or
placed into service more than 180 days prior to such arrangement (except for
leases of five years or less), whereby such property has been or is to be
sold or transferred by the Company or any Subsidiary to such Person (herein
referred to as a "Sale and Lease-Back Transaction"), unless:
(a) the Company or any Subsidiary would, at the time of entering into such
transaction, be entitled to incur Indebtedness secured by a Lien on the
property to be leased in an amount at least equal to the Attributable Debt in
respect of such transaction without equally and ratably securing the
Obligations pursuant to Section 6.11 hereof, or
(b) the Company shall covenant that the Company will apply an amount equal to
the net proceeds from the sale of the Principal Property so leased to the
payment of the Obligations within ninety (90) days of the effective date of
any such Sale and Lease-Back Transaction,
provided, the covenant contained in this Section 6.10 shall not apply to, and
there shall be excluded from Attributable Debt in any computation under
Section 6.11 hereof or this Section 6.10, Attributable Debt with respect to
any Sale and Lease-Back Transaction if:
(i) such Sale and Lease-Back Transaction is entered into in connection with
transactions which are part of an industrial development or pollution control
financing or,
(ii) the only parties involved in such Sale and Lease-Back Transaction are
the Company and any Subsidiary.
6.11. Liens. The Company will not, nor will it permit any Subsidiary to,
incur, issue, assume, or guarantee any Indebtedness, if such Indebtedness is
secured by a Lien upon or with respect to any Principal Property of the
Company or any Subsidiary, now owned or hereafter acquired, without in any
such case effectively providing, concurrently with the incurrence, issuance,
assumption or guarantee of any such Indebtedness, that the Obligations shall
be secured equally and ratably with (or prior to) such Indebtedness, for so
long as such other Indebtedness shall be so secured, except that this
Section 6.11 shall not apply to, and there shall be excluded from secured
Indebtedness of the Company and any Subsidiary in any computation under this
Section, Indebtedness of the Company or any Subsidiary secured by:
(a) Liens affecting property of any corporation existing at the time such
corporation becomes a Subsidiary or at the time it is acquired by the Company
or a Subsidiary or arising thereafter pursuant to contractual commitments
entered into prior to and not in contemplation of such corporation's becoming
a Subsidiary;
(b) Liens existing at the time of acquisition of the property affected
thereby, or Liens incurred to secure payment of all or part of the purchase
price of such property or to secure Indebtedness incurred prior to, at the
time of, or within 180 days after, the acquisition of such property for the
purpose of financing all or part of the purchase price thereof (provided such
Liens are limited to such property and improvements thereto);
(c) Liens placed into effect prior to, at the time of or within 180 days of
completion of, construction of new facilities (or any improvements to
existing facilities) to secure all or part of the cost of construction (or
improvement) of such facilities, or to secure Indebtedness incurred to
provide funds for any such purpose (provided such Liens are limited to the
property or portion thereof upon which the construction being so financed
occurred and to improvements the cost of construction of which is being so
financed);
(d) Liens which secure only Indebtedness owing by a Subsidiary to the Company
or to a wholly-owned Subsidiary;
(e) Liens required by any contract or statute in order to permit the Company
or a Subsidiary to perform any contract or subcontract made by it with or at
the request of the United States of America or any state thereof, or any
department, agency, instrumentality or political subdivision of any of the
foregoing, and Liens in favor of such entities on property owned or leased by
the Company or a Subsidiary to secure (i) any Indebtedness incurred by the
Company or such Subsidiary for the purpose of financing (including any
industrial development bond financing) all or any part of the purchase price
or the cost of constructing, expanding or improving the property subject
thereto (provided such Liens are limited to the property or portion thereof
upon which the construction being so financed occurred and to the
improvements, the cost of construction of which is being so financed), or (ii)
the cost needed to permit the attachment or removal of any equipment designed
primarily for the purpose of air or water pollution control, provided that
such Liens shall not extend to other property of the Company or any
Subsidiary; or
(f) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
the foregoing clauses (a) through (e), inclusive of any Indebtedness secured
thereby, provided that the principal amount of Indebtedness secured thereby
shall not exceed the principal amount of Indebtedness so secured at the time
of such extension, renewal, or replacement.
