<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly report pursuant to section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended March 31, 1998
Commission file number: 1-8306
AIR EXPRESS INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-2074327
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
120 Tokeneke Road, Darien, Connecticut 06820
(203) 655-7900
(Address of, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
NONE
Former name, former address and former fiscal year, if changed since last report
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 3 months (or for such shorter period that the registrant
was required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date (applicable only to corporate
registrants).
The number of shares of common stock outstanding as of May 11, 1998 was
34,752,917 (Net of 140,086 Treasury Shares).
<PAGE>
AIR EXPRESS INTERNATIONAL CORPORATION
March 1998 Form 10-Q Quarterly Report
Table of Contents
Part I - Financial Information
Page
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as at
March 31, 1998 and December 31, 1997......................... 2
Condensed Consolidated Statements of Operations -
three months ended March 31, 1998 and 1997................... 3
Consolidated Statements of Cash Flows -
three months ended March 31, 1998 and 1997................... 4
Notes to Condensed Consolidated Financial
Statements................................................... 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations............................ 7
Part II - Other Information
Item 1. Legal Proceedings.............................................. 10
Item 6. Exhibits and Reports on Form 8-K............................... 10
<PAGE>
Page 2
<TABLE>
AIR EXPRESS INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
March 31,1998 Dec 31,1997
(Unaudited)
Assets
<S> <C> <C>
Current Assets:
Cash and cash equivalents ......................... $ 68,367 $ 67,576
Accounts receivable, (less allowance for
doubtful accounts of $4,295 and $4,224) .......... 362,464 366,159
Other current assets .............................. 7,474 8,344
Total current assets ........................ 438,305 442,079
Investment in unconsolidated affiliates .............. 26,522 19,174
Restricted funds ..................................... 12,149 15,957
Property, plant and equipment (less accumulated
depreciation and amortization of $60,912
and $57,235) ........................................ 63,631 60,441
Deposits and other assets ............................ 19,959 17,386
Goodwill (less accumulated amortization
of $12,977 and $12,424) ............................. 81,895 83,104
Total assets ................................ $ 642,461 $ 638,141
Liabilities and stockholders' investment
Current Liabilities:
Current portion of long-term debt ................. $ 2,686 $ 2,654
Bank overdrafts payable ........................... - 315
Transportation payables ........................... 173,586 174,125
Accounts payable .................................. 59,796 58,373
Accrued liabilities ............................... 58,641 61,263
Income taxes payable .............................. 7,623 10,168
Total current liabilities ................... 302,332 306,898
Long-term debt .................................... 30,925 31,008
Other liabilities ................................. 8,721 8,673
Total liabilities ........................... 341,978 346,579
Stockholders' Investment:
Capital stock-
Preferred (authorized 1,000,000 shares,
none outstanding) ................................ - -
Common, $.01 par value (authorized 40,000,000
shares, issued 34,844,927 and 34,676,626 shares .. 348 347
Additional paid-in capital ........................ 145,418 142,674
Cumulative translation adjustments ................ (30,684) (28,961)
Retained earnings ................................. 188,882 180,887
303,964 294,947
Less: 135,755 and 132,388 shares of treasury stock,
at cost ....................................... (3,481) (3,385)
Total stockholders' investment .................... 300,483 291,562
Total liabilities and stockholders' investment .... $ 642,461 $ 638,141
</TABLE>
The accompanying notes are an integral part
of these financial statements.
<PAGE>
Page 3
<TABLE>
AIR EXPRESS INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except
per share data)
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Revenues ..................................... $372,376 $351,155
Operating expenses:
Transportation .............................. 254,523 238,724
Terminal .................................... 67,126 64,126
Selling, general and
administrative ............................. 37,571 36,018
Operating profit ............................. 13,156 12,287
Other income:
Interest, net ............................... 357 208
Other, net .................................. 2,055 1,278
2,412 1,486
Income before provision
for income taxes ............................ 15,568 13,773
Provision for income taxes ................... 5,838 5,234
Net income ................................... $ 9,730 $ 8,539
Income per common share:
Basic ................................... $ .28 $ .25
Diluted ................................. $ .28 $ .25
Weighted average number
of common shares (000's):
Basic ................................... 34,639 34,184
Diluted ................................. 35,381 34,883
</TABLE>
The accompanying notes are an integral part
of these financial statements.
<PAGE>
Page 4
<TABLE>
AIR EXPRESS INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 1998 AND 1997
(Dollars in thousands)
1998 1997
<S> <C> <C>
Cash flows from operating activities:
Net Income .......................................... $ 9,730 $ 8,539
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization ................... 3,436 3,041
Amortization of goodwill ........................ 622 652
Deferred income taxes ........................... (1,490) (1,000)
Equity in earnings of unconsolidated
affiliates ..................................... (1,069) (712)
Gains on sales of assets, net ................... (8) (27)
Changes in assets and liabilities:
Decrease in accounts receivable, net ............ 2,117 7,837
Decrease (increase) in other current assets ..... 862 (550)
(Increase) in other assets ....................... (619) (741)
(Decrease) increase in transportation payables ... (536) 6,514
Increase in accounts payable .................... 1,939 2,302
(Decrease) in accrued liabilities ................ (2,429) (2,411)
(Decrease) in income taxes payable ............... (1,501) (182)
Increase in other liabilities ................... 78 54
Total adjustments ............................. 1,402 14,777
Net cash provided by operating activities ....... 11,132 23,316
Cash flows from investing activities:
Restricted funds .................................... 3,808 -
Other investing activities .......................... - 41
Proceeds from sales of assets ....................... 283 295
Capital expenditures ................................ (6,787) (3,110)
Investment in unconsolidated affiliates ............. (7,040) (1,179)
Net cash used in investing activities ........... (9,736) (3,953)
Cash flows from financing activities:
Net repayments in bank overdrafts payable .......... (366) (1,745)
Payment of long-term debt .......................... (39) (662)
Issuance of common stock ........................... 1,847 837
Payment of cash dividends .......................... (1,728) (1,364)
Purchase of treasury stock ......................... (96) -
Net cash used by financing activities ........... (382) (2,934)
Effect of foreign currency exchange rates on cash ...... (223) (600)
Net increase in cash and cash equivalents .............. 791 15,829
Cash and cash equivalents at beginning of period ....... 67,576 46,516
Cash and cash equivalents at end of period ............. $ 68,367 $ 62,345
</TABLE>
The accompanying notes are an integral part
of these financial statements.
<PAGE>
Page 5
AIR EXPRESS INTERNATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
A. The consolidated balance sheet at March 31, 1998, the consolidated
statements of operations for the three-month periods ended March 31, 1998
and 1997, and the consolidated statements of cash flows for the three-month
periods ended March 31, 1998 and 1997 were prepared by the Company without
audit. In the opinion of management, all adjustments necessary to present
fairly the financial position, results of operations, and cash flows for
the interim periods were made. Certain items in the March 31, 1997
financial statements were reclassified to conform to the classification of
March 31, 1998 financial statements.
Certain information and footnote disclosures, normally included in
financial statements prepared in accordance with generally accepted
accounting principles, were condensed or omitted. Accordingly, these
condensed consolidated financial statements should be read in conjunction
with the consolidated financial statements and notes thereto included in
the Company's annual report to stockholders for the year ended December 31,
1997.
Statements included herein which are not historical facts are
forward-looking statements. These statements are based upon information
available to the Company on the date hereof. Inherent in these statements
are a variety of risks and other factors, both known and unknown, which may
cause the Company's actual results to differ materially from those in
forward-looking statements. Accordingly, the realization of forward-looking
statements is not certain, and all such statements should be evaluated
based upon the applicable risks and uncertainties affecting the Company.
Consequently, the results of operations for the three-month period ended
March 31, 1998 are not necessarily indicative of the results of operations
expected for the full year ending December 31, 1998.
B. Interest, net was as follows:
<TABLE>
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Interest expense ......................... $(323) $(383)
Interest income .......................... 680 591
$ 357 $ 208
</TABLE>
C. Other, net was as follows:
<TABLE>
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Equity in earnings of
unconsolidated affiliates ................ $1,574 $ 712
Foreign exchange gains .................... 473 539
Other ..................................... 8 27
$2,055 $1,278
</TABLE>
<PAGE>
Page 6
D. Supplemental disclosures of cash flow information:
<TABLE>
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Interest and income taxes paid:
Interest ............................... $ 222 $ 264
Income taxes ........................... 4,465 4,818
$4,687 $5,082
</TABLE>
E. Comprehensive income:
<TABLE>
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Net income ................................. $ 9,730 $ 8,539
Other comprehensive income:
Translation of foreign currency
financial statements .................... (1,861) (2,024)
Income tax benefit ....................... 138 681
(1,723) (1,343)
Comprehensive income ....................... $ 8,007 $ 7,196
</TABLE>
<PAGE>
Page 7
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Results of Operations
The Company considers its total business to represent a single segment
comprised of three major services: airfreight forwarding, ocean freight
forwarding, and customs brokerage and other services, all of which are fully
integrated. The following table sets forth the gross revenues and net revenues
(gross revenues minus transportation expenses) for each of these three service
categories, as well as the Company's internal operating expenses (terminal and
selling, general and administrative expenses) and operating profit:
<TABLE>
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Gross Revenues:
Airfreight ....................................... $ 291.5 $ 272.7
Ocean freight .................................... 43.2 44.3
Customs brokerage and other ...................... 37.7 34.2
Total Gross Revenues ........................... $ 372.4 $ 351.2
Net Revenues:
Airfreight ....................................... $ 74.6 $ 69.4
Ocean freight .................................... 12.5 13.3
Customs brokerage and other ...................... 30.8 29.7
Total Net Revenues ............................. 117.9 112.4
Internal Operating Expenses:
Terminal ......................................... 67.1 64.1
Selling, general and administrative .............. 37.6 36.0
Total Internal Operating Expenses .............. 104.7 100.1
Operating Profit ................................... $ 13.2 $ 12.3
</TABLE>
Consolidated gross revenues for the first quarter of 1998 increased $21.2
million (6.0%) over the first quarter of 1997. The increase in revenues was
negatively impacted by approximately $20.4 million due to the effect of a
stronger U.S. dollar when converting foreign currency revenues into U.S. dollars
for financial reporting purposes. Consolidated net revenues increased $5.5
million (4.9%) over the comparable 1997 period. The increases in gross revenues
were comprised of a $18.8 million (6.9%) increase in airfreight revenues, $1.1
million (2.5%) decrease in ocean freight revenues, and a $3.5 million (10.2%)
increase in customs brokerage and other revenues. The increases in net revenues
were comprised of a $5.2 million (7.5%) increase in airfreight net revenues, a
$.8 million (6.0%) decrease in ocean freight net revenues, and a $1.1 million
(3.7%) increase in customs brokerage and other net revenues. The increases in
gross and net revenues from airfreight services were attributable to an increase
of 3.8% in the number of international shipments and a corresponding increase of
13.9% in the total weight of cargo shipped. The gross margin (net revenues as a
percentage of gross revenues) for airfreight services increased marginally over
the first quarter of 1997 to 25.6%. Excluding the effects from the sale of the
<PAGE>
Page 8
Company's 60.0% ownership in a foreign subsidiary, which occurred subsequent to
the first quarter of 1997, ocean freight gross revenues increased $3.2 million
(8.0%) over the first quarter of 1997, while net revenues remained unchanged.
The increases in gross and net revenues from customs brokerage and other
services were mainly due to the Company's continuing efforts to expand its
customs brokerage activities to existing and new customers.
Internal operating expenses increased $4.6 million (4.6%) over the first
quarter of 1997. The increase was mainly due to the additional expenses incurred
in connection with the greater shipping volumes. As percentage of gross
revenues, internal operating expenses declined .4% from 28.5% for the first
quarter of 1997 to 28.1% for the first quarter of 1998.
Consolidated operating profit for the first quarter of 1998 increased $.9
million (7.3%) over the first quarter of 1997. The increase reflects increases
in operating profit in the Company's foreign operations.
Other, net increased $.8 million over the first quarter of 1997. The
increase was mainly attributable to the results from equity investments in two
foreign joint ventures which were acquired subsequent to the first quarter of
1997.
The effective income tax rate for the first quarter of 1998 decreased to
37.5% from 38.0% for the first quarter of 1997. The decrease was largely the
result of a shift in the mix of worldwide earnings to countries with lower
effective tax rates along with reduced losses incurred by certain foreign
subsidiaries for which there were no tax benefits available.
<PAGE>
Page 9
Liquidity and Capital Resources
At March 31, 1998, cash and cash equivalents increased approximately $.8
million to $68.4 million from $67.6 million at December 31, 1997. For the first
quarter of 1998, the Company's primary sources of cash were $11.1 million from
operating activities and $3.8 million from restricted funds; while its primary
uses were for: investments in unconsolidated affiliates of $7.0 million, capital
expenditures of $6.8 million and dividend payments of $1.7 million. Cash flow
provided by operating activities decreased approximately $12.2 million when
compared with the first quarter of 1997. The decrease resulted mainly from a
decline in transportation payables coupled with an increase in accounts
receivable. Working capital increased marginally in the quarter to $136.0
million.
Capital expenditures increased approximately $3.7 million from $3.1 million
for the first quarter of 1997 to $6.8 million for the first quarter of 1998.
Approximately $3.8 million of the capital expenditures relates to the
construction of a freight terminal at New York's John F. Kennedy International
Airport, with the remaining balance primarily for improvement and expansion of
facilities and management information services.
At March 31, 1998, the Company had available for future borrowings
approximately $71.8 million of its $75.0 million revolving credit facility. The
Company utilized approximately $3.2 million under this facility mainly for
letters of credit issued in connection with its insurance programs.
Additionally, various of the Company's foreign subsidiaries maintained overdraft
facilities with foreign banks, aggregating approximately $22.7 million, none of
which was utilized.
Management believes that the Company's available cash and sources of
credit, together with expected future sources of credit and cash generated from
operations, will be sufficient to satisfy its anticipated needs for working
capital, capital expenditures and dividends.
Year 2000
In 1997, the Company undertook an assessment to determine the impact of
year 2000 compliance on its computer systems. This assessment resulted in
preliminary plans to prepare the Company for year 2000 readiness. These plans
include remediation of certain systems and the upgrading and replacement of
certain other of the Company's systems. In accordance with Issue 96-14 of the
Emerging Issues Task Force of the Financial Accounting Standards Board, which
requires the costs associated with modifying computer software for the year 2000
to be expensed as incurred, the Company will expense the costs incurred to
remediate the applicable systems. These costs are estimated to be in the range
of $5.0 to $7.0 million. The estimated costs will vary as the remediation and
testing of the Company's systems progresses. The Company believes that the
remediation, upgrade and replacement of its systems will be ready for year 2000
prior to any impact on its operations. If, however, the remediation, upgrade or
replacement of the Company's systems is not completed timely, and negatively
impacts the Company's year 2000 readiness, the Company's operations may be
materially affected.
<PAGE>
Page 10
PART II - OTHER INFORMATION
Item 1. - Legal Proceedings
The Company is involved in various legal proceedings generally incidental
to its business. While the result of any litigation contains an element of
uncertainty, the Company presently believes that the outcome of any known
pending or threatened legal proceeding or claim, or all of them combined, will
not have a material adverse effect on its results of operations or consolidated
financial position.
Item 6. - Exhibits and Reports on Form 8-K
a) Exhibits:
Exhibit 10 - Revolving Credit Agreement
Exhibit 11 - Computation of Earnings Per Common Share.
Exhibit 27 - Financial Data Schedule.
b) Reports on Form 8-K:
None.
<PAGE>
Page 11
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Air Express International Corporation
(Registrant)
Date: May 14, 1998 /s/ Dennis M. Dolan
Dennis M. Dolan
Vice President and
Chief Financial Officer
(Principal Financial Officer)
<PAGE>
REVOLVING CREDIT AGREEMENT
by and among
AIR EXPRESS INTERNATIONAL CORPORATION,
THE LENDERS PARTY HERETO,
THE FIRST NATIONAL BANK OF CHICAGO,
AS CO-AGENT
AND
THE BANK OF NEW YORK, AS AGENT AND AS ISSUING BANK
----------------
$75,000,000
----------------
Dated as of June 28, 1996
================================================================================
================================================================================
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ............................. 1
1.1. Definitions ..................................................... 1
1.2. Principles of Construction ..................................... 21
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT ....................... 22
2.1. Revolving Credit Loans ......................................... 22
2.2. Revolving Credit Notes ......................................... 22
2.3. Procedure for Borrowing Revolving Credit Loans ................. 23
2.4. Competitive Bid Loans; Procedure ............................... 24
2.5. Termination or Reduction of Commitments and
Letter of Credit Commitment .................................... 27
2.6. Prepayments of the Loans ....................................... 27
2.7. Use of Proceeds ................................................ 28
2.8. Letter of Credit Sub-Facility .................................. 29
2.9. Letter of Credit Participation and Funding
Commitments .................................................... 30
2.10. Absolute Obligation With Respect to Letter of
Credit Payments ............................................... 31
2.11. Payments ...................................................... 31
2.12. Extensions .................................................... 32
2.13. Agent's Records ............................................... 33
3. INTEREST, FEES, YIELD PROTECTIONS, ETC. ............................... 33
3.1. Interest Rate and Payment Dates ................................ 33
3.2. Fees ........................................................... 35
3.3. Conversions and Continuations .................................. 35
3.4. Concerning Eurodollar Interest Periods ......................... 36
3.5. Indemnification for Loss ....................................... 37
3.6. Capital Adequacy ............................................... 38
3.7. Reimbursement for Increased Costs .............................. 38
3.8. Illegality of Funding .......................................... 39
3.9. Substituted Interest Rate ...................................... 40
3.10. Taxes ......................................................... 40
3.11. Option to Fund ................................................ 42
4. REPRESENTATIONS AND WARRANTIES ........................................ 43
4.1. Subsidiaries ................................................... 43
4.2. Existence and Power ............................................ 43
4.3. Authority ...................................................... 44
4.4. Binding Agreement .............................................. 44
<PAGE>
4.5. Litigation ..................................................... 44
4.6. Required Consents .............................................. 44
4.7. Absence of Defaults; No Conflicting Agreements ................. 45
4.8. Compliance with Applicable Laws ................................ 45
4.9. Taxes .......................................................... 45
4.10. Governmental Regulations ...................................... 46
4.11. Federal Reserve Regulations; Use of Loan
Proceeds ...................................................... 46
4.12. Plans ......................................................... 46
4.13. Financial Statements .......................................... 47
4.14. Property ...................................................... 47
4.15. Authorizations ................................................ 48
4.16. Environmental Matters ......................................... 48
4.17. Absence of Certain Restrictions ............................... 49
4.18. Status as Senior Indebtedness ................................. 49
4.19. Security Interest ............................................. 49
4.20. No Misrepresentation .......................................... 49
5. CONDITIONS TO EFFECTIVENESS ........................................... 50
5.1. Evidence of Action ............................................. 50
5.2. This Agreement ................................................. 50
5.3. Notes .......................................................... 50
5.4. Subsidiary Guaranty ............................................ 50
5.5. Absence of Litigation .......................................... 51
5.6. Approvals and Consents ......................................... 51
5.7. Intercompany Notes ............................................. 51
5.8. Opinion of Counsel ............................................. 51
5.9. Opinion of Special Counsel ..................................... 51
5.10. Subordinated Indenture ........................................ 52
5.11. Property, Public Liability and Other
Insurance ..................................................... 52
5.12. Fees .......................................................... 52
5.13. Fees and Expenses of Special Counsel .......................... 52
5.14. Other Documents ............................................... 52
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF
CREDIT ................................................................ 52
6.1. Compliance ..................................................... 52
6.2. Borrowing Request; Letter of Credit Request;
Competitive Bid Request ........................................ 53
6.3. Other Documents ................................................ 53
7. AFFIRMATIVE COVENANTS ................................................. 53
-ii-
<PAGE>
7.1. Financial Statements and Information ........................... 53
7.2. Certificates; Other Information ................................ 54
7.3. Legal Existence ................................................ 57
7.4. Taxes .......................................................... 57
7.5. Insurance ...................................................... 57
7.6. Performance of Obligations ..................................... 58
7.7. Condition of Property .......................................... 58
7.8. Observance of Legal Requirements ............................... 58
7.9. Inspection of Property; Books and Records;
Discussions .................................................... 58
7.10. Authorizations ................................................ 59
7.11. Financial Covenants ........................................... 59
7.12. Additional Material Domestic Subsidiaries ..................... 59
7.13. Concerning the Collateral ..................................... 60
8. NEGATIVE COVENANTS .................................................... 60
8.1. Indebtedness ................................................... 60
8.2. Liens .......................................................... 61
8.3. Merger, Consolidations and Acquisitions ........................ 62
8.4. Dispositions ................................................... 64
8.5. Investments, Loans, Etc. ....................................... 64
8.6. Restricted Payments ............................................ 65
8.7. Line of Business; Cash Management Procedures ................... 65
8.8. ERISA .......................................................... 66
8.9. Sale and Leaseback Transactions ................................ 66
8.10. Amendments, Etc. of Certain Documents and
Agreements .................................................... 66
8.11. Transactions with Affiliates .................................. 66
8.12. Issuance of Additional Capital Stock .......................... 66
8.13. Limitation on Certain Restrictions on
Subsidiaries .................................................. 67
9. DEFAULT ............................................................... 67
9.1. Events of Default .............................................. 67
9.2. Contract Remedies .............................................. 70
10. THE AGENT ............................................................ 71
10.1. Appointment ................................................... 71
10.2. Delegation of Duties .......................................... 71
10.3. Exculpatory Provisions ........................................ 71
10.4. Reliance by Agent ............................................. 72
10.5. Notice of Default ............................................. 73
10.6. Non-Reliance on Agent and Other Lenders ....................... 73
-iii-
<PAGE>
10.7. Indemnification ............................................... 73
10.8. Agent in Its Individual Capacity .............................. 74
10.9. Successor Agent ............................................... 75
10.10. Co-Agent ..................................................... 75
11. OTHER PROVISIONS ..................................................... 75
11.1. Amendments and Waivers ........................................ 75
11.2. Notices ....................................................... 76
11.3. No Waiver; Cumulative Remedies ................................ 78
11.4. Survival of Representations and Warranties
and Certain Obligations ....................................... 78
11.5. Payment of Expenses and Taxes ................................. 78
11.6. Lending Offices ............................................... 79
11.7. Assignments and Participations ................................ 79
11.8. Indemnity ..................................................... 81
11.9. Limitation of Liability ....................................... 82
11.10. Counterparts ................................................. 82
11.11. Adjustments; Set-off ......................................... 83
11.12. Construction ................................................. 84
11.13. Governing Law ................................................ 84
11.14. Headings Descriptive ......................................... 84
11.15. Severability ................................................. 84
11.16. Integration .................................................. 84
11.17. Consent to Jurisdiction ...................................... 85
11.18. Service of Process ........................................... 85
11.19. No Limitation on Service or Suit ............................. 85
11.20. WAIVER OF TRIAL BY JURY ...................................... 85
EXHIBITS
Exhibit A List of Commitments
Exhibit B-1 Form of Revolving Credit Note
Exhibit B-2 Form of Competitive Bid Note
Exhibit C Form of Borrowing Request
Exhibit D Form of Competitive Bid Request
Exhibit E Form of Invitation to Bid
Exhibit F Form of Competitive Bid
Exhibit G Form of Competitive Bid Accept/Reject Letter
Exhibit H Form of Competitive Bid Loan Confirmation
Exhibit I Form of Subsidiary Guaranty
Exhibit J Form of Assignment and Acceptance Agreement
Exhibit K Form of Compliance Certificate
Exhibit L Form of Opinion of Counsel
-iv-
<PAGE>
Exhibit M Form of Opinion of Special Counsel
Exhibit N Form of Notice of Conversion/Continuation
Exhibit O Form of Letter of Credit Request
SCHEDULES
Schedule 1.1a List of Lending Offices
Schedule 1.1b List of Existing Pension Plans
Schedule 4.1 List of Subsidiaries; Capitalization
Schedule 4.5 List of Litigation
Schedule 5.4 List of Persons Signing the Subsidiary Guaranty
on the Effective Date
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.5 List of Existing Investments
-v-
<PAGE>
REVOLVING CREDIT AGREEMENT, dated as of June 28, 1996, by and among AIR
EXPRESS INTERNATIONAL CORPORATION, a Delaware corporation (the "Borrower"), the
lenders party hereto (together with their respective assigns, the "Lenders",
each a "Lender"), THE FIRST NATIONAL BANK OF CHICAGO, as Co-Agent and THE BANK
OF NEW YORK, as agent for the Lenders (in such capacity, the "Agent") and as the
Issuing Bank (as such term is defined below).
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have the meanings
therein indicated, and the following terms have the following meanings:
"ABR Advances": the Revolving Credit Loans (or any portions thereof) at
such time as they (or such portions) are made and/or being maintained at a rate
of interest based upon the Alternate Base Rate.
"Accountants": Arthur Andersen LLP (or any successor thereto), or such
other firm of certified public accountants of recognized national standing
selected by the Borrower and reasonably satisfactory to the Agent.
"Accumulated Funding Deficiency": as defined in Section 302 of ERISA.
