<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(x) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1995
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ........... TO ............
COMMISSION FILE NUMBER 1-6780
RAYONIER INC.
Incorporated in the State of North Carolina
I.R.S. Employer Identification Number l3-2607329
l177 Summer Street, Stamford, Connecticut 06905-5529
(Principal Executive Office)
Telephone Number: (203) 348-7000
Indicate by check mark whether the registrant (l) has filed all reports
required to be filed by Section l3 or l5(d) of the Securities Exchange
Act of l934 during the preceding l2 months and (2) has been subject to
such filing requirements for the past 90 days.
YES X NO .
--- ---
As of May 3, 1995, there were 29,615,969 Common Shares of the
Registrant outstanding.
---------
<PAGE> 2
RAYONIER INC.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PART I. FINANCIAL INFORMATION
Item l. Financial Statements
Statements of Consolidated Income for the
Three Months Ended March 31, 1995 and 1994 1
Consolidated Balance Sheets as of March 31, 1995
and December 3l, 1994 2
Statements of Consolidated Cash Flows for the
Three Months Ended March 31, 1995 and 1994 3
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations 4-6
Item 3. Selected Operating Data 7
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 8
Signature 8
Exhibit Index 9
</TABLE>
i
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM L. FINANCIAL STATEMENTS
The following unaudited financial statements reflect, in the opinion of Rayonier
Inc. (the Company), all adjustments (which include only normal recurring
adjustments) necessary for a fair presentation of the results of operations, the
financial position, and the cash flows for the periods presented. Certain
reclassifications have been made to the prior year's financial statements to
conform to current year presentation. For a full description of accounting
policies, please refer to Notes to Consolidated Financial Statements in the l994
Annual Report on Form l0-K.
RAYONIER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED INCOME
(UNAUDITED)
(THOUSANDS OF DOLLARS, EXCEPT PER SHARE INFORMATION)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
---------------
1995 1994
-------- --------
<S> <C> <C>
SALES $285,832 $257,727
-------- --------
Costs and expenses
Cost of sales 224,044 199,132
Selling and general expenses 8,387 6,708
Other operating (income) expense, net (1,443) 715
-------- --------
Total costs and expenses 230,988 206,555
-------- --------
OPERATING INCOME 54,844 51,172
Interest expense (8,535) (6,746)
Interest and miscellaneous income, net 668 533
Minority interest (9,300) (11,076)
-------- --------
Income before income taxes 37,677 33,883
Income taxes (12,528) (12,164)
-------- --------
NET INCOME $ 25,149 $ 21,719
======== ========
NET INCOME PER COMMON SHARE $0.84 $0.73
===== =====
Weighted average Common Shares
outstanding 29,847,437 29,589,292
========== ==========
</TABLE>
1
<PAGE> 4
RAYONIER INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(THOUSANDS OF DOLLARS)
ASSETS
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1995 1994
---------- ------------
<S> <C> <C>
CURRENT ASSETS
Cash $ 12,268 $ 9,178
Accounts receivable, less allowance for
doubtful accounts of $4,424 and $4,358 117,523 103,892
Inventories
Finished goods 52,366 39,929
Work in process 19,525 18,221
Raw materials 43,705 34,022
Manufacturing and maintenance supplies 29,564 27,567
Total inventories 145,160 119,739
Deferred income taxes 4,590 4,382
Prepaid timber stumpage 56,919 47,338
Other current assets 13,093 12,692
Total current assets 349,553 297,221
OTHER ASSETS 30,803 29,439
TIMBER STUMPAGE 35,616 36,756
TIMBER, TIMBERLANDS AND LOGGING ROADS,
NET OF DEPLETION AND AMORTIZATION 476,129 476,132
PROPERTY, PLANT AND EQUIPMENT
Land, buildings, machinery and equipment 1,225,380 1,202,484
Less - accumulated depreciation 547,451 530,857
---------- ----------
Net property, plant and equipment 677,929 671,627
---------- ----------
TOTAL ASSETS $1,570,030 $1,511,175
========== ==========
</TABLE>
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<S> <C> <C>
CURRENT LIABILITIES
Accounts payable $ 83,595 $ 83,658
Bank loans and current maturities of long-term debt 27,757 302
Accrued taxes 22,362 7,676
Accrued payroll and benefits 17,051 20,043
Other current liabilities 42,326 41,831
Current reserves for dispositions and discontinued
operations 23,925 25,370
---------- ----------
Total current liabilities 217,016 178,880
DEFERRED INCOME TAXES 131,043 127,638
LONG-TERM DEBT 482,783 482,920
NONCURRENT RESERVES FOR DISPOSITIONS AND
DISCONTINUED OPERATIONS (Net of discontinued
operations' assets of $12,122 and $13,023) 18,529 20,325
OTHER NONCURRENT LIABILITIES 24,827 23,695
MINORITY INTEREST 22,202 22,516
SHAREHOLDERS' EQUITY
Common Shares, 60 million shares authorized, 29,615,969
and 29,574,807 shares issued and outstanding 158,263 157,581
Retained earnings 515,367 497,620
---------- ----------
Total shareholders' equity 673,630 655,201
---------- ----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,570,030 $1,511,175
========== ==========
</TABLE>
2
<PAGE> 5
RAYONIER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED CASH FLOWS
(UNAUDITED)
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
---------------
1995 1994
-------- --------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 25,149 $ 21,719
Non-cash items included in income
Depreciation, depletion and amortization 24,492 24,036
Deferred income taxes 2,465 (1,045)
Increase in other noncurrent liabilities 1,132 708
Change in accounts receivable, inventories
and accounts payable (39,115) (23,851)
Increase in prepaid timber stumpage (9,581) (5,347)
Increase in accrued taxes 14,686 18,095
Change in reserves for dispositions and discontinued operations (1,274) -
Other changes in working capital (2,898) (1,797)
-------- --------
Cash from operating activities 15,056 32,518
======== ========
INVESTING ACTIVITIES
Capital expenditures, net of sales and retirements
of $652 and $101 (30,791) (20,473)
Expenditures for dispositions and discontinued operations, net
of tax benefits of $732 and $1,059 (1,235) (1,788)
Change in other assets and timber stumpage (224) (2,060)
-------- --------
Cash used for investing activities (32,250) (24,321)
======== ========
FINANCING ACTIVITIES
Issuance of debt 27,444 16,200
Repayments of debt (126) (116)
Dividends (7,402) (5,321)
Issuance of Common Shares 682 -
Decrease in minority interest (314) (15,679)
-------- --------
Cash from (used for) financing activities 20,284 (4,916)
======== ========
CASH
Increase during the period 3,090 3,281
Balance at beginning of period 9,178 5,989
-------- --------
Balance at end of period $ 12,268 $ 9,270
======== ========
Supplemental disclosures of cash flow information
Cash paid (received) during the period for:
Interest $ 4,835 $ 4,273
======== ========
Income taxes, net of refunds $ (2,768) $ (4,015)
======== ========
</TABLE>
3
<PAGE> 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The sales and operating income of Rayonier's business segments for the three
months ended March 31, 1995 and 1994 were as follows (thousands of dollars):
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
---------------
1995 1994
--------- ---------
<S> <C> <C>
SALES
TIMBER AND WOOD PRODUCTS:
Log Trading and Merchandising $ 80,001 $ 75,592
Timberlands Management and Stumpage 50,153 55,279
Wood Products 15,123 19,228
--------- ---------
Total Before Intrasegment Eliminations 145,277 150,099
Intrasegment Eliminations (4,184) (4,496)
--------- ---------
TOTAL TIMBER AND WOOD PRODUCTS 141,093 145,603
--------- ---------
SPECIALTY PULP PRODUCTS:
Chemical Cellulose 83,606 71,007
Fluff and Specialty Paper Pulps 67,160 42,048
--------- ---------
TOTAL SPECIALTY PULP PRODUCTS 150,766 113,055
--------- ---------
Intersegment Eliminations (6,027) (931)
--------- ---------
TOTAL SALES $ 285,832 $ 257,727
========= =========
OPERATING INCOME
Timber and Wood Products $ 42,754 $ 53,490
Specialty Pulp Products 15,273 532
Corporate and Other (2,171) (2,903)
Intersegment Eliminations (1,012) 53
--------- ---------
TOTAL OPERATING INCOME $ 54,844 $ 51,172
========= =========
</TABLE>
RESULTS OF OPERATIONS
SALES AND OPERATING INCOME
Sales of $286 million for the first quarter of 1995 were $28 million or 11
percent higher than the first quarter of 1994 primarily reflecting stronger
demand for the Company's specialty pulp products. Operating income for the
quarter of $55 million was $4 million or 7 percent higher than last year's
level.
4
<PAGE> 7
Timber and Wood Products
Timber and Wood Products' sales in the first quarter were $141 million, $5
million lower than the same period of 1994. Operating income for the quarter of
$43 million was down $11 million from the prior year. In the first quarter of
1994, results for the Timber and Wood Products segment were unusually strong as
a result of a late 1993 market correction that caused customers to delay
harvesting of high-priced Northwest timber from 1993 to 1994. Excluding the
unusual carryover of contracts into 1994, 1995 results were roughly equal to the
first quarter of 1994 as the effects of improving log and timber sales offset a
weak domestic lumber market.
Log trading and merchandising sales, which include the Company's New Zealand log
sales, were up from the 1994 first quarter due to improved selling prices in
both export and domestic markets. However, overall margins were unchanged as
higher log costs largely offset selling price gains. Timberlands management and
stumpage sales and operating income were down from last year's first quarter due
to last year's high-priced carry-over volume in the Northwest U.S. region.
However, in the Southeast U.S. region, results were very strong as wet weather
and high demand for pulpwood resulted in higher prices and increased harvests
from Rayonier's relatively dry acreage. Wood products sales and operating
margins were down from the prior year due to weak domestic construction
activity.
Specialty Pulp Products
Sales of Specialty Pulp Products increased to $151 million, up 33 percent from
last year's first quarter, and operating income rose $14 million to $15 million.
Market conditions in the pulp and paper industry continued to strengthen in the
first quarter and prices improved for all of the Company's specialty pulp
products, with chemical cellulose having its first significant price increase in
several years. Price increases for the Company's high-value specialty pulps tend
to lag those of commodity pulps. The Company expects to realize further price
increases for its specialty pulp products in the second half of the year.
However, reduced shipments due to scheduled spring maintenance downtime at the
Company's pulp mills may cause 1995 second quarter operating income to be
slightly below the first quarter.
Intersegment
First quarter intersegment sales of $6 million in 1995 were greater than the
comparable 1994 amount due to higher stumpage sales from the Timber and Wood
Products segment to the Specialty Pulp Products segment.
OTHER ITEMS
Interest expense was $9 million for the first quarter of 1995, up $2
million from 1994 due to higher interest costs on the Company's variable rate
debt.
Minority interest in the earnings of Rayonier's subsidiary, Rayonier
Timberlands, L.P. (RTLP), decreased $2 million to $9 million, due to the
decrease in partnership earnings resulting from the lower Northwest stumpage
volume partially offset by the favorable Southeast stumpage volume and prices.
Rayonier's participation in the earnings of RTLP will increase from
approximately 76 percent to approximately 99 percent effective January 1, 2001.
The effective tax rate for the first quarter of 1995 was 33.3 percent versus
35.9 percent in the 1994 first quarter. This decrease reflects benefits from tax
reorganizations made following the spin-off from ITT as well as tax benefits on
increased pulp export sales.
NET INCOME
Net income for the first quarter was $25 million or $0.84 per common share, up
$3 million or $0.11 per common share from 1994. The Company estimates that first
quarter 1994 results included approximately $7 million or $0.23 per share from
the unusual carry-over of stumpage harvest volume in the Northwest U.S.
5
<PAGE> 8
LIQUIDITY AND CAPITAL RESOURCES
Cash flow from operating activities of $15 million in the first quarter of 1995
declined from $33 million in 1994 as a result of increased working capital needs
due to strong overall market conditions. Cash from operating activities together
with an increase in debt of $27 million financed capital expenditures of $31
million, common dividends of $7 million and $1 million (after tax benefits) of
environmental remediation and other costs relating to discontinued operations
and units held for disposition. The Company's debt/capital ratio was 43 percent
at March 31, 1995 and December 31, 1994.
EBITDA (defined as earnings before interest expense, income taxes and
depreciation, depletion and amortization) for the first quarter of 1995 of $71
million or $2.37 per share increased $6 million or $.18 per share over the
comparable period of 1994.
As of March 31, 1995, the Company had $28 million of bank loans and current
maturities of long-term debt which includes medium-term notes scheduled to
mature in the third quarter of 1995. The Company intends to refinance these
notes with long-term securities issued in the public debt markets.
As of March 31, 1995, the Company had $115 million of available borrowings under
its revolving credit facilities. In addition, through currently effective shelf
registration statements filed with the Securities and Exchange Commission, the
Company may offer up to $174 million of new public debt securities. The Company
believes that internally generated funds combined with available external
financing will enable Rayonier to fund capital expenditures, working capital and
other liquidity needs for the foreseeable future.
6
<PAGE> 9
ITEM 3. SELECTED OPERATING DATA
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
---------------
1995 1994
---- ----
<S> <C> <C>
TIMBER AND WOOD PRODUCTS
Log Sales Volume
North America - millions of board feet 60 58
New Zealand - thousands of cubic meters 387 414
Other - millions of board feet 2 2
Timber Harvest Volume
Northwest U.S. - millions of board feet 46 66
Southeast U.S. - thousands of short green tons 673 463
New Zealand - thousands of cubic meters 280 278
Lumber Sold - millions of board feet 41 47
Intercompany Sales
Logs - millions board feet 1 -
Northwest U.S. Timber Stumpage
- millions of board feet 7 8
Southeast U.S. Timber Stumpage
- thousands of short green tons 165 27
SPECIALTY PULP PRODUCTS
Pulp Sales Volume
Chemical Cellulose - thousands of metric tons 105 97
Fluff and Specialty Paper Pulps - thousands of metric tons 93 89
Production as a Percentage of Capacity 100% 98%
SELECTED SUPPLEMENTAL INFORMATION (thousands of dollars)
New Zealand - Sales $ 24,282 $ 24,915
======== ========
New Zealand - Operating Income $ 3,693 $ 3,202
======== ========
</TABLE>
7
<PAGE> 10
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) See Exhibit Index.
(b) Rayonier Inc. did not file a report on Form 8-K during the
quarter covered by this report.
SIGNATURE
Pursuant to the requirements of Section 13 of the Securities Exchange
Act of l934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
RAYONIER INC. (Registrant)
----------------------------
BY KENNETH P. JANETTE
-----------------------
Kenneth P. Janette
Vice President and Corporate Controller
May 15, 1995 (Chief Accounting Officer)
8
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
<S> <C> <C>
2 Plan of acquisition, reorganization, None
arrangement, liquidation or succession
3.1 Amended and restated articles of incorporation None
3.2 By-laws None
4.1 $100 million 364-day Revolving Credit Agreement dated Filed herewith
as of April 14, 1995 among Rayonier Inc., as Borrower
and the banks named therein, as Banks and Citibank, N.A.,
as Administrative Agent and Citicorp Securities, Inc. and
the Toronto-Dominion Bank, as Arrangers
4.2 $200 million Revolving Credit Agreement dated as of Filed herewith
April 14, 1995 among Rayonier Inc., as Borrower
and the banks named therein, as Banks and
Citibank, N.A., as Administrative Agent and
Citicorp Securities, Inc. and the
Toronto-Dominion Bank, as Arrangers
10 Material contracts None
11 Statement re computation of per share earnings Not required
12 Statement re computation of ratios Filed herewith
15 Letter re unaudited interim financial information None
l8 Letter re change in accounting principles None
19 Report furnished to security holders None
22 Published report regarding matters None
submitted to vote of security holders
23 Consents of experts and counsel None
24 Power of attorney None
27 Financial data schedule Filed herewith
99 Additional exhibits None
</TABLE>
9
<PAGE> 1
EXHIBIT 4.1
U.S. $100,000,000
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of April 14, 1995
Among
RAYONIER INC.,
as Borrower
and
THE BANKS NAMED HEREIN,
as Banks
and
CITIBANK, N.A.,
as Administrative Agent
and
CITICORP SECURITIES, INC.
and
THE TORONTO-DOMINION BANK,
as Arrangers
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms......................................................................... 1
1.02. Computation of Time Periods................................................................... 17
1.03. Accounting Terms.............................................................................. 17
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. The A Advances................................................................................ 17
2.02. Making the A Advances......................................................................... 17
2.03. The B Advances................................................................................ 19
2.04. The C Advances................................................................................ 22
2.05. Fees.......................................................................................... 25
2.06. Termination or Reduction of the Commitments................................................... 25
2.07. Repayment of A Advances....................................................................... 25
2.08. Interest on A Advances........................................................................ 25
2.09. Interest Rate Determination................................................................... 26
2.10. Optional Conversion of A Advances............................................................. 28
2.11. Optional Prepayments of A Advances............................................................ 28
2.12. Increased Costs............................................................................... 28
2.13. Illegality.................................................................................... 29
2.14. Payments and Computations..................................................................... 29
2.15. Taxes......................................................................................... 30
2.16. Sharing of Payments, Etc...................................................................... 32
2.17. Use of Proceeds............................................................................... 33
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and 2.04......................... 33
3.02. Conditions Precedent to Each A Borrowing...................................................... 35
3.03. Conditions Precedent to Each B Borrowing...................................................... 35
3.04. Conditions Precedent to Each C Borrowing...................................................... 36
3.05. Determinations Under Section 3.01............................................................. 37
</TABLE>
<PAGE> 3
ii
<TABLE>
<CAPTION>
<S> <C>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower................................................ 37
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants......................................................................... 41
5.02. Negative Covenants............................................................................ 46
5.03. Financial Covenant............................................................................ 48
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default............................................................................. 49
ARTICLE VII
THE ADMINISTRATIVE AGENT
7.01. Authorization and Action...................................................................... 52
7.02. Administrative Agent's Reliance, Etc.......................................................... 53
7.03. Citibank, Toronto-Dominion and Affiliates..................................................... 53
7.04. Lender Credit Decision........................................................................ 53
7.05. Indemnification............................................................................... 54
7.06. Successor Administrative Agent................................................................ 54
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc............................................................................... 55
8.02. Notices, Etc.................................................................................. 55
8.03. No Waiver; Remedies........................................................................... 56
8.04. Costs and Expenses............................................................................ 56
8.05. Right of Set-off.............................................................................. 58
8.06. Binding Effect................................................................................ 58
8.07. Assignments, Designations and Participations.................................................. 58
8.08. Confidentiality............................................................................... 62
</TABLE>
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iii
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<S> <C>
8.09. Governing Law................................................................................. 63
8.10. Extensions of Termination Date for Commitments................................................ 63
8.11. Execution in Counterparts..................................................................... 63
8.12. Jurisdiction, Etc............................................................................. 63
8.13. Waiver of Jury Trial.......................................................................... 64
</TABLE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(f) - Litigation and Environmental Matters
Schedule 4.01(p) - Post-Retirement Benefit Obligations
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Subsidiary Debt
Exhibits
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit A-3 - Form of C Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit B-3 - Form of Notice of C Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
Exhibit F - Borrower's Environmental Disclosure Report
<PAGE> 5
REVOLVING CREDIT AGREEMENT
Dated as of April 14, 1995
RAYONIER INC., a North Carolina corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Banks")
listed on the signature pages hereof, and Citibank, N.A. ("Citibank"), as
Administrative Agent (the "Administrative Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means an advance by a Lender to the Borrower as
part of an A Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
"A Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the A Advances made by such Lender.