Notwithstanding the foregoing provisions of this Section 6.11, the Company or
any of its Subsidiaries shall be entitled to incur, issue, assume or
guarantee Indebtedness secured by a Lien which is not excepted by clauses
(a) through (f) above without equally and ratably securing the Obligations,
provided that the aggregate amount of all Indebtedness then outstanding
secured by such Lien and all similar Liens, plus all Attributable Debt of the
Company and its Subsidiaries in respect of Sale and Lease-Back Transactions
which, if treated as a Lien would not be excepted under (a) through (f) above,
does not exceed 10% of the Consolidated Assets of the Company.
6.12. Affiliates. The Company will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase
or sale of any property or service) with, or make any payment or transfer to,
any Affiliate (other than the Company and its Subsidiaries) except in the
ordinary course of business and pursuant to the reasonable requirements of
the Company's or such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Company than the Company or such Subsidiary
would obtain in a comparable arms-length transaction; provided that nothing
contained in this Section 6.12 shall prevent the Company or its Subsidiaries
from paying a dividend to its respective shareholders.
6.13. Total Indebtedness Ratio. The Company will not permit at any time the
ratio of (a) Total Indebtedness to (b) Net Worth to exceed 2.0:1.
6.14. Net Worth. The Company will maintain at all times a Net Worth equal
to or greater than $350,000,000; provided, however, that, in determining the
Net Worth of the Company for purposes of this Section 6.14, the Net Worth of
the Company shall be computed without giving effect to any reductions of Net
Worth made in accordance with generally accepted principles of accounting
from time to time with respect to the redemption, repurchase, acquisition or
retirement by the Company after the date of this Agreement of any of its
capital stock at any time outstanding.
6.15. Notification of Change in Ratings. The Company shall notify the
Administrative Agent in writing of any actual change in the ratings by S&P or
Moody's of the Company's senior unsecured long-term debt securities within
15 days after the Company becomes aware of such change.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute a
Default:
7.1. Any representation or warranty made (including without limitation any
representations or warranties made pursuant to Section 4.2 hereof) by or on
behalf of the Company or any Subsidiary to the Banks or the Administrative
Agent under or in connection with this Agreement, any Advance, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false as of the date on which made or
deemed made.
7.2. Nonpayment of principal of any Note when due, or nonpayment of interest
upon any Note or of any facility fee or other obligations under any of the
Loan Documents within five days after the same becomes due.
7.3. The breach by the Company of any of the terms or provisions of
Sections 6.2, 6.3, 6.4, 6.9, 6.10, 6.11, 6.12, 6.13 or 6.14.
7.4. The breach by the Company (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within ten days after written notice
from the Administrative Agent or any Bank.
7.5. (a) Failure of the Company or any Subsidiary to pay when due (whether
by acceleration or otherwise) any other Indebtedness in an aggregate
principal amount greater than $25,000,000;
(b) any Indebtedness of the Company or any of its Subsidiaries in an
aggregate principal amount greater than $25,000,000 shall be declared to be
due and payable or required to be prepaid (whether by redemption, purchase,
offer to purchase, or otherwise, but other than by a regularly scheduled
payment) prior to the stated maturity thereof; or
(c) the Company or any Significant Subsidiary shall not pay, or admit
in writing its inability to pay, its debts generally as they become due.
7.6. The Company or any Significant Subsidiary shall (a) have an order for
relief entered with respect to it under the Federal Bankruptcy Code, (b) make
an assignment for the benefit of creditors, (c) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its
property, (d) institute any proceeding seeking an order for relief under the
Federal Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent,
or seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceedings filed against it, (e) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (f) fail
to contest in good faith any appointment or proceeding described in
Section 7.7.