"Acquisition": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including by devise,
bequest, gift, through a dividend or otherwise and whether in a single
transaction or in a series of related transactions), of (i) the Capital Stock
of, or other equity securities of, any other Person if, immediately thereafter,
such other Person would be either a Subsidiary of such Person or otherwise under
the control of such Person, (ii) any business, going concern or division or
segment thereof, or (iii) the Property of any other Person other than in the
ordinary course of business, provided, however, that no acquisition of all or
substantially all of the assets of such other Person shall be deemed to be in
the ordinary course of business.
"Advance": with respect to a Revolving Credit Loan, an ABR Advance or a
Eurodollar Advance, as the case may be.
"Affected Advance": as defined in Section 3.9.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 5%
<PAGE>
or more of the securities or other interests having ordinary voting power for
the election of directors or other managing Persons thereof or (ii) to direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Commitment Amount": on any date, the sum of the Commitment
Amounts of all Lenders on such date.
"Aggregate Credit Exposure": as of any date of determination, the sum of
(i) the outstanding principal balance of the Revolving Credit Loans and
Competitive Bid Loans of all Lenders, plus (ii) an amount equal to the Letter of
Credit Exposure of all Lenders.
"Aggregate Revolving Credit Exposure": as of any date of determination, the
sum of (i) the outstanding principal balance of the Revolving Credit Loans of
all Lenders, plus (ii) an amount equal to the Letter of Credit Exposure of all
Lenders.
"Agreement": this Revolving Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal to
the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of 1%
or (ii) the BNY Rate in effect on such date.
"Applicable Fee Percentage": (a) with respect to the Facility Fee and the
Letter of Credit Commissions, at all times during which the applicable Pricing
Level set forth below is in effect, the percentage set forth below next to such
Pricing Level and under the applicable column, subject to the provisos set forth
below:
Applicable Fee Percentage
Letter of
Facility Credit
Pricing Level Fee Commissions
------------- -------- -----------
Pricing Level I 0.125% 0.250%
Pricing Level II 0.125% 0.275%
Pricing Level III 0.150% 0.300%
Pricing Level IV 0.150% 0.350%
Pricing Level V 0.250% 0.500%
(b) The Applicable Fee Percentage shall be based on the Compliance
Certificate most recently delivered pursuant to Section 7.1(c), and shall become
effective on the date such Compliance Certificate is delivered to the Lenders.
-2-
<PAGE>
(c) Notwithstanding anything to the contrary contained in this definition,
(i) with respect to each period, if any, during which the Borrower shall be in
Default of its obligations under Section 7.1(c), for purposes of this
definition, the applicable Pricing Level shall conclusively be deemed to be
Pricing Level V during each such period, and (ii) except as otherwise specified
in the preceding clause (i), during the period commencing on the Effective Date
and ending on the date the Compliance Certificate required to be delivered
pursuant to Section 7.1(c) in respect of the fiscal quarter ending June 30, 1996
is delivered to the Agent, the applicable Pricing Level shall conclusively be
deemed to be Pricing Level I.
"Applicable Lending Office": in respect of any Lender, (i) in the case of
such Lender's ABR Advances and Competitive Bid Loans, its Domestic Lending
Office and (ii) in the case of such Lender's Eurodollar Advances, its Eurodollar
Lending Office.
"Applicable Margin": (a) with respect to the unpaid principal amount of
Eurodollar Advances, in each case at all times during which the applicable
Pricing Level set forth below is in effect, the percentage set forth below next
to such Pricing Level, subject to the provisos set forth below:
Pricing Level Applicable Margin
------------- -----------------
Pricing Level I 0.250%
Pricing Level II 0.275%
Pricing Level III 0.300%
Pricing Level IV 0.350%
Pricing Level V 0.500%.
(b) The Applicable Margin shall be based on the Compliance Certificate most
recently delivered pursuant to Section 7.1(c), and shall become effective on the
date such Compliance Certificate is delivered to the Lenders.
(c) Notwithstanding anything to the contrary contained in this definition,
(i) with respect to each period, if any, during which the Borrower shall be in
Default of its obligations under Section 7.1(c), for purposes of this
definition, the applicable Pricing Level shall conclusively be deemed to be
Pricing Level V during each such period, and (ii) except as otherwise specified
in the preceding clause (i), during the period commencing on the Effective Date
and ending on the date the Compliance Certificate required to be delivered
pursuant to Section 7.1(c) in respect of the fiscal quarter ending June 30, 1996
is delivered to the Agent, the applicable Pricing Level shall conclusively be
deemed to be Pricing Level I.
"Approved Bank": any bank whose short-term commercial paper rating from (i)
S&P is at least A-1 or the equivalent thereof or (ii) Moody's is at least P-1 or
the equivalent thereof.
-3-
<PAGE>
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by an assignor and an assignee pursuant to which the assignor
assigns to the assignee all or any portion of such assignor's Note and
Commitment, substantially in the form of Exhibit J.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": as to (i) any Person which is a corporation, the
chairman of the board, the president, any vice president, the chief financial
officer or any other duly authorized officer (acceptable to the Agent) of such
Person and (ii) any Person which is not a corporation, the general partner or
other managing Person thereof.
"Benefited Lender": as defined in Section 11.11.
"Bid Rate": as defined in Section 2.4(b).
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"Borrowing Date": any Business Day on which (i) the Lenders make Revolving
Credit Loans in accordance with a Borrowing Request or (ii) one or more Lenders
make Competitive Bid Loans pursuant to Competitive Bids which have been accepted
by the Borrower.
"Borrowing Request": a request for Revolving Credit Loans in the form of
Exhibit C.
"Business Day": for all purposes other than as set forth in clause (ii)
below, (i) any day other than a Saturday, a Sunday or a day on which commercial
banks located in New York City are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which Eurodollar funding between banks may be
carried on in London, England.
"Capital Lease Obligations": with respect to any Person, obligations of
such Person with respect to leases which are required to be capitalized for
financial reporting purposes in accordance with GAAP.
-4-
<PAGE>
"Capital Stock": as to any Person, all shares, interests, partnership
interests, limited liability company interests, participations, rights in or
other equivalents (however designated) of such Person's equity interest (however
designated) and any rights, warrants or options exchangeable for or convertible
into such shares, interests, participations, rights or other equivalents.
"Cash Equivalents": (i) securities issued or directly and fully guaranteed
or insured by the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in
support thereof) having maturities of not more than six months from the date of
acquisition, (ii) Dollar denominated time deposits, certificates of deposit and
bankers acceptances of (x) any Lender or (y) any Approved Bank, in each case
with maturities of not more than six months from the date of acquisition, (iii)
commercial paper issued by any Approved Bank or by the parent company of any
Approved Bank and commercial paper issued by, or guaranteed by, any industrial
or financial company with a short-term commercial paper rating of at least A- 1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial or financial company with a long term
unsecured debt rating of at least A or A-2, or the equivalent of each thereof,
by S&P or Moody's, as the case may be, and in each case maturing within six
months after the date of acquisition, (iv) marketable direct obligations issued
by any state of the United States or any political subdivision of any such state
or any public instrumentality thereof maturing within six months from the date
of acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's and (v) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above.
"Change of Control": after the Effective Date, (i) any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended) shall have become the "beneficial owner" (as defined in
Rule 13d-3 under such Act) of Voting Shares entitled to exercise more than 20%
of the total power of all outstanding Voting Shares (including any Voting Shares
which are not then outstanding of which such person or group is deemed the
beneficial owner), or (ii) a change in the Board of Directors of the Borrower
shall have occurred in which the individuals who constituted the Board of
Directors of the Borrower at the beginning of the two year period immediately
preceding such change (together with any other director whose election by the
Board of Directors of the Borrower or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least two thirds of
the directors then in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the directors then in office.
-5-
<PAGE>
"Code": the Internal Revenue Code of 1986, as the same may be amended from
time to time, or any successor thereto, and the rules and regulations issued
thereunder, as from time to time in effect.
"Collateral": the assets and other property in which a security interest is
granted to the Agent under the Loan Documents.
"Commitment": in respect of any Lender, such Lender's undertaking during
the Commitment Period to make Revolving Credit Loans and to participate in the
obligations of the Issuing Bank under and in connection with each Letter of
Credit, in each case subject to the terms and conditions hereof, in an aggregate
outstanding principal amount not exceeding the Commitment Amount of such Lender.
"Commitment Amount": as of any date and with respect to any Lender, the
amount set forth adjacent to its name under the heading "Commitment Amount" in
Exhibit A on such date or, in the event that such Lender is not listed on
Exhibit A, the "Commitment Amount" which such Lender shall have assumed from
another Lender in accordance with Section 11.7 on or prior to such date, as the
same may be reduced from time to time pursuant to Section 2.5.
"Commitment Percentage": as to any Lender, the percentage equal to such
Lender's Commitment Amount divided by the Aggregate Commitment Amount of all
Lenders.
"Commitment Period": the period from the Effective Date until the
Commitment Termination Date.
"Commitment Termination Date": the earlier of the Business Day immediately
preceding the Maturity Date or such other date upon which the Commitments shall
have been terminated in accordance with Section 2.5 or Section 9.2.
"Compensatory Interest Payment": as defined in Section 3.1(c).
"Competitive Bid": an offer by a Lender to make a Competitive Bid Loan,
substantially in the form of Exhibit F.
"Competitive Bid Accept/Reject Letter": a notification given by the
Borrower pursuant to Section 2.4(c) substantially in the form of Exhibit G.
"Competitive Bid Loan": a Loan from a Lender to the Borrower made pursuant
to Section 2.4.
-6-
<PAGE>
"Competitive Bid Loan Confirmation": a confirmation by the Agent to a
Lender of the acceptance by the Borrower of any Competitive Bid (or Portion
thereof) made by such Lender, substantially in the form of Exhibit H.
"Competitive Bid Note" and "Competitive Bid Notes": as defined in Section
2.4(g).
"Competitive Bid Request": a request by the Borrower for Competitive Bids,
substantially in the form of Exhibit D.
"Competitive Interest Period": with respect to any Competitive Bid Loan,
the period commencing on the Borrowing Date with respect to such Competitive Bid
Loan and ending on the date requested in the Competitive Bid Request with
respect to such Competitive Bid Loan, which date shall not be earlier than seven
days after the Borrowing Date with respect to such Competitive Bid Loan nor
later than 90 days after the Borrowing Date with respect to such Competitive Bid
Loan; provided, however, that if any Competitive Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless such next succeeding Business Day would be
a date on or after the Maturity Date, in which case such Competitive Interest
Period shall end on the next preceding Business Day, and provided further that
no Competitive Interest Period shall end after the Maturity Date. Interest shall
accrue from and including the first day of a Competitive Interest Period to, but
excluding, the last day of such Competitive Interest Period.
"Compliance Certificate": a certificate substantially in the form of
Exhibit K.
"Consolidated": the Borrower and its Subsidiaries on a consolidated basis
in accordance with GAAP.
"Consolidated EBIT": for any period, net income of the Borrower and its
Subsidiaries on a Consolidated basis in respect of such period, plus to the
extent deducted in determining such net income, the sum of, without duplication,
interest expense and provision for income taxes, in each case of the Borrower
and its Subsidiaries on a Consolidated basis.
"Consolidated EBITDA": for any period, net income of the Borrower and its
Subsidiaries on a Consolidated basis in respect of such period, plus to the
extent deducted in determining such net income, the sum of, without duplication,
interest expense, provision for income taxes, depreciation, amortization and
other non-cash charges, in each case of the Borrower and its Subsidiaries on a
Consolidated basis.
-7-
<PAGE>
"Consolidated Net Worth": with respect to the Borrower and its Subsidiaries
on a Consolidated basis at any date, the stockholders' equity of the Borrower
and the Subsidiaries on a Consolidated basis.
"Consolidated Total Debt": at any date of determination, the aggregate
Indebtedness (other than Indebtedness described in clause (iv) (except in
respect of unreimbursed obligations in respect of drafts drawn under letters of
credit which have been paid by the issuer thereof) or clause (vii) of the
definition thereof) on such date of the Borrower and its Subsidiaries on a
Consolidated basis.
"Contingent Obligation": as to any Person (the "secondary obligor"), any
obligation of such secondary obligor (i) guaranteeing or in effect guaranteeing
any return on any investment made by another Person, or (ii) guaranteeing or in
effect guaranteeing any Indebtedness, lease, dividend or other obligation
("primary obligation") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such secondary obligor, whether contingent, (A) to purchase any
such primary obligation or any Property constituting direct or indirect security
therefor, (B) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (C) to purchase Property, securities or services primarily for
the purpose of assuring the beneficiary of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, (D)
otherwise to assure or hold harmless the beneficiary of such primary obligation
against loss in respect thereof, and (E) in respect of the liabilities of any
partnership in which such secondary obligor is a general partner, except to the
extent that such liabilities of such partnership are nonrecourse to such
secondary obligor and its separate Property, provided, however, that the term
"Contingent Obligation" shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Control Person": as defined in Section 3.6.
"Default": any event or condition which constitutes an Event of Default or
which, with the giving of notice, the lapse of time, or any other condition,
would, unless cured or waived, become an Event of Default.
"Disposition": with respect to any Person, any sale, assignment, transfer
or other disposition by such Person, by any means, of (i) the Capital Stock of,
or other equity interests of, any other Person, (ii) any business, going concern
or division or segment thereof, or (iii) any other Property of such Person other
than in the ordinary course of
-8-
<PAGE>
business, provided, however, that no sale, assignment, transfer or disposition
of (a) all or substantially all of the Property of such Person or (b) any
Operating Entity shall be deemed to be in the ordinary course of business.
"Disqualified Stock": any class or series of Capital Stock that, either by
its terms, by the terms of any security into which it is convertible or
exchangeable at the option of the holder thereof by contract or otherwise, is,
or upon the happening of an event or passage of time would be, required to be
redeemed prior to the Maturity Date (as from time to time extended) or is
redeemable at the option of the holder thereof at any time prior to the Maturity
Date (as from time to time extended), or is convertible into or exchangeable at
the option of the holder thereof for debt securities at any time prior to the
Maturity Date (as from time to time extended).
"Dollars" and "$": lawful currency of the United States of America.
"Domestic Lending Office": in respect of any Lender, initially, the office
or offices of such Lender designated as such on Schedule 1.1a; thereafter, such
other office of such Lender through which it shall be making or maintaining ABR
Advances or Competitive Bid Loans, as reported by such Lender to the Agent and
the Borrower, provided that any Lender may so report different Domestic Lending
Offices for all of its ABR Advances and all of its Competitive Bid Loans,
whereupon references to the Domestic Lending Office of such Lender shall mean
either or both of such offices, as applicable.
"Domestic Subsidiary": each Subsidiary of the Borrower other than a Foreign
Subsidiary.
"Effective Date": June 28, 1996.
"Eligible Assignee": a Lender, any affiliate of a Lender and any other
bank, insurance company, pension fund, mutual fund or other financial
institution.
"Employee Benefit Plan": an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained, sponsored or contributed to by the Borrower,
any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws": any and all federal, state and local laws relating to
the environment, the use, storage, transporting, manufacturing, handling,
discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene, and including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA ss.9601 et seq.; (ii) the Resource Conservation and Recovery
Act of 1976, as amended, 42 USCA ss.6901 et seq.; (iii) the Toxic Substance
Control Act, as amended, 15 USCA ss.2601 et seq.; (iv) the Water Pollution
Control Act, as amended, 33 USCA ss.1251 et seq.; (v) the Clean Air Act, as
amended, 42
-9-
<PAGE>
USCA ss.7401 et seq.; (vi) the Hazardous Materials Transportation Authorization
Act of 1994, as amended, 49 USCA ss.5101 et seq. and (vii) all rules,
regulations, judgments, decrees, injunctions and restrictions thereunder and any
analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the rules and regulations issued thereunder, as from time
to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person that is a member of any group of organizations within the meaning of
Sections 414(b) or (c) of the Code (or, solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, Sections 414(m) or (o) of the Code) of which the Borrower or any of its
Subsidiaries is a member.
"Eurodollar Advances": the Revolving Credit Loans (or any portions thereof)
at such time as they (or such portions) are made or are being maintained at a
rate of interest based upon the Eurodollar Rate.
"Eurodollar Interest Period": with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion/Continuation Date with respect to such Eurodollar
Advance and ending one, two, three or six months thereafter, as selected by the
Borrower in its irrevocable Borrowing Request or its irrevocable Notice of
Conversion/Continuation, provided, however, that (i) if any Eurodollar Interest
Period would otherwise end on a day which is not a Business Day, such Eurodollar
Interest Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Eurodollar Interest Period into
another calendar month, in which event such Eurodollar Interest Period shall end
on the immediately preceding Business Day and (ii) any Eurodollar Interest
Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Eurodollar Interest Period) shall end on the last Business Day of a
calendar month. Eurodollar Interest Periods shall be subject to the rules
contained in Section 3.4.
"Eurodollar Lending Office": in respect of any Lender, initially, the
office, branch or affiliate of such Lender designated as such on Schedule 1.1a
(or, if no such office branch or affiliate is specified, its Domestic Lending
Office); thereafter, such other office, branch or affiliate of such Lender
through which it shall be making or maintaining Eurodollar Advances, as reported
by such Lender to the Agent and the Borrower.
"Eurodollar Rate": with respect to the Eurodollar Interest Period
applicable to any Eurodollar Advance, a rate of interest per annum, as
determined by the Agent, obtained
-10-
<PAGE>
by dividing (and then rounding to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(b) the rate, as reported by BNY to the Agent, quoted by BNY to leading
banks in the interbank eurodollar market as the rate at which BNY is offering
Dollar deposits in an amount equal approximately to the Eurodollar Advance of
BNY to which such Interest Period shall apply for a period equal to such
Interest Period, as quoted at approximately 11:00 a.m. two Business Days prior
to the first day of such Interest Period, by
(c) a number equal to 1.00 minus the aggregate of the then stated maximum
rates during such Eurodollar Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and other
major United States money center banks are subject, in respect of eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System) or in respect of any other
category of liabilities including deposits by reference to which the interest
rate on Eurodollar Advances is determined or any category of extensions of
credit or other assets which includes loans by non-domestic offices of any
Lender to United States residents. Such reserve requirements shall include,
without limitation, those imposed under such Regulation D. Eurodollar Advances
shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed to be subject to such reserve requirements without benefit of credits for
proration, exceptions or offsets which may be available from time to time to any
Lender under such Regulation D. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in any such reserve
requirement.
"Event of Default": any of the events specified in Section 9.1, provided
that any requirement for the giving of notice, the lapse of time, or any other
condition has been satisfied.
"Existing Pension Plan": a Pension Plan listed on Schedule 1.1b hereto.
"Extension Request" as defined in Section 2.12.
"Facility Fee" as defined in Section 3.2(a).
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day
-11-
<PAGE>
as so published on the next succeeding Business Day, and (ii) if such rate is
not so published for any day, the Federal Funds Rate for such day shall be the
average of the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Agent.
"Fees": as defined in Section 2.11(a).
"Financial Officer": as to any Person, the chief financial officer of such
Person or such other officer as shall be satisfactory to the Agent.
"Financial Statements": as defined in Section 4.13.
"Foreign Subsidiary": each Subsidiary of the Borrower that is not organized
under the laws of the United States.
"Funded Current Liability Percentage": as defined in Section 401(a)(29) of
the Code.
"GAAP": generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and in the statements and pronouncements of the
Financial Accounting Standards Board or in such other statement by such other
entity as may be approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of determination,
consistently applied.
"Governmental Authority": any foreign, federal, state, municipal or other
government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or arbitrator.
"Hazardous Substance": any hazardous or toxic substance, material or waste,
including, but not limited to, (i) those substances, materials, and wastes
listed in the United States Department of Transportation Hazardous Materials
Table (49 CFR 172.111) or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and amendments thereto and replacements therefor
and (ii) any substance, pollutant or material defined as, or designated in, any
Environmental Law as a "hazardous substance," "toxic substance," "hazardous
material," "hazardous waste," "restricted hazardous waste," "pollutant," "toxic
pollutant" or words of similar import.
"Highest Lawful Rate": as to any Lender or the Issuing Bank, the maximum
rate of interest, if any, that at any time or from time to time may be
contracted for, taken, charged or received by such Lender on the Notes or by the
Issuing Bank on the Reimbursement Agreements held thereby, as the case may be,
or which may be owing to
-12-
<PAGE>
such Lender or the Issuing Bank pursuant the Loan Documents under the laws
applicable to such Lender or the Issuing Bank and this transaction.
"Indebtedness": as to any Person, at a particular time, all items which
constitute, without duplication, (i) indebtedness for borrowed money or the
deferred purchase price of Property (other than trade payables incurred in the
ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (v) all liabilities
secured by any Lien on any Property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
statutory Liens arising in the ordinary course of business), (vi) Capital Lease
Obligations, and (vii) Contingent Obligations.
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnified Person" and "Indemnified Persons": as defined in Section 11.8.
"Intercompany Indebtedness": (i) Indebtedness of the Borrower to one or
more of its wholly-owned Subsidiaries, and (ii) demand indebtedness of one or
more of the wholly-owned Subsidiaries of the Borrower to the Borrower or any one
or more of the other wholly-owned Subsidiaries of the Borrower.
"Interest Coverage Ratio": at any date of determination, the ratio of (i)
Consolidated EBIT to (ii) the interest expense of the Borrower and its
Subsidiaries on a Consolidated basis, in each case for the four fiscal quarter
period ending on such date or, if such date is not the last day of a fiscal
quarter, for the immediately preceding four fiscal quarter period.
"Interest Payment Date": (i) as to any ABR Advance, the last day of each
March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance as to which the Borrower has
selected a Eurodollar Interest Period of one, two or three months, the last day
of the applicable Eurodollar Interest Period, (iii) as to any Eurodollar Advance
as to which the Borrower has selected a Eurodollar Interest Period of six
months, the day which is three months after the first day of such Eurodollar
Interest Period and the last day of such Eurodollar Interest Period, (iv) as to
any Competitive Bid Loan, the last day of such Competitive Interest Period, and
(v) as to all Advances and Competitive Bid Loans, the Maturity Date.
-13-
<PAGE>
"Interest Period": a Eurodollar Interest Period or a Competitive Interest
Period, as the context may require.
"Investments": as defined in Section 8.5.
"Invitation to Bid": an invitation to make Competitive Bids in the form of
Exhibit E.
"Issuing Bank": BNY
"Letter of Credit" and "Letters of Credit": as defined in Section 2.8.
"Letter of Credit Commissions": as defined in Section 3.2(b).
"Letter of Credit Commitment": the commitment of the Issuing Bank to issue
Letters of Credit under and in accordance with the terms of this Agreement, and
the commitment of the Lenders to participate in the Letter of Credit Exposure as
set forth in Section 2.9.
"Letter of Credit Exposure": at any date, (i) in respect of all the
Lenders, the sum, without duplication, of (x) the aggregate undrawn face amount
of the outstanding Letters of Credit at such date, (y) the aggregate amount of
unpaid drafts drawn on all Letters of Credit at such date, and (z) the aggregate
unpaid Reimbursement Obligations at such date (after giving effect to any Loans
made on such date to pay any such Reimbursement Obligations), and (ii) in
respect of any Lender, an amount equal to such Lender's Commitment Percentage
multiplied by the amount determined under clause (i) of this definition.
"Letter of Credit Request": a request in the form of Exhibit O.
"Leverage Ratio": at any date of determination, the ratio of (x)
Consolidated Total Debt on such date to (y) Consolidated EBITDA for the four
fiscal quarter period ending on such date or, if such date is not the last day
of a fiscal quarter, for the immediately preceding four fiscal quarter period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loans": the Revolving Credit Loans and/or the Competitive Bid Loans, as
the case may be.
-14-
<PAGE>
"Loan Documents": collectively, this Agreement, the Notes, the Subsidiary
Guaranty and the Reimbursement Agreements.
"Loan Party": with respect to any Loan Document, any Person (other than the
Agent, the Issuing Bank or any Lender) which, in accordance with the terms of
such Loan Document, is or is to be a party thereto.
"Managing Person": with respect to any Person that is a (i) corporation,
its board of directors, (ii) a limited liability company, its board of control,
managing member or members, (iii) a limited partnership, its general partner,
(iv) a general partnership, its managing partner or executive committee or (v)
such other managing body or Person analogous to the foregoing.
"Margin Stock": any "margin stock", as defined in Regulation U of the Board
of Governors of the Federal Reserve System, as the same may be amended,
supplemented or otherwise modified from time to time.
"Material Adverse Change": a material adverse change in (i) the financial
condition, operations, business, prospects or Property of (A) the Borrower or
(B) the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower or any Subsidiary to perform its obligations under the Loan Documents
or (iii) the ability of the Agent, the Issuing Bank or any Lender to enforce the
Loan Documents.
"Material Adverse Effect": a material adverse effect on (i) the financial
condition, operations, business, prospects or Property of (A) the Borrower or
(B) the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower or any Subsidiary to perform its obligations under the Loan Documents
or (iii) the ability of the Agent, the Issuing Bank or any Lender to enforce the
Loan Documents.
"Material Domestic Subsidiary": as of any date, each Domestic Subsidiary
which (a) as of the fiscal quarter end immediately preceding such date had gross
revenues in excess of $2,500,000 for the four fiscal quarters then ended, or (b)
has total assets in excess of $5,000,000.
"Maturity Date": June 28, 1999 (or any date subsequent thereto resulting
from an extension of the Maturity Date pursuant to Section 2.12), or such
earlier date on which the Notes shall become due and payable, whether by
acceleration or otherwise.
"Maximum Offer": as defined in Section 2.4(b).
"Maximum Request": as defined in Section 2.4(a).
"Moody's": Moody's Investors Service, Inc., or any successor thereto.