"Advance" means an A Advance, a B Advance or a C Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
<PAGE> 6
2
"Amendment" means Amendment No. 1 to the Existing Five-Year
Credit Agreement, dated as of the date hereof, among the Borrower (as
defined in the Existing Five-Year Credit Agreement), the Administrative
Agent (as defined in the Existing Five-Year Credit Agreement) and the
lenders party to the Existing Five-Year Credit Agreement, in form and
substance satisfactory to the Administrative Agent.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a B Advance or a C
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such B Advance or the Borrower and the Administrative Agent as its
Applicable Lending Office with respect to a C Advance, as the case may
be.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
<TABLE>
<CAPTION>
Applicable
Public Debt Margin for
Rating Eurodollar Rate
S&P/Moody's Advances
----------- ---------------
<S> <C>
Level 1
-------
BBB+/Baa1 .2500%
or above
Level 2
-------
BBB/Baa2 .2450%
Level 3
-------
Less than .4500%
BBB/Baa2
</TABLE>
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
<PAGE> 7
3
<TABLE>
<CAPTION>
Public Debt
Rating Applicable
S&P/Moody's Percentage
----------- ----------
<S> <C>
Level 1
-------
BBB+/Baa1 .1000%
or above
Level 2
-------
BBB/Baa2 .1300%
Level 3
-------
Less than .1750%
BBB/Baa2
</TABLE>
"Arrangers" means Citicorp Securities and Toronto-Dominion.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender (other than a Designated Bidder) and an
Eligible Assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit C hereto.
"B Advance" means an advance by a Lender to the Borrower as
part of a B Borrowing resulting from the auction bidding procedure
described in Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances from each of the Lenders whose offer to make one or more B
Advances as part of such borrowing has been accepted by the Borrower
under the auction bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a B Advance made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
<PAGE> 8
4
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means an A Advance that bears interest as
provided in Section 2.08(a)(i).
"Borrower's Environmental Disclosure Report" means the report
prepared by the Borrower regarding certain environmental matters,
attached hereto as Exhibit F.
"Borrower's Form 10-K for 1994" has the meaning specified in
Section 4.01(f).
"Borrowing" means an A Borrowing, a B Borrowing or a C
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
<PAGE> 9
5
"C Advance" means an advance by a Lender to the Borrower as
part of a C Borrowing resulting from the bidding procedure described in
Section 2.04.
"C Borrowing" means a borrowing consisting of simultaneous C
Advances from each of the Requested Lenders whose offer to make one or
more C Advances as part of such borrowing has been accepted by the
Borrower under the bidding procedure described in Section 2.04.
"C Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-3
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a C Advance made by such Lender.
"C Reduction" has the meaning specified in Section 2.01.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" has the meaning specified in Section 4.01(k).
"Citicorp Securities" means Citicorp Securities, Inc.
"Commercial Paper" means any unsecured promissory note of the
Borrower with a maturity at the time of issuance not exceeding nine
months, exclusive of days of grace, issued by the Borrower pursuant to
a commercial paper program of the Borrower.
"Commitment" means, with respect to any Lender at any time,
the amount set forth opposite such Lender's name on the signature pages
hereof under the caption "Commitment" or, if such Lender has entered
into any Assignment and Acceptance, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
8.07(g), as such amount may be reduced pursuant to Section 2.06.
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public or that is or
becomes available to the Administrative Agent or such Lender from a
source other than the Borrower, that is not, to the best of the
Administrative Agent's or such Lender's knowledge, acting in violation
of a confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
<PAGE> 10
6
"Consolidated Assets" means on any date of determination, all
amounts that are or should, in accordance with GAAP be included under
assets on a Consolidated balance sheet of the Borrower and its
Subsidiaries determined in accordance with GAAP as at such date.
"Convert", "Conversion" and "Converted" each refers to a
conversion of A Advances of one Type into A Advances of the other Type
pursuant to Section 2.09 or 2.10.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of such
Person's business and that are not overdue for a period that is not
consistent with the ordinary course of business of such Person), (c)
all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created
or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases
that have been or should be, in accordance with GAAP, recorded as
capital leases, (f) all obligations, contingent or otherwise, of such
Person in respect of acceptance, letter of credit or similar facilities
(other than obligations under (i) Trade Letters of Credit, (ii)
performance bonds or letters of credit issued in connection with the
purchase of inventory, including prepaid timber stumpage, by the
Borrower or any of its Subsidiaries in the ordinary course of business,
(iii) performance bonds or letters of credit to secure obligations
under workers' compensation laws or similar legislation, (iv)
performance bonds or letters of credit issued for the account of the
Borrower or any of its Subsidiaries to secure obligations under
self-insurance programs to the extent permitted by the terms of this
Agreement and in an aggregate maximum available amount with respect to
all such performance bonds and letters of credit not to exceed at any
one time $20,000,000 and (v) performance bonds or letters of credit
issued for the account of the Borrower or any of its Subsidiaries not
otherwise excluded from this definition in an aggregate maximum
available amount with respect to all such performance bonds and letters
of credit not to exceed at any one time $2,000,000, provided that in
each case such performance bond or letter of credit (including, without
limitation, any Trade Letters of Credit but excluding performance bonds
or letters of credit described in clause (f)(v) above) does not secure
Debt), (g) all Guarantees issued by such Person and (h) all Debt
referred to in clauses (a) through (g) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable
<PAGE> 11
7
for the payment of such Debt. The Debt of any Person shall include the
Debt of any partnership in which such Person is a general partner, but
shall not include obligations under a financial assurance statement
that a Person is required to provide under an Environmental Law in
support of the closure and post-closure obligations of one or more
Subsidiaries.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Affiliate of a Lender or (b)
a special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" by Moody's or "A-1" by S&P or a
comparable rating from the successor of either of them, that, in either
case, (x) is organized under the laws of the United States or any State
thereof, (y) shall have become a party hereto pursuant to Section
8.07(d), (e) and (f) and (z) is not otherwise a Lender. Notwithstanding
the foregoing, other than in the case of an Affiliate of a Lender, each
Designated Bidder shall be subject to the prior written consent of the
Borrower and the Administrative Agent, such consent not to be
unreasonably withheld or delayed.
"Designation Agreement" means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially the
form of Exhibit D hereto.
"Disclosed Litigation" has the meaning specified in Section
4.01(f).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EBITDA" means, for any Person during any period, earnings
(income) from continuing operations before the cumulative effect of
accounting changes and any provision for dispositions, income taxes,
interest expense and depreciation, depletion and amortization.
"Effective Date" means the first date on which the conditions
set forth in Section 3.01 have been satisfied.
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of
a Lender; (c) a commercial bank organized under the laws of the United
States, or any State thereof,
<PAGE> 12
8
and having total assets in excess of $10,000,000,000; (d) a commercial
bank organized under the laws of any other country that is a member of
the Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or of the
Cayman Islands, or a political subdivision of any such country, and
having total assets in excess of $10,000,000,000, so long as such bank
is acting through a branch or agency located in the country in which it
is organized or another country that is described in this clause (d);
(e) the central bank of any country that is a member of the
Organization for Economic Cooperation and Development; and (f) any
other Person approved by the Administrative Agent and the Borrower,
such approval not to be unreasonably withheld or delayed; provided,
however, that (x) each Eligible Assignee shall maintain a branch or
representative office or similar presence in the United States and (y)
neither the Borrower nor an Affiliate of the Borrower shall qualify as
an Eligible Assignee.
"Environmental Action" means any (a) administrative,
regulatory or judicial action, suit, written demand, demand letter,
written claim, notice of noncompliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment
including, without limitation, (i) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (ii) by any governmental or regulatory
authority for damages, contribution, indemnification, cost recovery,
compensatory or injunctive relief; and (b) any administrative,
regulatory or judicial action, suit or proceeding brought by any third
party properly before a forum of competent jurisdiction relating in any
way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any applicable federal, state, local
or foreign statute, law, ordinance, rule, regulation, code, order,
judgment, decree or judicial or agency interpretation, policy or
guidance relating to the environment, health, safety or Hazardous
Materials all as amended or hereafter amended.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
<PAGE> 13
9
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (c) the cessation of operations at a
facility of the Borrower or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (d) the withdrawal
by the Borrower or any of its ERISA Affiliates from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (e) the failure by the Borrower
or any of its ERISA Affiliates to make a payment to a Plan if the
conditions for the imposition of a lien under Section 302(f)(1) of
ERISA are satisfied; (f) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section
307 of ERISA; or (g) the institution by the PBGC of proceedings to
terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that could
constitute grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a
<PAGE> 14
10
multiple) of the rate per annum at which deposits in U.S. dollars are
offered to the Reference Banks by prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such A
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same A Borrowing shall be determined by
the Administrative Agent on the basis of applicable rates furnished to
and received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing 364-Day Credit Agreement" means the 364-day
Revolving Credit Agreement, dated as of April 21, 1994, among the
Borrower, certain banks and other financial institutions party thereto,
Citibank, N.A., as administrative agent, and Citicorp Securities and
Toronto-Dominion, as arrangers.
"Existing Five-Year Credit Agreement" means the five-year
Revolving Credit Agreement, dated as of April 21, 1994, among the
Borrower, certain banks and other financial institutions party thereto,
Citibank, N.A., as administrative agent, and Citicorp Securities and
Toronto-Dominion, as arrangers.
"Existing Subsidiary Debt" has the meaning specified in
Section 5.02(d)(ii).
<PAGE> 15
11
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fiscal Quarter" means each consecutive three calendar month
period ending March 31, June 30, September 30 or December 31 of any
fiscal year.
"GAAP" has the meaning specified in Section 1.03.
"Guarantee" by any Person, means any obligation, contingent or
otherwise, of such Person guaranteeing directly or indirectly in any
manner the Debt of any other Person, or in effect guaranteeing directly
or indirectly the Debt of any other Person through an agreement (i) to
pay or purchase such Debt or to advance or supply funds for the payment
or purchase of such Debt, (ii) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (iii) to supply funds to
or in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is
received or such services are rendered) or (iv) otherwise to assure a
creditor against loss.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic," or words of similar import, under any
applicable Environmental Law.
"Indemnified Liabilities" has the meaning specified in Section
8.04(b).
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such
<PAGE> 16
12
Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 12:00 Noon (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same A
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Banks listed on the signature pages
hereof, each institution that shall become a party hereto pursuant to
Section 8.07(a), (b) and (c) and, except when used in reference to an A
Advance, an A Borrowing, an A Note, a Commitment, a C Advance, a C
Borrowing, a C Note or a term related to any of the foregoing, each
Designated Bidder.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
<PAGE> 17
13
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries taken as
a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries taken as
a whole, (b) the rights and remedies of the Administrative Agent or any
Lender under this Agreement or any Note or (c) the ability of the
Borrower to perform its obligations under this Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its ERISA
Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any of its ERISA Affiliates and at least
one Person other than the Borrower and its ERISA Affiliates or (b) was
so maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Note" means an A Note, a B Note or a C Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a)(i).
"Notice of C Borrowing" has the meaning specified in Section
2.04(a)(i).
"NPL" has the meaning specified in Section 4.01(k).
"Other Taxes" has the meaning specified in Section 2.15(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
<PAGE> 18
14
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a reasonable period and
which, individually or when aggregated with all other Permitted Liens
outstanding on any date, do not materially affect the use of the
property to which they relate; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or
to secure public or statutory obligations; and (d) easements, rights of
way, encumbrances and minor defects or irregularities in title to real
property not interfering in any material respect with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if no Public Debt Rating shall be available from either S&P or
Moody's, the Applicable Margin and the Applicable Percentage will be
set in accordance with Level 3 under the definition of "Applicable
Margin" or "Applicable Percentage", as the case may be; (b) if only one
of S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by
reference to the available rating; (c) if the ratings established by
S&P and Moody's shall fall within different levels, the Applicable
Margin and the Applicable Percentage shall be based upon the lower
rating; (d) if any rating established by S&P or Moody's shall be
changed, the change in Applicable Margin and the Applicable Percentage
shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Reference Banks" means Citibank, Toronto-Dominion and The
Chase Manhattan Bank, N.A.
"Register" has the meaning specified in Section 8.07(g).
"Requested Lender" has the meaning specified in Section
2.04(a)(i).
<PAGE> 19
15
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the A Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least a majority in interest of the
Commitments.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Significant Subsidiary" means, at any time, a Subsidiary of
the Borrower having (a) at least 10% of the total Consolidated Assets
of the Borrower and its Subsidiaries (determined as of the last day of
the most recent Fiscal Quarter of the Borrower ended on or prior to
such date) or (b) at least 5% of the Consolidated revenues of the
Borrower and its Subsidiaries for the four most recent Fiscal Quarters
of the Borrower ended on or prior to such date.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any of its ERISA Affiliates and no Person
other than the Borrower and its ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4069 of ERISA, in the
event such plan has been or were to be terminated.
"Specified Date" has the meaning specified in Section 8.10.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether, at the time,
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
With respect to the Borrower, GHP Leasing Company shall not constitute
a Subsidiary of the Borrower to the extent that GHP Leasing Company is
a corporation in which neither the Borrower nor any of its Subsidiaries
shall own more than 50% of the capital stock of the type described in
clause (a) above.
"Tangible Net Worth" means, with respect to any Person as of
any date of determination, the excess of total assets over total
liabilities, total assets and total liabilities each to be determined
in accordance with GAAP, excluding, however, from the determination of
total assets, (a) goodwill, experimental or organizational
<PAGE> 20
16
expenses, research and development expenses, franchises, trademarks,
service marks, trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and other similar intangibles, (b)
all unamortized debt discount and expense, (c) treasury stock and
capital stock, obligations or other securities of, or capital
contributions to, or investments in, any Subsidiary, and (d) any items
not included in clauses (a) through (c) above which are treated as
intangibles in conformity with GAAP, in each case, determined on a
Consolidated basis and in accordance with GAAP.
"Taxes" has the meaning specified in Section 2.15(a).
"Termination Date" means the earlier of (a) subject to the
provisions of Section 8.10, the 364th day after the date hereof and (b)
the date of termination in whole of the Commitments pursuant to Section
2.06 or 6.01.
"Toronto-Dominion" means The Toronto-Dominion Bank.
"Trade Letter of Credit" means any letter of credit that is
issued for the benefit of a supplier of inventory or provider of a
service necessary for the conduct of the business of the Borrower or
any of its Subsidiaries (other than any financial services) to the
Borrower or any of its Subsidiaries to effect payment for such
inventory or service.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part 1 of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with United States
generally accepted accounting principles as in effect from time to time
("GAAP").
<PAGE> 21
17
ARTICLE II
AMOUNTS AND TERMS OF LOANS
SECTION 2.01. The A Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to exceed
at any time outstanding such Lender's Commitment, provided that the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount of the B Advances and the C Advances then
outstanding and such deemed use of the aggregate amount of the Commitments shall
be allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments to the extent of the
aggregate amount of B Advances then outstanding being a "B Reduction" and, to
the extent of the aggregate amount of C Advances then outstanding being a "C
Reduction"). Each A Borrowing shall be in an aggregate amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and shall consist of A
Advances of the same Type and having the same Interest Period made on the same
day by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.11 and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than 12:00 Noon (New York City time) on
the third Business Day prior to the date of the proposed A Borrowing (in the
case of an A Borrowing to be comprised of Eurodollar Rate Advances) and given
not later than 11:00 A.M. (New York City time) on the Business Day of the
proposed A Borrowing (in the case of an A Borrowing to be comprised of Base Rate
Advances), by the Borrower to the Administrative Agent, which shall give to each
Lender prompt notice thereof by telecopier or by telex. Each such notice of an A
Borrowing (a "Notice of A Borrowing") shall be by telecopier or by telex,
confirmed immediately in writing, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type
of A Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) in the case of an A Borrowing consisting of Eurodollar Rate
Advances, the initial Interest Period for each such A Advance. Each Lender shall
on the date of such A Borrowing, before 11:00 A.M. (New York City time), in the
case of an A Borrowing to be comprised of Eurodollar Rate Advances, and before
1:00 P.M. (New York City time), in the case of an A Borrowing to be comprised of
Base Rate Advances, make available for the account of its Applicable Lending
Office to the Administrative Agent at its address referred to in Section 8.02,
in same day funds, such Lender's ratable portion of such A Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III,
<PAGE> 22
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the Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any A
Borrowing if the obligation of the Lenders to make Eurodollar Rate Loans shall
then be suspended pursuant to Section 2.09 or 2.13.
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing that the related Notice
of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the A Advance to be made
by such Lender as part of such A Borrowing when such A Advance, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any A Borrowing (in the case of an A
Borrowing to be comprised of Eurodollar Rate Advances) and not later than 12:00
Noon (New York City time) on the Business Day of the proposed A Borrowing (in
the case of an A Borrowing to be comprised of Base Rate Advances) that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such A Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such A Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at such
time to the A Advances comprising such A Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
<PAGE> 23
19
SECTION 2.03. The B Advances. (a) Each Lender severally agrees
that the Borrower may make B Borrowings under this Section 2.03 from time to
time on any Business Day during the period from the Effective Date until the
date occurring 30 days prior to the Termination Date in the manner set forth
below, provided that (x) each B Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and, (y)
following the making of each B Borrowing, the aggregate amount of all Advances
then outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders.
(i) The Borrower may request a B Borrowing under this Section
2.03 by delivering to the Administrative Agent, by telecopier or by
telex, confirmed immediately in writing, a notice of a B Borrowing (a
"Notice of B Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying the date and aggregate amount of the proposed B
Borrowing, the maturity date for repayment of each B Advance to be made
as part of such B Borrowing (which maturity date may not be earlier
than the date occurring 30 days after the date of such B Borrowing or
later than the earlier of (x) 180 days after the date of such B
Borrowing and (y) the Termination Date), the interest payment date or
dates relating thereto, and any other terms to be applicable to such B
Borrowing, not later than 10:00 A.M. (New York City time) (A) at least
one Business Day prior to the date of the proposed B Borrowing, if the
Borrower shall specify in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum,
and (B) at least four Business Days prior to the date of the proposed B
Borrowing, if the Borrower shall instead specify in the Notice of B
Borrowing the basis to be used by the Lenders in determining the rates
of interest to be offered by them. The Administrative Agent shall in
turn promptly notify each Lender of each request for a B Borrowing
received by it from the Borrower by sending such Lender a copy of the
applicable Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more B Advances to the Borrower
as part of such proposed B Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the
Administrative Agent (which shall give prompt notice thereof to the
Borrower), before 10:00 A.M. (New York City time) (x) on the date of
such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (A) of paragraph (i) above and (y) three
Business Days before the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, of the minimum amount and maximum amount of each B
Advance that such Lender would be willing to make as part of such
proposed B Borrowing (which amounts may, subject to the proviso to the
first sentence of Section 2.03(a), exceed such Lender's Commitment, if
any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such B Advance, provided that
if the Administrative Agent in its capacity as a Lender
<PAGE> 24
20
shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer before 9:00 A.M. (New York City time)
on the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect
not to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any B Advance as part of such B
Borrowing, provided that the failure by any Lender to give such notice
shall not in any event cause such Lender to be obligated to make any B
Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (x) before 11:00 A.M. (New
York City time) on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above and (y) before 11:00 A.M. (New York City time)
three Business Days before the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, either:
(A) cancel such B Borrowing by giving the
Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in order
of the lowest to highest rates of interest or margins (or, if
two or more Lenders bid at the same rate of interest, and the
amount of accepted offers is less than the aggregate amount of
such offers, the amount to be borrowed from such Lenders as
part of such B Borrowing shall be allocated among such Lenders
pro rata on the basis of the maximum amount offered by such
Lenders at such rates or margin in connection with such B
Borrowing), by giving notice to the Administrative Agent of
the amount of each B Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than
the maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such B
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such B Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by
giving the Administrative Agent notice to that effect.