7.7. Without the application, approval or consent of the Company or any
Significant Subsidiary, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Company or any Significant Subsidiary or
any substantial part of its property, or a proceeding described in
Section 7.6(d) shall be instituted against the Company or any Significant
Subsidiary and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation")
all or any portion of the property of the Company or any Subsidiary which,
when taken together with all other property of the Company and its
Subsidiaries so condemned, seized, appropriated, or taken custody or
controlled of, during the twelve-month period ending with the month in which
any such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Company or any Subsidiary shall fail within 30 days to pay, bond or
otherwise discharge any judgment or orders for the payment of money in excess
of $25,000,000 in the aggregate, which is not stayed on appeal or otherwise
being appropriately contested in good faith.
7.10. Any Reportable Event shall occur in connection with any Plan.
7.11. The Company or any Subsidiary shall have had adversely and finally
determined against it any proceeding pertaining to the violation of any
federal, state or local environmental, health or safety law or regulation,
which would have a Material Adverse Effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7 occurs,
the Commitments of the Banks shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent or any Bank. If any other
Default occurs, the Required Banks may terminate or suspend the Commitments
of the Banks if still in existence, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Company hereby expressly waives. Upon receipt of notice from the
Required Banks, the Administrative Agent shall promptly advise the Company and
the other Banks of any such termination and/or declaration by the Required
Banks, but failure to do so shall not impair the effect of such termination
and/or declaration.
8.2. Amendments. Subject to this Article VIII, the Required Banks (or the
Administrative Agent with the consent in writing of the Required Banks) and
the Company may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Banks or the Company hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of all of the Banks:
(a) Extend the maturity of any Loan or Note or forgive all or any portion of
the principal amount thereof, or reduce the rate or change the time of
payment of interest or fees thereon.
(b) Change the percentage specified in the definition of Required Banks.
(c) Increase the amount of the Commitment of any Bank hereunder (except as
permitted pursuant to Section 2.4.6), or permit the Company to assign its
rights under this Agreement except as permitted under Section 6.9 hereof.
(d) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent.
8.3. Preservation of Rights. No delay or omission of the Banks or the
Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence
of a Default or the inability of the Company to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the Banks
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by
law shall be cumulative and all shall be available to the Administrative
Agent and the Banks until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Company contained in this Agreement shall survive delivery of the Notes
and the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Bank shall be obligated to extend credit to the
Company in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Taxes. Any taxes (excluding income taxes) payable or ruled payable by
Federal or State authority in respect of the Loan Documents shall be paid by
the Company, together with interest and penalties, if any.
9.4. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.5. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Company, the Administrative Agent and the Banks and
supersede all prior agreements and understandings among the Company, the
Administrative Agent and the Banks relating to the subject matter thereof.
9.6. Several Obligations. The respective obligations of the Banks hereunder
are several and not joint and no Bank shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is authorized
to act as such). The failure of any Bank to perform any of its obligations
hereunder shall not relieve any other Bank from any of its obligations
hereunder. This Agreement shall not be construed so as to confer any right
or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.
9.7. Expenses; Indemnification. The Company shall reimburse the
Administrative Agent for any costs and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Administrative Agent,
which attorneys may be employees of the Administrative Agent) paid or
incurred by the Administrative Agent in connection with the administration,
amendment, and modification of the Loan Documents. The Company also agrees
to reimburse the Administrative Agent and the Banks for any costs and out-
of-pocket expenses (including attorneys' fees and time charges of the
attorneys for the Administrative Agent and the Banks, which attorneys may be
employees of the Administrative Agent or the Banks) paid or incurred by the
Administrative Agent or any Bank in connection with the collection and
enforcement of the Loan Documents. The Company further agrees to indemnify
each of the Administrative Agent and the Banks, and their respective
directors, officers and employees, against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the
Administrative Agent or any Bank is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder,
except for any such losses, claims, damages, penalties, judgments, liabilities
or expenses arising on account of any such party's negligence, bad faith or
willful misconduct. The obligations of the Company under this Section shall
survive the termination of this Agreement.