-15-
<PAGE>
"Multiemployer Plan": a Pension Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note": a Revolving Credit Note or a Competitive Bid Note, as the case may
be.
"Notes": the Revolving Credit Notes and/or the Competitive Bid Notes, as
the case may be.
"Notice of Conversion/Continuation": a notice substantially in the form of
Exhibit N.
"Operating Entity": (i) any Person, (ii) any business or operating unit of
a Person which is, or could be, operated separate and apart from the other
businesses and operations of such Person, or (ii) any other line of business or
business segment.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to the
functions thereof.
"Pension Plan": at any date of determination, any Employee Benefit Plan
(including a Multiemployer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of the Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Permitted Acquisition": an Acquisition permitted by Section 8.3(e).
"Permitted Lien": a Lien permitted to exist under Section 8.2(a).
"Person": any individual, firm, partnership, limited liability company,
joint venture, corporation, association, business enterprise, joint stock
company, unincorporated association, trust, Governmental Authority or any other
entity, whether acting in an individual, fiduciary, or other capacity, and for
the purpose of the definition of "ERISA Affiliate", a trade or business, and for
the purpose of the definition of "ERISA Affiliate", a trade or business.
"Portion": as defined in Section 2.4(b).
"Pricing Level": Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV or Pricing Level V, as the case may be.
-16-
<PAGE>
"Pricing Level I": any time when the Leverage Ratio is less than or equal
to 1.80:1.00.
"Pricing Level II": any time when the Leverage Ratio is greater than
1.80:1.00 but less than or equal to 2.00:1.00.
"Pricing Level III": any time when the Leverage Ratio is greater than
2.00:1.00 but less than or equal to 2.25:1.00.
"Pricing Level IV": any time when the Leverage Ratio is greater than
2.25:1.00 but less than or equal to 2.50:1.00.
"Pricing Level V": any time when the Leverage Ratio is greater than
2.50:1.00.
"Prohibited Transaction": a transaction that is prohibited under Section
4975 of the Code or Section 406 of ERISA and not exempt under Section 4975 of
the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible or mixed
property.
"Real Property": all real property owned or leased by the Borrower or any
of its Subsidiaries.
"Regulatory Change": (i) the introduction or phasing in of any law, rule or
regulation after the Relevant Date, (ii) the issuance or promulgation after the
Relevant Date of any directive, guideline or request from any central bank or
United States or foreign Governmental Authority (whether or not having the force
of law), or (iii) any change after the Relevant Date in the interpretation of
any existing law, rule, regulation, directive, guideline or request by any
central bank or United States or foreign Governmental Authority charged with the
administration thereof. For purposes of this definition, the term "Relevant
Date" shall mean (i) in the case of each Lender listed on the signature pages
hereto, the Effective Date, or (ii) in the case of each other Lender, the
effective date of the Assignment and Acceptance Agreement pursuant to which it
became a Lender.
"Reimbursement Agreement": as defined in Section 2.8(b).
"Reimbursement Obligation": the obligation of the Borrower to reimburse the
Issuing Bank for amounts drawn under the Letter of Credit.
"Reportable Event": with respect to any Pension Plan, (i) any event set
forth in Sections 4043(b) (other than a Reportable Event as to which the 30 day
notice requirement is waived by the PBGC under applicable regulations), 4062(c)
or 4063(a) of
-17-
<PAGE>
ERISA or the regulations thereunder, (ii) an event requiring the Borrower, any
of its Subsidiaries or any ERISA Affiliate to provide security to a Pension Plan
under Section 401(a)(29) of the Code, or (iii) any failure to make any payment
required by Section 412(m) of the Code.
"Required Lenders": at any date of determination, (i) if on such date the
Commitments exist and no Revolving Credit Loans or Letters of Credit are
outstanding, Lenders having Commitment Amounts equal to more than 66-2/3% of the
sum of the Aggregate Commitment Amount; (ii) if on such date the Commitments
exist and Revolving Credit Loans or Letters of Credit are outstanding, Lenders
which have Revolving Credit Loans outstanding and unreimbursed obligations in
respect of Letters of Credit in an aggregate unpaid amount equal to more than
66-2/3% of the Aggregate Revolving Credit Exposure; and (iii) if on such date
the Commitments have been terminated or otherwise no longer exist, Lenders
holding Notes having an aggregate unpaid principal balance equal to more than
66-2/3% of the Aggregate Credit Exposure.
"Restricted Payment": as to any Person (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock or other equity interest in such Person now or hereafter
outstanding (other than a dividend payable solely in shares of such Capital
Stock to the holders of such shares) and (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition, direct or
indirect, of any shares of any class of Capital Stock or other equity interest
in such Person now or hereafter outstanding.
"Revolving Credit Exposure": with respect to any Lender as of any date, the
sum as of such date of (i) the outstanding principal balance of such Lender's
Revolving Credit Loans plus (ii) an amount equal to such Lender's Letter of
Credit Exposure.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in Section
2.1.
"Revolving Credit Note" and "Revolving Credit Notes": as defined in Section
2.2.
"Sale and Leaseback Transaction": any transaction or series of related
transactions pursuant to which a Person sells or transfers any Property and
leases, or purchases on an installment payment basis, such Property from the
buyer or transferee thereof.
"S&P": Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.
-18-
<PAGE>
"SEC": the Securities and Exchange Commission or any Governmental Authority
succeeding to the functions thereof.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to the
Agent.
"Submission Deadline": as defined in Section 2.4(b).
"Subordinated Debentures": the 6% Convertible Subordinated Debentures due
2003, issued by the Borrower pursuant to the Subordinated Indenture, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the Section 8.10.
"Subordinated Indenture": the Subordinated Indenture, dated as of January
15, 1993, by and between the Borrower and the Trustee, pursuant to which the
Subordinated Debentures were issued, as the same may be amended, supplemented or
otherwise modified in accordance with the provisions of Section 8.10.
"Subordinated Indenture Refinance Documents": the Term Loan Agreement, in
final form, by and between the Borrower and BNY, providing for a term loan to be
made available to the Borrower in connection with the redemption and repurchase
of the Subordinated Debentures, together with all documents, instruments and
other agreements executed or delivered in connection therewith, in each case as
amended, supplemented or otherwise modified from time to time.
"Subordinated Indenture Refinance Indebtedness": all Indebtedness, together
with all other accrued and unpaid obligations, of the Borrower under the
Subordinated Indenture Refinance Documents.
"Subsidiary": as to any Person, any corporation, association, partnership,
limited liability company, joint venture or other business entity of which such
Person or any of its Subsidiaries of such Person, directly or indirectly, either
(i) in respect of a corporation, owns or controls more than 50% of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the Managing Person, irrespective of whether a class or classes shall or might
have voting power by reason of the happening of any contingency, or (ii) in
respect of an association, partnership, joint venture or other business entity,
is entitled to share in more than 50% of the profits and losses, however
determined.
"Subsidiary Guaranty": as defined in Section 5.4.
"Tax": any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature and whatever called, by a Governmental
Authority, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
-19-
<PAGE>
"Tax on the Overall Net Income": as to any Person, a Tax imposed by the
jurisdiction in which that Person's principal office (and/or, in the case of a
Lender, its Domestic Lending Office) is located or by any political subdivision
or taxing authority thereof or in which that Person is deemed to be doing
business on all or part of the net income, profits or gains of that Person
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
"Termination Event": with respect to any Pension Plan, (i) a Reportable
Event, (ii) the termination of a Pension Plan, or the filing of a notice of
intent to terminate a Pension Plan, or the treatment of a Pension Plan amendment
as a termination under Section 4041(c) of ERISA, (iii) the institution of
proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv) the
appointment of a trustee to administer any Pension Plan under Section 4042 of
ERISA.
"Trustee": The Bank of New York, as trustee under the Subordinated
Indenture or any successor trustee thereunder.
"Unfunded Pension Liabilities": with respect to any Pension Plan, at any
date of determination, the amount determined by taking the accumulated benefit
obligation, as disclosed in accordance with Statement of Accounting Standards
No. 87, "Employers' Accounting for Pensions", over the fair market value of
Pension Plan assets.
"United States": the United States of America (including the States thereof
and the District of Columbia).
"Unqualified Amount": as defined in Section 3.1(c).
"Unrecognized Retiree Welfare Liability": with respect to any Employee
Benefit Plan that provides postretirement benefits other than pension benefits,
the amount of the transition obligation, as determined in accordance with
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income statement of the
Borrower and its Subsidiaries, provided that (i) prior to the date such
Statement is applicable to the Borrower, such amount shall be based on an
estimate made in good faith of such transition obligation, and (ii) for purposes
of determining the aggregate amount of the Unrecognized Retiree Welfare
Liability, Plans maintained by a Subsidiary that is not otherwise an ERISA
Affiliate shall be included.
"Voting Shares": all outstanding shares of any class or classes (however
designated) of Capital Stock entitled to vote generally in the election of
members of the Board of Directors.
-20-
<PAGE>
1.2. Principles of Construction
(a) All terms defined in a Loan Document shall have the meanings given such
terms therein when used in the other Loan Documents or any certificate, opinion
or other document made or delivered pursuant thereto, unless otherwise defined
therein.
(b) As used in the Loan Documents and in any certificate, opinion or other
document made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP. If at
any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in this Agreement, the Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
reflect such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and similar
words when used in a Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof, and Section, schedule and exhibit
references contained therein shall refer to Sections thereof or schedules or
exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the singular number
include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary,
references to a time shall refer to New York City time.
(g) Unless specifically provided in a Loan Document to the contrary, 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".
(h) References in any Loan Document to a fiscal period shall refer to that
fiscal period of the Borrower.
-21-
<PAGE>
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT
2.1. Revolving Credit Loans
Subject to the terms and conditions hereof, each Lender severally (and not
jointly) agrees to make revolving credit loans (each a "Revolving Credit Loan"
and, as the context may require, collectively with all other Revolving Credit
Loans of such Lender and/or with the Revolving Credit Loans of all other
Lenders, the "Revolving Credit Loans") to the Borrower from time to time during
the Commitment Period, provided, however, that immediately after giving effect
thereto (i) such Lender's Revolving Credit Exposure would not exceed such
Lender's Commitment Amount and (ii) the Aggregate Credit Exposure would not
exceed the Aggregate Commitment Amount. During the Commitment Period, the
Borrower may borrow, prepay in whole or in part and reborrow under the
Commitments, all in accordance with the terms and conditions of this Agreement.
Subject to the provisions of Sections 2.3 and 3.3, at the option of the
Borrower, Revolving Credit Loans may be made as (i) one or more ABR Advances,
(ii) one or more Eurodollar Advances or (iii) any combination thereof.
2.2. Revolving Credit Notes
The Revolving Credit Loans made by each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit B-1, with
appropriate insertions therein as to date and principal amount (each, as
indorsed or modified from time to time, a "Revolving Credit Note" and,
collectively with the Revolving Credit Notes of all other Lenders, the
"Revolving Credit Notes"), payable to the order of such Lender for the account
of its Applicable Lending Office, dated the Effective Date, and in the stated
principal amount equal to such Lender's Commitment Amount. The outstanding
principal balance of the Revolving Credit Loans shall be due and payable on the
Maturity Date.
2.3. Procedure for Borrowing Revolving Credit Loans
(a) The Borrower may borrow Revolving Credit Loans under the Commitments on
any Business Day during the Commitment Period, provided, however, that the
Borrower shall notify the Agent by the delivery of a Borrowing Request, which
shall be sent by facsimile and shall be irrevocable (confirmed promptly, and in
any event within five Business Days, by the delivery to the Agent of a Borrowing
Request manually signed by the Borrower), no later than 11:00 a.m., three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Advances, and 11:00 a.m., on the requested Borrowing Date, in the case of ABR
Advances, specifying (i) the aggregate principal amount to be borrowed under the
Commitments, (ii) the requested Borrowing Date, (iii) whether such borrowing is
to consist of one or more Eurodollar Advances, ABR Advances, or a combination
thereof and, if the borrowing is to consist of one or more Eurodollar Advances,
the length of the
-22-
<PAGE>
Eurodollar Interest Period for each such Eurodollar Advance. Each (i) Eurodollar
Advance shall equal no less than $1,000,000 or such amount plus a whole multiple
of $100,000 in excess thereof and (ii) each ABR Advance made on each Borrowing
Date shall equal no less than $500,000 or such amount plus a whole multiple of
$100,000 in excess thereof or, if less, the excess of the Aggregate Commitment
Amount over the Aggregate Credit Exposure.
(b) Upon receipt of each Borrowing Request, the Agent shall promptly notify
each Lender thereof. Subject to its receipt of the notice referred to in the
preceding sentence, each Lender will make the amount of its Commitment
Percentage of the requested Revolving Credit Loan available to the Agent for the
account of the Borrower at the office of the Agent set forth in Section 11.2 not
later than 12:00 noon on the relevant Borrowing Date requested by the Borrower,
in funds immediately available to the Agent at such office. The amounts so made
available to the Agent on such Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by the
Agent, be made available on such date to the Borrower by the Agent at the office
of the Agent specified in Section 11.2 by crediting the account of the Borrower
on the books of such office with the aggregate of said amounts received by the
Agent.
(c) Unless the Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be promptly confirmed by facsimile or
other writing) that such Lender will not make available to the Agent such
Lender's Commitment Percentage of the Revolving Credit Loans requested by the
Borrower, the Agent may assume that such Lender has made such share available to
the Agent on the Borrowing Date in accordance with this Section, provided that
such Lender received notice of the requested Revolving Credit Loan from the
Agent, and the Agent may, in reliance upon such assumption, make available to
the Borrower on the Borrowing Date a corresponding amount. If and to the extent
such Lender shall not have so made its Commitment Percentage of such Revolving
Credit Loans available to the Agent, such Lender and the Borrower severally
agree to pay to the Agent forthwith on demand such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to the Borrower to the date
such amount is paid to the Agent, at a rate per annum equal to, in the case of
the Borrower, the applicable interest rate set forth in Section 3.1 for ABR
Advances, and, in the case of such Lender, at a rate of interest per annum equal
to the Federal Funds Rate for the first three days after the due date of such
payment until the date such payment is received by the Agent and the Federal
Funds Rate plus 2% thereafter. Such payment by the Borrower, however, shall be
without prejudice to its rights against such Lender. If such Lender shall pay to
the Agent such corresponding amount, such amount so paid shall constitute such
Lender's Revolving Credit Loan as part of the Revolving Credit Loans for
purposes of this Agreement, which Revolving Credit Loan shall be deemed to have
been made by such Lender on the Borrowing Date applicable to such Revolving
Credit Loans.
-23-
<PAGE>
(d) If a Lender makes a new Revolving Credit Loan on a Borrowing Date on
which the Borrower is to repay a Revolving Credit Loan or Competitive Bid Loan
from such Lender, such Lender shall apply the proceeds of such new Revolving
Credit Loan to make such repayment, and only the excess of the proceeds of such
new Revolving Credit Loan over the Revolving Credit Loan or Competitive Bid Loan
being repaid need be made available to the Agent.
2.4. Competitive Bid Loans; Procedure
(a) The Borrower may make a request for a Competitive Bid Loan by
delivering a Competitive Bid Request to the Agent as set forth below by 11:00
a.m. at least one Business Day prior to the proposed Borrowing Date. Each
Competitive Bid Request given to the Agent (which shall promptly on the same day
give notice thereof to each Lender by facsimile transmission of an Invitation to
Bid if the Competitive Bid Request is not rejected pursuant to this Section)
shall be given in writing by facsimile transmission (confirmed promptly, and in
any event within five Business Days, by the delivery to the Agent of a
Competitive Bid Request manually signed by the Borrower), and shall specify (i)
the proposed Borrowing Date, which shall be a Business Day, (ii) the aggregate
amount of the requested Competitive Bid Loans (the "Maximum Request"), which
shall be in a principal amount equal to $1,000,000 or an integral multiple of
$100,000 in excess thereof, (iii) the Competitive Interest Period(s) therefor
and the last day of each such Competitive Interest Period, and (iv) if more than
one Competitive Interest Period is so specified, the principal amount allocable
to each such Competitive Interest Period (which amount shall not be less than
$1,000,000 or an integral multiple of $100,000 in excess thereof); provided
however, that immediately after giving effect to the requested Competitive Bid
Loan, the Aggregate Credit Exposure shall not exceed the Aggregate Commitment
Amount. A Competitive Bid Request that does not conform substantially to the
form of Exhibit D shall be rejected, and the Agent shall promptly notify the
Borrower of such rejection. Notwithstanding anything contained herein to the
contrary, (i) not more than three Competitive Interest Periods may be requested
pursuant to any Competitive Bid Request, and (ii) not more than six Competitive
Bid Loans may be outstanding at any one time, provided, however, that at no time
shall the number of the Competitive Interest Periods in respect of outstanding
Competitive Bid Loans and Eurodollar Interest Periods in respect of outstanding
Eurodollar Advances exceed eight.
(b) Each Lender in its sole discretion may (but is not obligated to) submit
one or more Competitive Bids to the Agent not later than 10:00 a.m. on the
proposed Borrowing Date specified in such Competitive Bid Request (such time
being herein called the "Submission Deadline"), by facsimile or other writing,
and thereby irrevocably offer to make all or any part (any such part referred to
as a "Portion") of any Competitive Bid Loan described in the relevant
Competitive Bid Request at a rate of interest per annum (each a "Bid Rate")
specified therein in an aggregate principal amount of not less than $1,000,000
or an integral multiple of $100,000 in excess thereof, provided that Competitive
Bids submitted
-24-
<PAGE>
by BNY may only be submitted if BNY notifies the Borrower of the terms of its
Competitive Bid not later than thirty minutes prior to the Submission Deadline.
Multiple Competitive Bids may be delivered to the Agent by a Lender. The
aggregate Portions of Competitive Bid Loans for any or all Competitive Interest
Periods offered by each Lender in its Competitive Bid may exceed the Maximum
Request contained in the relevant Competitive Bid Request, provided that each
Competitive Bid shall set forth the maximum aggregate amount of the Competitive
Bid Loans offered thereby which the Borrower may accept (the "Maximum Offer"),
which Maximum Offer shall not exceed the Maximum Request. If the Agent has not
received a Competitive Bid from any Lender by the Submission Deadline, such
Lender shall be deemed not to have made a Competitive Bid and shall not be
permitted or obligated to make a Competitive Bid Loan on the proposed Borrowing
Date.
(c) The Agent shall promptly give notice by telephone (promptly confirmed
by facsimile or other writing) to the Borrower of all Competitive Bids received
by the Agent prior to the Submission Deadline which comply in all material
respects with this Section. The Borrower, shall, in its sole discretion, but
subject to Section 2.4(d), irrevocably accept or reject any such Competitive Bid
(or any Portion thereof) not later than 10:30 a.m. on the day of the Submission
Deadline by notice to the Agent by telephone (confirmed by facsimile or other
writing in the form of a Competitive Bid Accept/Reject Letter promptly the same
day). Promptly upon receipt by the Agent of such a Competitive Bid Accept/Reject
Letter, the Agent will give notice to each Lender that submitted a Competitive
Bid as to the extent, if any, that such Lender's Competitive Bid shall have been
accepted. If the Agent fails to receive notice from the Borrower of its
acceptance or rejection of any Competitive Bids at or prior to 10:30 a.m. on the
day of the Submission Deadline, all such Competitive Bids shall be deemed to
have been rejected by the Borrower, and the Agent will give to each Lender that
submitted a Competitive Bid notice of such rejection by telephone on such day.
In due course following the acceptance of any Competitive Bid, the Agent shall
notify each Lender which submitted a Competitive Bid, in the form of a
Competitive Bid Loan Confirmation, of the amount, maturity date and Bid Rate for
each Competitive Bid Loan.
(d) If the Borrower accepts a Portion of a proposed Competitive Bid Loan
for a single Competitive Interest Period at the Bid Rate provided therefor in a
Lender's Competitive Bid, such Portion shall be in a principal amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof (subject to
such lesser allocation as may be made pursuant to the provisions of this Section
2.4(d)). The aggregate principal amount of Competitive Bid Loans accepted by the
Borrower following Competitive Bids responding to a Competitive Bid Request
shall not exceed the Maximum Request. The aggregate principal amount of
Competitive Bid Loans accepted by the Borrower pursuant to a Lender's
Competitive Bid shall not exceed the Maximum Offer therein contained. If the
Borrower accepts any Competitive Bid Loans or Portion offered in any Competitive
Bid, the Borrower must accept Competitive Bids (and Competitive Bid Loans and
Portions thereby offered) based exclusively upon the successively lowest Bid
Rates within each Competitive Interest
-25-
<PAGE>
Period and no other criteria. If two or more Lenders submit Competitive Bids
with identical Bid Rates for the same Competitive Interest Period and the
Borrower accepts any thereof, the Borrower shall, subject to the first three
sentences of this Section 2.4(d), accept all such Competitive Bids as nearly as
possible in proportion to the amounts of such Lender's respective Competitive
Bids with identical Bid Rates for such Competitive Interest Period, provided,
that if the amount of Competitive Bid Loans to be so allocated is not sufficient
to enable each such Lender to make such Competitive Bid Loan (or Portions
thereof) in an aggregate principal amount of $1,000,000 or an integral multiple
of $100,000 in excess thereof, the Borrower shall round the Competitive Bid
Loans (or Portions thereof) allocated to such Lender or Lenders as the Borrower
shall select as necessary to a minimum of $500,000 or an integral multiple of
$100,000 in excess thereof.
(e) Not later than 2:00 p.m. on the relevant Borrowing Date, each Lender
whose Competitive Bid was accepted by the Borrower shall make available to the
Agent at its office set forth in Section 11.2, in immediately available funds,
the proceeds of such Lender's Competitive Bid Loan(s). The amounts so made
available to the Agent on such Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by the
Agent, be made available by the Agent in like funds as received on such
Borrowing Date to the Borrower by the Agent at the office of the Agent set forth
in Section 11.2 by crediting the account of the Borrower on the books of such
office with the aggregate of such amounts received by the Agent.
(f) All notices required by this Section 2.4 shall be given in accordance
with Section 11.2.
(g) The Competitive Bid Loans made by each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit B-2 (each,
as indorsed or modified from time to time, a "Competitive Bid Note" and,
collectively with the Competitive Bid Notes of all other Lenders, the
"Competitive Bid Notes"), payable to the order of such Lender for the account of
its Applicable Lending Office, and dated the Effective Date. Each Competitive
Bid Loan shall be due and payable on the earlier of (i) the last day of the
Competitive Interest Period applicable thereto and (ii) the Maturity Date.
Competitive Bid Loans may not be prepaid.
2.5. Termination or Reduction of Commitments and Letter of Credit
Commitment
(a) Voluntary Reductions. The Borrower shall have the right, upon at least
three Business Days' prior written notice to the Agent, to (i) terminate the
Commitments of all of the Lenders, provided that after giving effect thereto
(and any contemporaneous prepayment of the Loans), the Aggregate Credit Exposure
shall equal zero or (ii) from time to time to permanently reduce the Commitments
of all of the Lenders, provided, however, that (x) any such reduction shall be
in the amount of $5,000,000 or such amount plus a whole multiple of $500,000 in
excess thereof and (y) the Borrower shall prepay the
-26-
<PAGE>
Revolving Credit Loans as required by Section 2.6(b) so that immediately after
giving effect thereto (and any contemporaneous prepayment of the Revolving
Credit Loans), the Aggregate Credit Exposure shall be less than or equal to the
Aggregate Commitment Amount, and the Revolving Credit Exposure of any Lender
shall be less than or equal to such Lender's Commitment Amount.
(b) In General. Each reduction of the Aggregate Commitment Amount shall be
made by reducing each Lender's Commitment Amount by an amount equal to such
Lender's Commitment Percentage of such reduction. Simultaneously with each
reduction of the Aggregate Commitment Amount under this Section, the Borrower
shall pay the Facility Fee accrued on the amount by which the Aggregate
Commitment Amount shall have been reduced.
2.6. Prepayments of the Loans
(a) Voluntary Prepayments. The Borrower may, at its option, prepay the
Revolving Credit Loans without premium or penalty (but subject to Section 3.5),
in full at any time or in part from time to time by notifying the Agent in
writing at least one Business Day prior to the proposed prepayment date, in the
case of Revolving Credit Loans consisting of ABR Advances and at least three
Business Days prior to the proposed prepayment date, in the case of Revolving
Credit Loans consisting of Eurodollar Advances, specifying whether the Revolving
Credit Loans to be prepaid consist of ABR Advances, Eurodollar Advances, or a
combination thereof, the amount to be prepaid and the date of prepayment. Such
notice shall be irrevocable and the amount specified in such notice shall be due
and payable on the date specified, together with accrued interest to the date of
such payment on the amount prepaid. Upon receipt of such notice, the Agent shall
promptly notify each Lender thereof. Each partial prepayment of the Revolving
Credit Loans pursuant to this subsection shall be in an aggregate principal
amount of $500,000 or such amount plus a whole multiple of $100,000 in excess
thereof, or, if less, the outstanding principal balance of the Revolving Credit
Loans. After giving effect to any partial prepayment of the Revolving Credit
Loans with respect to Eurodollar Advances which were made (whether as the result
of a borrowing or a conversion) on the same date and which had the same Interest
Period, the outstanding principal amount of such Eurodollar Advances shall
exceed (subject to Section 3.3) $1,000,000 or such amount plus a whole multiple
of $100,000 in excess thereof.