(iv) If the Borrower notifies the Administrative Agent that
such B Borrowing is cancelled pursuant to subsection (iii)(A) above,
the Administrative Agent shall give prompt notice thereof to the
Lenders and such B Borrowing shall not be made.
<PAGE> 25
21
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(B) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such B Borrowing and whether or not any offer or
offers made by such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make a B Advance
as part of such B Borrowing, of the amount of each B Advance to be made
by such Lender as part of such B Borrowing, and (C) each Lender that is
to make a B Advance as part of such B Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a B Advance as part of such B Borrowing shall, before
12:00 Noon (New York City time) on the date of such B Borrowing
specified in the notice received from the Administrative Agent pursuant
to clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.02 such Lender's portion
of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower at the Administrative Agent's
aforesaid address. The Administrative Agent will promptly on the date
of each B Borrowing notify each Lender of the amount of the B
Borrowing, the consequent B Reduction, and the dates upon which such B
Reduction commenced and will terminate and the range of interest rates
with respect to the B Advances made as part of such B Borrowing.
(b) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay pursuant to subsection (c) below and reborrow under this Section 2.03.
(c) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a B Advance, or each other holder of a
B Note on the maturity date of such B Advance (such maturity date being that
specified by the Borrower for repayment in the related Notice of B Borrowing and
provided in the B Note evidencing such B Advance), the then unpaid principal
amount of such B Advance. The Borrower shall not have the right to prepay any B
Advance.
(d) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance until the date the
principal amount of such B Advance is paid in full at the rate of interest for
such B Advance specified by the Lender making such B Advance in its notice
delivered pursuant to subsection (a)(ii) above on the interest date or dates
specified by the Borrower for such B Advance in the related Notice of B
Borrowing and set forth in the B Note evidencing such B Advance.
<PAGE> 26
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(e) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of such B Borrowing shall be evidenced by a
separate B Note of the Borrower payable to the order of the Lender making such B
Advance.
(f) Following the making of each B Borrowing, the Borrower
shall be in compliance with the limitation set forth in clause (y) of the
proviso to the first sentence of Section 2.03(a).
(g) The Borrower shall pay to the Administrative Agent for its
own account such fees as may be agreed between the Borrower and the
Administrative Agent in connection with each request for a B Borrowing whether
or not any B Borrowing is in fact made.
SECTION 2.04. The C Advances. (a) Each Lender severally agrees
that the Borrower may make C Borrowings under this Section 2.04 from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in the manner set forth below, provided that (x) each C
Borrowing shall be in an aggregate amount of $500,000 or an integral multiple of
$100,000 in excess thereof and (y) following the making of each C Borrowing (A)
the aggregate amount of all C Advances then outstanding shall not exceed
$10,000,000 and (B) the aggregate amount of all Advances then outstanding shall
not exceed the aggregate amount of the Commitments of the Lenders.
(i) The Borrower may request a C Borrowing by delivering to at
least three Lenders selected in its sole discretion (each such Lender,
a "Requested Lender"), by telecopier or by telex, confirmed immediately
in writing, a notice of a C Borrowing (a "Notice of C Borrowing") with
a copy thereof to the Administrative Agent, in substantially the form
of Exhibit B-3 hereto, specifying the date and aggregate amount of the
proposed C Borrowing, the maturity date for repayment of each C Advance
to be made as part of such C Borrowing (which maturity date may not be
later than the earlier of (x) the date occurring 30 days after the date
of such C Borrowing and (y) the Termination Date), the interest payment
date or dates relating thereto, the basis to be used by Requested
Lenders in determining the rates of interest to be offered by them, the
time at which such C Advance is to be made, the time by which such
Requested Lender's response is due and the time by which the Borrower
will accept or reject offers made by the Requested Lenders, and any
other terms to be applicable to such C Borrowing.
(ii) Each Requested Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more C Advances to
the Borrower as part of such proposed C Borrowing at a rate or rates of
interest specified by such Requested Lender in its sole discretion, by
notifying the Borrower at or before the time specified in the
applicable Notice of C Borrowing of the minimum amount and maximum
<PAGE> 27
23
amount of each C Advance that such Requested Lender would be willing to
make as part of such C Borrowing (which amounts may, subject to the
proviso to the first sentence of this Section 2.04(a), exceed such
Lender's Commitment), the rate or rates of interest therefor and such
Requested Lender's Applicable Lending Office with respect to such C
Advance.
(iii) The Borrower shall, in turn, before the time specified
therefor in the applicable Notice of C Borrowing either (A) cancel such
C Borrowing by giving the Requested Lenders and the Administrative
Agent notice to that effect, or (B) accept one or more of the offers
made by a Requested Lender pursuant to paragraph (ii) above by promptly
giving notice to each such Requested Lender and the Administrative
Agent of the amount of the C Advance to be made by such Requested
Lender or Lenders and provide each such Requested Lender that is to
make a C Borrowing the documents required by the applicable conditions
set forth in Article III. The Borrower's election to accept or reject
any offers made to it by a Requested Lender pursuant to paragraph (ii)
above shall be made in its sole discretion regardless of the terms and
conditions of any offer made by any Requested Lender. Upon fulfillment
of the conditions set forth in Article III, each Requested Lender will
make its portion of such C Borrowing available to the Borrower by
transferring the amount of its C Advance to such account as is notified
by the Borrower to such Requested Lender.
(iv) On the date on which the Borrower makes a request for a C
Borrowing and on each date on which a C Borrowing is made, the Borrower
shall promptly (and in any event no later than 3:00 P.M. (New York City
time) on such day) notify the Administrative Agent of (x) such request
for a C Borrowing, including the aggregate amount of the proposed C
Borrowing, the consequent C Reduction and the dates upon which such C
Reduction will terminate, the maturity date for repayment of each C
Advance and the basis to be used by each Requested Lender in
determining the rates of interest being offered by them and (y) the
date of any C Borrowing, the aggregate amount of such C Borrowing, the
consequent C Reduction, each Lender making a C Advance, the interest
rate and the maturity date of each C Advance to be made as part of such
C Borrowing and such other information relating to such C Borrowing as
the Administrative Agent may reasonably request; provided, however, if
the Borrower shall be making an A Borrowing or B Borrowing on the date
on which a C Advance is to be made, the Borrower shall provide the
Administrative Agent with the information set forth in clauses (x) and
(y) above prior to the time such A or B Borrowing is to be made. In
addition, if after making a request therefor the Borrower cancels such
C Borrowing, the Borrower shall promptly notify each Lender of such
cancellation. Promptly after each C Borrowing, the Administrative Agent
will notify each Lender of the amount of the C Borrowing, the
consequent C Reduction and the date upon which such C Reduction
commenced and will terminate and the maturity date for repayment of
each C Advance. The obligation of the Administrative Agent
<PAGE> 28
24
to provide the Lenders with the information described in the preceding
sentence is limited by the extent to which the Administrative Agent, on
or prior to the time set forth above, shall have previously received
such information from the Borrower. All payments with respect to each C
Advance shall be made not later than 11:00 A.M. (New York City time) on
the date when due in U.S. dollars, to the Lender making such C Advance
at its Applicable Lending Office or such other office as such Lender
may specify in writing to the Borrower in same day funds. The Borrower
shall promptly provide (and in any event no later than 12:00 Noon (New
York City time) on such day) the Administrative Agent with notice of
its payment to a Lender of any amount payable with respect to a C
Advance, the name of the Lender such payment was made to and the amount
of such payment.
(b) Within the limits and on the conditions set forth in this
Section 2.04, the Borrower may from time to time borrow under this Section 2.04,
repay pursuant to subsection (c) below and reborrow under this Section 2.04.
(c) The Borrower shall repay to each Lender that has made a C
Advance, or each other holder of a C Note on the maturity date of such C Advance
(such maturity date being that specified by the Borrower for repayment in the
related Notice of C Borrowing and provided in the C Note evidencing such C
Advance), the then unpaid principal amount of such C Advance. The Borrower shall
not have the right to prepay any C Advance.
(d) The Borrower shall pay interest on the unpaid principal
amount of each C Advance from the date of such C Advance until the date the
principal amount of such C Advance is paid in full at the rate of interest for
such C Advance specified by the Lender making such C Advance in the notice
delivered pursuant to subsection (a)(ii) above on the interest date or dates
specified by the Borrower for such C Advance in the related Notice of C
Borrowing and set forth in the C Note evidencing such C Advance.
(e) The indebtedness of the Borrower resulting from each C
Advance made to the Borrower as part of such C Borrowing shall be evidenced by a
separate C Note of the Borrower payable to the order of the Lender making such C
Advance.
(f) Following the making of each C Borrowing, the Borrower
shall be in compliance with the limitations set forth in clause (y) of the
proviso to the first sentence of Section 2.04(a).
(g) The Borrower shall not be required to pay to the
Administrative Agent any separate fees in connection with any C Borrowing or C
Advance.
SECTION 2.05. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender (other than a
Designated Bidder) a facility fee on the aggregate amount of such Lender's
Commitment, if any, from the date
<PAGE> 29
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hereof in the case of each Bank and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each such other Lender until the Termination Date at a rate per annum equal to
the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing June 30, 1995, and on the Termination Date.
(b) Administrative Agent's Fees. The Borrower shall pay
to the Administrative Agent for its own account such fees as may from time to
time be agreed between the Borrower and the Administrative Agent.
SECTION 2.06. Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least three Business Days' notice to
the Administrative Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the sum of the aggregate principal amount of the B
Advances then outstanding and the aggregate principal amount of the C Advances
then outstanding, and provided further, that each partial reduction shall be in
the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
SECTION 2.07. Repayment of A Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Lenders on the
Termination Date the principal amount of the A Advances then outstanding.
SECTION 2.08. Interest on A Advances. (a) Scheduled Interest.
The Borrower shall pay interest on the unpaid principal amount of each A Advance
owing to each Lender from the date of such A Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such A Advance
is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
<PAGE> 30
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(b) Default Interest. At any time during which the Borrower
shall fail (i) to pay any principal of any Advance, any interest on any Advance
or make any other payment in connection with this Agreement when the same
becomes due and payable or (ii) to perform or observe any term, covenant or
agreement contained in Section 5.03, the Borrower shall pay interest on (x) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a)(i) or (a)(ii) above and (y) the amount of
any interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.09. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Administrative Agent for
the purpose of determining such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.08(a)(i) or (ii), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.08(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(ii) each such A Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such A Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
<PAGE> 31
27
(d) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any A Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances, and on and after such date
the right of the Borrower to Convert such A Advances into Eurodollar Rate
Advances shall terminate.
SECTION 2.10. Optional Conversion of A Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.09, 2.13
and 2.14, Convert all A Advances of one Type comprising the same Borrowing into
A Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances. Each such notice of
a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the Interest Period
for each such A Advance. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
SECTION 2.11. Optional Prepayments of A Advances. The Borrower
may, upon at least one Business Day's notice to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given, the Borrower shall, prepay the outstanding principal amounts of
the A Advances comprising part of the
<PAGE> 32
28
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount not
less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
SECTION 2.12. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances, then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that, any Lender claiming additional amounts
under this Section 2.12 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if such change would avoid the need for, or reduce the
amount of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the Borrower
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(b) If any Lender (other than a Designated Bidder) determines
that compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder. A certificate as to such amounts submitted to the Borrower
and the Administrative Agent by such Lender shall be conclusive and binding for
all purposes, absent manifest error.
SECTION 2.13. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its
<PAGE> 33
29
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith prepay in full
all Eurodollar Rate Advances of all Lenders then outstanding, together with
interest accrued thereon, unless the Borrower, within five Business Days of
notice from the Administrative Agent, Converts all Eurodollar Rate Advances of
all Lenders then outstanding into Base Rate Advances in accordance with Section
2.10.
SECTION 2.14. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the A Notes and the B Notes not
later than 12:00 Noon (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at its address referred to in Section 8.02 in same
day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.12, 2.15
or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. All payments under the C Notes will be made in accordance with
Section 2.04(a)(iv). Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(g), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the A Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate
<PAGE> 34
30
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.15. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.14,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes
<PAGE> 35
31
or Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.15) paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by the Borrower
through an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at
such address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party that reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement or
the Notes is effectively connected with the conduct of a trade or business in
the United States. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from "Taxes" as defined in Section 2.15(a).
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.15(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.15(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
<PAGE> 36
32
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.15 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances owing to it (other
than pursuant to Section 2.12, 2.15 or 8.04(c)) in excess of its ratable share
of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the A Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.16
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for working capital and general corporate purposes of the Borrower and
its Subsidiaries, including, without limitation, making repayments with respect
to Commercial Paper and other similar loan programs.
<PAGE> 37
33
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01, 2.03 and 2.04. Sections 2.01, 2.03 and 2.04 of this Agreement
shall become effective as of the Effective Date, subject to the conditions
precedent that:
(a) There shall have occurred no Material Adverse Change
since December 31, 1994.
(b) There shall exist no action, suit, investigation,
litigation or proceeding, including any Environmental Action, affecting
the Borrower or any of its Subsidiaries pending or threatened before
any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect, except as set
forth in the Borrower's Environmental Disclosure Report or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not reasonably acceptable to the Lenders) and shall remain in effect,
and no law or regulation shall be applicable in the reasonable judgment
of the Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(d) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent and the Arrangers (including the accrued
fees and expenses of counsel to the Administrative Agent and the
Arrangers then due and payable).
(e) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(A) the representations and warranties contained
in Section 4.01 are correct on and as of the Effective Date;
and
(B) no event has occurred and is continuing that
constitutes a Default.
<PAGE> 38
34
(f) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
A Notes) in sufficient copies for each Lender:
(i) The A Notes to the order of the Lenders,
respectively.
(ii) The Amendment, duly executed by the Borrower and
the "Required Lenders" (as such term is defined in the
Existing Five-Year Credit Agreement) thereunder.
(iii) Certified copies of (x) the resolutions of the
Board of Directors of the Borrower approving this Agreement,
the Notes and the Amendment, and (y) the Borrower's charter
and by-laws and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement, the Notes and the Amendment.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement, the Notes and the Amendment and the other
documents to be delivered hereunder.
(v) A favorable opinion of John B. Canning, Corporate
Secretary and Associate General Counsel of the Borrower,
substantially in the form of Exhibit E hereto and as to such
other matters as any Lender through the Administrative Agent
may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(vii) Federal Reserve Forms U-1 provided for in
Regulation U, the statements made in which shall be such as to
permit the transactions contemplated hereby in accordance with
Regulation U.
(g) The Borrower shall have paid all amounts payable under the
Existing 364-Day Credit Agreement and the commitments of the lenders
thereunder shall have been terminated in whole pursuant to a notice of
termination received by the Administrative Agent (as defined in the
Existing 364-Day Credit Agreement) from the Borrower (as defined in the
Existing 364-Day Credit Agreement) in accordance with Section 2.06
thereof.
(h) The Amendment shall be in full force and effect.
<PAGE> 39
35
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such A Borrowing (a) the following
statements shall be true (and each of the giving of the applicable Notice of A
Borrowing and the acceptance by the Borrower of the proceeds of such A Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such A Borrowing such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (e) and
subsection (f) thereof) are correct on and as of the date of such A
Borrowing, before and after giving effect to such A Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; and
(ii) no event has occurred and is continuing, or would result
from such A Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender (other than a Designated Bidder) through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender that is to make a B Advance on the occasion of each B
Borrowing to make such B Advance as part of such B Borrowing is subject to the
conditions precedent that the Effective Date shall have occurred and (a) the
Administrative Agent shall have received the Notice of B Borrowing with respect
thereto, (b) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Administrative Agent shall have received a B Note payable to the
order of such Lender for each of the one or more B Advances to be made by such
Lender as part of such B Borrowing, in a principal amount equal to the principal
amount of the B Advance to be evidenced thereby and otherwise on such terms as
were agreed to for such B Advance in accordance with Section 2.03, and (c) on
the date of such B Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of B Borrowing and the acceptance by the
Borrower of the proceeds of such B Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such B Borrowing such
statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (e) and
subsection (f) thereof) are correct on and as of the date of such B
Borrowing, before and after giving effect to such B Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date;
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36
(ii) no event has occurred and is continuing, or would result
from such B Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include any untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 3.04. Conditions Precedent to Each C Borrowing. The
obligation of each Lender that is to make a C Advance on the occasion of each C
Borrowing to make such C Advance as part of such C Borrowing is subject to the
conditions precedent that the Effective Date shall have occurred and (a) such
Lender and the Administrative Agent shall have received the Notice of C
Borrowing with respect thereto, (b) on or before the date of such C Borrowing,
but prior to such C Borrowing, such Lender shall have received a C Note payable
to the order of such Lender for each of the one or more C Advances to be made by
such Lender as part of such C Borrowing, in a principal amount equal to the
principal amount of the C Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such C Advance in accordance with Section 2.04, and
(c) on the date of such C Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of C Borrowing and the acceptance by
the Borrower of the proceeds of such C Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such C Borrowing
such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (e) and
subsection (f) thereof) are correct on and as of the date of such C
Borrowing, before and after giving effect to such C Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date;
(ii) no event has occurred and is continuing, or would result
from such C Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include any untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
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37
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the proposed
Effective Date, as notified by the Borrower to the Lenders, specifying its
objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of North
Carolina.
(b) The execution, delivery and performance by the Borrower of
this Agreement, the Notes and the consummation of the transactions
contemplated hereby (including, without limitation, the Amendment) are
within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority, regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement, the Notes or the
Amendment.
(d) This Agreement and the Amendment are, and each of the
Notes when executed and delivered hereunder will be, the legal, valid
and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Arthur Andersen L.L.P., independent public accountants, copies of
which have been furnished to each Lender, fairly present the
Consolidated financial
<PAGE> 42
38
condition of the Borrower and its Subsidiaries as at such date and the
Consolidated results of the operations of the Borrower and its
Subsidiaries for the fiscal year then ended, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 1994, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower,
threatened action or proceeding, including any Environmental Action,
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect, other than the matters described on
the Borrower's Environmental Disclosure Report (the "Disclosed
Litigation"), or (ii) purports to affect the legality, validity or
enforceability of this Agreement, the Amendment or any Note, and since
the date the Borrower's Environmental Disclosure Report was prepared
there has been no adverse change (other than an adverse change of an
inconsequential nature) in the status, or financial effect on the
Borrower or any of its Subsidiaries, of the Disclosed Litigation from
that described in the Borrower's Environmental Disclosure Report.