9.8. Number of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to
each of the Banks.
9.9. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles,
except that any calculation or determination which is to be made on a
consolidated basis shall be made for the Company and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the
Company's audited financial statements.
9.10. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
9.11. Nonliability of Banks. The relationship between the Company, the
Banks, the Co-Agents and the Administrative Agent shall be solely that of
borrower and lender. Neither the Administrative Agent nor any Bank shall
have any fiduciary responsibilities to the Company. Neither the
Administrative Agent nor any Co-Agent or Bank undertakes any responsibility
to the Company to review or inform the Company of any matter in connection
with any phase of the Company's business or operations.
9.12. Nonreliance. Each Bank hereby represents that it is not relying on or
looking to any "margin stock" (as defined in Regulations U and X) for the
repayment of the Loans provided for herein.
9.13. Confidentiality. Each Bank agrees to hold any confidential
information which it may receive from the Company pursuant to this Agreement
in confidence, except for disclosure (i) to other Banks and any Affiliate of
any Bank, (ii) to legal counsel and accountants to that Bank, (iii) to
regulatory officials as required, (iv) to any Person as required by law,
regulation, or legal process, and (vi) permitted by Section 12.3.
ARTICLE X
THE AGENTS
10.1. Appointment. The First National Bank of Chicago is hereby appointed
Administrative Agent hereunder, and each of the Banks irrevocably authorizes
the Administrative Agent to act as the administrative agent of such Bank.
The Administrative Agent agrees to act as such upon the express conditions
contained in this Article X. The Administrative Agent shall not have a
fiduciary relationship in respect of any Bank by reason of this Agreement.
First Chicago Capital Markets, Inc. is hereby appointed to act as Syndication
Agent and Morgan Guaranty Trust Company of New York is hereby appointed to
act as Documentation Agent hereunder. Neither the Syndication Agent nor the
Documentation Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement in such capacity.
10.2. Powers. The Administrative Agent shall have and may exercise such
powers hereunder as are specifically delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. The Administrative Agent shall have no implied duties to the Banks,
or any obligation to the Banks to take any action hereunder except any action
specifically provided by this Agreement to be taken by the Administrative
Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Banks or any
Bank for any action taken or omitted to be taken by it or them hereunder or
in connection herewith except for its or their own gross negligence or
willful misconduct.
10.4. No Responsibility for Loans, Recitals, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or
verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any
Loan Document, including, without limitation, any agreement by an obligor
to furnish information directly to each Bank; (iii) the satisfaction of any
condition specified in Article IV, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Administrative Agent shall not have any duty to
disclose to the Banks information that is not required to be furnished by the
Company to the Administrative Agent at such time, but is voluntarily furnished
by the Company to the Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity).
10.5. Action on Instructions of Banks. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with written instructions signed by the Required
Banks, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks and on all holders of the Notes.
The Administrative Agent shall be fully justified in failing or refusing to
take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Banks pro rata against any
and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Administrative Agent and Counsel. The Administrative
Agent may execute any of its respective duties as Administrative Agent
hereunder by or through employees, agents, and attorneys-in-fact and shall
not be answerable to the Banks, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care. The Administrative
Agent shall be entitled to advice of counsel concerning all matters pertaining
to the agency hereby created and its respective duties hereunder and under
any Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons,
and, in respect of legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
10.8. Administrative Agent's Reimbursement and Indemnification. The Banks
agree to reimburse and indemnify the Administrative Agent, ratably in
proportion to their respective Commitments, upon demand (i) for any costs and
out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of
the Administrative Agent) not reimbursed by the Company for which the
Administrative Agent is entitled to reimbursement by the Company under the
Loan Documents, (ii) for any other expenses incurred by the Administrative
Agent on behalf of the Banks, in connection with the administration,
amendment and enforcement of the Loan Documents and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent or any
of its directors, officers, and employees in any way relating to or arising
out of this Agreement or any other document delivered in connection with this
Agreement or the transactions contemplated hereby or the enforcement of any
of the terms hereof or of any such other documents, provided that no Bank
shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Administrative Agent.