(b) Mandatory Prepayments of Loans Relating to Terminations of the
Commitments and Reductions of the Aggregate Commitment Amount. Simultaneously
with the termination of the Commitments of all of the Lenders and each reduction
of the Aggregate Commitment Amount under Section 2.5, the Borrower shall prepay
the Loans in full in the case of the termination of the Commitments of all of
the Lenders and prepay the Loans by the amount, if any, by which the Aggregate
Credit Exposure exceeds the Aggregate Commitment Amount as so reduced, in the
case of a reduction of the Aggregate Commitment Amount.
-27-
<PAGE>
(c) In General. All prepayments of Revolving Credit Loans shall be made
together with accrued interest to the date of such prepayment on the amount
prepaid. Unless otherwise specified by the Borrower, each prepayment of
Revolving Credit Loans shall first be applied to ABR Advances and thereafter to
Eurodollar Advances in any manner deemed appropriate by the Agent. If any
prepayment is made in respect of any Eurodollar Advance, in whole or in part,
prior to the last day of the applicable Interest Period, the Borrower agrees to
indemnify the Lenders in accordance with Section 3.5.
2.7. Use of Proceeds
The Borrower agrees that the proceeds of the Loans shall be used solely,
directly or indirectly, for the Borrower's general corporate and working capital
purposes not inconsistent with the provisions hereof, including, without
limitation, the making of Permitted Acquisitions. Notwithstanding anything to
the contrary contained in any Loan Document, the Borrower agrees that no part of
the proceeds of any Loan will be used, directly or indirectly, for a purpose
which violates any law, including, without limitation, the provisions of
Regulations G, U or X of the Board of Governors of the Federal Reserve System,
as amended.
2.8. Letter of Credit Sub-Facility
(a) Subject to the terms and conditions of this Agreement, the Issuing Bank
agrees, in reliance on the agreement of the other Lenders set forth in Section
2.9, to issue standby letters of credit (the "Letters of Credit"; each,
individually, a "Letter of Credit") during the Commitment Period for the account
of the Borrower, provided that immediately after the issuance of each Letter of
Credit (i) the aggregate amount available to be drawn under all Letters of
Credit (whether or not the conditions for drawing thereunder have or may be
satisfied) would not exceed $15,000,000, and (ii) the Aggregate Credit Exposure
would not exceed the Aggregate Commitment Amount. Each Letter of Credit issued
pursuant to this Section shall have a termination date which shall be not later
than the earlier of (1) twelve months after the date of issuance thereof and (2)
the Business Day immediately preceding the Maturity Date. No Letter of Credit
shall be issued if the Agent, or any Lender by notice to the Agent no later than
1:00 p.m. one Business Day prior to the requested date of issuance of such
Letter of Credit, shall have determined that any condition set forth in Section
5 or 6 has not been satisfied.
(b) Each Letter of Credit shall be issued for the account of the Borrower
solely for workmen's compensation purposes and performance and payment bonds and
other obligations of like nature. The Borrower shall give the Agent a Letter of
Credit Request for the issuance of each Letter of Credit by 11:00 a.m., three
Business Days prior to the requested date of issuance. Such Letter of Credit
Request shall be accompanied by the Issuing Bank's standard Application and
Agreement for Standby Letter of Credit (each, a
-28-
<PAGE>
"Reimbursement Agreement") executed by an Authorized Signatory of the Borrower,
and shall specify (i) the beneficiary of such Letter of Credit and the
obligations of the Borrower in respect of which such Letter of Credit is to be
issued, (ii) the Borrower's proposal as to the conditions under which a drawing
may be made under such Letter of Credit and the documentation to be required in
respect thereof, (iii) the maximum amount to be available under such Letter of
Credit, and (iv) the requested date of issuance. Upon receipt of such Letter of
Credit Request from the Borrower, the Agent shall promptly notify the Issuing
Bank and each other Lender thereof. The Issuing Bank shall, on the proposed date
of issuance and subject to the other terms and conditions of this Agreement,
issue the requested Letter of Credit. Each Letter of Credit shall be in form and
substance reasonably satisfactory to the Issuing Bank, with such provisions with
respect to the conditions under which a drawing may be made thereunder and the
documentation required in respect of such drawing as the Issuing Bank shall
reasonably require. Each Letter of Credit shall be used solely for the purposes
described therein.
(c) Each payment by the Issuing Bank of a draft drawn under a Letter of
Credit shall give rise to an obligation on the part of the Borrower to reimburse
the Issuing Bank immediately for the amount thereof.
(d) Notwithstanding anything to the contrary contained herein or in any
Reimbursement Agreement, to the extent that the terms of this Agreement shall be
inconsistent with the terms of such Reimbursement Agreement, the terms of this
Agreement shall govern.
2.9. Letter of Credit Participation and Funding Commitments
(a) Each Lender hereby unconditionally and irrevocably, severally (and not
jointly) for itself only and without any notice to or the taking of any action
by such Lender, takes an undivided participating interest in the obligations of
the Issuing Bank under and in connection with each Letter of Credit in an amount
equal to such Lender's Commitment Percentage of the amount of such Letter of
Credit. Each Lender shall be liable to the Issuing Bank for its Commitment
Percentage of the unreimbursed amount of any draft drawn and honored under each
Letter of Credit. Each Lender shall also be liable for an amount equal to the
product of its Commitment Percentage and any amounts paid by the Borrower
pursuant to Sections 2.8(c) and 2.10 that are subsequently rescinded or avoided,
or must otherwise be restored or returned. Such liabilities shall be
unconditional and without regard to the occurrence of any Default or Event of
Default or the compliance by the Borrower with any of its obligations under the
Loan Documents.
(b) The Issuing Bank shall promptly notify the Agent, and the Agent will
promptly notify each Lender (which notice shall be promptly confirmed in
writing), of the date and the amount of any draft presented under any Letter of
Credit with respect to which full reimbursement of payment is not made by the
Borrower as provided in Section 2.8(c),
-29-
<PAGE>
and forthwith upon receipt of such notice, such Lender (other than the Issuing
Bank in its capacity as a Lender) shall make available to the Agent for the
account of the Issuing Bank its Commitment Percentage of the amount of such
unreimbursed draft at the office of the Agent specified in Section 11.2, in
lawful money of the United States and in immediately available funds, before
4:00 p.m., on the day such notice was given by the Agent, if the relevant notice
was given by the Agent at or prior to 1:00 p.m., on such day, and before 12:00
noon, on the next Business Day, if the relevant notice was given by the Agent
after 1:00 p.m., on such day. The Agent shall distribute the payments made by
each Lender (other than the Issuing Bank in its capacity as a Lender) pursuant
to the immediately preceding sentence to the Issuing Bank promptly upon receipt
thereof in like funds as received. Each Lender shall indemnify and hold harmless
the Agent and the Issuing Bank from and against any and all losses, liabilities
(including liabilities for penalties), actions, suits, judgments, demands, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses and an administration fee of not less than $100 payable to the Issuing
Bank as the issuer of the relevant Letter of Credit) resulting from any failure
on the part of such Lender to provide, or from any delay in providing, the Agent
with such Lender's Commitment Percentage of the amount of any payment made by
the Issuing Bank under a Letter of Credit in accordance with this subsection (b)
(except in respect of losses, liabilities or other obligations suffered by the
Issuing Bank resulting from the gross negligence or willful misconduct of the
Issuing Bank). If a Lender does not make available to the Agent when due such
Lender's Commitment Percentage of any unreimbursed payment made by the Issuing
Bank under a Letter of Credit (other than payments made by the Issuing Bank by
reason of its gross negligence or willful misconduct), such Lender shall be
required to pay interest to the Agent for the account of the Issuing Bank on
such Lender's Commitment Percentage of such payment at a rate of interest per
annum equal to the Federal Funds Rate for the first three days after the due
date of such payment until the date such payment is received by the Agent and
the Federal Funds Rate plus 2% thereafter. The Agent shall distribute such
interest payments to the Issuing Bank upon receipt thereof in like funds as
received.
(c) Whenever the Agent is reimbursed by the Borrower, for the account of
the Issuing Bank, for any payment under a Letter of Credit and such payment
relates to an amount previously paid by a Lender in respect of its Commitment
Percentage of the amount of such payment under such Letter of Credit, the Agent
will pay over such payment to such Lender (i) before 4:00 p.m. on the day such
payment from the Borrower is received, if such payment is received at or prior
to 1:00 p.m. on such day, or (ii) before 12:00 noon on the next succeeding
Business Day, if such payment from the Borrower is received after 1:00 p.m. on
such day.
2.10. Absolute Obligation With Respect to Letter of Credit Payments
The Borrower's obligation to reimburse the Agent for the account of the
Issuing Bank in respect of a Letter of Credit for each payment under or in
respect of such Letter of Credit shall be absolute and unconditional under any
and all circumstances and
-30-
<PAGE>
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the beneficiary of such Letter of Credit,
the Agent, the Issuing Bank, as issuer of such Letter of Credit, any Lender or
any other Person, including, without limitation, any defense based on the
failure of any drawing to conform to the terms of such Letter of Credit, any
drawing document proving to be forged, fraudulent or invalid, or the legality,
validity, regularity or enforceability of such Letter of Credit; provided,
however, that the Borrower shall not be obligated to reimburse the Agent for the
account of the Issuing Bank, as issuer of a Letter of Credit, for any wrongful
payment under such Letter of Credit made as a result of the Issuing Bank's gross
negligence or willful misconduct.
2.11. Payments
(a) Each payment, including each prepayment, of principal and interest on
the Loans, of the Facility Fee, the Letter of Credit Commissions and of all of
the other fees to be paid to the Agent and the Lenders pursuant to or in
connection with this Agreement (the Facility Fee, the Letter of Credit
Commissions, together with all of such other fees, being sometimes hereinafter
collectively referred to as the "Fees") shall be made by the Borrower prior to
12:00 noon on the date such payment is due to the Agent for the account of the
applicable Lenders at the Agent's office specified in Section 11.2, in each case
in lawful money of the United States, in immediately available funds and without
set-off or counterclaim. As between the Borrower and the Lenders, any payment by
the Borrower to the Agent for the account of the Lenders shall be deemed to be
payment by the Borrower to the Lenders. The failure of the Borrower to make any
such payment by such time shall not constitute a Default, provided that such
payment is made on such due date, but any such payment made after 12:00 noon on
such due date shall be deemed to have been made on the next Business Day for the
purpose of calculating interest on amounts outstanding on the Loans. Promptly
upon receipt thereof by the Agent, each payment of principal and interest on
Revolving Credit Loans shall be remitted by the Agent in like funds as received
to each Lender pro rata according to its share of the funds being paid. Promptly
upon receipt thereof by the Agent, each payment of principal and interest on a
Competitive Bid Loan shall be remitted by the Agent in like funds as received to
the Lender that made such Competitive Bid Loan; provided that if more than one
Lender made a Competitive Bid Loan to the Borrower on the same day, at the same
interest rate and for the same Competitive Interest Period, any payment on any
such Competitive Bid Loan shall be remitted by the Agent in like funds as
received pro rata according to the outstanding principal balance of all such
Competitive Bid Loans. Promptly upon receipt thereof by the Agent, each payment
of the Facility Fee and the Letter of Credit Commissions shall be remitted by
the Agent in like funds as received to each Lender pro rata according to such
Lender's Commitment Amount.
(b) If any payment hereunder, under the Notes or under any Reimbursement
Agreement shall be due and payable on a day which is not a Business Day, the due
date thereof (except as otherwise provided in the definition of Eurodollar
Interest Period) shall be extended to the next Business Day and (except with
respect to payments in
-31-
<PAGE>
respect of the Fees) interest shall be payable at the applicable rate specified
herein during such extension, provided, however that if such next Business Day
is after the Maturity Date, any such payment shall be due on the immediately
preceding Business Day.
2.12. Extensions
Provided that no Default or Event of Default shall exist, the Borrower may
request, on any one date that is not less than 60 days prior to the then current
Maturity Date, that the Maturity Date be extended for an additional 365 days by
giving written notice thereof (each an "Extension Request") to the Agent and,
upon receipt of such notice, the Agent shall promptly notify each Lender
thereof. Each Lender shall endeavor to respond to the Extension Request, if any,
within 30 days of its receipt of notice thereof, provided that each Lender which
shall have failed so to respond by such time shall be deemed not to have
consented thereto. In the event that any Lender shall not have consented, in
accordance with this Section 2.12, to such extension, the then current Maturity
Date shall not be extended and shall remain in full force and effect. In the
event that all Lenders shall have so consented, the then existing Maturity Date
shall be extended to the day which is 365 days after such date (or, if such date
is not a Business Day, the Business Day immediately preceding such day).
2.13. Agent's Records
The Agent's records regarding the amount of each Loan and Letter of Credit,
each payment by the Borrower of principal and interest on the Loans and
Reimbursement Obligations and other information relating to the Loans and the
Letters of Credit shall be presumptively correct absent manifest error.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section 3.1(b) and
3.1(c), prior to maturity, (i) Competitive Bid Loans shall bear interest at the
applicable Bid Rates accepted by the Borrower pursuant to Section 2.4 and (ii)
Revolving Credit Loans shall bear interest on the outstanding principal balance
thereof at the applicable interest rate or rates per annum set forth below:
ADVANCES RATE
Each ABR Advance Alternate Base Rate.
-32-
<PAGE>
Each Eurodollar Advance Eurodollar Rate for the applicable
Interest Period plus the Applicable
Margin.
(b) Default Rate. Upon the occurrence and during the continuance of an
Event of Default under Section 9.1(a) or (b), the unpaid principal balance of
the Loans shall bear interest at a rate per annum (whether before or after the
entry of a judgment thereon) equal to 2% plus the rate which would otherwise be
applicable pursuant to Section 2.4 (in the case of Competitive Bid Loans) and
Section 3.1(a) (in the case of Revolving Credit Loans), from the date of such
nonpayment to, but not including, the date such balance is paid in full. For
purposes of the preceding sentence, the rate applicable pursuant to Section 2.4
or 3.1(a), as the case may be, to any overdue, principal, interest or other
amount payable under the Loan Documents shall be (i) in the case of an overdue
principal balance of any Eurodollar Advance, the applicable Eurodollar Rate plus
the Applicable Margin until the last day of the applicable Eurodollar Interest
Period (or the earlier termination thereof pursuant to this Agreement) and
thereafter at the Alternate Base Rate, (ii) in the case of an overdue principal
balance of any Competitive Bid Loan, the applicable Bid Rate until the last day
of the applicable Competitive Interest Period (or the earlier termination
thereof pursuant to this Agreement) and thereafter at the Alternate Base Rate
and (iii) in all other cases at the Alternate Base Rate. All such interest shall
be payable on demand.
(c) Highest Lawful Rate. At no time shall the interest rate payable on the
Loans, together with the Fees and all other amounts payable under the Loan
Documents, to the extent the same are construed to constitute interest, exceed
the Highest Lawful Rate. If in respect of any period during the term of this
Agreement, any amount paid hereunder, to the extent the same shall (but for the
provisions of this Section) constitute or be deemed to constitute interest,
would exceed the maximum amount of interest permitted by the Highest Lawful Rate
during such period (such amount being hereinafter referred to as an "Unqualified
Amount"), then (i) such Unqualified Amount shall be applied or shall be deemed
to have been applied as a prepayment of the Loans, and (ii) if in any subsequent
period during the term of this Agreement, all amounts payable hereunder in
respect of such period which constitute or shall be deemed to constitute
interest shall be less than the maximum amount of interest permitted by the
Highest Lawful Rate during such period, then the Borrower shall pay to the
Lender in respect of such period an amount (each a "Compensatory Interest
Payment") equal to the lesser of (x) a sum which, when added to all such
amounts, would equal the maximum amount of interest permitted by the Highest
Lawful Rate during such period, and (y) an amount equal to the Unqualified
Amount less all other Compensatory Interest Payments made in respect thereof.
(d) In General. Interest on (i) ABR Advances to the extent based on the BNY
Rate shall be calculated on the basis of a 365 or 366-day year (as the case may
be), and (ii) ABR Advances to the extent based on the Federal Funds Rate,
Eurodollar Advances and Competitive Bid Loans shall be calculated on the basis
of a 360-day year, in each case, for the actual number of days elapsed,
including the first day but excluding the last. Except as
-33-
<PAGE>
otherwise provided in Section 3.1(b), interest shall be payable in arrears on
each Interest Payment Date and upon each payment (including prepayment) of the
Loans. Any change in the interest rate on the Revolving Credit Loans resulting
from a change in the Alternate Base Rate or reserve requirements shall become
effective as of the opening of business on the day on which such change shall
become effective. The Agent shall, as soon as practicable, notify the Borrower
and the Lenders of the effective date and the amount of any change in the BNY
Rate, but any failure to so notify shall not in any manner affect the obligation
of the Borrower to pay interest on the Loans in the amounts and on the dates
required. Each determination of the Alternate Base Rate or a Eurodollar Rate by
the Agent pursuant to this Agreement shall be conclusive and binding on all
parties hereto absent manifest error. The Borrower acknowledges that to the
extent interest payable on ABR Advances is based on the BNY Rate, the BNY Rate
is only one of the bases for computing interest on loans made by the Lenders,
and by basing interest payable on ABR Advances on the BNY Rate, the Lenders have
not committed to charge, and the Borrower has not in any way bargained for,
interest based on a lower or the lowest rate at which the Lenders may now or in
the future make loans to other borrowers.
3.2. Fees
(a) Facility Fees. The Borrower agrees to pay to the Agent, for the account
of the Lenders in accordance with each Lender's Commitment Percentage, a fee
(the "Facility Fee"), during the period from the Effective Date through the
Maturity Date, at a rate per annum equal to the Applicable Fee Percentage on the
average daily Aggregate Commitment Amount, regardless of usage. The Facility Fee
shall be payable (i) quarterly in arrears on the last day of each March, June,
September and December during such period commencing on the first such day
following the Effective Date, (ii) on the date of any reduction in the Aggregate
Commitment Amount (to the extent of such reduction) and (iii) on the Maturity
Date. The Facility Fee shall be calculated on the basis of a 360-day year for
the actual number of days elapsed.
(b) Letter of Credit Commissions. The Borrower agrees to pay to the Agent,
for the account of the Lenders in accordance with each Lender's Commitment
Percentage, commissions (the "Letter of Credit Commissions") with respect to
each Letter of Credit for the period from and including the date of issuance
thereof to and including the expiration date thereof, at a rate per annum equal
to the Applicable Fee Percentage in effect on the date of issuance thereof on
the average daily amount available to be drawn under such Letter of Credit. The
Letter of Credit Commissions shall be (i) calculated on the basis of a 360-day
year for the actual number of days elapsed, and (ii) payable quarterly in
arrears on the last day of each March, June, September and December of each
year, on the expiration or cancellation of such Letter of Credit. In addition to
the Letter of Credit Commissions, the Borrower agrees to pay to the Issuing
Bank, for its own account, its standard fees and charges customarily charged to
customers similar to the Borrower with respect to any Letter of Credit.
-34-
<PAGE>
(c) Agent's and Issuing Bank's Fees. The Borrower agrees to pay to the
Agent and the Issuing Bank, for their own respective accounts, such other fees
as have been agreed to in writing by the Borrower, the Agent and the Issuing
Bank.
3.3. Conversions and Continuations
(a) The Borrower may elect from time to time to convert one or more
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election by the delivery by facsimile of
a Notice of Conversion/Continuation, specifying the amount to be so converted,
provided, that any such conversion of Eurodollar Advances shall only be made on
the last day of the Eurodollar Interest Period applicable thereto. In addition,
the Borrower may elect from time to time to (i) convert ABR Advances to
Eurodollar Advances and (ii) to continue Eurodollar Advances by selecting a new
Eurodollar Interest Period therefor, in each case by giving the Agent at least
three Business Days' prior irrevocable notice of such election by the delivery
by facsimile of a Notice of Conversion/Continuation, in the case of a conversion
to, or continuation of, Eurodollar Advances, specifying the amount to be so
converted and the initial Eurodollar Interest Period relating thereto, provided
that any such conversion of ABR Advances to Eurodollar Advances shall only be
made on a Business Day and any continuation of Eurodollar Advances shall only be
made on the last day of the Eurodollar Interest Period applicable to the
Eurodollar Advances which are to be continued as such new Eurodollar Advances.
The Agent shall promptly provide the Lenders with a notice of each such
election. Loans may be converted pursuant to this Section in whole or in part,
provided that the amount to be converted to each Eurodollar Advance, when
aggregated with any Eurodollar Advance to be made on such date in accordance
with Section 2.3 and having the same Eurodollar Interest Period as such first
Eurodollar Advance, shall equal no less than $1,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence and during the continuance of a Default or an Event of Default, the
Borrower shall have no right to elect to convert any existing ABR Advance to a
Eurodollar Advance or to continue a Eurodollar Advance as a Eurodollar Advance
with a new Eurodollar Interest Period. In such event, such ABR Advance shall be
automatically continued as an ABR Advance or such Eurodollar Advance shall be
automatically converted to an ABR Advance on the last day of the Eurodollar
Interest Period applicable to such Eurodollar Advance. In addition, if an Event
of Default shall have occurred and be continuing, the Agent shall, at the
request of the Required Lenders, notify the Borrower (by telephone or otherwise)
that all, or such lesser amount as the Required Lenders shall designate, of the
outstanding Eurodollar Advances shall be automatically converted to ABR
Advances, in which event such Eurodollar Advances shall be automatically
converted to ABR Advances on the date such notice is given.
-35-
<PAGE>
(c) Each conversion or continuation shall be effected by each Lender by
applying the proceeds of its new ABR Advance or Eurodollar Advance, as the case
may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for purposes of
Sections 4, 5 or 6).
(d) Competitive Bid Loans may not be converted or continued.
3.4. Concerning Eurodollar Interest Periods
Notwithstanding any other provision of any other Loan Document:
(a) If the Borrower shall have failed to elect a Eurodollar Advance under
Section 2.3 or 3.3, as the case may be, in connection with any borrowing of new
Revolving Credit Loans or expiration of a Eurodollar Interest Period with
respect to any existing Eurodollar Advance, the amount of the Revolving Credit
Loans subject to such borrowing or such existing Eurodollar Advance shall
thereafter be an ABR Advance until such time, if any, as the Borrower shall
elect a new Eurodollar Advance pursuant to Section 3.3.
(b) No Eurodollar Interest Period selected in respect of conversion or
continuation of any Eurodollar Advance comprising a Revolving Credit Loan shall
end after the Maturity Date.
(c) The Borrower shall not be permitted to have more than eight Eurodollar
Advances outstanding at any one time, provided, however, that at no time shall
the number of the Competitive Interest Periods in respect of outstanding
Competitive Bid Loans and Eurodollar Interest Periods in respect of outstanding
Eurodollar Advances exceed eight.
3.5. Indemnification for Loss
Notwithstanding anything contained herein to the contrary, if (i) the
Borrower shall fail for any reason to borrow, convert or continue an Advance
after it shall have given notice to do so in which it shall have requested a
Eurodollar Advance pursuant to Section 2.3 or 3.3, (ii) the Borrower shall fail
to borrow a Competitive Bid Loan after it shall have accepted one or more offers
therefor pursuant to Section 2.4, (iii) a Eurodollar Advance or a Competitive
Bid Loan shall be terminated for any reason prior to the last day of the
Interest Period applicable thereto, or (iv) any repayment or prepayment of the
principal amount of a Eurodollar Advance is made by the Borrower for any reason
on a date which is prior to the last day of the Interest Period applicable
thereto, the Borrower agrees to indemnify each Lender against, and to pay on
demand directly to such Lender the amount (calculated by such Lender using any
method chosen by such Lender which is customarily used by such Lender for such
purpose) equal to any loss or out-of-pocket expense suffered by such Lender as a
result of such failure to borrow, convert or continue, or such termination,
repayment or
-36-
<PAGE>
prepayment, including any loss, cost or expense suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
such Eurodollar Advance or its Competitive Bid Loan, as the case may be, or
redeploying funds prepaid or repaid, in amounts which correspond to its pro rata
share of such Eurodollar Advance or its Competitive Bid Loan, as the case may
be, and any internal processing charge customarily charged by such Lender in
connection therewith. At the election of such Lender, and without limiting the
generality of the foregoing, but without duplication, such compensation on
account of losses may include an amount equal to the excess of (i) the interest
(excluding the Applicable Margin) that would have been received from the
Borrower under this Agreement on any amounts to be reemployed during an Interest
Period or its remaining portion over (ii) the interest component of the return
that such Lender determines it could have obtained had it placed such amount on
deposit (A) in the case of a Eurodollar Advance, in the interbank eurodollar
market selected for a period equal to the applicable Eurodollar Interest Period
or its remaining portion and (B) in the case of a Competitive Bid Loan, in the
domestic certificate of deposit market selected for a period equal to the
applicable Competitive Interest Period or its remaining portion. Each
determination by the Agent or a Lender pursuant to this Section shall be
conclusive and binding on the Borrower absent manifest error.
3.6. Capital Adequacy
If the amount of capital required or expected to be maintained by any
Lender or any Person directly or indirectly owning or controlling such Lender
(each a "Control Person"), shall be affected by the occurrence of a Regulatory
Change and such Lender shall have determined that Regulatory Change shall have
had or will thereafter have the effect of reducing (i) the rate of return on
such Lender's or such Control Person's capital, or (ii) the asset value to such
Lender or such Control Person of the Loans made or maintained by such Lender, in
either case to a level below that which such Lender or such Control Person could
have achieved or would thereafter be able to achieve but for such Regulatory
Change (after taking into account such Lender's or such Control Person's
policies regarding capital adequacy) by an amount deemed by such Lender to be
material to such Lender or Control Person, then, within ten days after demand by
such Lender, the Borrower shall pay to such Lender or such Control Person such
additional amount or amounts as shall be sufficient to compensate such Lender or
such Control Person, as the case may be, for such reduction.