Schedule 4.01(f) sets forth any action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending
or, to the knowledge of the Borrower, threatened before any court,
governmental agency or arbitrator that the Borrower has disclosed in
its Form 10-K for the fiscal year ended December 31, 1994, as filed
with the Securities and Exchange Commission (the "Borrower's Form 10-K
for 1994").
(g) No written information, report, financial statement,
exhibit or schedule furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation
of this Agreement or included herein or delivered pursuant hereto
contained or contains any material misstatement of fact or omitted or
omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were or are
made, not misleading.
(h) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(j) (A) Except as set forth in the Borrower's Environmental
Disclosure Report, the operations and properties of the Borrower and
each of its Subsidiaries comply in all material respects with all
Environmental Laws, all material and necessary Environmental Permits
have been obtained and are in effect for the
<PAGE> 43
39
operations and properties of the Borrower and each of its Subsidiaries,
and the Borrower and each of its Subsidiaries are in compliance in all
material respects with all such Environmental Permits.
(B) Except as set forth in the Borrower's Form 10-K for 1994
and in the Borrower's Environmental Disclosure Report, and except for
the potential effect of the proposed new regulations for the control of
pollutants from pulp and paper mills as published by the U.S.
Environmental Protection Agency in the December 17, 1993 Federal
Register (Volume 58, Federal Register, 66078), to the knowledge of the
Borrower, there are no circumstances that are reasonably likely to form
the basis of an Environmental Action against the Borrower or any of its
Subsidiaries that could be reasonably likely to have a Material Adverse
Effect.
(k) Except as set forth in the Borrower's Environmental
Disclosure Report, none of the properties currently or formerly owned
or operated by the Borrower or any of its Subsidiaries is listed or, to
the knowledge of the Borrower, proposed for listing on the National
Priorities List under CERCLA (the "NPL") or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the U.S. Environmental Protection Agency ("CERCLIS") or
any analogous state list; and no underground storage tanks, as such
term is defined in 42 U.S.C. ss. 6991, are located on any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be likely to have a Material Adverse
Effect.
(l) Except as set forth in the Borrower's Environmental
Disclosure Report, to the knowledge of the Borrower, neither the
Borrower nor any of its Subsidiaries has transported or arranged for
the transportation of any Hazardous Materials to any location that is
listed or proposed for listing on the NPL or on the CERCLIS, which
could reasonably be likely to lead to claims against the Borrower or
such Subsidiary for any remedial work, damage to natural resources or
personal injury that have, or could reasonably be likely to have, a
Material Adverse Effect.
(m) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan.
(n) Neither the Borrower nor any of its ERISA Affiliates
has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan.
(o) Neither the Borrower nor any of its ERISA Affiliates has
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
<PAGE> 44
40
(p) Except as set forth in Schedule 4.01(p), the Borrower and
its Subsidiaries have no material liability with respect to
"accumulated post-retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(q) As of the last annual actuarial valuation date, the
"current liability," as defined in Section 412 of the Internal Revenue
Code, under each Plan does not exceed the fair market value of the
assets of such plan and there has been no material adverse change in
the funding status of such Plan since such date.
(r) On the Effective Date, the only Advances (as defined in
the Existing Five-Year Credit Agreement) outstanding will be (i) a B
Advance (as defined in the Existing Five-Year Credit Agreement) in a
principal amount of $25,000,000 which matures on April 21, 1995 and
(ii) a B Advance (as defined in the Existing Five-Year Credit
Agreement) in a principal amount of $35,000,000 which matures on April
26, 1995.
<PAGE> 45
41
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with (i) ERISA and (ii) Environmental
Laws to the extent set forth in Section 5.01(d).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves, if any, to
the extent required in accordance with GAAP, are being maintained.
(c) Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature, or in the case of
any trade payable before such trade payable becomes Debt, except where
the amount or validity thereof is currently being contested in good
faith and by appropriate proceedings and as to which appropriate
reserves, if any, to the extent required in accordance with GAAP, are
being maintained.
(d) Compliance with Environmental Laws. (i) Comply and cause
each of its Subsidiaries to comply, in all material respects, with all
Environmental Laws and Environmental Permits that are material to the
conduct of the business of the Borrower or any of its Subsidiaries or
necessary for their operations and properties, and (ii) obtain and
renew, and cause each of its Subsidiaries to obtain and renew, all
Environmental Permits that are material to the conduct of the business
of the Borrower or any of its Subsidiaries or necessary for their
operations and properties; except, with respect to (i) and (ii) above,
to the extent that any such Environmental Law or the terms of any
Environmental Permit are being contested in good faith and by proper
proceedings and as to which appropriate reserves, if any, to the extent
required in accordance with GAAP, are being maintained.
<PAGE> 46
42
(e) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including self-insurance, in
amounts consistent with industry practice and custom) with responsible
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(f) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise or
the corporate existence of any Subsidiary of the Borrower if the Board
of Directors of the Borrower or such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to
the Borrower and its Subsidiaries taken as a whole or the Lenders.
(g) Visitation Rights. At any reasonable time and from time to
time, upon reasonable prior notice, permit the Administrative Agent or
any of the Lenders or any agents or representatives thereof to examine
and make copies of and abstracts from the records and books of account
of, and visit the properties of the Borrower and any of its
Subsidiaries, as shall be reasonably requested, and to discuss the
affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers and with their independent
certified public accountants.
(h) Preparation of Environmental Reports. If an Event of
Default, based either on (i) a breach of any of the representations and
warranties contained in Section 4.01(f) (to the extent such Section
relates to environmental matters), (j), (k) or (l) or (ii)
noncompliance with the covenant contained in Section 5.01(d), shall
have occurred and be continuing for more than 30 days, at the request
of the Required Lenders, provide to the Lenders within 60 days after
such request, at the expense of the Borrower, an environmental site
assessment report for the properties relating to such breach or
noncompliance and as described in such request, prepared by an
environmental consulting firm reasonably acceptable to the Required
Lenders, indicating the presence or absence of Hazardous Materials,
where appropriate, and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Required Lenders reasonably determine at any time that a material risk
exists that any such report will not be provided within the time
referred to above, the Required Lenders may retain an environmental
consulting firm to prepare such report, at the expense of the Borrower
(provided that prior to the commencement of
<PAGE> 47
43
work by an environmental consulting firm retained by the Required
Lenders in connection herewith, the Required Lenders provide the
Borrower with the identity of such consulting firm, the scope of the
assignment and a copy of the budget provided by such consulting firm in
connection with such assignment), and the Borrower hereby grants and
agrees to cause any Subsidiary that owns any property described in such
request to grant at the time of such request, to the Administrative
Agent, the Lenders, such firm and any agents or representatives thereof
a limited (for the duration of such assessment) irrevocable license,
subject to the rights of tenants, to enter onto their respective
properties to undertake such an assessment upon reasonable prior notice
to the Borrower and in a manner that will not materially interrupt or
disrupt the business operations of the Borrower or its Subsidiaries or
tenants.
(i) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which appropriate
entries that are correct in all material respects shall be made, of all
financial transactions and the assets and business of the Borrower and
each such Subsidiary so as to permit preparation of their Consolidated
financial statements in accordance with GAAP.
(j) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or, in the reasonable judgment of the Borrower
or such Subsidiary, useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(k) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate other than:
(i) transactions among the Borrower and any of
its wholly owned Subsidiaries; and
(ii) transactions among wholly owned Subsidiaries
of the Borrower.
(l) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with GAAP, together with
<PAGE> 48
44
(a) a certificate of said officer stating that no Default has
occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with
respect thereto and (b) a schedule in form and substance
satisfactory to the Administrative Agent of the computations
used by the Borrower in determining compliance with the
covenant contained in Section 5.03;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion reasonably acceptable to
the Required Lenders by Arthur Andersen L.L.P. or other
independent public accountants acceptable to the Required
Lenders, together with (a) a certificate of the chief
financial officer of the Borrower stating that no Default has
occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with
respect thereto and (b) a schedule in form and substance
satisfactory to the Administrative Agent of the computations
used by the Borrower in determining compliance with the
covenant contained in Section 5.03;
(iii) promptly after the Borrower becomes aware of
and in any event within two Business Days after becoming aware
of each Default, continuing on the date of such statement, a
statement of the chief financial officer of the Borrower
setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the Borrower becomes aware of the
commencement thereof, notice of all actions and proceedings
before any court, governmental agency or arbitrator affecting
the Borrower or any of its Subsidiaries of the type described
in the first sentence of Section 4.01(f);
(vi) promptly and in any event within 10 days after
the Borrower or any of its ERISA Affiliates knows that any
ERISA Event has occurred, a statement of the chief financial
officer of the Borrower describing such ERISA
<PAGE> 49
45
Event and the action, if any, that the Borrower or such ERISA
Affiliate has taken and proposes to take with respect thereto;
(viii) promptly and in any event within three
Business Days after receipt thereof by the Borrower or any of
its ERISA Affiliates, copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a
trustee appointed to administer any such Plan;
(ix) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan;
(x) promptly and in any event within five Business
Days after receipt thereof by the Borrower or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan, copies of
each notice concerning (x) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (y) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (z) the amount of
liability incurred, or that may be incurred, by the Borrower
or any of its ERISA Affiliates in connection with any event
described in clause (x) or (y);
(xi) (A) as soon as practical and in any event
promptly after the receipt thereof by the Borrower, copies of
all written claims, complaints, notices or inquiries relating
to compliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could
reasonably be likely to have a Material Adverse Effect or
could reasonably be likely to (x) form the basis of an
Environmental Action against the Borrower or any of its
Subsidiaries or such property that could reasonably be likely
to have a Material Adverse Effect or (y) cause any such
property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law
that could reasonably be likely to have a Material Adverse
Effect and (B) on or before every March 31 and September 30,
commencing on or before September 30, 1995, a report regarding
environmental matters containing the type of information set
forth in the Borrower's Environmental Disclosure Report; and
(xii) such other information respecting the condition
or operations, financial or otherwise, of the Borrower or any
of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
<PAGE> 50
46
Notwithstanding any of the foregoing, at any time when the
Borrower is subject to the reporting requirements of Section 13(a)(2) of the
Securities Exchange Act of 1934, the Borrower shall be deemed to have complied
with the requirements of clauses (i), (ii) and (v) above, if the Borrower shall
deliver such information to the Administrative Agent promptly after the filing
thereof with the Securities and Exchange Commission by the Borrower and in any
event within three Business Days after such filing.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any property
acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of
such property or to secure Debt incurred solely for the
purpose of financing the acquisition of such property, or
Liens existing on such property at the time of its acquisition
(other than any such Lien created in contemplation of such
acquisition) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount; provided,
however, that no such Lien shall extend to or cover any
property other than the property being acquired, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) the Liens described on Schedule 5.02(a),
(iv) other Liens securing Debt outstanding in an
aggregate principal amount (as to the Borrower and all of its
Subsidiaries) not to exceed $25,000,000, and
(v) the replacement, extension or renewal of any Lien
permitted by clauses (ii) and (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions)
<PAGE> 51
47
all or substantially all of its assets (whether now owned or hereafter
acquired) to, any Person, or permit any of its Subsidiaries to do so,
except that (i) any wholly owned Subsidiary of the Borrower may merge
or consolidate with or into, or dispose of all or substantially all of
its assets to, any other wholly owned Subsidiary of the Borrower, (ii)
any wholly owned Subsidiary of the Borrower may merge into or dispose
of all or substantially all of its assets to the Borrower, and (iii)
the Borrower may merge with any other Person, provided in each case
that no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom and, in the case of
any merger to which the Borrower is a party, (A) the Borrower is the
surviving corporation, (B) after giving effect to the consummation of
such merger, (x) the Consolidated Tangible Net Worth of the Borrower
and its Subsidiaries shall be no less than the Consolidated Tangible
Net Worth of the Borrower and its Subsidiaries immediately prior to
such merger, (y) the Borrower's Public Debt Rating from each of S&P and
Moody's shall be the same or better than immediately prior to the
merger (except that in the event that the Borrower's Public Debt Rating
has increased after the Effective Date, the Borrower's Public Debt
Rating shall be the same or better than the Borrower's Public Debt
Rating on the Effective Date) and (z) the Borrower shall be in
compliance with the covenant set forth in Section 5.03 (calculated on a
pro forma basis, as of the date of the consummation of such merger) and
(C) the Borrower shall be in the same line of business as conducted by
it immediately prior to such merger.
(c) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase, lease or otherwise acquire any assets, except
(i) as permitted by Section 5.02(b), (ii) any such sale, lease,
transfer or disposition that is made in the ordinary course of its
business, (iii) any such sale, lease, transfer or disposition by a
Subsidiary of the Borrower to the Borrower or to another wholly owned
Subsidiary of the Borrower (whether by dissolution, liquidation or
otherwise) and (iv) any such sale, lease transfer or disposition to the
extent the net book value of all assets sold, leased, transferred or
disposed of from and after the date hereof pursuant to this clause
(iv), does not exceed the greater of (x) $151,117,500 and (y) 10% of
the Borrower's Consolidated Assets measured as of the last day of the
most recent Fiscal Quarter of the Borrower ended on or prior to such
date of determination.
(d) Subsidiary Debt. Permit any of its Subsidiaries to
create or suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower,
<PAGE> 52
48
(ii) Debt existing on the Effective Date and
described on Schedule 5.02(d) (the "Existing Subsidiary
Debt"), and any Debt extending the maturity of, or refunding
or refinancing, in whole or in part, the Existing Subsidiary
Debt, provided that the terms of any such extending, refunding
or refinancing Debt, and of any agreement entered into and of
any instrument issued in connection therewith, are otherwise
permitted by this Agreement and provided further that the
principal amount of such Existing Subsidiary Debt shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by Section
5.02(a)(ii) or (iv), and with respect to Section 5.02(a)(iv),
not to exceed in the aggregate the amount set forth in such
subsection,
(iv) unsecured Debt incurred in the ordinary course
of business in an aggregate amount not to exceed at any one
time outstanding (as to all Subsidiaries of the Borrower) 10%
of the Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries, and
(v) endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course
of business.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business
of the Borrower and its Subsidiaries taken as a whole as carried on at
the date hereof.
(f) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices that would prevent the Borrower from preparing its
Consolidated financial statements in accordance with GAAP.
SECTION 5.03. Financial Covenant. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
Leverage Ratio. Cause, on the last day of each Fiscal Quarter
of the Borrower, the ratio of (i) Consolidated Debt of the Borrower and
its Subsidiaries on such date of determination to (ii) Consolidated
EBITDA of the Borrower and its Subsidiaries for the four Fiscal
Quarters ended on such date not to exceed 4.0 to 1.
<PAGE> 53
49
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable or the Borrower shall
fail to pay any interest on any Advance or make any other payment due
in connection with this Agreement or any Note within five days after
the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by or
on behalf of the Borrower herein or in any notice, report, certificate,
financial statement, instrument, agreement or other writing delivered
or prepared in connection with this Agreement, shall prove to have been
incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(f), (g) or (l),
Section 5.02(a), (b), (c), (d) or (e) or Section 5.03, or (ii) the
Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(d) (i) The Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium, interest or other amount payable with
respect to any Debt that is outstanding in a principal amount of at
least $1,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or (ii)
any event shall occur or condition shall exist (other than a default of
the type described in clause (i) above) under any agreement or
instrument relating to any Debt that is outstanding in a principal
amount of at least $1,000,000 in the aggregate (but excluding Debt
outstanding hereunder) of the Borrower or any of its Subsidiaries (as
the case may be) and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, and as a result of
such default, event of default, event or condition such Debt is
accelerated, matures, is declared to be due and payable or is otherwise
required to be repaid, prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or
an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated
<PAGE> 54
50
maturity thereof; or (iii) any event shall occur or condition shall
exist (including, without limitation, any event of the type described
in clause (i) above) under any agreement or instrument relating to any
Debt that is outstanding in a principal amount of at least $25,000,000
in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or any of its Subsidiaries (as the case may be) and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Debt, or any such Debt shall be accelerated, declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts, in each such case, under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any
of its Significant Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $10,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
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51
(h) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason (other than due to death or
disability) to constitute a majority of the board of directors of the
Borrower (except to the extent that individuals who at the beginning of
such 24-month period were replaced by individuals (x) elected by
66-2/3% of the remaining members of the board of directors of the
Borrower or (y) nominated for election by a majority of the remaining
members of the board of directors of the Borrower and thereafter
elected as directors by the shareholders of the Borrower); or (iii) any
Person or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of, the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(i) Any ERISA Event shall have occurred and the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of the Plan with respect to which such ERISA Event shall
have occurred and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Borrower and its ERISA Affiliates related to any
such ERISA Event) exceeds $10,000,000; or
(j) The Borrower or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount
that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower and its ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification),
exceeds $10,000,000 or requires payments exceeding $5,000,000 per
annum; or
(k) The Borrower or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of the
Borrower and its ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer
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Plans immediately preceding the plan year in which such reorganization
or termination occurs by an amount exceeding $10,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the
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payee of any Note as the holder thereof until the Administrative Agent receives
and accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 8.07; (ii) may consult with legal counsel (including counsel
for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank, Toronto-Dominion and Affiliates. With
respect to its Commitment, the Advances made by it and the Notes issued to it,
each of Citibank and Toronto-Dominion shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent or the Arrangers, as the case may be; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include
each of Citibank and Toronto-Dominion in its individual capacity. Each of
Citibank and Toronto-Dominion and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank was not
the Administrative Agent and Citicorp Securities and Toronto-Dominion were not
Arrangers and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Administrative Agent (to the extent
not reimbursed by the
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54
Borrower), ratably according to the respective principal amounts of the A Notes
then held by each of them (or if no A Notes are at the time outstanding or if
any A Notes are held by Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender (other than the Designated Bidders)
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. 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
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each of the Lenders (other than the Designated
Bidders), do any of the following: (a) waive any of the conditions specified in
Section 3.01, and in the case of the initial Borrowing, Section 3.02, (b)
increase the Commitments of such Lenders or subject such Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A Notes
or any fees or other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the A Notes, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; provided further that no amendment,
waiver or consent shall, unless in writing and signed by all the Lenders, waive
any of the conditions specified in Section 3.03 or 3.04; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier
or telex communication) and mailed, telecopied, telexed or delivered, if to the
Borrower, at its address at 1177 Summer Street, Stamford, Connecticut 06905,
Attention: Treasurer, with a copy to: Corporate Secretary; if to any Bank, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance or Designation Agreement pursuant to which it became a Lender;
and if to the Administrative Agent, at its address at 1 Court Avenue, Long
Island City, New York 11120, Attention: Philip Green - Loan Syndications
Operations; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied or telexed, be effective when deposited in the mails, telecopied or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent.