10.9. Rights as a Bank. With respect to its Commitment, Loans made by it
and the Note issued to it, the Administrative Agent shall have the same
rights and powers hereunder as any Bank and may exercise the same as though
it were not the Administrative Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Administrative Agent in
its individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking or trust business
with the Company or any Subsidiary as if it were not the Administrative
Agent.
10.10. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank and based on the financial statements prepared by the Company and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
10.11. Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Banks and the Company,
such resignation to be effective upon the appointment of the successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives
notice of its intention to resign. The Administrative Agent may be removed
at any time with or without cause by written notice received by the
Administrative Agent from the Required Banks, such removal to be effective
on the date specified by the Required Banks. Upon any such resignation or
removal, the Company shall have the right to appoint, on behalf of itself and
the Banks, a successor Administrative Agent, subject to the written approval
of the Required Banks of such successor Administrative Agent, which approval
shall not be unreasonably withheld. If no successor Administrative Agent (i)
shall have been so appointed by the Company and (ii) shall have accepted such
appointment within thirty days after the retiring Administrative Agent's
giving notice of resignation, then the retiring Administrative Agent may
appoint, on behalf of the Company and the Banks, a successor Administrative
Agent. If the Administrative Agent has resigned or been removed and no
successor Administrative Agent has been appointed, the Banks may perform all
the duties of the Administrative Agent hereunder and the Company shall make
all payments in respect of the Obligations to the applicable Bank and for all
other purposes shall deal directly with the Banks. No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent. Upon the effectiveness of the resignation or removal of
the Administrative Agent, the resigning or removed Administrative Agent shall
be discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Article X shall continue in
effect for the benefit of such Administrative Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the Loan Documents.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the
Banks under applicable law, if the Company becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any indebtedness from
any Bank, or any Affiliate thereof, to the Company (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness may be setoff and applied toward the
payment of the Obligations owing to such Bank, whether or not the Obligations,
or any part hereof, shall then be due.
11.2. Ratable Payments. If any Bank, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Bank, such Bank agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Banks so that after such purchase each Bank will
hold its ratable proportion of Loans. If any Bank, whether in connection
with setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may
be subject to setoff, such Bank agrees, promptly upon demand, to take such
action necessary such that all Banks share in the benefits of such collateral
ratably in proportion to their Loans. In case any such payment is disturbed
by legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Company and
the Banks and their respective successors and assigns, except that (i) the
Company may not assign its rights or obligations under the Loan Documents,
except as provided in Section 6.9 hereof, and (ii) any assignment made by any
Bank must be made in compliance with Section 12.3. Notwithstanding clause
(ii) of this Section, any Bank may at any time, without the consent of the
Company or the Administrative Agent, assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank; provided,
however, that no such assignment shall release the transferor Bank from its
obligations hereunder. The Administrative Agent may treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of assignment or transfer is filed with the Administrative Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound by
all the terms and provisions of the Loan Documents. Any request, authority
or consent of any Person, who at the time of making such request or giving
such authority or consent is the holder of any Note, shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note or
Notes issued in exchange therefor.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Bank may, in the ordinary
course of its business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Bank, any Note held by such Bank, any
Commitment of such Bank or any other interest of such Bank under the Loan
Documents. Prior written notice to the Company of the sale of any such
participation shall be required prior to a participation becoming effective
with respect to a Participant. In the event of any such sale by a Bank of
participating interests to a Participant, such Bank's obligations under the
Loan Documents shall remain unchanged, such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Bank shall remain the holder of any such Note for all
purposes under the Loan Documents, all amounts payable by the Company under
this Agreement shall be determined as if such Bank had not sold such
participating interests, and the Company and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Bank shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver
of any provision of the Loan Documents other than any amendment, modification
or waiver with respect to any Loan or Commitment in which such Participant
has an interest which forgives principal, interest or fees or reduces the
interest rate or fees payable with respect to any such Loan or Commitment,
extends the Termination Date, postpones any date fixed for any regularly-
scheduled payment of principal of, or interest or fees on, any such Loan or
Commitment, releases any guarantor of any such Loan or releases any
substantial portion of collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff. The Company agrees that each Participant shall
be deemed to have the right of setoff provided in Section 11.1 in respect of
its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing
directly to it as a Bank under the Loan Documents, provided that each Bank
shall retain the right of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant. The Banks agree
to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Bank, any
amount received pursuant to the exercise of its right of setoff, such amounts
to be shared in accordance with Section 11.2 as if each Participant were a
Bank.