3.7. Reimbursement for Increased Costs
If any Lender shall determine that a Regulatory Change:
(a) does or shall subject any Lender to any Taxes of any kind whatsoever
with respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments to any
Lender of principal, interest or any other amount payable hereunder in respect
of its Eurodollar
-37-
<PAGE>
Advances, or impose on the Agent, the Issuing Bank or such Lender any other
condition regarding the Letters of Credit including any Taxes required to be
withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, Tax on the Overall Net Income of such
Lender); or
(b) does or shall impose, modify or make applicable any reserve, special
deposit, compulsory loan, assessment, increased cost or similar requirement
against assets held by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender in
respect of its Eurodollar Advances which is not otherwise included in the
determination of a Eurodollar Rate or against any Letters of Credit issued or
participated in by any Lender; and the result of any of the foregoing is to
increase the cost to such Lender of making, renewing, converting, continuing or
maintaining its Eurodollar Advances or its commitment to make such Eurodollar
Advances, or to reduce any amount receivable hereunder in respect of its
Eurodollar Advances, or to increase the cost to the Issuing Bank of issuing or
maintaining the Letters of Credit or the cost to any Lender of participating
therein or the cost to the Agent or the Issuing Bank of performing its
respective functions hereunder with respect to the Letters of Credit, then, in
any such case, the Borrower shall pay such Lender, within 10 days after demand
therefor, such additional amounts as is sufficient to compensate such Lender,
the Issuing Bank or the Agent, as the case may be, for such additional cost or
reduction in such amount receivable which such Lender deems to be material as
determined by such Lender, the Issuing Bank or the Agent, as the case may be;
provided, however, that nothing in this Section shall require the Borrower to
indemnify the Lenders with respect to withholding Taxes for which the Borrower
has no obligation under Section 3.10. No failure by any Lender to demand
compensation for any increased cost in respect of a Eurodollar Advance during
any Interest Period applicable thereto shall constitute a waiver of such
Lender's right to demand such compensation at any time. A statement setting
forth the calculations of any additional amounts payable pursuant to the
foregoing sentence submitted by a Lender, the Issuing Bank or the Agent, as the
case may be, to the Borrower shall be conclusive absent manifest error.
3.8. Illegality of Funding
Notwithstanding any other provision hereof, if any Lender shall reasonably
determine that any law, regulation, treaty or directive, or any change therein
or in the interpretation or application thereof, shall make it unlawful for such
Lender to make or maintain any Eurodollar Advance as contemplated by this
Agreement, such Lender shall promptly notify the Borrower and the Agent thereof,
and (i) the commitment of such Lender to make such Eurodollar Advances or
convert ABR Advances to Eurodollar Advances shall forthwith be suspended, (ii)
such Lender shall fund its portion of each requested Eurodollar Advance as an
ABR Advance and (iii) such Lender's Revolving Credit Loans then outstanding as
such Eurodollar Advances, if any, shall be converted automatically to an ABR
-38-
<PAGE>
Advance on the last day of the then current Eurodollar Interest Period
applicable thereto or at such earlier time as may be required. If the commitment
of any Lender with respect to Eurodollar Advances is suspended pursuant to this
Section and such Lender shall have obtained actual knowledge that it is once
again legal for such Lender to make or maintain Eurodollar Advances, such Lender
shall promptly notify the Agent and the Borrower thereof and, upon receipt of
such notice by each of the Agent and the Borrower, such Lender's commitment to
make or maintain Eurodollar Advances shall be reinstated.
3.9. Substituted Interest Rate
In the event that (i) the Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that by reason of
circumstances affecting the interbank eurodollar market either adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate applicable
pursuant to Section 3.1 or (ii) the Required Lenders shall have notified the
Agent that they have determined (which determination shall be conclusive and
binding on the Borrower) that the applicable Eurodollar Rate will not adequately
and fairly reflect the cost to such Lenders of maintaining or funding loans
bearing interest based on such Eurodollar Rate, with respect to any portion of
the Revolving Credit Loans that the Borrower has requested be made as Eurodollar
Advances or Eurodollar Advances that will result from the requested conversion
or continuation of any portion of the Advances into or of Eurodollar Advances
(each, an "Affected Advance"), the Agent shall promptly notify the Borrower and
the Lenders (by telephone or otherwise, to be promptly confirmed in writing) of
such determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion/Continuation Date for such Affected Advances. If
the Agent shall give such notice, (a) any Affected Advances shall be made as ABR
Advances, (b) the Advances (or any portion thereof) that were to have been
converted to or continued as Affected Advances shall be converted to or
continued as ABR Advances and (c) any outstanding Affected Advances shall be
converted, on the last day of the then current Eurodollar Interest Period with
respect thereto, to ABR Advances. Until any notice under clauses (i) or (ii), as
the case may be, of this Section has been withdrawn by the Agent (by notice to
the Borrower promptly upon either (x) the Agent having determined that such
circumstances affecting the interbank eurodollar no longer exist and that
adequate and reasonable means do exist for determining the Eurodollar Rate
pursuant to Section 3.1 or (y) the Agent having been notified by such Required
Lenders that circumstances no longer render the Advances (or any portion
thereof) Affected Advances, no further Eurodollar Advances shall be required to
be made by the Lenders, nor shall the Borrower have the right to convert or
continue all or any portion of the Revolving Credit Loans to or as Eurodollar
Advances.
3.10. Taxes
(a) Payments to Be Free and Clear. Provided that all documentation, if any,
then required to be delivered by any Lender or the Agent pursuant to subsection
(c) has
-39-
<PAGE>
been delivered, all sums payable by the Borrower under the Loan Documents shall
be paid free and clear of and (except to the extent required by law) without any
deduction or withholding on account of any Tax (other than a Tax on the Overall
Net Income of any Lender (for which payment need not be free and clear but no
deduction or withholding shall be made unless then required by applicable law))
imposed, levied, collected, withheld or assessed by or within the United States
or any political subdivision in or of the United States or any other
jurisdiction from or to which a payment is made by or on behalf of the Borrower
or by any federation or organization of which the United States or any such
jurisdiction is a member at the time of payment.
(b) Grossing-up of Payments. If the Borrower or any other Person is
required by law to make any deduction or withholding on account of any such Tax
from any sum paid or payable by the Borrower to the Agent or any Lender under
any of the Loan Documents:
(i) the Borrower shall notify the Agent and such Lender of any such
requirement or any change in any such requirement as soon as the Borrower
becomes aware of it;
(ii) the Borrower shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on
the Borrower) for its own account or (if that liability is imposed on the Agent
or such Lender, as the case may be) on behalf of and in the name of the Agent or
such Lender;
(iii) the sum payable by the Borrower to the Agent or a Lender in respect
of which the relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, the Agent or such Lender, as the case may be,
receives on the due date therefor a net sum equal to what it would have received
had no such deduction, withholding or payment been required or made; and
(iv) within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b) above to pay, the Borrower
shall deliver to the Agent and the applicable Lender evidence satisfactory to
the other affected parties of such deduction, withholding or payment and of the
remittance thereof to the relevant Governmental Authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (iii) above except to the extent that any change after the
date hereof (in the case of each Lender listed on the signature pages hereof) or
after the date of the Assignment and Acceptance Agreement pursuant to which such
Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is
-40-
<PAGE>
mentioned therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date of this Agreement or at
the date of such Assignment and Acceptance, as the case may be, in respect of
payments to such Lender.
(c) U.S. Tax Certificates. Each Lender that is organized under the laws of
any jurisdiction other than the United States shall deliver to the Agent for
transmission to the Borrower, on or prior to the Effective Date (in the case of
each Lender listed on the signature pages hereof) or on the effective date of
the Assignment and Acceptance Agreement pursuant to which it becomes a Lender
(in the case of each other Lender), and at such other times as may be necessary
in the determination of the Borrower or the Agent (each in the reasonable
exercise of its discretion), such certificates, documents or other evidence,
properly completed and duly executed by such Lender (including, without
limitation, Internal Revenue Service Form W-8, Form 1001 or Form 4224 or any
other certificate or statement of exemption required by Treasury Regulations
Section 1.1441-4(a), Section 1.1441-6(c), Section 35a9999-4 or Section 35a9999-5
or any successor thereto) to establish that such Lender is not subject to
deduction or withholding of United States federal income tax under Section 1441,
1442 or 3406 of the Code or otherwise (or under any comparable provisions of any
successor statute) with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan Documents. The
Borrower shall not be required to pay any additional amount to any such Lender
under subsection (b)(iii) above if such Lender shall have failed to satisfy the
requirements of the immediately preceding sentence; provided that if such Lender
shall have satisfied such requirements on the Effective Date (in the case of
each Lender listed on the signature pages hereof) or on the effective date of
the Assignment and Acceptance Agreement pursuant to which it became a Lender (in
the case of each other Lender), nothing in this subsection shall relieve the
Borrower of its obligation to pay any additional amounts pursuant to subsection
(b)(iii) in the event that, as a result of any change in applicable law, such
Lender is no longer properly entitled to deliver certificates, documents or
other evidence at a subsequent date establishing the fact that such Lender is
not subject to withholding as described in the immediately preceding sentence.
3.11. Option to Fund
Each Lender has indicated that, if the Borrower requests a Eurodollar
Advance or such Lender makes a Competitive Bid Loan to the Borrower, such Lender
may wish to purchase one or more deposits in order to fund or maintain its
funding of its Commitment Percentage of such Eurodollar Advance or its
Competitive Bid Loans, as the case may be, during the Interest Period with
respect thereto; it being understood that the provisions of this Agreement
relating to such funding are included only for the purpose of determining the
rate of interest to be paid in respect of such Eurodollar Advance and any
amounts owing under Sections 3.5 and 3.7. Each Lender shall be entitled to fund
and maintain its funding of all or any part of each Eurodollar Advance and each
Competitive Bid Loan in any manner it sees fit, but all such determinations
under Section 3.5 and 3.7 shall be
-41-
<PAGE>
made as if each Lender had actually funded and maintained its Commitment
Percentage of each such Eurodollar Advance or its Competitive Bid Loans, as the
case may be, during the applicable Interest Period through the purchase of
deposits in an amount equal to the amount of its Commitment Percentage of such
Eurodollar Advance or the amount of its Competitive Bid Loans, as the case may
be, having a maturity corresponding to such Interest Period. Any Lender may fund
its Commitment Percentage of each Eurodollar Advance or its Competitive Bid
Loans, as the case may be, from or for the account of any branch or office of
such Lender as such Lender may choose from time to time.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to make the Loans and the Issuing Bank to issue the Letters of Credit and
the Lenders to participate therein, the Borrower makes the following
representations and warranties to the Agent, the Issuing Bank and each Lender:
4.1. Subsidiaries
As of the Effective Date, the Borrower has only the Subsidiaries set forth
on, and the percentage ownership by the Borrower and its Subsidiaries of the
authorized, issued and outstanding Capital Stock (or partnership or other
interests, as the case may be) of each such Subsidiary is as set forth on,
Schedule 4.1. As of the Effective Date, except as set forth on Schedule 4.1, the
shares of, or partnership or other interests in, each Subsidiary of the Borrower
are owned beneficially and of record by the Borrower or another Subsidiary of
the Borrower, are free and clear of all Liens except as permitted by Section
8.2, and are duly authorized, validly issued, fully paid and nonassessable. As
of the Effective Date, except as set forth on Schedule 4.1, (i) neither the
Borrower nor any of its Subsidiaries has issued any securities convertible into,
or options or warrants for, any common or preferred equity securities thereof,
and (ii) there are no agreements, voting trusts or understandings binding upon
the Borrower or any of its Subsidiaries with respect to the voting securities of
the Borrower or any of its Subsidiaries or affecting in any manner the sale,
pledge, assignment or other disposition thereof, including any right of first
refusal, option, redemption, call or other right with respect thereto, whether
similar or dissimilar to any of the foregoing.
4.2. Existence and Power
Each of the Borrower and each of its Subsidiaries is duly organized or
formed and validly existing in good standing under the laws of the jurisdiction
of its incorporation or formation, has all requisite power and authority to own
its Property and to carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction in which the nature
of the business conducted therein or the Property owned
-42-
<PAGE>
therein makes such qualification necessary, except where such failure to qualify
could not reasonably be expected to have a Material Adverse Effect.
4.3. Authority
Each of the Borrower and each of its Subsidiaries has full power and
authority to own its Property, conduct its business, and enter into, execute,
deliver and perform the terms of the Loan Documents to which it is a party, all
of which have been duly authorized by all proper and necessary corporate,
partnership or other action, as the case may be, and are in full compliance with
its certificate of incorporation and by- laws or partnership agreement and/or
other organic documents, as the case may be.
4.4. Binding Agreement
The Loan Documents (other than the Notes) constitute, and the Notes, when
issued and delivered pursuant hereto for value received, will constitute, the
valid and legally binding obligations of the Borrower and each of its
Subsidiaries to the extent the Borrower or such Subsidiary, as the case may be,
is a party thereto, enforceable in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally.
4.5. Litigation
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower or any of its Subsidiaries)
pending or, to the knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries, or maintained by the Borrower or any of its
Subsidiaries, or which may affect the Property of the Borrower or any of its
Subsidiaries, which (i) could reasonably be expected to have a Material Adverse
Effect, (ii) call into question the validity or enforceability of, or otherwise
seek to invalidate, any Loan Document, or (iii) which might, individually or in
the aggregate, materially and adversely affect any of the transactions
contemplated by any Loan Document.
4.6. Required Consents
Except for information filings required to be made in the ordinary course
of business which are not a condition to the performance by the Borrower or any
of its Subsidiaries under the Loan Documents, no consent, authorization or
approval of, filing with, notice to, or exemption by, stockholders or holders of
any other equity interest, any Governmental Authority or any other Person is
required to authorize, or is required in connection with the execution, delivery
and performance of the Loan Documents to which the Borrower
-43-
<PAGE>
or any of its Subsidiaries is a party or is required as a condition to the
validity or enforceability of the Loan Documents to which is a party.
4.7. Absence of Defaults; No Conflicting Agreements
(a) Neither the Borrower nor any of its Subsidiaries is in default under
any mortgage, indenture (including, without limitation, the Subordinated
Indenture), contract or agreement to which it is a party or by which it or any
of its Property is bound, the effect of which default could reasonably be
expected to have a Material Adverse Effect. No provision of any statute, rule,
regulation, judgment, directive, decree or order, or any existing material
mortgage, indenture, contract or agreement, in each case binding on the Borrower
or any of its Subsidiaries or affecting the Property of the Borrower or any of
its Subsidiaries conflicts with, or requires any consent which has not already
been obtained under, or would in any way prohibit the execution, delivery or
performance by the Borrower or any of its Subsidiaries of the terms of, any Loan
Document. The execution, delivery or carrying out of the terms of the Loan
Documents will not constitute a default under, or result in the creation or
imposition of, or obligation to create, any Lien upon any Property of the
Borrower or any of its Subsidiaries or result in a breach of or require the
mandatory repayment of or other acceleration of payment under or pursuant to the
terms of any such mortgage, indenture (including, without limitation, the
Subordinated Indenture), contract or agreement.
(b) Neither the Borrower nor any of its Subsidiaries is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect.
4.8. Compliance with Applicable Laws
The Borrower and each of its Subsidiaries is complying in all material
respects with all statutes, regulations, rules and orders of all Governmental
Authorities which are applicable to the Borrower or such Subsidiary, a violation
of which could reasonably be expected to have a Material Adverse Effect. The
Borrower and each of its Subsidiaries has filed or caused to be filed with all
Governmental Authorities all reports, applications, documents, instruments and
information required to be filed pursuant to all applicable laws, rules,
regulations and requests which, if not so filed, could reasonably be expected to
have a Material Adverse Effect.
4.9. Taxes
The Borrower and each of its Subsidiaries has filed or caused to be filed
all tax returns required to be filed and has paid, or has made adequate
provision for the payment of, all taxes shown to be due and payable on said
returns or in any assessments made against it (other than those being contested
as required under Section 7.4) which would be material
-44-
<PAGE>
to the Borrower or any of its Subsidiaries, and no tax Liens have been filed
against the Borrower or any of its Subsidiaries and no claims are being asserted
with respect to such taxes which are required by GAAP (as in effect on the
Effective Date) to be reflected in the Financial Statements and are not so
reflected therein. The charges, accruals and reserves on the books of the
Borrower and each of its Subsidiaries with respect to all federal, state, local
and other taxes are, to the best knowledge of the Borrower, adequate for the
payment of all such taxes, and the Borrower knows of no unpaid assessment which
is due and payable against the Borrower or any of its Subsidiaries or any claims
being asserted which could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested as required under Section
7.4, and for which adequate reserves have been set aside in accordance with
GAAP.
4.10. Governmental Regulations
Neither the Borrower nor any of its Subsidiaries nor any Person controlled
by, controlling, or under common control with, the Borrower or any of its
Subsidiaries, is subject to regulation under the Public Utility Holding Company
Act of 1935, as amended, the Federal Power Act, as amended, or the Investment
Company Act of 1940, as amended, or is subject to any statute or regulation
which prohibits or restricts the incurrence of Indebtedness, including, without
limitation, statutes or regulations relative to common or contract carriers or
to the sale of electricity, gas, steam, water, telephone, telegraph or other
public utility services.
4.11. Federal Reserve Regulations; Use of Loan Proceeds
Neither the Borrower nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. After giving effect to the
making of each Loan, Margin Stock will constitute less than 25% of the assets
(as determined by any reasonable method) of the Borrower and its Subsidiaries.
4.12. Plans
Each Employee Benefit Plan maintained or participated in by the Borrower,
its Subsidiaries or the ERISA Affiliates is in compliance with ERISA and the
Code, where applicable, in all material respects. Each Employee Benefit Plan
maintained or participated in by the Borrower, its Subsidiaries or the ERISA
Affiliates is in compliance with ERISA and the Code, where applicable, in all
material respects. As of the Effective Date, (i) there are no Unfunded Pension
Liabilities under the Pension Plans, excluding any plan which is a Multiemployer
Plan, and (ii) there is no Unrecognized Retiree Welfare Liability under any
applicable Employee Benefit Plan. The Borrower and each of its Subsidiaries and
ERISA Affiliates has complied with the requirements of Section 515 of ERISA with
respect to each Pension Plan which is a Multiemployer Plan. As of the Effective
Date, the aggregate po-
-45-
<PAGE>
tential annual withdrawal liability payments, as determined in accordance with
Title IV of ERISA, of the Borrower and its Subsidiaries and ERISA Affiliates
with respect to all Pension Plans which are Multiemployer Plans does not exceed
$250,000. The Borrower and its Subsidiaries and ERISA Affiliates have, as of the
Effective Date, made all contributions or payments to or under each such Pension
Plan required by law or the terms of such Pension Plan or any contract or
agreement with respect thereto. No material liability to the PBGC has been, or
is expected by the Borrower, any of its Subsidiaries or any ERISA Affiliate to
be, incurred by the Borrower, any such Subsidiary or any ERISA Affiliate.
Liability, as referred to in this Section includes any joint and several
liability. Each Employee Benefit Plan which is a group health plan within the
meaning of Section 5000(b)(1) of the Code is in material compliance with the
continuation of health care coverage requirements of Section 4980B of the Code.
Notwithstanding anything to the contrary contained in this Section 4.12, no
representation or warranty contained in this Section 4.12 shall be made with
respect to any liability incurred by the Borrower, any of its Subsidiaries or
any ERISA Affiliate in respect of the District 65 Multiemployer Pension Plan, so
long as the aggregate amount of all such liabilities does not exceed $2,500,000.
4.13. Financial Statements
The Borrower has heretofore delivered to the Agent and the Lenders copies
of its Form 10-K for the fiscal year ending December 31, 1995, containing the
audited Consolidated Balance Sheets of the Borrower and its Subsidiaries as of
December 31, 1995, and December 31, 1994, and the related Consolidated
Statements of Operations, Stockholders' Investment and Cash Flows for the
periods then ended, and its Form 10-Q for the fiscal quarter ended March 31,
1996 , containing the unaudited Consolidated Balance Sheet of the Borrower and
its Subsidiaries for such fiscal quarter, together with the related Consolidated
Statements of Operations, Stockholders' Investment and Cash Flows for the fiscal
quarter then ended (with the applicable related notes and schedules, the
"Financial Statements"). The Financial Statements fairly present the
Consolidated financial condition and results of the operations of the Borrower
and its Subsidiaries as of the dates and for the periods indicated therein and
have been prepared in conformity with GAAP. Except as reflected in the Financial
Statements or in the footnotes thereto, neither the Borrower nor any of its
Subsidiaries has any obligation or liability of any kind (whether fixed,
accrued, contingent, unmatured or otherwise) which, in accordance with GAAP,
should have been shown in the Financial Statements and was not. Since December
31, 1995, the Borrower and each of its Subsidiaries has conducted its business
only in the ordinary course and there has been no Material Adverse Change.
4.14. Property
Each of the Borrower and each of its Subsidiaries has (i) good and
marketable title to all of its Property, title to which is material to the
Borrower or such Subsidiary and
-46-
<PAGE>
(ii) a valid leasehold interest in all Property, a leasehold interest in which
is material to the Borrower or such Subsidiary, in each case subject to no
Liens, except Permitted Liens.
4.15. Authorizations
Each of the Borrower and each of its Subsidiaries possesses or has the
right to use all franchises, licenses and other rights as are material and
necessary for the conduct of its business, and with respect to which it is in
compliance, with no known conflict with the valid rights of others which could
reasonably be expected to have a Material Adverse Effect. No event has occurred
which permits or, to the best knowledge of the Borrower, after notice or the
lapse of time or both, or any other condition, could reasonably be expected to
permit, the revocation or termination of any such franchise, license or other
right which revocation or termination could reasonably be expected to have a
Material Adverse Effect.
4.16. Environmental Matters
(a) No Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any Real
Property in violation of any Environmental Laws; no Hazardous Substances have
been discharged into subsurface waters under any Real Property in violation of
any Environmental Laws; no Hazardous Substances have been discharged from any
Real Property on or into Property or waters (including subsurface waters)
adjacent to any Real Property in violation of any Environmental Laws; and there
are not now, nor ever have been, on any Real Property any underground or above
ground storage tanks regulated under any Environmental Laws.
(b) Neither the Borrower nor any of its Subsidiaries (i) has received
notice (written or oral) or otherwise learned of any claim, demand, suit,
action, proceeding, event, condition, report, directive, Lien, violation,
non-compliance or investigation indicating or concerning any potential or actual
liability (including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, Property damages, personal injuries
or penalties) arising in connection with: (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any of its Subsidiaries) or the release or
threatened release of any Hazardous Substance into the environment, (ii) has any
threatened or actual liability in connection with the presence of any Hazardous
Substance on any Real Property (or any Real Property previously owned by the
Borrower or any of its Subsidiaries) or the release or threatened release of any
Hazardous Substance into the environment, (iii) has received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to the presence of any Hazardous Substance on any Real Property (or
any Real Property previously owned by the Borrower or any of its Subsidiaries)
or a release or threatened release of any Hazardous Substance into the
environment for which the Borrower or any of its Subsidiaries
-47-
<PAGE>
is or may be liable, or (iv) has received notice that the Borrower or any of its
Subsidiaries is or may be liable to any Person under any Environmental Law.
4.17. Absence of Certain Restrictions
No indenture, certificate of designation for preferred stock, agreement or
instrument to which the Borrower or any of its Subsidiaries is a party (other
than this Agreement), prohibits or limits in any way, directly or indirectly the
ability of any Subsidiary of the Borrower to make Restricted Payments or repay
any Indebtedness to the Borrower or to another Subsidiary of the Borrower.
4.18. Status as Senior Indebtedness
On and after the Effective Date, the obligations of the Loan Parties under
the Loan Documents constitute "Senior Indebtedness" under, and as such term is
defined in, the Subordinated Indenture.
4.19. Security Interest
The Loan Documents, together with the delivery to the Agent of the
promissory notes constituting the Collateral and the continuous possession
thereof by the Agent in the State of New York, creates a continuing enforceable
security interest in the Collateral, to the extent such creation is governed by
the New York Uniform Commercial Code as in effect on the date of this Agreement,
securing the payment of the obligations of each of the Loan Parties under the
Loan Documents to which it is a party.
4.20. No Misrepresentation
No representation or warranty contained in any Loan Document and no
certificate, Financial Statement, written notice, or report from time to time
furnished by the Borrower or any of its Subsidiaries in connection with the
transactions contemplated thereby, contains or will contain a misstatement of
material fact, or, to the best knowledge of the Borrower, omits or will omit to
state a material fact required to be stated in order to make the statements
therein contained not misleading in the light of the circumstances under which
made, provided, however, that any projections and/or pro-forma financial
information contained therein are based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made, it being
recognized by the Agent and the Lenders that such projections as to future
events are not to be viewed as facts, and that actual results during the period
or periods covered by any such projections may differ from the projected
results.