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SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all out-of-pocket costs and expenses of the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing and distribution), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Administrative Agent with respect thereto
and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement, provided that all such costs and expenses
of the Administrative Agent (other than (i) fees and expenses of counsel for the
Administrative Agent, (ii) printing costs of the Arrangers incurred in
connection with the syndication of the Commitments and (iii) expenses arising
under Section 5.01(h)) in excess of $1,000 shall be subject to the prior consent
of the Borrower, such consent not to be unreasonably withheld. The Borrower
further agrees to pay on demand all costs and expenses of the Administrative
Agent and the Lenders, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify, exonerate and hold
harmless the Administrative Agent, each Arranger and each Lender and each of
their Affiliates and their officers, directors, employees, agents, advisors,
representatives and controlling persons (each, an "Indemnified Party") from and
against any and all actions, causes of action, suits, costs, claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel), joint or several (collectively, the "Indemnified
Liabilities") that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Notes, this Agreement, any of the transactions
contemplated herein (including, without limitation, the Amendment) or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property currently or formerly owned or
operated by the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its
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Subsidiaries, in each case whether or not an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except to the extent such
Indemnified Liability is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from (x) such Indemnified Party's gross
negligence or willful misconduct, or (y) in an action brought by the Borrower
against an Indemnified Party, such Indemnified Party's negligence. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The Borrower also agrees not to assert any claim against the
Administrative Agent, each Arranger, each Lender, each of their Affiliates, or
any of their respective officers, directors, employees, agents, advisors,
representatives and controlling persons, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to (i) the Notes, this Agreement, any of the transactions contemplated
herein (including, without limitation, the Amendment) or the actual or proposed
use of the proceeds of the Advances or (ii) the actual or alleged presence of
Hazardous Materials on any property of the Borrower or any of its Subsidiaries
or any Environmental Action relating in any way to the Borrower or any of its
Subsidiaries.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, as a result of a payment
or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.15 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by
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such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender, whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01, 2.03 and 2.04 which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Borrower and the Administrative
Agent and when the Administrative Agent shall have been notified by each Lender
that such Lender has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrower, the Administrative Agent and each Lender and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than a Designated Bidder) may and, if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.12 or 2.13)
upon at least five Business Days notice to such Lender and the Administrative
Agent will, assign to one or more banks or other entities all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the A Advances owing to it and the A Note or
Notes held by it); provided that (i) other than in the case of an assignment to
an Affiliate of such Lender, another Lender, or assignments of the type
described in subsection (j) below, such Lender shall have obtained the prior
written consent of the Administrative Agent and the Borrower, such consent not
to be unreasonably withheld, (ii) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make B Advances, B Advances owing to it or B Notes),
(iii) except in the case of an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 and shall be an integral multiple of $1,000,000
and, if the assigning Lender is assigning less than all of its Commitments after
giving effect to such assignment, the amount of the Commitment of the assigning
Lender shall be equal to or greater than $5,000,000, (iv) each such assignment
shall be to an Eligible Assignee, (v) each such assignment made as a result of a
demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the
Borrower after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or
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other such assignments that together cover all of the rights and obligations of
the assigning Lender under this Agreement, (vi) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrower pursuant to
this Section 8.07(a) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any A
Note or A Notes subject to such assignment and a processing and recordation fee
of $3,000 (such fee payable by the assignor or assignee, as agreed by the
parties thereto). Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender hereunder and (y)
the Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
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together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, Lender or Affiliate of such assigning Lender, together with any A Note
or A Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered A Note or Notes a new A
Note, to the order of such Eligible Assignee, in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new A Note, as the case
may be, to the order of the assigning Lender, in an amount equal to the
Commitment retained by it hereunder. Such new A Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered A Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(d) Each Lender (other than a Designated Bidder) may designate
one or more banks or other entities to have a right to make B Advances as a
Lender pursuant to Section 2.03, provided that (i) other than in the case of a
designation by a Lender of an Affiliate of such Lender, such Lender shall have
obtained the prior written consent of the Administrative Agent and the Borrower,
such consent not to be unreasonably withheld or delayed, (ii) no such Lender
shall be entitled to make more than two such designations, (iii) each such
Lender making one or more of such designations shall retain the right to make B
Advances as a Lender pursuant to Section 2.03, (iv) each such designation shall
be to a Designated Bidder and (v) the parties to each such designation shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, a Designation Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Designation Agreement, the designee thereunder shall be a party hereto
with a right to make B Advances as a Lender pursuant to Section 2.03 and the
obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation
<PAGE> 65
61
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such designee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
the Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of each of the Lenders and, with respect
to Lenders other than Designated Bidders, the Commitment of, and principal
amount of the A Advances owing to, each such Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent and the
<PAGE> 66
62
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant, or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower, provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest (or any other
similar interest) in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the Notes held by
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Administrative
Agent nor any Lender shall disclose any Confidential Information to any Person
without the consent of the Borrower, such consent not to be unreasonably
withheld, other than (a) to the Administrative Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective assignees, designees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Extensions of Termination Date for Commitments.
The Borrower may make a single request in writing that the Lenders (other than
the Designated Bidders) agree in writing to extend the Termination Date then in
effect (the "Specified Date") for the Commitments to the 364th day after such
Specified Date; such request shall be received by such Lenders at least 20 days
(but not more than 30 days) prior to the Specified Date. The Termination Date
then in effect will be extended only as to those Lenders who
<PAGE> 67
63
accept the Borrower's request but shall not be extended as to any other Lender.
Such extended Commitments shall become effective on the Specified Date. To the
extent that the Termination Date in effect at any time is not extended as to any
Lender pursuant to this Section 8.10 or by other written agreement executed by
such Lender on or before such Termination Date, the Commitment of such Lender
shall automatically terminate in whole on such unextended Termination Date
without any further notice or other action by the Borrower, such Lender or any
other Person. It is understood that no Lender shall have any obligation
whatsoever to agree to any request made by the Borrower for the extension of the
Termination Date.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Notes, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
or, to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
<PAGE> 68
64
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
RAYONIER INC.
By
--------------------------
Title:
By
--------------------------
Title:
Commitment
- ----------
$13,333,334.50 CITIBANK, N.A.,
as Administrative
Agent and Lender
By
--------------------------
Title:
$13,333,334.50 THE TORONTO-DOMINION BANK,
as Lender
By
-------------------------
Title:
$8,333,333.00 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By
------------------------
Title:
<PAGE> 69
65
$8,333,333.00 THE BANK OF NEW YORK
By
------------------------
Title:
$8,333,333.00 THE CHASE MANHATTAN
BANK, N.A.
By
------------------------
Title:
$8,333,333.00 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
------------------------
Title:
$8,333,333.00 NATIONSBANK, N.A. (CAROLINAS)
By
------------------------
Title:
$8,333,333.00 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
------------------------
Title:
$8,333,333.00 TRUST COMPANY BANK
By
------------------------
Title:
<PAGE> 70
66
$5,000,000.00 AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By
------------------------
Title:
$5,000,000.00 FLEET BANK, N.A.
By
------------------------
Title:
$5,000,000.00 UNITED STATES NATIONAL
BANK OF OREGON
By
------------------------
Title:
$100,000,000 Total of the Commitments
<PAGE> 1
EXHIBIT 4.2
U.S. $200,000,000
REVOLVING CREDIT AGREEMENT
Dated as of April 14, 1995
Among
RAYONIER INC.,
as Borrower
and
THE BANKS NAMED HEREIN,
as Banks
and
CITIBANK, N.A.,
as Administrative Agent
and
CITICORP SECURITIES, INC.
and
THE TORONTO-DOMINION BANK,
as Arrangers
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C>
1.01. Certain Defined Terms........................................................................... 1
1.02. Computation of Time Periods..................................................................... 17
1.03. Accounting Terms................................................................................ 17
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. The A Advances.................................................................................. 17
2.02. Making the A Advances........................................................................... 18
2.03. The B Advances.................................................................................. 19
2.04. The C Advances.................................................................................. 23
2.05. Fees............................................................................................ 25
2.06. Termination or Reduction of the Commitments..................................................... 26
2.07. Repayment of A Advances......................................................................... 26
2.08. Interest on A Advances.......................................................................... 26
2.09. Interest Rate Determination..................................................................... 27
2.10. Optional Conversion of A Advances............................................................... 28
2.11. Optional Prepayments of A Advances.............................................................. 28
2.12. Increased Costs................................................................................. 29
2.13. Illegality...................................................................................... 29
2.14. Payments and Computations....................................................................... 30
2.15. Taxes........................................................................................... 31
2.16. Sharing of Payments, Etc........................................................................ 33
2.17. Use of Proceeds................................................................................. 33
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and 2.04........................... 34
3.02. Conditions Precedent to Each A Borrowing........................................................ 36
3.03. Conditions Precedent to Each B Borrowing........................................................ 36
3.04. Conditions Precedent to Each C Borrowing........................................................ 37
3.05. Determinations Under Section 3.01............................................................... 38
</TABLE>
<PAGE> 3
ii
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
<TABLE>
<S> <C>
4.01. Representations and Warranties of the Borrower.................................................. 38
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants........................................................................... 41
5.02. Negative Covenants.............................................................................. 46
5.03. Financial Covenant.............................................................................. 49
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default............................................................................... 49
ARTICLE VII
THE ADMINISTRATIVE AGENT
7.01. Authorization and Action........................................................................ 52
7.02. Administrative Agent's Reliance, Etc............................................................ 53
7.03. Citibank, Toronto-Dominion and Affiliates....................................................... 53
7.04. Lender Credit Decision.......................................................................... 54
7.05. Indemnification................................................................................. 54
7.06. Successor Administrative Agent.................................................................. 54
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc................................................................................. 55
8.02. Notices, Etc.................................................................................... 55
8.03. No Waiver; Remedies............................................................................. 56
8.04. Costs and Expenses.............................................................................. 56
8.05. Right of Set-off................................................................................ 57
8.06. Binding Effect.................................................................................. 58
8.07. Assignments, Designations and Participations.................................................... 58
8.08. Confidentiality................................................................................. 62
</TABLE>
<PAGE> 4
iii
<TABLE>
<S> <C>
8.09. Governing Law................................................................................... 62
8.10. Execution in Counterparts....................................................................... 62
8.11. Jurisdiction, Etc............................................................................... 63
8.12. Waiver of Jury Trial............................................................................ 63
</TABLE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(f) - Litigation and Environmental Matters
Schedule 4.01(p) - Post-Retirement Benefit Obligations
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Subsidiary Debt
Exhibits
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit A-3 - Form of C Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit B-3 - Form of Notice of C Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Amendment No.1 to the Existing Five-Year Credit Agreement
Exhibit F - Form of Opinion of Counsel for the Borrower
Exhibit G - Borrower's Environmental Disclosure Report
<PAGE> 5
REVOLVING CREDIT AGREEMENT
Dated as of April 14, 1995
RAYONIER INC., a North Carolina corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (the "Banks")
listed on the signature pages hereof, and Citibank, N.A. ("Citibank"), as
Administrative Agent (the "Administrative Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower as part of
an A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Advance" means an A Advance, a B Advance or a C Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
<PAGE> 6
2
"Amendment" means an amendment to the Existing Five-Year Credit
Agreement, in substantially the form of Exhibit E attached hereto.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance or a C Advance, the office of such
Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such B Advance or the Borrower
and the Administrative Agent as its Applicable Lending Office with respect
to a C Advance, as the case may be.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
<TABLE>
<CAPTION>
Applicable
Public Debt Margin for
Rating Eurodollar Rate
S&P/Moody's Advances
----------- ---------------
<S> <C>
Level 1
A-/A3 or above .1950%
Level 2
BBB+/Baal .2250%
Level 3
BBB/Baa2 .2150%
Level 4
BBB-/Baa3 .4250%
Level 5
Less than .5625%
BBB-/Baa3
</TABLE>
"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
<PAGE> 7
3
<TABLE>
<CAPTION>
Public Debt
Rating Applicable
S&P/Moody's Percentage
----------- ----------
<S> <C>
Level 1
A-/A3 or above .1050%
Level 2
BBB+/Baal .1250%
Level 3
BBB/Baa2 .1600%
Level 4
BBB-/Baa3 .2000%
Level 5
Less than .3125%
BBB-/Baa3
</TABLE>
"Arrangers" means Citicorp Securities and Toronto-Dominion.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender (other than a Designated Bidder) and an Eligible
Assignee, and accepted by the Administrative Agent, in substantially the
form of Exhibit C hereto.
"Available Commitment" means, with respect to any Lender at any time
before termination in whole of the 1994 Five-Year Commitments, such
Lender's Commitment less an amount equal to such Lender's pro rata share
(based on such Lender's percentage of the aggregate Commitments of the
Lenders hereunder) of the 1994 Five-Year Commitments, and with respect to
any Lender at any time after termination in whole of the 1994 Five-Year
Commitments, such Lender's Commitment.
"B Advance" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as
part of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
<PAGE> 8
4
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there
is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of
1% per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages specified during
such three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an A Advance that bears interest as
provided in Section 2.08(a)(i).
<PAGE> 9
5
"Borrower's Environmental Disclosure Report" means the report
prepared by the Borrower regarding certain environmental matters, attached
hereto as Exhibit G.
"Borrower's Form 10-K for 1994" has the meaning specified in Section
4.01(f).
"Borrowing" means an A Borrowing, a B Borrowing or a C Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"C Advance" means an advance by a Lender to the Borrower as part of a
C Borrowing resulting from the bidding procedure described in Section
2.04.
"C Borrowing" means a borrowing consisting of simultaneous C Advances
from each of the Requested Lenders whose offer to make one or more C
Advances as part of such borrowing has been accepted by the Borrower under
the bidding procedure described in Section 2.04.
"C Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-3 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a C Advance
made by such Lender.
"C Reduction" has the meaning specified in Section 2.01.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" has the meaning specified in Section 4.01(k).
"Citicorp Securities" means Citicorp Securities, Inc.
"Commercial Paper" means any unsecured promissory note of the
Borrower with a maturity at the time of issuance not exceeding nine
months, exclusive of days of grace, issued by the Borrower pursuant to a
commercial paper program of the Borrower.
"Commitment" means, with respect to any Lender at any time, the
amount set forth opposite such Lender's name on the signature pages hereof
under the caption "Commitment" or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(g), as
such amount may be reduced pursuant to Section 2.06.
<PAGE> 10
6
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender in a writing
designated as confidential, but does not include any such information that
is or becomes generally available to the public or that is or becomes
available to the Administrative Agent or such Lender from a source other
than the Borrower, that is not, to the best of the Administrative Agent's
or such Lender's knowledge, acting in violation of a confidentiality
agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Assets" means on any date of determination, all amounts
that are or should, in accordance with GAAP be included under assets on a
Consolidated balance sheet of the Borrower and its Subsidiaries determined
in accordance with GAAP as at such date.
"Convert", "Conversion" and "Converted" each refers to a conversion
of A Advances of one Type into A Advances of the other Type pursuant to
Section 2.09 or 2.10.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's business and
that are not overdue for a period that is not consistent with the ordinary
course of business of such Person), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property acquired
by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations of such Person
as lessee under leases that have been or should be, in accordance with
GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptance, letter of credit or
similar facilities (other than obligations under (i) Trade Letters of
Credit, (ii) performance bonds or letters of credit issued in connection
with the purchase of inventory, including prepaid timber stumpage, by the
Borrower or any of its Subsidiaries in the ordinary course of business,
(iii) performance bonds or letters of credit to secure obligations under
workers' compensation laws or similar legislation, (iv) performance bonds
or letters of credit issued for the account of the Borrower or any of its
Subsidiaries to secure obligations under self-insurance programs to the
extent permitted by the terms of this Agreement and in an aggregate
maximum available amount with respect to all such performance bonds and
letters of credit not to exceed at any one time $20,000,000 and (v)
performance bonds or letters of credit issued for the
<PAGE> 11
7
account of the Borrower or any of its Subsidiaries not otherwise excluded
from this definition in an aggregate maximum available amount with respect
to all such performance bonds and letters of credit not to exceed at any
one time $2,000,000, provided that in each case such performance bond or
letter of credit (including, without limitation, any Trade Letters of
Credit but excluding performance bonds or letters of credit described in
clause (f)(v) above) does not secure Debt), (g) all Guarantees issued by
such Person and (h) all Debt referred to in clauses (a) through (g) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt. The Debt of any Person shall include the Debt of
any partnership in which such Person is a general partner, but shall not
include obligations under a financial assurance statement that a Person is
required to provide under Environmental Law in support of the closure and
post-closure obligations of one or more of its Subsidiaries.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Affiliate of a Lender or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper
rated at least "Prime-1" by Moody's or "A-1" by S&P or a comparable rating
from the successor of either of them, that, in either case, (x) is
organized under the laws of the United States or any State thereof, (y)
shall have become a party hereto pursuant to Section 8.07(d), (e) and (f)
and (z) is not otherwise a Lender. Notwithstanding the foregoing, other
than in the case of an Affiliate of a Lender, each Designated Bidder shall
be subject to the prior written consent of the Borrower and the
Administrative Agent, such consent not to be unreasonably withheld or
delayed.
"Designation Agreement" means a designation agreement entered into by
a Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Administrative Agent, in substantially the form of Exhibit
D hereto.
"Disclosed Litigation" has the meaning specified in Section 4.01(f).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the
Administrative Agent.
<PAGE> 12
8
"EBITDA" means, for any Person during any period, earnings (income)
from continuing operations before the cumulative effect of accounting
changes and any provision for dispositions, income taxes, interest expense
and depreciation, depletion and amortization.
"Effective Date" means the first date on which the conditions set
forth in Section 3.01 have been satisfied.
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of a
Lender; (c) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$10,000,000,000; (d) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending arrangements
with the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, so long as such bank is acting through a branch or agency
located in the country in which it is organized or another country that is
described in this clause (d); (e) the central bank of any country that is
a member of the Organization for Economic Cooperation and Development; and
(f) any other Person approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that (x) each Eligible Assignee shall maintain a branch
or representative office or similar presence in the United States and (y)
neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.
"Environmental Action" means any (a) administrative, regulatory or
judicial action, suit, written demand, demand letter, written claim,
notice of noncompliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment including, without limitation, (i) by
any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (ii) by any
governmental or regulatory authority for damages, contribution,
indemnification, cost recovery, compensatory or injunctive relief; and (b)
any administrative, regulatory or judicial action, suit or proceeding
brought by any third party properly before a forum of competent
jurisdiction relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment.