12.3 Assignments.
12.3.1. Permitted Assignments. Any Bank may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially
in the form of Exhibit "H" or in such other form as may be agreed to by the
parties thereto. The consent of the Company and the Administrative Agent
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Bank or an Affiliate thereof. Such consent shall not
be unreasonably withheld or delayed. Each such assignment shall (unless each
of the Company and the Administrative Agent otherwise consents) be in an
amount not less than the lesser of (i) $5,000,000 or (ii) the remaining amount
of the assigning Bank's Commitment (calculated as at the date of such
assignment).
12.3.2. Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as
Annex "I" to Exhibit "H" (a "Notice of Assignment"), together with any
consents required by Section 12.3.1, and (ii) payment of a $3,000 fee to the
Administrative Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of
Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Loans under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of such assignment,
such Purchaser shall for all purposes be a Bank party to this Agreement and
any other Loan Document executed by or on behalf of the Banks and shall have
all the rights and obligations of a Bank under the Loan Documents, to the
same extent as if it were an original party hereto, and no further consent or
action by the Company, the Banks or the Administrative Agent shall be required
to release the transferor Bank with respect to the percentage of the Aggregate
Commitment and Loans assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3.2, the transferor
Bank, the Administrative Agent and the Company shall make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are
issued to such transferor Bank and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4. Dissemination of Information. The Company authorizes each Bank to
disclose to (i) any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") any
and all financial or other information pertaining to the Company and its
Subsidiaries which the Company is required to furnish to the Banks in
accordance with this Agreement, and (ii) any prospective Transferee any and
all financial or other information pertaining to the Company and its
Subsidiaries which the Company is required to furnish to the Banks pursuant
to Sections 6.1(a) through 6.1(e); provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.13 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Bank shall cause
such Transferee, concurrently with the effectiveness of such transfer, to
comply with the provisions of Section 2.4.15.
ARTICLE XIII
NOTICES
13.1. Giving Notice. Except as otherwise permitted hereunder, all notices
and other communications provided to any party hereto under this Agreement or
any other Loan Document shall be in writing or by telex or by facsimile and
addressed or delivered to such party at its address set forth below its
signature hereto or at such other address as may be designated by such party
in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any
notice, if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes).
13.2. Change of Address. The Company, the Administrative Agent and any Bank
may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto
may execute this Agreement by signing any such counterpart. This Agreement
shall be effective when it has been executed by the Company, the
Administrative Agent and the Banks and each party has notified the
Administrative Agent by telex, facsimile or telephone, that it has taken such
action.
ARTICLE XV
CHOICE OF LAW; JURISDICTION; JURY TRIAL WAIVER
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE COMPANY HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY BANK TO BRING PROCEEDINGS AGAINST
THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY THE COMPANY AGAINST THE ADMINISTRATIVE AGENT OR ANY BANK OR ANY AFFILIATE
OF THE ADMINISTRATIVE AGENT OR ANY BANK INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
15.3. WAIVER OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH
BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Company, the Banks, and the Administrative Agent have
executed this Agreement as of the date first above written.