-48-
<PAGE>
5. CONDITIONS TO EFFECTIVENESS
The effectiveness of this Agreement shall be subject to the fulfillment of
the following conditions precedent:
5.1. Evidence of Action
The Agent shall have received a certificate, dated the Effective Date, of
the Secretary, Assistant Secretary or other analogous counterpart of each Loan
Party (i) attaching a true and complete copy of the resolutions of its Managing
Person and of all documents evidencing all necessary corporate, partnership or
similar action (in form and substance reasonably satisfactory to the Agent)
taken by it to authorize the Loan Documents to which it is a party and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its organizational documents, (iii) setting forth the incumbency of the
corporate officer(s) or other analogous counterparts thereof who may sign such
Loan Documents, including therein a signature specimen of such corporate officer
or counterpart, as the case may be, and (iv) attaching a certificate of good
standing of the Secretary of State of the State of its formation and each other
jurisdiction in which it is qualified to conduct business except, in the case of
such other jurisdiction, when the failure to be in good standing in such
jurisdiction would not have a Material Adverse Effect.
5.2. This Agreement
The Agent shall have received counterparts of this Agreement signed by each
of the parties hereto (or receipt by the Agent from a party hereto of a
facsimile signature page signed by such party which shall have agreed to
promptly provide the Agent with originally executed counterparts hereof).
5.3. Notes
The Agent shall have received the Revolving Credit Notes and the
Competitive Bid Notes, duly executed by an Authorized Signatory of the Borrower.
5.4. Subsidiary Guaranty
The Borrower shall have delivered or caused to be delivered to the Agent a
guaranty, dated the Effective Date, executed by each of the parties listed on
Schedule 5.4, and in the form of Exhibit I (as the same may be amended,
supplemented or otherwise modified from time to time, the "Subsidiary
Guaranty").
-49-
<PAGE>
5.5. Absence of Litigation
There shall be no injunction, writ, preliminary restraining order or other
order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for in the Loan Documents and no action or
proceeding by or before any Governmental Authority has been commenced and is
pending or, to the knowledge of the Borrower, threatened, seeking to prevent or
delay the transactions contemplated by the Loan Documents or challenging any
other terms and provisions hereof or thereof or seeking any damages in
connection therewith, and the Agent shall have received a certificate, in all
respects satisfactory to the Agent, of an executive officer of the Borrower to
the foregoing effects.
5.6. Approvals and Consents
All approvals and consents of all Persons required to be obtained in
connection with the consummation of the transactions contemplated by the Loan
Documents shall have been obtained and shall be in full force and effect, and
all required notices have been given and all required waiting periods shall have
expired, and the Agent shall have received a certificate, in all respects
satisfactory to the Agent, of an executive officer of the Borrower to the
foregoing effects.
5.7. Intercompany Notes
Each Loan Party shall have delivered to the Agent, in accordance with
Section 8.5(f), a promissory note evidencing Intercompany Indebtedness owing to
such Person, together with an allonge evidencing the pledge of such note to the
Agent.
5.8. Opinion of Counsel
The Agent shall have received an opinion of Cummings & Lockwood, counsel to
the Borrower and the parties listed on Schedule 5.4, addressed to the Agent, the
Co-Agent, the Issuing Bank and the Lenders (and permitting Special Counsel to
rely thereon), and dated the Effective Date, substantially in the form of
Exhibit L.
5.9. Opinion of Special Counsel
The Agent shall have received an opinion of Special Counsel, addressed to
the Agent, the Issuing Bank and the Lenders and dated the Effective Date,
substantially in the form of Exhibit M.
-50-
<PAGE>
5.10. Subordinated Indenture
The Agent shall have received a fully executed copy of the Subordinated
Indenture, certified to be a true and complete copy thereof by the Secretary or
Assistant Secretary of the Borrower, which shall be in form and substance
satisfactory to the Agent.
5.11. Property, Public Liability and Other Insurance
The Agent shall have received a certificate of all insurance maintained by
the Borrower and its Subsidiaries in form and substance reasonably satisfactory
to the Agent.
5.12. Fees
All fees payable to the Agent on the first Borrowing date shall have been
paid.
5.13. Fees and Expenses of Special Counsel
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.14. Other Documents
The Agent shall have received such other documents, each in form and
substance reasonably satisfactory to the Agent, as the Agent shall reasonably
require in connection with the making of the first Revolving Credit Loans and
the issuance of first Letters of Credit.
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT
The obligation of each Lender to make any Loan or the Issuing Bank to issue
any Letter of Credit on a Borrowing Date and each Lender to participate therein
is subject to the prior satisfaction of the conditions precedent to
effectiveness set forth in Section 5 and to the satisfaction of the following
conditions precedent as of the date of such Loan or the issuance of such Letter
of Credit, as the case may be:
6.1. Compliance
On each Borrowing Date and after giving effect to the Loans to be made and
the Letters of Credit to be issued thereon (i) there shall exist no Default or
Event of Default, (ii) the representations and warranties contained in the Loan
Documents shall be true and correct with the same effect as though such
representations and warranties had been made on
-51-
<PAGE>
such Borrowing Date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date, and
(iii) no Material Adverse Change shall have occurred since December 31, 1995.
Each borrowing by the Borrower shall constitute a certification by the Borrower
as of such Borrowing Date that each of the foregoing matters is true and correct
in all respects.
6.2. Borrowing Request; Letter of Credit Request; Competitive Bid Request
With respect to the Loans to be made, and the Letters of Credit to be
issued, on each Borrowing Date, the Agent shall have received, (i) in the case
of Revolving Credit Loans, a Borrowing Request, (ii) in the case of Letters of
Credit, a Letter of Credit Request, and (iii) in the case Competitive Bid Loans,
a Competitive Bid Request and such other documents required to be delivered
pursuant to Section 2.4, in each case duly executed by an Authorized Signatory
of the Borrower.
6.3. Other Documents
The Agent shall have received such other documents as the Agent or the
Lenders shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
or Reimbursement Obligation (contingent or otherwise) in respect of any Letter
of Credit remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender, the Issuing Bank or the Agent, the Borrower shall:
7.1. Financial Statements and Information
Maintain, and cause each of its Subsidiaries to maintain, a standard system
of accounting in accordance with GAAP, and furnish or cause to be furnished to
the Agent and each Lender:
(a) As soon as available, but in any event within 90 days after the end of
each fiscal year, a copy of its Consolidated Balance Sheet as at the end of such
fiscal year, together with the related Consolidated Statements of Operations,
Stockholders' Investment and Cash Flows as of and through the end of such fiscal
year, setting forth in each case in comparative form the figures for the
preceding fiscal year. The Consolidated Balance Sheet and Consolidated
Statements of Operations, Stockholders' Equity and Cash Flows shall be audited
and certified without qualification by the Accountants, which certification
shall (i) state that the examination by such Accountants in connection with such
-52-
<PAGE>
Consolidated financial statements has been made in accordance with generally
accepted auditing standards and, accordingly, included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances, and (ii) include the opinion of such Accountants
that such Consolidated financial statements have been prepared in accordance
with GAAP in a manner consistent with prior fiscal periods, except as otherwise
specified in such opinion. Notwithstanding any of the foregoing, the Borrower
may satisfy its obligation under this subsection (a) by furnishing copies of the
Borrower's annual report on Form 10-K in respect of such fiscal year, together
with the financial statements required to be attached thereto, provided the
Borrower is required to file such annual report on Form 10-K with the SEC and
such filing is actually made.
(b) As soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters, a copy of the Consolidated Balance
Sheet of the Borrower as at the end of each such quarterly period, together with
the related Consolidated Statements of Operations, Stockholders' Investment and
Cash Flows for such period and for the elapsed portion of the fiscal year
through such date, setting forth in each case in comparative form the figures
for the corresponding periods of the preceding fiscal year, certified by a
Financial Officer of the Borrower, as being complete and correct in all material
respects and as presenting fairly the Consolidated financial condition and the
Consolidated results of operations of the Borrower and its Subsidiaries.
Notwithstanding any of the foregoing, the Borrower may satisfy its obligation
under this subsection (b) by furnishing copies of the Borrower's quarterly
report on Form 10-Q in respect of such fiscal quarter, together with the
financial statements required to be attached thereto, provided the Borrower is
required to file such quarterly report on Form 10-Q with the SEC and such filing
is actually made.
(c) Within 45 days after the end of each of the first three fiscal quarters
(90 days after the end of the last fiscal quarter), a Compliance Certificate,
certified by a Financial Officer of the Borrower.
(d) As soon as available, but in any event within 45 days after the end of
each fiscal quarter, a copy of (i) the Borrower's directors' report in respect
of such fiscal quarter, and (ii) the Borrower's daily cash flow report, dated as
of the end of the most recent fiscal quarter.
(e) Such other information as the Agent or any Lender may reasonably
request from time to time.
7.2. Certificates; Other Information
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the Borrower or any
of its Subsidiaries in an aggregate amount in excess of $250,000 is declared or
shall
-53-
<PAGE>
become due and payable prior to its stated maturity, or is called and not paid
when due, (ii) a default shall have occurred under any note (other than the
Notes) or the holder of any such note, or other evidence of Indebtedness,
certificate or security evidencing any such Indebtedness or any obligee with
respect to any other Indebtedness of the Borrower or any of its Subsidiaries has
the right to declare Indebtedness in an aggregate amount in excess of $250,000
due and payable prior to its stated maturity or, (iii) there shall occur and be
continuing a Default, an Event of Default or a Material Adverse Change.
(b) Prompt written notice of: (i) any citation, summons, subpoena, order to
show cause or other document naming the Borrower or any of its Subsidiaries a
party to any proceeding before any Governmental Authority which could reasonably
be expected to have a Material Adverse Effect or which calls into question the
validity or enforceability of any of the Loan Documents, and include with such
notice a copy of such citation, summons, subpoena, order to show cause or other
document, (ii) any lapse or other termination of any material license, permit,
franchise or other authorization issued to the Borrower or any of its
Subsidiaries by any Person or Governmental Authority, and (iii) any refusal by
any Person or Governmental Authority to renew or extend any such material
license, permit, franchise or other authorization, which lapse, termination,
refusal or dispute could reasonably be expected to have a Material Adverse
Effect.
(c) Promptly upon becoming available, copies of all material (i) special
reports, schedules and other material which the Borrower or any of its
Subsidiaries may now or hereafter be required to file with or deliver to any
securities exchange or the SEC, or any other Governmental Authority succeeding
to the functions thereof and (ii) news releases and annual reports relating to
the Borrower or any of its Subsidiaries.
(d) Prompt written notice in the event that the Borrower, any of its
Subsidiaries or any ERISA Affiliate knows, or has reason to know, that (i) any
Termination Event with respect to a Pension Plan (other than the District 65
Multiemployer Pension Plan, so long as the aggregate amount of all liabilities
incurred by the Borrower, its Subsidiaries and the ERISA Affiliates in respect
thereof shall not exceed $2,500,000) has occurred or will occur, (ii) any
condition exists with respect to a Pension Plan (other than the District 65
Multiemployer Pension Plan, so long as the aggregate amount of all liabilities
incurred by the Borrower, its Subsidiaries and the ERISA Affiliates in respect
thereof shall not exceed $2,500,000) which presents a material risk of
termination of the Pension Plan, imposition of an excise tax, requirement to
provide security to the Pension Plan or other liability on the Borrower, any of
its Subsidiaries or any ERISA Affiliate, (iii) the Borrower, any of its
Subsidiaries or any ERISA Affiliate has applied for a waiver of the minimum
funding standard under Section 412 of the Code with respect to a Pension Plan
(other than the District 65 Multiemployer Pension Plan, so long as the aggregate
amount of all liabilities incurred by the Borrower, its Subsidiaries and the
ERISA Affiliates in respect thereof shall not exceed $2,500,000), (iv) the
aggregate amount of the Unfunded Pension Liabilities under all Pension Plans is
in excess of $250,000, (v) the aggregate amount of Unrecognized
-54-
<PAGE>
Retiree Welfare Liability under all applicable Employee Benefit Plans is in
excess of $250,000, (vi) the Borrower, any of its Subsidiaries or any ERISA
Affiliate has engaged in a Prohibited Transaction with respect to an Employee
Benefit Plan, (vii) the imposition of any tax under Section 4980B(a) of the Code
or (viii) the assessment of a civil penalty under Section 502(c) of ERISA,
together with a certificate of the president or a Financial Officer of the
Borrower setting forth the details of such event and the action which the
Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto, together with a copy of all notices and filings with respect thereto.
(e) Prompt written notice in the event that Borrower, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying the Borrower, such Subsidiary or such ERISA Affiliate of any final
decision finding liability and the date by which such liability must be paid,
together with a copy of such letter and a certificate of the president or a
Financial Officer of the Borrower setting forth the action which the Borrower,
such Subsidiary or such ERISA Affiliate proposes to take with respect thereto.
(f) Promptly upon the same becoming available, and in any event by the date
such amendment is adopted, a copy of any Pension Plan amendment that the
Borrower, any of its Subsidiaries or any ERISA Affiliate proposes to adopt which
would require the posting of security under Section 401(a)(29) of the Code,
together with a certificate of the president or a Financial Officer of the
Borrower setting forth the reasons for the adoption of such amendment and the
action which the Borrower, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto.
(g) As soon as possible and in any event by the tenth day after any
required installment or other payment under Section 412 of the Code owed to a
Pension Plan shall have become due and owing and remain unpaid a copy of the
notice of failure to make required contributions provided to the PBGC by the
Borrower, any of its Subsidiaries or any ERISA Affiliate under Section 412(n) of
the Code, together with a certificate of the president or a Financial Officer
setting forth the action which the Borrower, such Subsidiary or such ERISA
Affiliate proposes to take with respect thereto.
(h) If the termination of any Pension Plan would result in the imposition
of any tax under Section 4980 of the Code, then as soon as possible, but in no
event less than 60 days before the due date of the tax, a certificate of the
president or a Financial Officer of the Borrower setting forth the estimated
amount of such tax, any reversion, and the proposed use of such reversion. This
subsection shall apply to a transaction notwithstanding a reduction or complete
elimination of a tax because of the operation of either Sections 4980(d) or
420(a)(3)(A) of the Code.
-55-
<PAGE>
(i) Prompt written notice of any order, notice, claim or proceeding
received by, or brought against, the Borrower or any of its Subsidiaries, or
with respect to any of the Real Property, under any Environmental Law.
(j) Such other information as the Agent or any Lender shall reasonably
request from time to time.
7.3. Legal Existence
Except as may otherwise be permitted by Sections 8.3 and 8.4, maintain, and
cause each of its Subsidiaries to maintain, its corporate, partnership or
analogous existence, as the case may be, in good standing in the jurisdiction of
its incorporation or formation and in each other jurisdiction in which the
failure so to do could reasonably be expected to have a Material Adverse Effect.
7.4. Taxes
Pay and discharge when due, and cause each of its Subsidiaries so to do,
all Taxes, assessments and governmental charges, license fees and levies upon,
or with respect to, the Borrower or such Subsidiary and all Taxes upon the
income, profits and Property of the Borrower and its Subsidiaries, which if
unpaid, could reasonably be expected to have a Material Adverse Effect or become
a Lien on the Property of the Borrower or such Subsidiary (other than a Lien
described in Section 8.2(a)(i)), unless and to the extent only that such Taxes,
assessments, charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary, provided that the Borrower shall give the Agent prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
7.5. Insurance
Maintain, and cause each of its Subsidiaries to maintain, with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption coverage) as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to the Agent, upon written request, full
information as to the insurance carried.
7.6. Performance of Obligations
Pay and discharge when due, and cause each of its Subsidiaries so to do,
all lawful Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, might (i) have a Material Adverse
Effect, or (ii) become a Lien upon
-56-
<PAGE>
Property of the Borrower or any of its Subsidiaries other than a Permitted Lien,
unless and to the extent only that the validity of such Indebtedness, obligation
or claim shall be contested in good faith and by appropriate proceedings
diligently conducted by it, provided that the Borrower shall give the Agent
prompt notice of any such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.7. Condition of Property
At all times, maintain, protect and keep in good repair, working order and
condition (ordinary wear and tear excepted), and cause each of its Subsidiaries
so to do, all Property necessary to the operation of the Borrower's or such
Subsidiary's business.
7.8. Observance of Legal Requirements
Observe and comply in all respects, and cause each of its Subsidiaries so
to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it, a violation of which could reasonably be expected to have a
Material Adverse Effect, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by it, provided that the
Borrower shall give the Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
7.9. Inspection of Property; Books and Records; Discussions
At all reasonable times, upon reasonable prior notice, permit
representatives of the Agent and each Lender to visit the offices of the
Borrower and each of its Subsidiaries, to examine the books and records thereof
and Accountants' reports relating thereto, and to make copies or extracts
therefrom, to discuss the affairs of the Borrower and each such Subsidiary with
the respective officers thereof, and to examine and inspect the Property of the
Borrower and each such Subsidiary and to meet and discuss the affairs of the
Borrower and each such Subsidiary with the Accountants.
7.10. Authorizations
Maintain, and cause each of its Subsidiaries to maintain, in full force and
effect, all material licenses, franchises, permits, licenses, authorizations and
other rights as are necessary for the conduct of its business.
7.11. Financial Covenants
-57-
<PAGE>
(a) Interest Coverage Ratio. As of any date, maintain an Interest Coverage
Ratio of not less than 4.00:1.00.
(b) Leverage Ratio. As of any date, maintain a Leverage Ratio of not more
than 3.00:1.00.
(c) Consolidated Net Worth. As of any date, maintain Consolidated Net Worth
in an amount not less than the sum of (i) $125,000,000, (ii) 50% of the
cumulative positive net income of the Borrower and its Subsidiaries on a
Consolidated basis in respect of each completed fiscal quarter during the period
commencing on January 1, 1996 and ending on such date, and (iii) 50% of the
difference, if any, between Consolidated Net Worth as of such date and
Consolidated Net Worth as of December 31, 1995, to the extent such difference
shall have resulted from equity issuances by the Borrower or any of its
Subsidiaries or conversions of the Subordinated Debentures into equity pursuant
to the terms thereof.
7.12. Additional Material Domestic Subsidiaries
(a) On or prior to each date hereafter upon which a Person shall have
become a Material Domestic Subsidiary, cause such Material Domestic Subsidiary
to become a party to the Subsidiary Guaranty, in accordance with the terms
thereof, on and as of such date.
(b) Cause each Material Domestic Subsidiary which shall have become a party
to the Subsidiary Guaranty at any time after the Effective Date, to deliver to
the Agent, simultaneously with the execution and delivery of the same, (i) a
certificate, dated the date such Material Domestic Subsidiary shall have become
a party to the Subsidiary Guaranty, executed by such Material Domestic
Subsidiary and substantially in the form of, and with substantially the same
attachments as, the certificate which would have been required under Section 5.1
if such Material Domestic Subsidiary had become a party to the Subsidiary
Guaranty on or before the Effective Date, (ii) each promissory note evidencing
Intercompany Indebtedness required to be pledged to the Agent pursuant to
Section 8.5(f) and (iii) if requested by the Agent, an opinion of counsel to
such Material Domestic Subsidiary, covering the same matters with respect to
such Material Domestic Subsidiary as were covered by the opinions delivered
pursuant to Section 5.8, in form and substance reasonably satisfactory to the
Agent.
7.13. Concerning the Collateral
The Borrower shall, and shall cause each other Loan Party to, promptly
execute and deliver at its own expense, all certificates, documents,
instruments, financing and continuation statements and amendments thereto,
notices and other agreements, and take all further action, that the Agent may
reasonably request from time to time, in order to perfect
-58-
<PAGE>
and protect the security interest granted to the Agent in the Collateral or to
enable the Agent to exercise and enforce its rights and remedies with respect to
the Collateral.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
or Reimbursement Obligation (contingent or otherwise) in respect of any Letter
of Credit remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender, the Issuing Agent or the Agent, the Borrower shall
not, directly or indirectly:
8.1. Indebtedness
Create, incur, assume or suffer to exist any Indebtedness, or permit any of
its Subsidiaries so to do, except (i) Indebtedness under the Loan Documents,
(ii) Indebtedness under the Subordinated Indenture and in respect of the
Subordinated Debentures, (iii) the Subordinated Indenture Refinance
Indebtedness, (iv) Indebtedness set forth on Schedule 8.1, (v) Intercompany
Indebtedness, (vi) Indebtedness of the Borrower and its Subsidiaries not in
excess of $10,000,000 in the aggregate at any one time outstanding under
reimbursement agreements (other than the Reimbursement Agreements) in respect of
letters of credit, (vii) Indebtedness in respect of Sale and Leaseback
Transactions permitted under Section 8.9, (viii) Indebtedness of the Borrower
and its Subsidiaries incurred in the ordinary course of business (A) in respect
of capital leases, (B) secured by Liens on Property (including, in the event
such Property constitutes capital stock of a newly acquired Subsidiary of the
Borrower, Liens on the Property of such Subsidiary) acquired by the Borrower or
any of its Subsidiaries after the date hereof, provided that such Liens are in
existence on the date of such acquisition and were not placed on such Property
in contemplation of such acquisition, and (C) other purchase money Indebtedness
of the Borrower and its Subsidiaries, provided that, in each case under this
clause (viii), the Lien securing such Indebtedness is permitted by Section 8.2,
(ix) Indebtedness of the Borrower not in excess of $15,000,000 at any one time
outstanding in respect of industrial development bonds issued for its benefit,
and (x) other unsecured Indebtedness of the Borrower and its Subsidiaries not in
excess of $20,000,000 in the aggregate at any one time outstanding.
8.2. Liens
(a) Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
which are being contested in accordance with Section 7.4, provided that
enforcement of such Liens is stayed pending such contest, (ii) Liens in
connection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure bids,
tenders,
-59-
<PAGE>
contracts (other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds and other obligations of like nature
arising in the ordinary course of business, (iv) zoning ordinances, easements,
rights of way, minor defects, irregularities, and other similar restrictions
affecting real Property which do not adversely affect the value of such real
Property or the financial condition of the Borrower or such Subsidiary or impair
its use for the operation of the business of the Borrower or such Subsidiary,
(v) Liens arising by operation of law such as mechanics', materialmen's,
carriers', warehousemen's liens incurred in the ordinary course of business
which are not delinquent or which are being contested in accordance with Section
7.6, provided that enforcement of such Liens is stayed pending such contest,
(vi) Liens arising out of judgments or decrees which are being contested in
accordance with Section 7.6, provided that enforcement of such Liens is stayed
pending such contest, (vii) Liens arising under Sale and Leaseback Transactions
permitted under Section 8.9, (viii) Liens on Property of the Borrower and its
Subsidiaries existing on the Effective Date as set forth on Schedule 8.2, (ix)
Liens under capital leases and Liens on Property (including, in the event such
Property constitutes capital stock of a newly acquired Subsidiary of the
Borrower, Liens on the Property of such Subsidiary) hereafter acquired and
either existing on such Property when acquired, or created contemporaneously
with such acquisition, to secure the payment or financing of the purchase price
thereof, provided that such Liens attach only to the Property so purchased or
acquired and provided further that the Indebtedness secured by such Liens is
permitted by Section 8.1(viii), and (x) Liens securing Indebtedness permitted by
Section 8.1(ix).
(b) Enter into or permit any of its Subsidiaries to enter into, any
agreement which prohibits or limits the ability of the Borrower or such
Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired except (i) purchase money
mortgages or capital leases otherwise permitted by this Agreement in which case,
any prohibition or limitation shall only be effective against the assets
financed thereby, and (ii) this Agreement.
8.3. Merger, Consolidations and Acquisitions
Consolidate with, be acquired by, merge into or with any Person, make any
Acquisition or enter into any binding agreement to do any of the foregoing which
is not contingent on obtaining the consent of the Required Lenders, or permit
any Subsidiary so to do, except:
(a) Acquisitions pursuant to Sale and Leaseback Transactions permitted
under Section 8.9;
(b) provided that (i) the Agent shall have received ten days' prior written
notice and (ii) immediately before and after giving effect thereto no Default or
Event of Default shall exist, any direct or indirect wholly-owned Subsidiary of
the Borrower may merge or consolidate with the Borrower or any other direct or
indirect wholly-owned
-60-
<PAGE>
Subsidiary of the Borrower, provided that in the event of a merger of the
Borrower and such wholly-owned Subsidiary, the Borrower shall be the survivor;
(c) mergers involving Subsidiaries as part of an Acquisition permitted by
subsection (e) below, provided that no Capital Stock is issued in connection
therewith except to the extent permitted by Section 8.12;.