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or
<PAGE> 13
9
agency interpretation, policy or guidance relating to the environment,
health, safety or Hazardous Materials all as amended or hereafter amended.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the provision
by the administrator of any Plan of a notice of intent to terminate such
Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA);
(c) the cessation of operations at a facility of the Borrower or any of
its ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (d) the withdrawal by the Borrower or any of its ERISA Affiliates
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the
failure by the Borrower or any of its ERISA Affiliates to make a payment
to a Plan if the conditions for the imposition of a lien under Section
302(f)(1) of ERISA are satisfied; (f) the adoption of an amendment to a
Plan requiring the provision of security to such Plan, pursuant to Section
307 of ERISA; or (g) the institution by the PBGC of proceedings to
terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that could
constitute grounds for the termination of, or the appointment of a trustee
to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule
<PAGE> 14
10
I hereto or in the Assignment and Acceptance pursuant to which it became a
Lender (or, if no such office is specified, its Domestic Lending Office),
or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same A Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered to the Reference Banks by prime banks
in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such A Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an A Advance that bears interest as
provided in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing 364-Day Credit Agreement" means the 364-day Revolving
Credit Agreement, dated as of April 21, 1994, among the Borrower, certain
banks and other financial institutions party thereto, Citibank, N.A., as
administrative agent, and Citicorp Securities and Toronto-Dominion, as
arrangers.
<PAGE> 15
11
"Existing Five-Year Credit Agreement" means the five-year Revolving
Credit Agreement, dated as of April 21, 1994, among the Borrower, certain
banks and other financial institutions party thereto, Citibank, N.A., as
administrative agent, and Citicorp Securities and Toronto-Dominion, as
arrangers.
"Existing Five-Year Lender" means each "Lender" as such term is
defined in the Existing Five-Year Credit Agreement.
"Existing Subsidiary Debt" has the meaning specified in Section
5.02(d)(ii).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fiscal Quarter" means each consecutive three calendar month period
ending March 31, June 30, September 30 or December 31 of any fiscal year.
"GAAP" has the meaning specified in Section 1.03.
"Guarantee" by any Person, means any obligation, contingent or
otherwise, of such Person guaranteeing directly or indirectly in any
manner the Debt of any other Person, or in effect guaranteeing directly or
indirectly the Debt of any other Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (ii) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (iii) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (iv) otherwise to assure a creditor against
loss.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic," or words of similar import, under any applicable
Environmental Law.
<PAGE> 16
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"Indemnified Liabilities" has the meaning specified in Section
8.04(b).
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 12:00 Noon (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period that
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same A Borrowing
shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day; provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
<PAGE> 17
13
"Lenders" means the Banks listed on the signature pages hereof, each
institution that shall become a party hereto pursuant to Section 8.07(a),
(b) and (c) and, except when used in reference to an A Advance, an A
Borrowing, an A Note, a Commitment, a C Advance, a C Borrowing, a C Note
or a term related to any of the foregoing, each Designated Bidder.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Administrative Agent or any Lender under this
Agreement or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and at least one Person other than
the Borrower and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"1994 Five-Year Commitments" means the aggregate amount of the
"Commitments" (as such term is defined in the Existing Five-Year Credit
Agreement) of the Existing Five-Year Lenders.
"Note" means an A Note, a B Note or a C Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
<PAGE> 18
14
"Notice of B Borrowing" has the meaning specified in Section
2.03(a)(i).
"Notice of C Borrowing" has the meaning specified in Section
2.04(a)(i).
"NPL" has the meaning specified in Section 4.01(k).
"Other Taxes" has the meaning specified in Section 2.15(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations that
are not overdue for a reasonable period and which, individually or when
aggregated with all other Permitted Liens outstanding on any date, do not
materially affect the use of the property to which they relate; (c)
pledges or deposits to secure obligations under workers' compensation laws
or similar legislation or to secure public or statutory obligations; and
(d) easements, rights of way, encumbrances and minor defects or
irregularities in title to real property not interfering in any material
respect with the ordinary conduct of the business of the Borrower or any
of its Subsidiaries.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Borrower. For purposes of the foregoing, (a) if no Public
Debt Rating shall be available from either S&P or Moody's, the Applicable
Margin and the Applicable Percentage will be set in accordance with Level
5 under the definition of "Applicable Margin" or "Applicable Percentage",
as the case may be; (b) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage shall be determined by reference to the available rating; (c)
if the ratings established by S&P and Moody's shall fall within different
levels, the Applicable Margin and the Applicable Percentage shall be based
upon the lower rating; (d) if any rating
<PAGE> 19
15
established by S&P or Moody's shall be changed, the change in Applicable
Margin and the Applicable Percentage shall be effective as of the date on
which such change is first announced publicly by the rating agency making
such change; and (e) if S&P or Moody's shall change the basis on which
ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Toronto-Dominion and The Chase
Manhattan Bank, N.A.
"Register" has the meaning specified in Section 8.07(g).
"Requested Lender" has the meaning specified in Section 2.04(a)(i).
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of the
A Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Significant Subsidiary" means, at any time, a Subsidiary of the
Borrower having (a) at least 10% of the total Consolidated Assets of the
Borrower and its Subsidiaries (determined as of the last day of the most
recent Fiscal Quarter of the Borrower ended on or prior to such date) or
(b) at least 5% of the Consolidated revenues of the Borrower and its
Subsidiaries for the four most recent Fiscal Quarters of the Borrower
ended on or prior to such date.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and no Person other than the
Borrower and its ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any of its ERISA Affiliates could have liability
under Section 4069 of ERISA, in the event such plan has been or were to be
terminated.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether, at the time, capital stock of
any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such partnership, joint venture or limited liability
company or (c) the
<PAGE> 20
16
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries. With respect to the Borrower, GHP Leasing Company shall not
constitute a Subsidiary of the Borrower to the extent that GHP Leasing
Company is a corporation in which neither the Borrower nor any of its
Subsidiaries shall own more than 50% of the capital stock of the type
described in clause (a) above.
"Tangible Net Worth" means, with respect to any Person as of any date
of determination, the excess of total assets over total liabilities, total
assets and total liabilities each to be determined in accordance with
GAAP, excluding, however, from the determination of total assets, (a)
goodwill, experimental or organizational expenses, research and
development expenses, franchises, trademarks, service marks, trade names,
copyrights, patents, patent applications, licenses and rights in any
thereof, and other similar intangibles, (b) all unamortized debt discount
and expense, (c) treasury stock and capital stock, obligations or other
securities of, or capital contributions to, or investments in, any
Subsidiary, and (d) any items not included in clauses (a) through (c)
above which are treated as intangibles in conformity with GAAP, in each
case, determined on a Consolidated basis and in accordance with GAAP.
"Taxes" has the meaning specified in Section 2.15(a).
"Termination Date" means the earlier of April 14, 2000 and the date
of termination in whole of the Commitments pursuant to Section 2.06 or
6.01.
"Toronto-Dominion" means The Toronto-Dominion Bank.
"Trade Letter of Credit" means any letter of credit that is issued
for the benefit of a supplier of inventory or provider of a service
necessary for the conduct of the business of the Borrower or any of its
Subsidiaries (other than any financial services) to the Borrower or any of
its Subsidiaries to effect payment for such inventory or service.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part 1 of
Subtitle E of Title IV of ERISA.
<PAGE> 21
17
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with United States generally
accepted accounting principles as in effect from time to time ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF LOANS
SECTION 2.01. The A Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding such Lender's Available Commitment, provided that the aggregate
amount of the Available Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the B Advances and the C
Advances then outstanding and such deemed use of the aggregate amount of the
Available Commitments shall be allocated among the Lenders ratably according to
their respective Commitments (such deemed use of the aggregate amount of the
Available Commitments to the extent of the aggregate amount of B Advances then
outstanding being a "B Reduction" and to the extent of the aggregate amount of C
Advances then outstanding being a "C Reduction"). Each A Borrowing shall be in
an aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and shall consist of A Advances of the same Type and having the
same Interest Period made on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender's Available
Commitment, the Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.11 and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall be
made on notice, given not later than 12:00 Noon (New York City time) on the
third Business Day prior to the date of the proposed A Borrowing (in the case of
an A Borrowing to be comprised of Eurodollar Rate Advances) and given not later
than 11:00 A.M. (New York City time) on the Business Day of the proposed A
Borrowing (in the case of an A Borrowing to be comprised of Base Rate Advances),
by the Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier or by telex. Each such notice of an A
Borrowing (a "Notice of A Borrowing") shall be by telecopier or by telex,
confirmed immediately in writing, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type
of A Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) in the case of an A Borrowing consisting of Eurodollar Rate
Advances, the initial Interest Period for each such A
<PAGE> 22
18
Advance. Each Lender shall on the date of such A Borrowing, before 11:00 A.M.
(New York City time), in the case of an A Borrowing to be comprised of
Eurodollar Rate Advances, and before 1:00 P.M. (New York City time), in the case
of an A Borrowing to be comprised of Base Rate Advances, make available for the
account of its Applicable Lending Office to the Administrative Agent at its
address referred to in Section 8.02, in same day funds, such Lender's ratable
portion of such A Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances for any A Borrowing if the
obligation of the Lenders to make Eurodollar Rate Loans shall then be suspended
pursuant to Section 2.09 or 2.13.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower. In the case of any A Borrowing that the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of A Borrowing for such A Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by such Lender as part
of such A Borrowing when such A Advance, as a result of such failure, is not
made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any A Borrowing (in the case of an A Borrowing to be
comprised of Eurodollar Rate Advances) and not later than 12:00 Noon (New York
City time) on the Business Day of the proposed A Borrowing (in the case of an A
Borrowing to be comprised of Base Rate Advances) that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such A
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at such time to the A Advances
comprising such A Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall
<PAGE> 23
19
constitute such Lender's A Advance as part of such A Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees that
the Borrower may make B Borrowings under this Section 2.03 from time to time on
any Business Day during the period from the Effective Date until the date
occurring 30 days prior to the Termination Date in the manner set forth below,
provided that (x) each B Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and, (y)
following the making of each B Borrowing, the aggregate amount of all Advances
then outstanding shall not exceed the aggregate amount of the Available
Commitments of the Lenders.
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Administrative Agent, by telecopier or by telex,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying
the date and aggregate amount of the proposed B Borrowing, the maturity
date for repayment of each B Advance to be made as part of such B Borrowing
(which maturity date may not be earlier than the date occurring 30 days
after the date of such B Borrowing or later than the earlier of (x) 180
days after the date of such B Borrowing and (y) the Termination Date), the
interest payment date or dates relating thereto, and any other terms to be
applicable to such B Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed B
Borrowing, if the Borrower shall specify in the Notice of B Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates per
annum, and (B) at least four Business Days prior to the date of the
proposed B Borrowing, if the Borrower shall instead specify in the Notice
of B Borrowing the basis to be used by the Lenders in determining the rates
of interest to be offered by them. The Administrative Agent shall in turn
promptly notify each Lender of each request for a B Borrowing received by
it from the Borrower by sending such Lender a copy of the applicable Notice
of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower as part of
such proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00 A.M. (New
York City time) (x) on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant
<PAGE> 24
20
to clause (A) of paragraph (i) above and (y) three Business Days before the
date of such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, of the minimum
amount and maximum amount of each B Advance that such Lender would be
willing to make as part of such proposed B Borrowing (which amounts may,
subject to the proviso to the first sentence of Section 2.03(a), exceed
such Lender's Commitment, if any), the rate or rates of interest therefor
and such Lender's Applicable Lending Office with respect to such B Advance,
provided that if the Administrative Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer before 9:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect not to
make such an offer, such Lender shall so notify the Administrative Agent,
before 10:00 A.M. (New York City time) on the date on which notice of such
election is to be given to the Administrative Agent by the other Lenders,
and such Lender shall not be obligated to, and shall not, make any B
Advance as part of such B Borrowing, provided that the failure by any
Lender to give such notice shall not in any event cause such Lender to be
obligated to make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (x) before 11:00 A.M. (New York
City time) on the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i)
above and (y) before 11:00 A.M. (New York City time) three Business Days
before the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (B) of paragraph (i) above, either:
(A) cancel such B Borrowing by giving the Administrative Agent
notice to that effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in order of the lowest to
highest rates of interest or margins (or, if two or more Lenders bid
at the same rate of interest, and the amount of accepted offers is
less than the aggregate amount of such offers, the amount to be
borrowed from such Lenders as part of such B Borrowing shall be
allocated among such Lenders pro rata on the basis of the maximum
amount offered by such Lenders at such rates or margin in connection
with such B Borrowing), by giving notice to the Administrative Agent
of the amount of each B Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Administrative Agent on behalf
of such Lender for such B Advance pursuant to paragraph (ii) above) to
be made by each Lender as part of such B Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above by
giving the Administrative Agent notice to that effect.
<PAGE> 25
21
(iv) If the Borrower notifies the Administrative Agent that such
B Borrowing is cancelled pursuant to subsection (iii)(A) above, the
Administrative Agent shall give prompt notice thereof to the Lenders
and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(B) above, the
Administrative Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such B Borrowing and whether or not any
offer or offers made by such Lender pursuant to paragraph (ii) above
have been accepted by the Borrower, (B) each Lender that is to make a
B Advance as part of such B Borrowing, of the amount of each B Advance
to be made by such Lender as part of such B Borrowing, and (C) each
Lender that is to make a B Advance as part of such B Borrowing, upon
receipt, that the Administrative Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Article
III. Each Lender that is to make a B Advance as part of such B
Borrowing shall, before 12:00 Noon (New York City time) on the date of
such B Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02 such
Lender's portion of such B Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's aforesaid address. The Administrative Agent
will promptly on the date of each B Borrowing notify each Lender of
the amount of the B Borrowing, the consequent B Reduction, and the
dates upon which such B Reduction commenced and will terminate and the
range of interest rates with respect to the B Advances made as part of
such B Borrowing.
(b) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay pursuant to subsection (c) below and reborrow under this Section 2.03.
(c) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a B Advance, or each other holder of a B
Note on the maturity date of such B Advance (such maturity date being that
specified by the Borrower for repayment in the related Notice of B Borrowing and
provided in the B Note evidencing such B Advance), the then unpaid principal
amount of such B Advance. The Borrower shall not have the right to prepay any B
Advance.
(d) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance until the date the
principal amount of such B
<PAGE> 26
22
Advance is paid in full at the rate of interest for such B Advance specified by
the Lender making such B Advance in the notice delivered pursuant to subsection
(a)(ii) above on the interest date or dates specified by the Borrower for such B
Advance in the related Notice of B Borrowing and set forth in the B Note
evidencing such B Advance.
(e) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of such B Borrowing shall be evidenced by a
separate B Note of the Borrower payable to the order of the Lender making such B
Advance.
(f) Following the making of each B Borrowing, the Borrower shall
be in compliance with the limitation set forth in clause (y) of the proviso to
the first sentence of Section 2.03(a).
(g) The Borrower shall pay to the Administrative Agent for its
own account such fees as may be agreed between the Borrower and the
Administrative Agent in connection with each request for a B Borrowing whether
or not any B Borrowing is in fact made.
<PAGE> 27
23
SECTION 2.04. The C Advances. (a) Each Lender severally agrees
that the Borrower may make C Borrowings under this Section 2.04 from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in the manner set forth below, provided that (x) each C
Borrowing shall be in an aggregate amount of $500,000 or an integral multiple of
$100,000 in excess thereof and (y) following the making of each C Borrowing (A)
the aggregate amount of all C Advances then outstanding shall not exceed
$10,000,000 and (B) the aggregate amount of all Advances then outstanding shall
not exceed the aggregate amount of the Available Commitments of the Lenders.
(i) The Borrower may request a C Borrowing by delivering to at
least three Lenders selected in its sole discretion (each such Lender,
a "Requested Lender"), by telecopier or by telex, confirmed immediately
in writing, a notice of a C Borrowing (a "Notice of C Borrowing") with
a copy thereof to the Administrative Agent, in substantially the form
of Exhibit B-3 hereto, specifying the date and aggregate amount of the
proposed C Borrowing, the maturity date for repayment of each C Advance
to be made as part of such C Borrowing (which maturity date may not be
later than the earlier of (x) the date occurring 30 days after the date
of such C Borrowing and (y) the Termination Date), the interest payment
date or dates relating thereto, the basis to be used by Requested
Lenders in determining the rates of interest to be offered by them, the
time at which such C Advance is to be made, the time by which such
Requested Lender's response is due and the time by which the Borrower
will accept or reject offers made by the Requested Lenders, and any
other terms to be applicable to such C Borrowing.
(ii) Each Requested Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more C Advances to
the Borrower as part of such proposed C Borrowing at a rate or rates of
interest specified by such Requested Lender in its sole discretion, by
notifying the Borrower at or before the time specified in the
applicable Notice of C Borrowing of the minimum amount and maximum
amount of each C Advance that such Requested Lender would be willing to
make as part of such C Borrowing (which amounts may, subject to the
proviso to the first sentence of this Section 2.04(a), exceed such
Lender's Commitment), the rate or rates of interest therefor and such
Requested Lender's Applicable Lending Office with respect to such C
Advance.
(iii) The Borrower shall, in turn, before the time specified
therefor in the applicable Notice of C Borrowing either (A) cancel such
C Borrowing by giving the Requested Lenders and the Administrative
Agent notice to that effect, or (B) accept one or more of the offers
made by a Requested Lender pursuant to paragraph (ii) above by promptly
giving notice to each such Requested Lender and the Administrative
Agent of the amount of the C Advance to be made by such Requested
Lender or Lenders and provide each such Requested Lender that is to
make a C Borrowing the documents
<PAGE> 28
24
required by the applicable conditions set forth in Article III. The
Borrower's election to accept or reject any offers made to it by a
Requested Lender pursuant to paragraph (ii) above shall be made in its
sole discretion regardless of the terms and conditions of any offer
made by any Requested Lender. Upon fulfillment of the conditions set
forth in Article III, each Requested Lender will make its portion of
such C Borrowing available to the Borrower by transferring the amount
of its C Advance to such account as is notified by the Borrower to such
Requested Lender.
(iv) On the date on which the Borrower makes a request for a C
Borrowing and on each date on which a C Borrowing is made, the Borrower
shall promptly (and in any event no later than 3:00 P.M. (New York City
time) on such day) notify the Administrative Agent of (x) such request
for a C Borrowing, including the aggregate amount of the proposed C
Borrowing, the consequent C Reduction and the dates upon which such C
Reduction will terminate, the maturity date for repayment of each C
Advance and the basis to be used by each Requested Lender in
determining the rates of interest being offered by them and (y) the
date of any C Borrowing, the aggregate amount of such C Borrowing, the
consequent C Reduction, each Lender making a C Advance, the interest
rate and the maturity date of each C Advance to be made as part of such
C Borrowing and such other information relating to such C Borrowing as
the Administrative Agent may reasonably request; provided, however, if
the Borrower shall be making an A Borrowing or B Borrowing on the date
on which a C Advance is to be made, the Borrower shall provide the
Administrative Agent with the information set forth in clauses (x) and
(y) above prior to the time such A or B Borrowing is to be made. In
addition, if after making a request therefor the Borrower cancels such
C Borrowing, the Borrower shall promptly notify each Lender of such
cancellation. Promptly after each C Borrowing, the Administrative Agent
will notify each Lender of the amount of the C Borrowing, the
consequent C Reduction and the date upon which such C Reduction
commenced and will terminate and the maturity date for repayment of
each C Advance. The obligation of the Administrative Agent to provide
the Lenders with the information described in the preceding sentence is
limited by the extent to which the Administrative Agent, on or prior to
the time set forth above, shall have previously received such
information from the Borrower. All payments with respect to each C
Advance shall be made not later than 11:00 A.M. (New York City time) on
the date when due in U.S. dollars, to the Lender making such C Advance
at its Applicable Lending Office or such other office as such Lender
may specify in writing to the Borrower in same day funds. The Borrower
shall promptly provide (and in any event no later than 12:00 Noon (New
York City time) on such day) the Administrative Agent with notice of
its payment to a Lender of any amount payable with respect to a C
Advance, the name of the Lender such payment was made to and the amount
of such payment.