BROWN-FORMAN CORPORATION
(signature lines omitted)
850 Dixie Highway
Louisville, Kentucky 40210
Attention: Meredith Parente
Vice President & Treasurer
Telephone: (502) 585-1100
Telecopy: (502) 774-7833
COMMITMENTS
$45,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
(signature lines omitted)
One First National Plaza
Suite 0324, 1-10
Chicago, IL 60670
Attention: William R. Madden
Senior Vice President
Telephone: (312) 732-7536
Telecopy: (312) 732-5161
For Competitive Bid Advances:
Telephone: (312) 732-6246 (Denis Degen)
Telecopy: (312) 732-2715
$45,000,000 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Individually and as
Documentation Agent
(signature lines omitted)
Morgan Guaranty Trust Company of New York
60 Wall Street, 22nd Floor
New York, NY 10260
Attention: Ms. Laura Loffredo
Vice President
Telephone: (212) 648-6793
Telecopy: (212) 648-5336
For all Advances and/or Repayment
Instructions:
Telephone: (302) 634-1800
(Multi-Option Unit-Loan
Department)
Telecopy: (302) 634-1094
For Competitive Bid Advances:
Telephone: (212) 648-0760 (John R. Dougar)
Telecopy: (212) 648-5918
$35,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
(signature lines omitted)
231 South LaSalle Street
Chicago, IL 60697
Attention: Mr. Barry Watters
Managing Director
Telephone: (312) 828-6307
Telecopy: (312) 987-0303
$35,000,000 CITIBANK, N.A.
(signature lines omitted)
200 S. Wacker Drive
Chicago, IL 60606
Attention: Mr. Richard M. Levin
Assistant Vice President
Telephone: (312) 993-3014
Telecopy: (312) 993-6840
$25,000,000 CORESTATES BANK, N.A.
(signature lines omitted)
1345 Chestnut Street, FC-1-8-3-12
Philadelphia, PA 19107
Attention: Ms. Karen R. Leaf
Vice President, Corp. Banking
Telephone: (215) 973-6540
Telecopier: (215) 973-6745
$25,000,000 NATIONAL CITY BANK OF KENTUCKY
(signature lines omitted)
101 South Fifth Street, 8th Floor
Louisville, KY 40202
Attention: Mr. Deroy Scott
Vice President
Telephone: (502) 581-7821
Telecopier (502) 581-4424
$25,000,000 PNC BANK, KENTUCKY, INC.
(signature lines omitted)
500 West Jefferson Street, 8th Floor
Louisville, KY 40202
Attention: Mr. Brennan T. Danile
Commercial Banking Officer
Telephone: (502) 581-3022
Telecopier: (502) 581-2302
$25,000,000 SUNTRUST BANK, NASHVILLE, N.A.
(signature lines omitted)
201 Fourth Avenue North
Nashville, TN 37219
Attention: Mr. Scott T. Corley
Vice President
Telephone: (615) 748-5715
Telecopy: (615) 259-4119
$15,000,000 MARINE MIDLAND BANK
(signature lines omitted)
c/o Hongkong & Shanghai Banking Corp.
190 S. LaSalle Street, Suite 1100
Chicago, IL 60603-3410
Attention: Mr. Steven Trepeccione
Assistant Vice President
Telephone: 312-853-6420
Telecopy: 312-853-3855
$15,000,000 ISTITUTO BANCARIO SAN PAOLO DI TORINO
SPA
(signature lines omitted)
245 Park Avenue
New York, NY 10167
Attention: Christopher P. O'Neil
Assistant Vice President
Telephone: 212-692-3172
Telecopy: 212-599-5303
$10,000,000 CREDITO ITALIANO S.p.A
(signature lines omitted)
375 Park Avenue, 2nd Floor
New York, NY 10152
Attention: Mr. Harmon Butler
First Vice President
Telephone: 212-546-9611
Telecopy: 212-546-9675
Total $300,000,000