(d) Investments permitted by Section 8.5; and
(e) other Acquisitions by the Borrower or any Subsidiary provided that the
following conditions are satisfied:
(i) no Default or Event of Default shall exist immediately before or
after giving effect to such Acquisition;
(ii) the Person to be acquired or the owner of the Property to be
acquired, as the case may be, is engaged at the time of such Acquisition in
substantially the same line of business as the Borrower or such Subsidiary,
as the case may be;
(iii) the Acquisition shall have been approved by the Managing Person
of the Person to be acquired or the owner of the Property to be acquired,
as the case may be, and by the Managing Person of the Borrower or such
Subsidiary, as the case may be;
(iv) all of the representations and warranties contained in Section 4
shall be true and correct as if made at the time of the Acquisition, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have
been true and correct on and as of such earlier date;
(v) the aggregate consideration (excluding any portion thereof
constituting Capital Stock of the Borrower or such Subsidiary, as the case
may be) paid in connection with such Acquisition (or series of related
transactions) shall not exceed $50,000,000;
(vi) in the event that the aggregate consideration paid in connection
with such Acquisition shall be greater than $7,500,000, the Agent shall
have received a certificate (containing calculations in reasonable detail
with respect to the matters set forth in clause (B) below) of the Financial
Officer of the Borrower, in all respects satisfactory to the Agent and
dated the date of such Acquisition, certifying (A) with respect to the
matters set forth in clauses (i) and (iv) of this Section 8.3(e) and (B)
that immediately after giv-
-61-
<PAGE>
ing effect to such Acquisition and any Indebtedness incurred or assumed in
connection therewith, the Borrower will be in compliance with each of the
financial covenants contained in Section 7.11;
(vii) in the event that (A) the aggregate consideration to be paid in
connection with such Acquisition shall be greater than $37,500,000, and (B)
all or any portion of such consideration is to be financed with the
proceeds of any Loans or in connection with the issuance of any Letter of
Credit, the Required Lenders shall have consented to such Acquisition in
writing;
(viii) in the event that the aggregate consideration (excluding any
portion thereof constituting Capital Stock of the Borrower or such
Subsidiary, as the case may be) paid in connection with such Acquisition
(or series of related transactions) shall exceed $15,000,000, the Agent
shall have received:
(A) copies of the audited balance sheets and related
statements of income and cash flows of the Person to be acquired
or the owner of the Property to be acquired, as the case may be,
for the three fiscal years immediately preceding the date of such
Acquisition (or if such audited statements are not available,
unaudited statements for such periods certified by a Financial
Officer of such Person or owner, as the case may be), together
with, in each case if available, unaudited quarterly balance
sheets and related statements of income and cash flows for the
fiscal quarters of such Person or owner, as the case may be,
ending after the date of the last such annual financial
statement;
(B) a certificate of the Financial Officer of the Borrower
(including computations, where applicable) in all respects
satisfactory to the Agent and dated the date of such Acquisition,
certifying that after giving effect to such Acquisition and any
Indebtedness incurred or assumed in connection therewith which is
permitted by Section 8.1, the Borrower will be in compliance with
each of the financial covenants contained in Section 7.11 on a
pro-forma basis after giving effect to such Acquisition and any
Indebtedness incurred or assumed in connection therewith which is
permitted by Section 8.1 for the period from the date of such
Acquisition through the first day of the fourth full fiscal
quarter ending after the date of such Acquisition; and
-62-
<PAGE>
(ix) the Agent shall have received such other information or documents
as the Agent shall have reasonably requested.
8.4. Dispositions
Make any Disposition, or permit any of its Subsidiaries so to do, except:
(a) Dispositions of any Investments permitted under Section
8.5(a);
(b) Dispositions pursuant to Sale and Leaseback Transactions
permitted under Section 8.9; and
(c) other Dispositions not in excess of $10,000,000 in the
aggregate during any fiscal year.
8.5. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in the Capital
Stock of, or any other interest in, any Person, or make any loan or advance to,
or enter into any arrangement for the purpose of providing funds or credit to,
or make any other investment, whether by way of capital contribution, time
deposit or otherwise, in or with any Person, or permit any of its Subsidiaries
so to do, (all of which are sometimes referred to herein as "Investments")
except:
(a) Investments by the Borrower or any Subsidiary in Cash
Equivalents;
(b) Investments existing on the date hereof as set forth on
Schedule 8.5;
(c) normal business banking accounts and short-term certificates
of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance;
(d) Acquisitions permitted by Section 8.3;
(e) Investments in joint ventures by the Borrower and its
wholly-owned Subsidiaries not in excess of $25,000,000 in the
aggregate at any one time outstanding; and
-63-
<PAGE>
(f) Investments by the Borrower or any of its wholly-owned
Subsidiaries in Intercompany Indebtedness permitted under Section 8.1,
provided that any such Intercompany Indebtedness owed to any Loan
Party shall be evidenced by a promissory note and such note (except a
note which evidences Indebtedness payable to a Foreign Subsidiary)
shall be pledged and delivered to the Agent as collateral security for
all of the obligations and liabilities of such Loan Party under the
Loan Documents, in each case whether fixed, contingent, now existing
or hereafter arising, created, assumed, incurred or acquired.
8.6. Restricted Payments
Declare or pay any Restricted Payments, or permit any of its Subsidiaries
so to do, except that: (i) any wholly-owned Subsidiary may declare and/or pay
Restricted Payments, and (ii) provided that immediately before and after giving
effect thereto, no Default or Event of Default shall or would exist, the
Borrower may make Restricted Payments, in respect of each fiscal year, in an
aggregate amount not in excess of 50% of the net income of the Borrower and its
Subsidiaries on Consolidated basis in respect of such fiscal year. Restricted
Payments shall be calculated on a noncumulative basis so that payments not made
in a fiscal year may not be carried over and made in any subsequent fiscal year.
8.7. Line of Business; Cash Management Procedures
(a) Engage in any business, or permit any of its Subsidiaries so to do,
that is materially different from the business conducted by the Borrower and the
Subsidiaries on the Effective Date.
(b) Alter or modify in any material respect the international cash
management procedures for its Subsidiaries from those in effect on the Effective
Date, or permit any of its Subsidiaries so to do.
8.8. ERISA
Establish or contribute, or permit any of its Subsidiaries so to do, to any
Pension Plan (other than an Existing Pension Plan) except to the extent that the
same could not reasonably be expected to result in a Material Adverse Effect,
cause any Pension Plan to have a Funded Current Liability Percentage of less
than 60 percent, or increase benefits, or permit any of its Subsidiaries so to
do, under any Employee Benefit Plan or establish or contribute to any new
Employee Benefit Plan except to the extent that the same could not reasonably be
expected to result in a Material Adverse Effect.
8.9. Sale and Leaseback Transactions
-64-
<PAGE>
Enter into any Sale and Leaseback Transaction, or permit any of its
Subsidiaries so to do, except that (a) the Borrower may enter into Sale and
Leaseback Transactions in an amount not in excess of $15,000,000 at any one time
outstanding in respect of industrial development bonds issued for its benefit,
and (b) the Borrower and its Subsidiaries may enter into other Sale and
Leaseback Transactions in an amount not in excess of $10,000,000 in the
aggregate at any one time outstanding.
8.10. Amendments, Etc. of Certain Documents and Agreements
Amend, supplement or otherwise modify (i) its certificate of incorporation
or by-laws, or cause, permit or otherwise allow any Subsidiary to amend,
supplement or otherwise modify its certificate of incorporation or by-laws or,
if such Subsidiary is not a corporation, any analogous counterpart thereof, or
(ii) the Subordinated Indenture as in effect on the date hereof, unless, in any
such case, such amendment, supplement or modification would not materially and
adversely affect the Issuing Bank, the Agent or any Lender.
8.11. Transactions with Affiliates
Become, or permit any Subsidiary to become, a party to any transaction with
an Affiliate of the Borrower on a basis less favorable to the Borrower and its
Subsidiaries than if such transaction were not with an Affiliate.
8.12. Issuance of Additional Capital Stock
Issue any additional Capital Stock, or permit any of its Subsidiaries so to
do, provided that if no Default or Event of Default would exist immediately
before or after giving effect thereto, the Borrower or any of its Subsidiaries
may issue additional Capital Stock (other than Disqualified Stock).
8.13. Limitation on Certain Restrictions on Subsidiaries
Directly or indirectly create or otherwise cause or suffer to exist or
become effective, any encumbrance or restriction on the ability of any of its
Subsidiaries to (i) pay Restricted Payments or any Indebtedness owed to the
Borrower or any of its Subsidiaries of the Borrower, (ii) make loans or advances
to the Borrower or any Subsidiary of the Borrower or (iii) transfer any of its
Property to the Borrower, or permit any of its Subsidiaries so to do, except for
such encumbrances or restrictions existing under or by reason of (x) applicable
law and (y) the Loan Documents.
9. DEFAULT
-65-
<PAGE>
9.1. Events of Default
The following shall each constitute an "Event of Default" hereunder:
(a) The failure of the Borrower to make any payment of principal on any
Note, or any reimbursement payment hereunder or under any Reimbursement
Agreement, when due and payable; or
(b) The failure of the Borrower to make any payment of interest, Fees,
expenses or other amounts payable under any Loan Document or otherwise to the
Agent with respect to the loan facilities established hereunder within five
Business Days of the date when due and payable; or
(c) The failure of the Borrower to observe or perform any covenant or
agreement contained in Sections 2.7, 7.3, 7.11, 7.12 or Section 8; or
(d) The failure of the Borrower to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after the Borrower shall have
obtained knowledge thereof; or
(e) Any representation or warranty made by any Loan Party (or by an officer
thereof on its behalf) in any Loan Document or in any certificate, report,
opinion (other than an opinion of counsel) or other document delivered or to be
delivered pursuant thereto, shall prove to have been incorrect or misleading
(whether because of misstatement or omission) in any material respect when made;
or
(f) Liabilities and/or other obligations of the Borrower (other than its
obligations under the Notes) or any of its Subsidiaries, whether as principal,
guarantor, surety or other obligor, for the payment of any Indebtedness or
operating leases in an aggregate amount in excess of $500,000, (i) shall become
or shall be declared to be due and payable prior to the expressed maturity
thereof, or (ii) shall not be paid when due or within any grace period for the
payment thereof, or (iii) any holder of any such obligation shall have the right
to declare such obligation due and payable prior to the expressed maturity
thereof;
(g) Any license, franchise, permit, right, approval or agreement of the
Borrower or any of its Subsidiaries is not renewed, or is suspended, revoked or
terminated and the non-renewal, suspension, revocation or termination thereof
would have a Material Adverse Effect; or
(h) The Borrower or any of its Subsidiaries shall (i) suspend or
discontinue its business, (ii) make an assignment for the benefit of creditors,
(iii) generally
-66-
<PAGE>
not be paying its debts as such debts become due, (iv) admit in writing its
inability to pay its debts as they become due, (v) file a voluntary petition in
bankruptcy, (vi) become insolvent (however such insolvency shall be evidenced),
(vii) file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or dissolution or
similar relief under any present or future statute, law or regulation of any
jurisdiction, (viii) petition or apply to any tribunal for any receiver,
custodian or any trustee for any substantial part of its Property, (ix) be the
subject of any such proceeding filed against it which remains undismissed for a
period of 45 days, (x) file any answer admitting or not contesting the material
allegations of any such petition filed against it or any order, judgment or
decree approving such petition in any such proceeding, (xi) seek, approve,
consent to, or acquiesce in any such proceeding, or in the appointment of any
trustee, receiver, sequestrator, custodian, liquidator, or fiscal agent for it,
or any substantial part of its Property, or an order is entered appointing any
such trustee, receiver, custodian, liquidator or fiscal agent and such order
remains in effect for 45 days, or (xii) take any formal action for the purpose
of effecting any of the foregoing or looking to the liquidation or dissolution
of the Borrower or such Subsidiary; or
(i) An order for relief is entered under the United States bankruptcy laws
or any other decree or order is entered by a court having jurisdiction (i)
adjudging the Borrower or any of its Subsidiaries bankrupt or insolvent, (ii)
approving as properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of the Borrower or any
of its Subsidiaries under the United States bankruptcy laws or any other
applicable Federal or state law, (iii) appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Borrower or any of its Subsidiaries or of any substantial part of the Property
thereof, or (iv) ordering the winding up or liquidation of the affairs of the
Borrower or any of its Subsidiaries, and any such decree or order continues
unstayed and in effect for a period of 45 days; or
(j) Judgments or decrees against the Borrower or any of its Subsidiaries
aggregating in excess of $500,000 shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 30 days; or
(k) The occurrence of an "Event of Default" under, and as such term is
defined in, the Subsidiary Guaranty; or
(l) The Subsidiary Guaranty shall cease, for any reason, to be in full
force and effect or any Loan Party which is a party thereto shall so assert in
writing or shall disavow any of its obligations thereunder; or
(m) A Change of Control shall have occurred or been agreed upon; or
-67-
<PAGE>
(n) (i) any Termination Event shall occur (other than with respect to the
District 65 Multiemployer Pension Plan, so long as the aggregate amount of all
liabilities incurred by the Borrower, its Subsidiaries and the ERISA Affiliates
in respect thereof shall not exceed $2,500,000); (ii) any Accumulated Funding
Deficiency, whether waived, shall exist with respect to any Pension Plan (other
than with respect to the District 65 Multiemployer Pension Plan, so long as the
aggregate amount of all liabilities incurred by the Borrower, its Subsidiaries
and the ERISA Affiliates in respect thereof shall not exceed $2,500,000); (iii)
any Person shall engage in any Prohibited Transaction involving any Employee
Benefit Plan; (iv) the Borrower, any of its Subsidiaries or any ERISA Affiliate
shall fail to pay when due an amount which is payable by it to the PBGC or to a
Pension Plan under Title IV of ERISA; (v) the imposition of any tax under
Section 4980B(a) of the Code; (vi) the assessment of a civil penalty with
respect to any Employee Benefit Plan under Section 502(c) of ERISA; or (vii) any
other event or condition shall occur or exist with respect to an Employee
Benefit Plan which would have a Material Adverse Effect; or
(o) There shall occur (i) a "Fundamental Change" under, and as such term is
defined in, the Subordinated Indenture as in effect on the Effective Date, (ii)
an "Event of Default" under, and as such term is defined in, the Subordinated
Indenture as in effect on the date hereof, (iii) any other event (other than a
voluntary redemption or repurchase by the Borrower of the Subordinated
Debentures in accordance with the terms of the Subordinated Indenture) which,
after the giving of notice, the lapse of time, or both, or the satisfaction of
any other condition, would give the holders of Subordinated Debentures the right
to require the Borrower to redeem or repurchase the same, or (iv) an "Event of
Default" under, and as such term is defined in, any Subordinated Indenture
Refinance Document.
9.2. Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clause (h) or (i) above, the Commitments of all of the Lenders and
the Letter of Credit Commitment shall immediately and automatically terminate
and the Loans, all accrued and unpaid interest thereon, any Reimbursement
Obligations owing or contingently owing in respect of all outstanding Letters of
Credit and all other amounts owing under the Loan Documents shall immediately
become due and payable, and the Borrower shall forthwith deposit an amount equal
to the Letter of Credit Exposure in a cash collateral account with and under the
exclusive control of the Agent, and the Agent may, and, upon the direction of
the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the consent
of the Required Lenders, the Agent may, and upon the direction of the Required
Lenders shall, by notice to the Borrower, declare the Commitments of all of the
Lenders and the Letter of Credit Commitment to be terminated forthwith,
whereupon such Commitments and the Letter of Credit Commitment shall im-
-68-
<PAGE>
mediately terminate, and (ii) with the consent of the Required Lenders, the
Agent may, and upon the direction of the Required Lenders shall, by notice of
default to the Borrower, declare the Loans, all accrued and unpaid interest
thereon, any Reimbursement Obligations owing or contingently owing in respect of
all outstanding Letters of Credit and all other amounts owing under the Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable, and the Borrower shall forthwith deposit an amount equal
to the Letter of Credit Exposure in a cash collateral account with and under the
exclusive control of the Agent, and the Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived. The Borrower hereby further expressly waives and covenants not
to assert any appraisement, valuation, stay, extension, redemption or similar
laws, now or at any time hereafter in force which might delay, prevent or
otherwise impede the performance or enforcement of any Loan Document.
(b) In the event that the Commitments of all the Lenders and the Letter of
Credit Commitment shall have been terminated or the Loans shall have been
declared due and payable pursuant to the provisions of this Section, any funds
received by the Agent, the Issuing Bank and the Lenders from or on behalf of the
Borrower shall be applied by the Agent, the Issuing Bank and the Lenders in
liquidation of the Loans, the Reimbursement Obligations and the other
obligations of the Borrower under the Loan Documents in the following manner and
order: (i) first, to the payment of interest on, and then the principal portion
of, any Loans which the Agent may have advanced on behalf of any Lender for
which the Agent has not then been reimbursed by such Lender or the Borrower;
(ii) second, to the payment of any fees or expenses due the Agent from the
Borrower, (iii) third, to reimburse the Agent, the Issuing Bank and the Lenders
for any expenses (to the extent not paid pursuant to clause (ii) above) due from
the Borrower pursuant to the provisions of Section 11.5; (iv) fourth, to the
payment of accrued Fees and all other fees, expenses and amounts due under the
Loan Documents (other than principal and interest on the Loans); (v) fifth, to
the payment of interest due on the Loans; (vi) sixth, to the payment of
principal outstanding on the Loans and under the Reimbursement Agreements; and
(vii) seventh, to the payment of any other amounts owing to the Agent, the
Issuing Bank and the Lenders under any Loan Document.
10. THE AGENT
10.1. Appointment
Each of the Issuing Bank and each Lender hereby irrevocably designates and
appoints BNY as the Agent of the Issuing Bank and such Lender under the Loan
Documents and each of the Issuing Bank and each Lender hereby irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
the Loan Documents and to exercise
-69-
<PAGE>
such powers and perform such duties as are expressly delegated to the Agent by
the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in any Loan Document, the Agent shall not have any duties or
responsibilities other than those expressly set forth therein, or any fiduciary
relationship with the Issuing Bank or any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into the Loan Documents or otherwise exist against the Agent.
10.2. Delegation of Duties
The Agent may execute any of its duties under the Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to rely upon the
advice of counsel concerning all matters pertaining to such duties.
10.3. Exculpatory Provisions
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Loan Documents (except the Agent for its own gross negligence or willful
misconduct), or (ii) responsible in any manner to the Issuing Bank or any of the
Lenders for any recitals, statements, representations or warranties made by any
Loan Party or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, the Loan Documents or for
the value, validity, effectiveness, genuineness, perfection, enforceability or
sufficiency of any of the Loan Documents or for any failure of any Loan Party or
any other Person to perform its obligations thereunder. The Agent shall not be
under any obligation to the Issuing Bank or any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, the Loan Documents, or to inspect the properties, books or
records of any Loan Party. The Issuing Bank and the Lenders acknowledge that the
Agent shall not be under any duty to take any discretionary action permitted
hereunder unless the Agent shall be requested in writing to do so by the
Required Lenders. The Agent shall not be under any liability or responsibility
whatsoever, as Agent, to any Loan Party or any other Person as a consequence of
any failure or delay in performance, or any breach, by the Issuing Bank or any
Lender of any of its obligations under any of the Loan Documents.
10.4. Reliance by Agent
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
opinion, letter, cablegram, telegram, facsimile, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including,
-70-
<PAGE>
without limitation, counsel to any Loan Party), independent accountants and
other experts selected by the Agent. The Agent may treat the Issuing Bank or
each Lender, as the case may be, or the Person designated in the last notice
filed with it under this Section, as the holder of all of the interests of the
Issuing Bank or such Lender, as the case may be, in its Loans, its Notes, the
Letters of Credit and the Reimbursement Agreements, as applicable, until written
notice of transfer, signed by the Issuing Bank or such Lender (or the Person
designated in the last notice filed with the Agent) and by the Person designated
in such written notice of transfer, in form and substance satisfactory to the
Agent, shall have been filed with the Agent. The Agent shall not be under any
duty to examine or pass upon the validity, effectiveness, enforceability or
genuineness of the Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the Agent shall be
entitled to assume that the same are valid, effective and genuine, have been
signed or sent by the proper parties and are what they purport to be. The Agent
shall be fully justified in failing or refusing to take any action under the
Loan Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with a request or direction of the Required Lenders, and such request
or direction and any action taken or failure to act pursuant thereto shall be
binding upon the Issuing Bank, all the Lenders and all future holders of the
Notes and the Reimbursement Obligations.
10.5. Notice of Default
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless the Agent has received written notice
thereof from the Issuing Bank, a Lender or the Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Issuing Bank, the Lenders and the Borrower. The Agent shall take such action
with respect to such Default or Event of Default as shall be directed by the
Required Lenders, provided, however, that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem to be in the best interests of the Lenders.
10.6. Non-Reliance on Agent and Other Lenders
Each of the Issuing Bank and each Lender expressly acknowledges that
neither the Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter, including any review
of the affairs of any Loan Party, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each of the Issuing Bank
and each Lender represents to the Agent that it has, independently and without
reliance upon the Agent, the Issuing Bank or any Lender, and based on such
documents and information as it has deemed appropriate, made its own evaluation
of and investigation into
-71-
<PAGE>
the business, operations, Property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to enter into this Agreement. Each of the Issuing Bank and each Lender also
represents that it will, independently and without reliance upon the Agent, the
Issuing Bank or any Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under any Loan
Document, and to make such investigation as it deems necessary to inform itself
as to the business, operations, Property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Issuing
Bank and/or the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide the Issuing Bank or any Lender with any credit
or other information concerning the business, operations, Property, financial
and other condition or creditworthiness of the Borrower or any of its
Subsidiaries which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7. Indemnification
Each Lender agrees to indemnify and hold harmless the Agent in its capacity
as such (to the extent not promptly reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), pro rata according to the
aggregate of the outstanding principal balance of the Loans and any unpaid
Reimbursement Obligations (or at any time when no Loans are outstanding and
there are no unpaid Reimbursement Obligations, according to its Commitment
Percentage), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including, without limitation, any amounts paid to the
Lenders (through the Agent) by any Loan Party pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Agent under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting solely from the finally
adjudicated gross negligence or willful misconduct of the Agent. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its pro rata share of any unpaid fees owing to the Agent, and
any costs and expenses (including, without limitation, reasonable fees and
expenses of counsel) payable by the Borrower under Section 11.5, to the extent
that the Agent has not been paid such fees or has not be reimbursed for such
costs and expenses, by the Borrower. The failure of any Lender to reimburse the
Agent promptly upon demand for its pro rata share of any amount required to be
by the Lenders to the Agent as provided in this Section shall not
-72-
<PAGE>
relieve any other Lender of its obligation hereunder to reimburse the Agent for
its pro rata share of such amount, but no Lender shall be responsible for the
failure of other Lender to reimburse the Agent for such other Lender's pro rata
share of such amount. The agreements in this Section shall survive the
termination of the Commitments of all of the Lenders, the Letter of Credit
Commitment, and the payment of all amounts payable under the Loan Documents.
10.8. Agent in Its Individual Capacity
BNY and its respective affiliates may make loans to, accept deposits from,
issue letters of credit for the account of, and generally engage in any kind of
business with, the Borrower and its Subsidiaries as though BNY were not Agent
hereunder. With respect to the Commitment made or renewed by BNY and the Notes
issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it were not the
Issuing Bank or the Agent, and the terms "Lender" and "Lenders" shall in each
case include BNY.
10.9. Successor Agent
If at any time the Agent deems it advisable, in its sole discretion, it may
submit to the Issuing Bank and each of the Lenders a written notice of its
resignation as Agent under the Loan Documents, such resignation to be effective
upon the earlier of (i) the written acceptance of the duties of the Agent under
the Loan Documents by a successor Agent and (ii) on the 30th day after the date
of such notice. Upon any such resignation, the Required Lenders shall have the
right to appoint from among the Lenders a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and accepted such
appointment in writing within 30 days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Issuing
Bank and the Lenders, appoint a successor Agent, which successor Agent shall be
a commercial bank organized under the laws of the United States of America or
any State thereof and having a combined capital, surplus, and undivided profits
of at least $100,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent's rights, powers, privileges and duties
as Agent under the Loan Documents shall be terminated. The Loan Parties, the
Issuing Bank and the Lenders shall execute such documents as shall be necessary
to effect such appointment. After any retiring Agent's resignation as Agent, the
provisions of the Loan Documents shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under the Loan Documents.
If at any time there shall not be a duly appointed and acting Agent, the
Borrower agrees to make each payment due under the Loan Documents directly to
the Issuing Bank and the Lenders entitled thereto during such time.
10.10. Co-Agent
-73-
<PAGE>
The Co-Agent shall have no duties or obligations under the Loan Documents.
11. OTHER PROVISIONS
11.1. Amendments and Waivers
With the written consent of the Required Lenders, the Agent and the
appropriate Loan Parties may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and, with the consent of the
Required Lenders, the Agent on behalf of the Issuing Bank and the Lenders may
execute and deliver to any such parties a written instrument waiving or a
consent to a departure from, on such terms and conditions as the Agent may
specify in such instrument, any of the requirements of the Loan Documents or any
Default or Event of Default and its consequences; provided, however, that:
(a) no such amendment, supplement, modification, waiver or consent shall,
without the consent of all of the Lenders, (i) increase the Commitment Amount of
any Lender or the Aggregate Commitment Amount, (ii) extend the Maturity Date
(other than an extension pursuant to Section 2.12), (iii) decrease the rate, or
extend the time of payment, of interest of, or change, forgive or extend the
time of payment of, the principal amount of, or change the pro rata allocation
of payments under, any Note, (iv) release all or substantially all of the
collateral or any guarantor (except in connection with the Disposition of such
guarantor in which case such guarantor may be released from the Subsidiary
Guaranty and any promissory notes evidencing Intercompany Indebtedness of such
guarantor may be released by the Agent upon the request of the Borrower), (v)
change the provisions of Sections 3.6, 3.10, 9.1(a), 11.1 or 11.7(a), or (vi)
change the definition of "Required Lenders"; and
(b) without the written consent of the Issuing Bank, no such amendment,
supplement, modification or waiver shall change the Letter of Credit Commitment,
change the amount or the time of payment of the Letter of Credit Commissions or
change any other term or provision which relates to the Letter of Credit
Commitment or the Letters of Credit or any other rights of the Issuing Bank
under any Loan Document; and
(c) without the written consent of BNY, no such amendment, supplement,
modification or waiver shall amend, modify or waive any provision of Section 10
or otherwise change any of the rights or obligations of the Agent hereunder or
under the Loan Documents.