<PAGE> 29
25
(b) Within the limits and on the conditions set forth in this
Section 2.04, the Borrower may from time to time borrow under this Section 2.04,
repay pursuant to subsection (c) below and reborrow under this Section 2.04.
(c) The Borrower shall repay to each Lender that has made a C
Advance, or each other holder of a C Note on the maturity date of such C Advance
(such maturity date being that specified by the Borrower for repayment in the
related Notice of C Borrowing and provided in the C Note evidencing such C
Advance), the then unpaid principal amount of such C Advance. The Borrower shall
not have the right to prepay any C Advance.
(d) The Borrower shall pay interest on the unpaid principal
amount of each C Advance from the date of such C Advance until the date the
principal amount of such C Advance is paid in full at the rate of interest for
such C Advance specified by the Lender making such C Advance in the notice
delivered pursuant to subsection (a)(ii) above on the interest date or dates
specified by the Borrower for such C Advance in the related Notice of C
Borrowing and set forth in the C Note evidencing such C Advance.
(e) The indebtedness of the Borrower resulting from each C
Advance made to the Borrower as part of such C Borrowing shall be evidenced by a
separate C Note of the Borrower payable to the order of the Lender making such C
Advance.
(f) Following the making of each C Borrowing, the Borrower
shall be in compliance with the limitations set forth in clause (y) of the
proviso to the first sentence of Section 2.04(a).
(g) The Borrower shall not be required to pay to the
Administrative Agent any separate fees in connection with any C Borrowing or C
Advance.
SECTION 2.05. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender (other than a
Designated Bidder) a facility fee on the aggregate amount of such Lender's
Available Commitment, if any, from the date hereof in the case of each Bank and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each such other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing June 30, 1995, and on the
Termination Date.
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
<PAGE> 30
26
SECTION 2.06. Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that the
aggregate amount of the Available Commitments of the Lenders shall not be
reduced to an amount that is less than the sum of the aggregate principal amount
of the B Advances then outstanding and the aggregate principal amount of the C
Advances then outstanding, and provided further that each partial reduction
shall be in the aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
SECTION 2.07. Repayment of A Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Lenders on the
Termination Date the principal amount of the A Advances then outstanding.
SECTION 2.08. Interest on A Advances. (a) Scheduled Interest.
The Borrower shall pay interest on the unpaid principal amount of each A Advance
owing to each Lender from the date of such A Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such A Advance
is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
(b) Default Interest. At any time during which the Borrower
shall fail (i) to pay any principal of any Advance, any interest on any Advance
or make any other payment in connection with this Agreement when the same
becomes due and payable or (ii) to perform or observe any term, covenant or
agreement contained in Section 5.03, the Borrower shall pay interest on (x) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a)(i) or (a)(ii) above and (y) the amount of
any interest, fee or other
<PAGE> 31
27
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid on
Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.09. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Administrative Agent for
the purpose of determining such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.08(a)(i) or (ii), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.08(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(ii) each such A Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such A Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
<PAGE> 32
28
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any A Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances, and on and after such date
the right of the Borrower to Convert such A Advances into Eurodollar Rate
Advances shall terminate.
SECTION 2.10. Optional Conversion of A Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.09, 2.13
and 2.14, Convert all A Advances of one Type comprising the same Borrowing into
A Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances. Each such notice of
a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the Interest Period
for each such A Advance. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
SECTION 2.11. Optional Prepayments of A Advances. The Borrower
may, upon at least one Business Day's notice to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given, the Borrower shall, prepay the outstanding principal amounts of
the A Advances comprising part of the same Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount not less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.12. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or
<PAGE> 33
29
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided, however,
that, any Lender claiming additional amounts under this Section 2.12 shall use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if such change
would avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender (other than a Designated Bidder) determines
that compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder. A certificate as to such amounts submitted to the Borrower
and the Administrative Agent by such Lender shall be conclusive and binding for
all purposes, absent manifest error.
SECTION 2.13. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of
the Lenders to make, or to Convert A Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist and
(ii) the Borrower shall forthwith prepay in full all Eurodollar Rate Advances of
all Lenders then outstanding, together with interest accrued thereon, unless the
Borrower, within five Business Days of notice from the Administrative Agent,
Converts all Eurodollar Rate Advances of all Lenders then outstanding into Base
Rate Advances in accordance with Section 2.10.
<PAGE> 34
30
SECTION 2.14. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the A Notes and the B Notes not
later than 12:00 Noon (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at its address referred to in Section 8.02 in same
day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.12, 2.15
or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. All payments under the C Notes will be made in accordance with
Section 2.04(a)(iv). Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(g), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the A Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount
<PAGE> 35
31
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.15. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.14,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.15) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by the Borrower
through an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, if the
<PAGE> 36
32
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party that reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement or
the Notes is effectively connected with the conduct of a trade or business in
the United States. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from "Taxes" as defined in Section 2.15(a).
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.15(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.15(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.15 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances owing to it (other
than pursuant to Section 2.12, 2.15 or 8.04(c)) in excess of its ratable share
of payments on account of the A Advances
<PAGE> 37
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the A Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for working capital and general corporate purposes of the Borrower and
its Subsidiaries, including, without limitation, making repayments with respect
to Commercial Paper and other similar loan programs.
<PAGE> 38
34
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01, 2.03 and 2.04. Sections 2.01, 2.03 and 2.04 of this Agreement
shall become effective as of the Effective Date, subject to the conditions
precedent that:
(a) There shall have occurred no Material Adverse Change since
December 31, 1994.
(b) There shall exist no action, suit, investigation,
litigation or proceeding, including any Environmental Action, affecting
the Borrower or any of its Subsidiaries pending or threatened before
any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect, except as set
forth in the Borrower's Environmental Disclosure Report or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not reasonably acceptable to the Lenders) and shall remain in effect,
and no law or regulation shall be applicable in the reasonable judgment
of the Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(d) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent and the Arrangers (including the accrued
fees and expenses of counsel to the Administrative Agent and the
Arrangers then due and payable).
(e) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(A) the representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date; and
(B) no event has occurred and is continuing that
constitutes a Default.
<PAGE> 39
35
(f) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
A Notes) in sufficient copies for each Lender:
(i) The A Notes to the order of the Lenders,
respectively.
(ii) The Amendment, duly executed by the Borrower and
the "Required Lenders" (as such term is defined in the
Existing Five-Year Credit Agreement) thereunder.
(iii) Certified copies of (x) the resolutions of the
Board of Directors of the Borrower approving this Agreement,
the Notes and the Amendment, and (y) the Borrower's charter
and by-laws and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement, the Notes and the Amendment.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement, the Notes and the Amendment and the other
documents to be delivered hereunder.
(v) A favorable opinion of John B. Canning, Corporate
Secretary and Associate General Counsel of the Borrower,
substantially in the form of Exhibit F hereto and as to such
other matters as any Lender through the Administrative Agent
may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(vii) Federal Reserve Forms U-1 provided for in
Regulation U, the statements made in which shall be such as to
permit the transactions contemplated hereby in accordance with
Regulation U.
(g) The Borrower shall have paid all amounts payable under the
Existing 364-Day Credit Agreement and the commitments of the lenders
thereunder shall have been terminated in whole pursuant to a notice of
termination received by the Administrative Agent (as defined in the
Existing 364-Day Credit Agreement) from the Borrower (as defined in the
Existing 364-Day Credit Agreement) in accordance with Section 2.06
thereof.
(h) The Amendment shall be in full force and effect.
<PAGE> 40
36
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such A Borrowing (a) the following
statements shall be true (and each of the giving of the applicable Notice of A
Borrowing and the acceptance by the Borrower of the proceeds of such A Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such A Borrowing such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (e) and
subsection (f) thereof) are correct on and as of the date of such A
Borrowing, before and after giving effect to such A Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; and
(ii) no event has occurred and is continuing, or would result
from such A Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender (other than a Designated Bidder) through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender that is to make a B Advance on the occasion of each B
Borrowing to make such B Advance as part of such B Borrowing is subject to the
conditions precedent that the Effective Date shall have occurred and (a) the
Administrative Agent shall have received the Notice of B Borrowing with respect
thereto, (b) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Administrative Agent shall have received a B Note payable to the
order of such Lender for each of the one or more B Advances to be made by such
Lender as part of such B Borrowing, in a principal amount equal to the principal
amount of the B Advance to be evidenced thereby and otherwise on such terms as
were agreed to for such B Advance in accordance with Section 2.03, and (c) on
the date of such B Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of B Borrowing and the acceptance by the
Borrower of the proceeds of such B Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such B Borrowing such
statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (e) and
subsection (f) thereof) are correct on and as of the date of such B
Borrowing, before and after giving effect to such B Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date;
<PAGE> 41
37
(ii) no event has occurred and is continuing, or would result
from such B Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include any untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 3.04. Conditions Precedent to Each C Borrowing. The
obligation of each Lender that is to make a C Advance on the occasion of each C
Borrowing to make such C Advance as part of such C Borrowing is subject to the
conditions precedent that the Effective Date shall have occurred and (a) such
Lender and the Administrative Agent shall have received the Notice of C
Borrowing with respect thereto, (b) on or before the date of such C Borrowing,
but prior to such C Borrowing, such Lender shall have received a C Note payable
to the order of such Lender for each of the one or more C Advances to be made by
such Lender as part of such C Borrowing, in a principal amount equal to the
principal amount of the C Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such C Advance in accordance with Section 2.04, and
(c) on the date of such C Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of C Borrowing and the acceptance by
the Borrower of the proceeds of such C Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such C Borrowing
such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (e) and
subsection (f) thereof) are correct on and as of the date of such C
Borrowing, before and after giving effect to such C Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date;
(ii) no event has occurred and is continuing, or would result
from such C Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include any untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
<PAGE> 42
38
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the proposed
Effective Date, as notified by the Borrower to the Lenders, specifying its
objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of North
Carolina.
(b) The execution, delivery and performance by the Borrower of
this Agreement, the Notes and the consummation of the transactions
contemplated hereby (including, without limitation, the Amendment) are
within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority, regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement, the Notes or the
Amendment.
(d) This Agreement and the Amendment are, and each of the
Notes when executed and delivered hereunder will be, the legal, valid
and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Arthur Andersen L.L.P., independent public accountants, copies of
which have been furnished to each Lender, fairly present the
Consolidated financial condition of the Borrower and its Subsidiaries
as at such date and the Consolidated
<PAGE> 43
39
results of the operations of the Borrower and its Subsidiaries for the
fiscal year then ended, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1994,
there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower,
threatened action or proceeding, including any Environmental Action,
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect, other than the matters described on
the Borrower's Environmental Disclosure Report (the "Disclosed
Litigation"), or (ii) purports to affect the legality, validity or
enforceability of this Agreement, the Amendment or any Note, and since
the date the Borrower's Environmental Disclosure Report was prepared
there has been no adverse change (other than an adverse change of an
inconsequential nature) in the status, or financial effect on the
Borrower or any of its Subsidiaries, of the Disclosed Litigation from
that described in the Borrower's Environmental Disclosure Report.
Schedule 4.01(f) sets forth any action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending
or, to the knowledge of the Borrower, threatened before any court,
governmental agency or arbitrator that the Borrower has disclosed in
its Form 10-K for the fiscal year ended December 31, 1994, as filed
with the Securities and Exchange Commission (the "Borrower's Form 10-K
for 1994").
(g) No written information, report, financial statement,
exhibit or schedule furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation
of this Agreement or included herein or delivered pursuant hereto
contained or contains any material misstatement of fact or omitted or
omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were or are
made, not misleading.
(h) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(j) (A) Except as set forth in the Borrower's Environmental
Disclosure Report, the operations and properties of the Borrower and
each of its Subsidiaries comply in all material respects with all
Environmental Laws, all material and necessary Environmental Permits
have been obtained and are in effect for the operations and properties
of the Borrower and each of
<PAGE> 44
40
its Subsidiaries, and the Borrower and each of its Subsidiaries are in
compliance in all material respects with all such Environmental
Permits.
(B) Except as set forth in the Borrower's Form 10-K for 1994
and in the Borrower's Environmental Disclosure Report, and except for
the potential effect of the proposed new regulations for the control of
pollutants from pulp and paper mills as published by the U.S.
Environmental Protection Agency in the December 17, 1993 Federal
Register (Volume 58, Federal Register, 66078), to the knowledge of the
Borrower, there are no circumstances that are reasonably likely to form
the basis of an Environmental Action against the Borrower or any of its
Subsidiaries that could be reasonably likely to have a Material Adverse
Effect.
(k) Except as set forth in the Borrower's Environmental
Disclosure Report, none of the properties currently or formerly owned
or operated by the Borrower or any of its Subsidiaries is listed or, to
the knowledge of the Borrower, proposed for listing on the National
Priorities List under CERCLA (the "NPL") or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the U.S. Environmental Protection Agency ("CERCLIS") or
any analogous state list; and no underground storage tanks, as such
term is defined in 42 U.S.C. ss. 6991, are located on any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be likely to have a Material Adverse
Effect.
(l) Except as set forth in the Borrower's Environmental
Disclosure Report, to the knowledge of the Borrower, neither the
Borrower nor any of its Subsidiaries has transported or arranged for
the transportation of any Hazardous Materials to any location that is
listed or proposed for listing on the NPL or on the CERCLIS, which
could reasonably be likely to lead to claims against the Borrower or
such Subsidiary for any remedial work, damage to natural resources or
personal injury that have, or could reasonably be likely to have, a
Material Adverse Effect.
(m) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(n) Neither the Borrower nor any of its ERISA Affiliates has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan.
(o) Neither the Borrower nor any of its ERISA Affiliates has
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
<PAGE> 45
41
(p) Except as set forth in Schedule 4.01(p), the Borrower and
its Subsidiaries have no material liability with respect to
"accumulated post-retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(q) As of the last annual actuarial valuation date, the
"current liability," as defined in Section 412 of the Internal Revenue
Code, under each Plan does not exceed the fair market value of the
assets of such plan and there has been no material adverse change in
the funding status of such Plan since such date.
(r) On the Effective Date, the only Advances (as defined in
the Existing Five-Year Credit Agreement) outstanding will be (i) a B
Advance (as defined in the Existing Five-Year Credit Agreement) in a
principal amount of $25,000,000 which matures on April 21, 1995 and
(ii) a B Advance (as defined in the Existing Five-Year Credit
Agreement) in a principal amount of $35,000,000 which matures on April
26, 1995.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with (i) ERISA and (ii) Environmental
Laws to the extent set forth in Section 5.01(d).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves, if any, to
the extent required in accordance with GAAP, are being maintained.
(c) Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature, or in the case of
any trade payable before such trade payable becomes
<PAGE> 46
42
Debt, except where the amount or validity thereof is currently being
contested in good faith and by appropriate proceedings and as to which
appropriate reserves, if any, to the extent required in accordance with
GAAP, are being maintained.
(d) Compliance with Environmental Laws. (i) Comply and cause
each of its Subsidiaries to comply, in all material respects, with all
Environmental Laws and Environmental Permits that are material to the
conduct of the business of the Borrower or any of its Subsidiaries or
necessary for their operations and properties, and (ii) obtain and
renew, and cause each of its Subsidiaries to obtain and renew, all
Environmental Permits that are material to the conduct of the business
of the Borrower or any of its Subsidiaries or necessary for their
operations and properties; except, with respect to (i) and (ii) above,
to the extent that any such Environmental Law or the terms of any
Environmental Permit are being contested in good faith and by proper
proceedings and as to which appropriate reserves, if any, to the extent
required in accordance with GAAP, are being maintained.
(e) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including self-insurance, in
amounts consistent with industry practice and custom) with responsible
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(f) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise or
the corporate existence of any Subsidiary of the Borrower if the Board
of Directors of the Borrower or such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to
the Borrower and its Subsidiaries taken as a whole or the Lenders.
(g) Visitation Rights. At any reasonable time and from time to
time, upon reasonable prior notice, permit the Administrative Agent or
any of the Lenders or any agents or representatives thereof to examine
and make copies of and abstracts from the records and books of account
of, and visit the properties of the Borrower and any of its
Subsidiaries, as shall be reasonably requested, and to discuss the
affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers and with their independent
certified public accountants.
<PAGE> 47
43
(h) Preparation of Environmental Reports. If an Event of
Default, based either on (i) a breach of any of the representations and
warranties contained in Section 4.01(f) (to the extent such Section
relates to environmental matters), (j), (k) or (l) or (ii)
noncompliance with the covenant contained in Section 5.01(d), shall
have occurred and be continuing for more than 30 days, at the request
of the Required Lenders, provide to the Lenders within 60 days after
such request, at the expense of the Borrower, an environmental site
assessment report for the properties relating to such breach or
noncompliance and as described in such request, prepared by an
environmental consulting firm reasonably acceptable to the Required
Lenders, indicating the presence or absence of Hazardous Materials,
where appropriate, and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Required Lenders reasonably determine at any time that a material risk
exists that any such report will not be provided within the time
referred to above, the Required Lenders may retain an environmental
consulting firm to prepare such report, at the expense of the Borrower
(provided that prior to the commencement of work by an environmental
consulting firm retained by the Required Lenders in connection
herewith, the Required Lenders provide the Borrower with the identity
of such consulting firm, the scope of the assignment and a copy of the
budget provided by such consulting firm in connection with such
assignment), and the Borrower hereby grants and agrees to cause any
Subsidiary that owns any property described in such request to grant at
the time of such request, to the Administrative Agent, the Lenders,
such firm and any agents or representatives thereof a limited (for the
duration of such assessment) irrevocable license, subject to the rights
of tenants, to enter onto their respective properties to undertake such
an assessment upon reasonable prior notice to the Borrower and in a
manner that will not materially interrupt or disrupt the business
operations of the Borrower or its Subsidiaries or tenants.
(i) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which appropriate
entries that are correct in all material respects shall be made, of all
financial transactions and the assets and business of the Borrower and
each such Subsidiary so as to permit preparation of their Consolidated
financial statements in accordance with GAAP.
(j) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or, in the reasonable judgment of the Borrower
or such Subsidiary, useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(k) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or
<PAGE> 48
44
such Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate other than:
(i) transactions among the Borrower and any of its
wholly owned Subsidiaries; and
(ii) transactions among wholly owned Subsidiaries of
the Borrower.
(l) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with GAAP, together with
(a) a certificate of said officer stating that no Default has
occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with
respect thereto and (b) a schedule in form and substance
satisfactory to the Administrative Agent of the computations
used by the Borrower in determining compliance with the
covenant contained in Section 5.03;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion reasonably acceptable to
the Required Lenders by Arthur Andersen L.L.P. or other
independent public accountants acceptable to the Required
Lender, together with (a) a certificate of the chief financial
officer of the Borrower stating that no default has occurred
and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take
with respect thereto and (b) a schedule in form and substance
satisfactory to the Administrative Agent of the computations
used by the Borrower in determining compliance with the
covenant contained in Section 5.03;
(iii) promptly after the Borrower becomes aware of
and in any event within two Business Days after becoming aware
of each Default, continuing on the date of such statement, a
statement of the chief financial officer of the
<PAGE> 49
45
Borrower setting forth details of such Default and the action
that the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the Borrower becomes aware of the
commencement thereof, notice of all actions and proceedings
before any court, governmental agency or arbitrator affecting
the Borrower or any of its Subsidiaries of the type described
in the first sentence of Section 4.01(f);
(vi) promptly and in any event within 10 days after
the Borrower or any of its ERISA Affiliates knows that any
ERISA Event has occurred, a statement of the chief financial
officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has
taken and proposes to take with respect thereto;
(viii) promptly and in any event within three
Business Days after receipt thereof by the Borrower or any of
its ERISA Affiliates, copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a
trustee appointed to administer any such Plan;
(ix) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan;
(x) promptly and in any event within five Business
Days after receipt thereof by the Borrower or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan, copies of
each notice concerning (x) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (y) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (z) the amount of
liability incurred, or that may be incurred, by the Borrower
or any of its ERISA Affiliates in connection with any event
described in clause (x) or (y);
(xi) (A) as soon as practical and in any event
promptly after the receipt thereof by the Borrower, copies of
all written claims, complaints, notices or inquiries relating
to compliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could
reasonably be likely to have a Material Adverse Effect or
could reasonably be likely to (x) form the basis of an
Environmental Action against the Borrower or
<PAGE> 50
46
any of its Subsidiaries or such property that could reasonably
be likely to have a Material Adverse Effect or (y) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law
that could reasonably be likely to have a Material Adverse
Effect and (B) on or before every March 31 and September 30,
commencing on or before September 30, 1995, a report regarding
environmental matters containing the type of information set
forth in the Borrower's Environmental Disclosure Report; and
(xii) such other information respecting the condition
or operations, financial or otherwise, of the Borrower or any
of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
Notwithstanding any of the foregoing, at any time when the
Borrower is subject to the reporting requirements of Section 13(a)(2) of the
Securities Exchange Act of 1934, the Borrower shall be deemed to have complied
with the requirements of clauses (i), (ii) and (v) above, if the Borrower shall
deliver such information to the Administrative Agent promptly after the filing
thereof with the Securities and Exchange Commission by the Borrower and in any
event within three Business Days after such filing.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any property
acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of
such property or to secure Debt incurred solely for the
purpose of financing the acquisition of such property, or
Liens existing on such property at the time of its acquisition
(other than any such Lien created in contemplation of such
acquisition) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount; provided,
however, that no such Lien shall extend to or cover any
property other than the property being acquired, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) the Liens described on Schedule 5.02(a),
<PAGE> 51
47
(iv) other Liens securing Debt outstanding in an
aggregate principal amount (as to the Borrower and all of its
Subsidiaries) not to exceed $25,000,000, and
(v) the replacement, extension or renewal of any Lien
permitted by clauses (ii) and (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so, except that (i) any wholly
owned Subsidiary of the Borrower may merge or consolidate with or into,
or dispose of all or substantially all of its assets to, any other
wholly owned Subsidiary of the Borrower, (ii) any wholly owned
Subsidiary of the Borrower may merge into or dispose of all or
substantially all of its assets to the Borrower, and (iii) the Borrower
may merge with any other Person, provided in each case that no Default
shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom and, in the case of any merger to
which the Borrower is a party, (A) the Borrower is the surviving
corporation, (B) after giving effect to the consummation of such
merger, (x) the Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries shall be no less than the Consolidated Tangible Net Worth
of the Borrower and its Subsidiaries immediately prior to such merger,
(y) the Borrower's Public Debt Rating from each of S&P and Moody's
shall be the same or better than immediately prior to the merger
(except that in the event that the Borrower's Public Debt Rating has
increased after the Effective Date, the Borrower's Public Debt Rating
shall be the same or better than the Borrower's Public Debt Rating on
the Effective Date) and (z) the Borrower shall be in compliance with
the covenant set forth in Section 5.03 (calculated on a pro forma
basis, as of the date of the consummation of such merger) and (C) the
Borrower shall be in the same line of business as conducted by it
immediately prior to such merger.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except (i) as
permitted by Section 5.02(b), (ii) any such sale, lease, transfer or
disposition that is made in the ordinary course of its business, (iii)
any such sale, lease, transfer or disposition by a Subsidiary of the
Borrower to the Borrower or to another wholly owned Subsidiary of the
Borrower (whether by dissolution, liquidation or otherwise) and (iv)
any such sale, lease transfer or disposition to the extent the net book
value of all assets sold, leased, transferred or disposed of from and
after the date hereof pursuant to this clause (iv), does not exceed the
greater of (x) $151,117,500 and
<PAGE> 52
48
(y) 10% of the Borrower's Consolidated Assets measured as of the last
day of the most recent Fiscal Quarter of the Borrower ended on or prior
to such date of determination.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create
or suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned
Subsidiary of the Borrower,
(ii) Debt existing on the Effective Date and
described on Schedule 5.02(d) (the "Existing Subsidiary
Debt"), and any Debt extending the maturity of, or refunding
or refinancing, in whole or in part, the Existing Subsidiary
Debt, provided that the terms of any such extending, refunding
or refinancing Debt, and of any agreement entered into and of
any instrument issued in connection therewith, are otherwise
permitted by this Agreement and provided further that the
principal amount of such Existing Subsidiary Debt shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by Section
5.02(a)(ii) or (iv), and with respect to Section 5.02(a)(iv),
not to exceed in the aggregate the amount set forth in such
subsection,
(iv) unsecured Debt incurred in the ordinary course
of business in an aggregate amount not to exceed at any one
time outstanding (as to all Subsidiaries of the Borrower) 10%
of the Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries, and
(v) endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course
of business.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business
of the Borrower and its Subsidiaries taken as a whole as carried on at
the date hereof.
(f) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices that would prevent the Borrower from preparing its
Consolidated financial statements in accordance with GAAP.
<PAGE> 53
49
SECTION 5.03. Financial Covenant. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
Leverage Ratio. Cause, on the last day of each Fiscal Quarter
of the Borrower, the ratio of (i) Consolidated Debt of the Borrower and
its Subsidiaries on such date of determination to (ii) Consolidated
EBITDA of the Borrower and its Subsidiaries for the four Fiscal
Quarters ended on such date not to exceed 4.0 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable or the Borrower shall
fail to pay any interest on any Advance or make any other payment due
in connection with this Agreement or any Note within five days after
the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by or
on behalf of the Borrower herein or in any notice, report, certificate,
financial statement, instrument, agreement or other writing delivered
or prepared in connection with this Agreement, shall prove to have been
incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(f), (g) or (l),
Section 5.02(a), (b), (c), (d) or (e) or Section 5.03, or (ii) the
Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(d) (i) The Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium, interest or other amount payable with
respect to any Debt that is outstanding in a principal amount of at
least $1,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after
<PAGE> 54
50
the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or (ii) any event shall occur or
condition shall exist (other than a default of the type described in
clause (i) above) under any agreement or instrument relating to any
Debt that is outstanding in a principal amount of at least $1,000,000
in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or any of its Subsidiaries (as the case may be) and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, and as a result of such default, event of
default, event or condition such Debt is accelerated, matures, is
declared to be due and payable or is otherwise required to be repaid,
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or (iii) any
event shall occur or condition shall exist (including, without
limitation, any event of the type described in clause (i) above) under
any agreement or instrument relating to any Debt that is outstanding in
a principal amount of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or any of its
Subsidiaries (as the case may be) and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt, or any
such Debt shall be accelerated, declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts, in each such case, under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any
of its Significant Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
<PAGE> 55
51
(f) Any judgment or order for the payment of money in excess
of $10,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason (other than due to death or
disability) to constitute a majority of the board of directors of the
Borrower (except to the extent that individuals who at the beginning of
such 24-month period were replaced by individuals (x) elected by
66-2/3% of the remaining members of the board of directors of the
Borrower or (y) nominated for election by a majority of the remaining
members of the board of directors of the Borrower and thereafter
elected as directors by the shareholders of the Borrower); or (iii) any
Person or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of, the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(i) Any ERISA Event shall have occurred and the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of the Plan with respect to which such ERISA Event shall
have occurred and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Borrower and its ERISA Affiliates related to any
such ERISA Event) exceeds $10,000,000; or
(j) The Borrower or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount
that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower and its ERISA Affiliates
<PAGE> 56
52
as Withdrawal Liability (determined as of the date of such
notification), exceeds $10,000,000 or requires payments exceeding
$5,000,000 per annum; or
(k) The Borrower or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of the
Borrower and its ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an
amount exceeding $10,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that
<PAGE> 57
53
exposes the Administrative Agent to personal liability or that is contrary to
this Agreement or applicable law. The Administrative Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier
or telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. Citibank, Toronto-Dominion and Affiliates. With
respect to its Commitment, the Advances made by it and the Notes issued to it,
each of Citibank and Toronto-Dominion shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent or the Arrangers, as the case may be; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include
each of Citibank and Toronto-Dominion in its individual capacity. Each of
Citibank and Toronto-Dominion and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank was not
the Administrative Agent and Citicorp Securities and Toronto-Dominion were not
Arrangers and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and
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information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower), ratably according to the respective principal
amounts of the A Notes then held by each of them (or if no A Notes are at the
time outstanding or if any A Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender (other than the Designated Bidders) agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. 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
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VII shall inure to its benefit as to any
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actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each of the Lenders (other than the Designated
Bidders), do any of the following: (a) waive any of the conditions specified in
Section 3.01, and in the case of the initial Borrowing, Section 3.02, (b)
increase the Commitments of such Lenders or subject such Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A Notes
or any fees or other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the A Notes, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; provided further that no amendment,
waiver or consent shall, unless in writing and signed by all the Lenders, waive
any of the conditions specified in Section 3.03 or 3.04; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier
or telex communication) and mailed, telecopied, telexed or delivered, if to the
Borrower, at its address at 1177 Summer Street, Stamford, Connecticut 06905,
Attention: Treasurer, with a copy to: Corporate Secretary; if to any Bank, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance or Designation Agreement pursuant to which it became a Lender;
and if to the Administrative Agent, at its address at 1 Court Street, Long
Island City, New York 11120, Attention: Philip Green-Loan Syndications
Operations; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied or telexed, be effective when deposited in the mails, telecopied or
confirmed by telex answerback, respectively, except
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that notices and communications to the Administrative Agent pursuant to Article
II, III or VII shall not be effective until received by the Administrative
Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all out-of-pocket costs and expenses of the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing and distribution), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Administrative Agent with respect thereto
and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement, provided that all such costs and expenses
of the Administrative Agent (other than (i) fees and expenses of counsel for the
Administrative Agent, (ii) printing costs of the Arrangers incurred in
connection with the syndication of the Commitments and (iii) expenses arising
under Section 5.01(h)) in excess of $1,000 shall be subject to the prior consent
of the Borrower, such consent not to be unreasonably withheld. The Borrower
further agrees to pay on demand all costs and expenses of the Administrative
Agent and the Lenders, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify, exonerate and hold
harmless the Administrative Agent, each Arranger and each Lender and each of
their Affiliates and their officers, directors, employees, agents, advisors,
representatives and controlling persons (each, an "Indemnified Party") from and
against any and all actions, causes of action, suits, costs, claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel), joint or several (collectively, the "Indemnified
Liabilities") that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Notes, this Agreement, any of the transactions
contemplated herein (including, without limitation, the Amendment) or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property currently or formerly owned or
operated by the Borrower or any of its Subsidiaries or any Environmental
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Action relating in any way to the Borrower or any of its Subsidiaries, in each
case whether or not an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent such Indemnified
Liability is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from (x) such Indemnified Party's gross negligence
or willful misconduct, or (y) in an action brought by the Borrower against an
Indemnified Party, such Indemnified Party's negligence. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable
law. The Borrower also agrees not to assert any claim against the Administrative
Agent, each Arranger, each Lender, each of their Affiliates, or any of their
respective officers, directors, employees, agents, advisors, representatives and
controlling persons, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to (i)
the Notes, this Agreement, any of the transactions contemplated herein
(including, without limitation, the Amendment) or the actual or proposed use of
the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, as a result of a payment
or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.15 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender
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or such Affiliate to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter existing under
this Agreement and the Note held by such Lender, whether or not such Lender
shall have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01, 2.03 and 2.04 which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Borrower and the Administrative
Agent and when the Administrative Agent shall have been notified by each Lender
that such Lender has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrower, the Administrative Agent and each Lender and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than a Designated Bidder) may and, if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.12 or 2.13)
upon at least five Business Days notice to such Lender and the Administrative
Agent will, assign to one or more banks or other entities all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the A Advances owing to it and the A Note or
Notes held by it), provided that (i) other than in the case of an assignment to
an Affiliate of such Lender, another Lender, or assignments of the type
described in subsection (j) below, such Lender shall have obtained the prior
written consent of the Administrative Agent and the Borrower, such consent not
to be unreasonably withheld, (ii) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make B Advances, B Advances owing to it or B Notes),
(iii) except in the case of an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 and shall be an integral multiple of $1,000,000
and, if the assigning Lender is assigning less than all of its Commitments after
giving effect to such assignment, the amount of the Commitment of the assigning
Lender shall be equal to or greater than $5,000,000, (iv) each such assignment
shall be to an Eligible Assignee, (v) each such assignment made as a result of a
demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the
Borrower after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
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together cover all of the rights and obligations of the assigning Lender under
this Agreement, (vi) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, and (vii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any A Note or A Notes
subject to such assignment and a processing and recordation fee of $3,000 (such
fee payable by the assignor or assignee, as agreed by the parties thereto). Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
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assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, Lender or Affiliate of such assigning Lender, together with any A Note
or A Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered A Note or Notes a new A
Note, to the order of such Eligible Assignee, in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new A Note, as the case
may be, to the order of the assigning Lender, in an amount equal to the
Commitment retained by it hereunder. Such new A Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered A Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(d) Each Lender (other than a Designated Bidder) may designate
one or more banks or other entities to have a right to make B Advances as a
Lender pursuant to Section 2.03, provided that (i) other than in the case of a
designation by a Lender of an Affiliate of such Lender, such Lender shall have
obtained the prior written consent of the Administrative Agent and the Borrower,
such consent not to be unreasonably withheld or delayed, (ii) no such Lender
shall be entitled to make more than two such designations, (iii) each such
Lender making one or more of such designations shall retain the right to make B
Advances as a Lender pursuant to Section 2.03, (iv) each such designation shall
be to a Designated Bidder and (v) the parties to each such designation shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, a Designation Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Designation Agreement, the designee thereunder shall be a party hereto
with a right to make B Advances as a Lender pursuant to Section 2.03 and the
obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower
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or the performance or observance by the Borrower of any of its obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such designee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into the Designation Agreement; (iv)
such designee will, independently and without reliance upon the Administrative
Agent, such designating Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v)
such designee confirms that it is a Designated Bidder; (vi) such designee
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such designee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of each of the Lenders and, with respect
to Lenders other than Designated Bidders, the Commitment of, and principal
amount of the A Advances owing to, each such Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with
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such Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant, or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower, provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest (or any other
similar interest) in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the Notes held by
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Administrative
Agent nor any Lender shall disclose any Confidential Information to any Person
without the consent of the Borrower, such consent not to be unreasonably
withheld, other than (a) to the Administrative Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective assignees, designees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
<PAGE> 67
63
SECTION 8.11. Jurisdiction, Etc. (a) Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Notes, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
or, to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
<PAGE> 68
64
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
RAYONIER INC.
By
---------------------------------
Title:
By
---------------------------------
Title:
Commitment
$26,666,665.50 CITIBANK, N.A.,
as Administrative
Agent and Lender
By
---------------------------------
Title:
$26,666,665.50 THE TORONTO-DOMINION BANK,
as Lender
By
---------------------------------
Title:
$16,666,667.00 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By
---------------------------------
Title:
<PAGE> 69
65
$16,666,667.00 THE BANK OF NEW YORK
By
---------------------------------
Title:
$16,666,667.00 THE CHASE MANHATTAN
BANK, N.A.
By
---------------------------------
Title:
$16,666,667.00 MORGAN GUARANTY TRUST
By
---------------------------------
Title:
$16,666,667.00 NATIONSBANK, N.A. (CAROLINAS)
By
---------------------------------
Title:
$16,666,667.00 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
---------------------------------
Title:
$16,666,667.00 TRUST COMPANY BANK
By
---------------------------------
Title:
<PAGE> 70
66
$10,000,000.00 AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By
---------------------------------
Title:
$10,000,000.00 FLEET BANK, N.A.
By
---------------------------------
Title:
$10,000,000.00 UNITED STATES NATIONAL
BANK OF OREGON
By
---------------------------------
Title:
$200,000,000 Total of the Commitments
<PAGE> 1
EXHIBIT 12
RAYONIER INC. AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(unaudited)
(thousands of dollars)
<TABLE>
<CAPTION>
Three Months
Ended March 31,
---------------
1995 1994
---- ----
<S> <C> <C>
Earnings:
Net Income $25,149 $21,719
Add (Deduct):
Income Taxes 12,528 12,164
Minority Interest 9,300 11,076
Amortization of Capitalized Interest 411 353
------- -------
47,388 45,312
Adjustments to Earnings for Fixed Charges:
Interest and Other Financial Charges 8,535 6,746
Interest Factor Attributable to Rentals 369 440
------- -------
8,904 7,186
------- -------
EARNINGS AS ADJUSTED $56,292 $52,498
======= =======
Fixed Charges:
Fixed Charges above $ 8,904 $ 7,186
Capitalized Interest 190 7
------- -------
Total Fixed Charges $ 9,094 $ 7,193
======= =======
RATIO OF EARNINGS AS ADJUSTED TO
TOTAL FIXED CHARGES 6.19 7.30
==== ====
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> MAR-31-1995
<CASH> 12,268
<SECURITIES> 0
<RECEIVABLES> 121,947
<ALLOWANCES> 4,424
<INVENTORY> 145,160
<CURRENT-ASSETS> 349,553
<PP&E> 1,225,380
<DEPRECIATION> 547,451
<TOTAL-ASSETS> 1,570,030
<CURRENT-LIABILITIES> 217,016
<BONDS> 482,783
<COMMON> 158,263
0
0
<OTHER-SE> 515,367
<TOTAL-LIABILITY-AND-EQUITY> 1,570,030
<SALES> 285,832
<TOTAL-REVENUES> 285,832
<CGS> 224,044
<TOTAL-COSTS> 224,044
<OTHER-EXPENSES> 15,576
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8,535
<INCOME-PRETAX> 37,677
<INCOME-TAX> 12,528
<INCOME-CONTINUING> 25,149
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 25,149
<EPS-PRIMARY> 0.84
<EPS-DILUTED> 0.84
</TABLE>