Any such amendment, supplement, modification or waiver shall apply equally
to the Issuing Bank and each of the Lenders and shall be binding upon the
parties to
-74-
<PAGE>
the applicable Loan Document, the Lenders, the Issuing Bank, the Agent and all
future holders of the Notes and the Reimbursement Obligations. In the case of
any waiver, the parties to the applicable Loan Document, the Issuing Bank, the
Lenders and the Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes and other Loan Documents to the extent
provided for in such waiver, and any Default or Event of Default waived shall
not extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon. The Loan Documents may not be amended orally or by any
course of conduct.
11.2. Notices
All notices, requests and demands to or upon the respective parties to the
Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, or when deposited in the mail, first-class postage prepaid,
or, in the case of notice by facsimile, when sent, addressed as follows in the
case of the Borrower, the Issuing Bank or the Agent, at the Domestic Lending
Office, in the case of each Lender, or to such other addresses as to which the
Agent may be hereafter notified by the respective parties thereto or any future
holders of the Notes and the Reimbursement Obligations:
The Borrower:
Air Express International Corporation
120 Tokeneke Road
Darien, Connecticut 06820
Attention: Paul J. Gallagher,
Vice President and
Treasurer
Telephone: (203) 655-5776
Facsimile: (203) 655-5734
The Agent or the Issuing Bank:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Ramona Washington
Telephone: (212) 635-4699
Facsimile: (212) 635-6365 or 6366 or 6367
with a copy to:
-75-
<PAGE>
Janet L. Wolff,
Vice President
BNY Business Center, Inc.
301 Tresser Boulevard
8 Stamford Forum
Stamford, Connecticut 06901
Telephone: (203) 967-8000
Facsimile: (203) 967-8006
except that any notice, request or demand by the Borrower to or upon the Agent,
the Issuing Bank or the Lenders pursuant to Sections 2.3, 2.4 or 3.3 shall not
be effective until received. Any party to a Loan Document may rely on signatures
of the parties thereto which are transmitted by facsimile or other electronic
means as fully as if originally signed.
11.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Agent, the Issuing Bank or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties and Certain Obligations
(a) All representations and warranties made under the Loan Documents and in
any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
(b) The obligations of the Borrower under Sections 3.5, 3.6, 3.7, 3.8, 3.9,
3.10, 3.11, 11.5 and 11.8 shall survive the termination of the Commitments of
all of the Lenders, the Letter of Credit Commitment, the payment of the Loans,
the Reimbursement Obligations in respect of the Letters of Credit and all other
amounts payable under the Loan Documents.
11.5. Payment of Expenses and Taxes
The Borrower agrees, promptly upon presentation of a statement or invoice
therefor, and whether any Loan is made or any Letter of Credit is issued (i) to
pay or reimburse the Agent for all its out-of-pocket costs and expenses
reasonably incurred in connection with the development, preparation and
execution of, the Loan Documents and any
-76-
<PAGE>
amendment, supplement or modification thereto (whether or not executed), any
documents prepared in connection therewith and the consummation of the
transactions contemplated thereby, including, without limitation, the reasonable
fees and disbursements of Special Counsel, (ii) to pay or reimburse the Agent,
the Issuing Bank and the Lenders for all of their respective costs and expenses,
including, without limitation, reasonable fees and disbursements of counsel,
incurred in connection with (A) any Default or Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether consummated or not)
of the obligations of any Loan Party under any of the Loan Documents and (B) the
enforcement of this Section, (iii) to pay, indemnify, and hold each Lender, the
Issuing Bank and the Agent harmless from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Lender, the Issuing Bank and the Agent and each of their
respective officers, directors and employees harmless from and against any and
all other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to the enforcement and performance of the Loan
Documents, the use of the proceeds of the Loans and the Letters of Credit and
the enforcement and performance of the provisions of any subordination agreement
in favor of the Agent, the Issuing Bank and the Lenders (all the foregoing,
collectively, the "Indemnified Liabilities") and, if and to the extent that the
foregoing indemnity may be unenforceable for any reason, the Borrower agrees to
make the maximum payment permitted or not prohibited under applicable law;
provided, however, that the Borrower shall have no obligation hereunder to pay
Indemnified Liabilities to the Agent, the Issuing Bank or any Lender arising
from the finally adjudicated gross negligence or willful misconduct of the
Agent, the Issuing Bank or such Lender or claims between one indemnified party
and another indemnified party. The agreements in this Section shall survive the
termination of the Commitments of all of the Lenders, the Letter of Credit
Commitment and the payment of all amounts payable under the Loan Documents.
11.6. Lending Offices
Each of the Issuing Bank and each Lender shall have the right at any time
and from time to time to transfer any Loan or the Reimbursement Obligations to a
different office, provided that the Issuing Bank or such Lender shall promptly
notify the Agent and the Borrower of any such change of office.
11.7. Assignments and Participations
-77-
<PAGE>
(a) The Loan Documents shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Issuing Bank, the Agent, all future holders of
the Notes and the Reimbursement Obligations, and their respective successors and
assigns, except that no Loan Party may assign, delegate or transfer any of its
rights or obligations under the Loan Documents without the prior written consent
of the Agent, the Issuing Bank and each Lender.
(b) Each of the Issuing Bank and each Lender shall have the right at any
time, upon written notice to the Agent of its intent to do so, to sell, assign,
transfer or negotiate all or any part of its rights and obligations under the
Loan Documents to one or more of its affiliates, to one or more of the other
Lenders (or to affiliates of such other Lenders) or, with the prior written
consent of the Borrower, the Agent and the Issuing Bank (which consent shall not
be unreasonably withheld and, in the case of the Borrower, shall not be required
upon the occurrence and during the continuance of an Event of Default), to sell,
assign, transfer or negotiate all or any part of its rights and obligations
under the Loan Documents to any other Eligible Assignee, provided that (i) each
such sale, assignment, transfer or negotiation (other than sales, assignments,
transfers or negotiations (x) to its affiliates or (y) its entire interest)
shall be in a minimum amount of $5,000,000 and (ii) there shall be paid to the
Agent by it a fee (the "Assignment Fee") of $3,000. For each assignment, the
parties to such assignment shall execute and deliver to the Agent for its
acceptance and recording an Assignment and Acceptance Agreement. Upon such
execution, delivery, acceptance and recording by the Agent, from and after the
effective date specified in such Assignment and Acceptance Agreement, the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance Agreement, the assignor Lender or the Issuing Bank, as
the case may be, thereunder shall be released from its obligations under the
Loan Documents. The Borrower agrees upon written request of the Agent and at the
Borrower's expense to execute and deliver (1) to such assignee, Notes, dated the
effective date of such Assignment and Acceptance Agreement, in an aggregate
principal amount equal to the Loans assigned to, and Commitments assumed by,
such assignee and (2) to such assignor Lender if it did not assign its entire
interest, a Revolving Credit Note, dated the effective date of such Assignment
and Acceptance Agreement, in an aggregate principal amount equal to the balance
of such assignor Lender's Commitment Amount, if any, and each assignor Lender
shall cancel and return to the Borrower its existing Note. Upon any such sale,
assignment or other transfer, the Commitments and the Commitment Percentages set
forth in Exhibit A shall be adjusted accordingly by the Agent and a new Exhibit
A shall be distributed by the Agent.
(c) Each of the Issuing Bank and each Lender may grant participations in
all or any part of its rights under the Loan Documents to one or Eligible
Assignees, provided that (i) its obligations under the Loan Documents shall
remain unchanged, (ii) it shall remain solely responsible to the other parties
to the Loan Documents for the performance of such obligations, (iii) the
Borrower, the Issuing Bank, the Agent and the Lenders, as applicable, shall
continue to deal solely and directly with it in connection with its rights and
obligations
-78-
<PAGE>
under the Loan Documents, (iv) no sub-participations shall be permitted and (v)
the voting rights of any holder of any participation shall be limited to
decisions that only do any of the following: (A) subject the participant to any
additional obligation, (B) reduce the principal of, or interest on the Notes or
any fees or other amounts payable hereunder, (C) postpone any date fixed for the
payment of principal of, or interest on the Notes or any fees or other amounts
payable hereunder, or (D) release any security interest or collateral, except to
the extent that such release is specifically provided for in any Loan Document.
The Borrower acknowledges and agrees that any such participant shall for
purposes of Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 3.11, be deemed to be a
"Lender"; provided, however, the Borrower shall not, at any time, be obligated
to pay any participant in any interest of the Issuing Bank or any Lender
hereunder any sum in excess of the sum which the Borrower would have been
obligated to pay to the Issuing Bank or such Lender, as the case may be, in
respect of such interest had the Issuing Bank or such Lender, as the case may
be, not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii)
any participation is granted pursuant to subsection (c) above, shall be made to
any Person that is not a United States Person, such Person shall furnish such
certificates, documents or other evidence to the Borrower and the Agent in the
case of clause (i), and to the Borrower and the Issuing Bank or the Lender which
sold such participation, as the case may be, in the case of clause (ii), as
shall be required by Section 3.10(c).
(e) Neither the Issuing Bank nor any Lender shall, as between and among the
Borrower, the Issuing Bank, the Agent and such Lender, as the case may be, be
relieved of any of its obligations under the Loan Documents as a result of any
sale, assignment, transfer or negotiation of, or granting of participations in,
all or any part of its Loans, its Notes, its Commitment, the Letter of Credit
Commitment, or the Reimbursement Agreements, as applicable, except that it shall
be relieved of its obligations to the extent of any such sale, assignment,
transfer, or negotiation of all or any part of its Loans, its Commitment, its
Notes, the Letter of Credit Commitment, or the Reimbursement Agreements, as
applicable, pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this Section, the
Issuing Bank or any Lender may at any time or from time to time assign all or
any portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8. Indemnity
The Borrower agrees to defend, protect, indemnify, and hold harmless the
Agent, the Co-Agent, the Issuing Bank and each and all of the Lenders, each of
their respective Affiliates and each of the respective officers, directors,
employees and agents of each of the foregoing (each an "Indemnified Person" and,
collectively, the "Indemnified Persons") from and against any and all
liabilities, obligations, losses, damages, penalties, ac-
-79-
<PAGE>
tions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, the fees and disbursements
of counsel for such Indemnified Persons in connection with any investigative,
administrative or judicial proceeding, whether direct, indirect or consequential
and whether based on any federal or state laws or other statutory regulations,
including, without limitation, securities and commercial laws and regulations,
under common law or at equitable cause, or on contract or otherwise, including
any liabilities and costs under Environmental Laws, Federal, state or local
health or safety laws, regulations, or common law principles, arising from or in
connection with the past, present or future operations of the Borrower or any of
its Subsidiaries, or their respective predecessors in interest, or the past,
present or future environmental condition of the Property of the Borrower or any
of its Subsidiaries, the presence of asbestos-containing materials at any such
Property, or the release or threatened release of any Hazardous Substance into
the environment from any such Property) in any manner relating to or arising out
of the Loan Documents, any commitment letter or fee letter executed and
delivered by the Borrower or any of its Subsidiaries, the Issuing Bank and/or
the Agent, the capitalization of the Borrower or any of its Subsidiaries, the
Commitments, the Letter of Credit Commitment, the making of, issuance of,
management of and participation in the Loans or the Letters of Credit, or the
use or intended use of the Letters of Credit and the proceeds of the Loans
hereunder, provided that the Borrower shall have no obligation under this
Section to an Indemnified Person with respect to any of the foregoing to the
extent found in a final judgment of a court having jurisdiction to have resulted
primarily out of the gross negligence or wilful misconduct of such Indemnified
Person or arising solely from claims between one such Indemnified Person and
another such Indemnified Person. The indemnity set forth herein shall be in
addition to any other obligations or liabilities of the Borrower to each
Indemnified Person under the Loan Documents or at common law or otherwise, and
shall survive any termination of the Loan Documents, the expiration of the
Commitments of all of the Lenders, the Letter of Credit Commitment and the
payment of all Indebtedness of the Loan Parties under the Loan Documents.
11.9. Limitation of Liability
No claim may be made by the Borrower or any of its Subsidiaries, any Lender
or other Person against the Agent, the Co-Agent, the Issuing Bank, any Lender,
or any directors, officers, employees, or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and each of the Borrower and its
Subsidiaries, and each of the Co-Agent, the Issuing Bank and each Lender hereby
waives, releases and agrees not to sue upon any claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
11.10. Counterparts
-80-
<PAGE>
Each Loan Document (other than the Notes) may be executed by one or more of
the parties thereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A counterpart of any Loan Document or to any document evidencing, and
of any an amendment, modification, consent or waiver to or of any Loan Document
transmitted by facsimile shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents signed by all the parties
thereto shall be deposited with each of the Borrower, the Issuing Bank and the
Agent. Any party to a Loan Document may rely upon the signatures of any other
party thereto which are transmitted by facsimile or other electronic means to
the same extent as if originally signed.
11.11. Adjustments; Set-off
(a) If any Lender (a "Benefited Lender") shall at any time receive any
payment of all or any part of its Loans, its Notes or the Reimbursement
Obligations, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9.1 (h) or (i), or otherwise), in a greater proportion
than any such payment to and collateral received by any other Lender in respect
of such other Lender's Loans, Notes or the Reimbursement Obligations, such
Benefited Lender shall purchase for cash from each of the other Lenders such
portion of each such other Lender's Loans and Notes, and shall provide each of
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders, provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans and the Notes may
exercise all rights of payment (including, without limitation, rights of
set-off, to the extent not prohibited by law) with respect to such portion as
fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Issuing Bank and the
Lenders provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents, or
at any time upon the occurrence and during the continuance of an Event of
Default, under Section 9.1(a) or (b), each of the Issuing Bank and each Lender
shall have the right, without prior notice to the Borrower or any other Loan
Party, any such notice being expressly waived by the Borrower and each other
Loan Party to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of the Borrower or such
other Loan Party, as the case may be, to the Issuing Bank or such Lender, as the
case may be, any amount owing from the Issuing Bank or such Lender, as the case
may be, to the Borrower or
-81-
<PAGE>
such other Loan Party, as the case may be, at, or at any time after, the
happening of any of the above-mentioned events. To the extent not prohibited by
applicable law, the aforesaid right of set-off may be exercised by the Issuing
Bank or such Lender, as the case may be, against the Borrower or such other Loan
Party, as the case may be, or against any trustee in bankruptcy, custodian,
debtor in possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor of the Borrower or such other Loan
Party, as the case may be, or against anyone else claiming through or against
the Borrower or such other Loan Party, as the case may be, or such trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by the Issuing Bank or such Lender, as the case may be, prior to the
making, filing or issuance, or service upon the Issuing Bank or such Lender, as
the case may be, of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each of the
Issuing Bank and each Lender agrees promptly to notify the Borrower and the
Agent after any such set-off and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
11.12. Construction
Each Loan Party represents that it has been represented by counsel in
connection with the Loan Documents and the transactions contemplated thereby and
that the principle that agreements are to be construed against the party
drafting the same shall be inapplicable.
11.13. Governing Law
The Loan Documents and the rights and obligations of the parties thereunder
shall be governed by, and construed and interpreted in accordance with, the
internal laws of the State of New York, without regard to principles of conflict
of laws.
11.14. Headings Descriptive
Section headings have been inserted in the Loan Documents for convenience
only and shall not be construed to be a part thereof.
11.15. Severability
Every provision of the Loan Documents is intended to be severable, and if
any term or provision thereof shall be invalid, illegal or unenforceable for any
reason, the validity, legality and enforceability of the remaining provisions
thereof shall not be affected or impaired thereby, and any invalidity,
illegality or unenforceability in any jurisdiction shall
-82-
<PAGE>
not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
11.16. Integration
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between the Agent and/or the Issuing Bank and the Borrower
with respect to certain fees, the Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, the Issuing Bank and the Lenders
with respect to the subject matter thereof and supersede all prior agreements
and understandings among the Borrower, the Agent, the Issuing Bank and the
Lenders with respect to the subject matter thereof.
11.17. Consent to Jurisdiction
Each Loan Party hereby irrevocably submits to the jurisdiction of any New
York State or Federal court sitting in the City of New York over any suit,
action or proceeding arising out of or relating to the Loan Documents. Each Loan
Party hereby irrevocably waives, to the fullest extent permitted or not
prohibited by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Each Loan Party hereby agrees
that a final judgment in any such suit, action or proceeding brought in such a
court, after all appropriate appeals, shall be conclusive and binding upon it.
11.18. Service of Process
Each Loan Party hereby irrevocably consents to the service of process in
any suit, action or proceeding by sending the same by first class mail, return
receipt requested or by overnight courier service, to the address of such Loan
Party set forth in Section 11.2 of the applicable Loan Document executed by such
Loan Party. Each Loan Party hereby agrees that any such service (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action, or proceeding, and (ii) shall to the fullest extent enforceable by law,
be taken and held to be valid personal service upon and personal delivery to it.
11.19. No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Agent, the Issuing Bank or any
Lender to serve process in any manner permitted by law or limit the right of the
Agent, the Issuing Bank or any Lender to bring proceedings against any Loan
Party in the courts of any jurisdiction or jurisdictions in which such Loan
Party may be served.
11.20. WAIVER OF TRIAL BY JURY
-83-
<PAGE>
EACH OF THE AGENT, THE ISSUING BANK, THE LENDERS AND THE LOAN PARTIES
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, EACH LOAN PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
ISSUING BANK, THE AGENT, OR THE LENDERS, OR COUNSEL TO THE ISSUING BANK, THE
AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ISSUING
BANK, THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH LOAN PARTY
ACKNOWLEDGES THAT THE ISSUING BANK, THE AGENT AND THE LENDERS HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
-84-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
AIR EXPRESS INTERNATIONAL
CORPORATION
By: /s/ DENNIS M. DOLAN
________________________
Name: Dennis M. Dolan
______________________
Title: Vice President and Chief
Financial Officer
______________________
THE BANK OF NEW YORK,
Individually, as Issuing Bank
and as Agent
By: /s/DAVID M. DUFFY
________________________
Name: David M. Duffy
______________________
Title: Vice President
______________________
THE FIRST NATIONAL BANK OF
CHICAGO, Individually and as
Co-Agent
By: /s/TIMOTHY J. KING
________________________
Name: Timothy J. King
______________________
Title: Vice President
______________________
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ LISA J. GELFAND
________________________
Name: Lisa J. Gelfand
______________________
Title: Vice President
______________________
-85-
<PAGE>
FIRST UNION BANK OF CONNECTICUT
By: /s/ JAMES J. McKENNA
________________________
Name: James J. McKenna
______________________
Title: Executive Vice President
______________________
-86-
<PAGE>
AMENDMENT NO. 1
TO
REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of April 24, 1998, to the
Revolving Credit Agreement, dated as of June 28, 1996, by and among AIR EXPRESS
INTERNATIONAL CORPORATION (the "Borrower"), the Lenders party thereto, THE FIRST
NATIONAL BANK OF CHICAGO, as Co-Agent and THE BANK OF NEW YORK, as agent for the
Lenders (in such capacity, the "Agent") and as the Issuing Bank (as amended,
supplemented or otherwise modified, the "Credit Agreement").
RECITALS
A. Capitalized terms used herein which are defined in the Credit Agreement
shall have the meanings therein defined.
B. The Borrower has requested that the Agent and the Lenders amend certain
covenants contained in the Credit Agreement, and, subject to the terms and
conditions set forth herein, the Agent and the Lenders are willing to agree to
the foregoing.
In consideration of the covenants, conditions and agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are acknowledged, it is agreed as follows:
1. Subsection 7.11(c) of the Credit Agreement is amended and restated in
its entirety as follows:
(c) Consolidated Net Worth. As of any date,
maintain Consolidated Net Worth in an amount not
-1-
<PAGE>
less than the sum of (i) $250,000,000, (ii) 50% of
the cumulative positive net income of the Borrower
and its Subsidiaries on a Consolidated basis in
respect of each completed fiscal quarter during
the period commencing on January 1, 1998 and
ending on such date, and (iii) 50% of the
difference, if any, between Consolidated Net Worth
as of such date and Consolidated Net Worth as of
December 31, 1997, to the extent such difference
shall have resulted from equity issuances by the
Borrower or any of its Subsidiaries.
2. Section 8.6 of the Credit Agreement is amended and restated in its
entirety as follows:
8.6 Restricted Payments
Declare or pay any Restricted Payments, or
permit any of its Subsidiaries so to do, except
that: (i) any wholly-owned Subsidiary may declare
and/or pay Restricted Payments to its parent, and
(ii) provided that immediately before and after
giving effect thereto, no Default or Event of
Default shall or would exist, the Borrower may
make Restricted Payments.
3. Section 11.2 of the Credit Agreement is amended by deleting the name
"Janet L. Wolff" and the address and phone numbers therewith and replacing the
same with the following:
Geraldine J. Turkington,
Vice President
The Bank of New York
10 Mason Street, 3rd Floor
-2-
<PAGE>
Greenwich, Connecticut 06830
Telephone: (203) 863-2697
Facsimile: (203) 863-2610
4. In order to induce the Agent and the Lenders to execute this Amendment,
the Borrower, and each Guarantor (as defined in the Subsidiary Guaranty) (i)
certifies that, immediately after giving effect to this Amendment, all
representations and warranties contained in the Credit Agreement are true and
correct in all respects as of the date hereof and that no Default or Event of
Default exists under the Credit Agreement, (ii) reaffirms and admits the
validity and enforceability of the Loan Documents and its obligations
thereunder, and (iii) agrees and admits that it has no valid defenses to or
offsets against any of its obligations to the Bank under the Loan Documents as
of the date hereof.
5. By signing below, each Guarantor consents to this Amendment.
6. In all other respects, the Credit Agreement and the other Loan Documents
shall remain in full force and effect.
7. This Amendment may be executed in any number of counterparts, each of
which shall be an original and all of which shall constitute one agreement. It
shall not be necessary in making proof of this Amendment to produce or account
for more than one counterpart containing the signature of the party to be
charged.
8. This Amendment is being delivered in and is intended to be performed in
the State of New York and shall be construed and is enforceable in accordance
with, and shall be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
9. This Amendment shall be subject to such conditions and limitations as
are specified herein, and the rights of the Borrower, the Lenders, the
-3-
<PAGE>
Issuing Bank and the Agent under the Credit Agreement and the other Loan
Documents shall be otherwise unaffected.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first written above.
AIR EXPRESS INTERNATIONAL CORPORATION
By: /s/PAUL J. GALLAGHER
Name: Paul J. Gallagher
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
Individually, as Issuing Bank
and as Agent
By: /s/ GERALDINE J. TURKINGTON
Name: Geraldine J. Turkington
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Co-Agent
By: /s/ AARON LANSKI
-5-
<PAGE>
Name: Aaron Lanski
Title: Vice President
BANKBOSTON, N.A.
By: /s/ RICHARD KLOUDA
Name: Richard Klouda
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ STEVEN DOROSH
Name: Steven Dorosh
Title: Vice President
CONSENTED AND AGREED TO:
AIR EXPRESS INTERNATIONAL USA, INC.
VOTAINER USA, INC.
RADIX VENTURES, INC.
LUSK SHIPPING COMPANY, INC.
RADIX GROUP INTERNATIONAL, INC.
-6-
<PAGE>
As to each of the foregoing:
By: /s/ PAUL J. GALLAGHER
Name: Paul J. Gallagher
Title: Vice President and Treasurer
-7-
<TABLE>
<CAPTION>
Exhibit 11
AIR EXPRESS INTERNATIONAL CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(Unaudited)
(In thousands, except
per share amounts)
Three Months Ended
March 31,
1998 1997
<S> <C> <C>
Net income applicable to
common shares ................................ $ 9,730 $ 8,539
Earnings per share:
Basic ........................................ $ .28 $ .25
Diluted ...................................... $ .28 $ .25
Common share and common
share equivalents:
Weighted average of common
shares outstanding ........................... 34,639 34,184
Basic shares ................................ 34,639 34,184
Common share equivalents .................... 742 699
Diluted equivalent shares ................... 35,381 34,883
<FN>
Basic earnings per share is computed by dividing net income by the weighted
average common shares outstanding during the period. Diluted earnings per
share is computed by dividing net income by the weighted average of both
the common shares and common share equivalents outstanding during the
period.
</FN>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C> <C> <C>
<PERIOD-TYPE> 3-MOS RESTATED RESTATED
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1997 DEC-31-1996
<PERIOD-END> MAR-31-1998 MAR-31-1997 MAR-31-1996
<CASH> 68,367 62,345 49,869
<SECURITIES> 0 0 0
<RECEIVABLES> 366,759 337,441 271,811
<ALLOWANCES> 4,295 4,831 4,719
<INVENTORY> 0 0 0
<CURRENT-ASSETS> 438,305 401,586 321,308
<PP&E> 124,543 114,485 99,662
<DEPRECIATION> 60,912 54,626 45,726
<TOTAL-ASSETS> 642,461 582,847 480,925
<CURRENT-LIABILITIES> 302,332 295,415 240,542
<BONDS> 30,925 14,969 82,826
<COMMON> 348 342 279
0 0 0
0 0 0
<OTHER-SE> 334,300 283,057 166,092
<TOTAL-LIABILITY-AND-EQUITY> 642,461 582,847 480,925
<SALES> 0 0 0
<TOTAL-REVENUES> 372,376 351,155 294,787
<CGS> 0 0 0
<TOTAL-COSTS> 254,523 238,724 201,645
<OTHER-EXPENSES> 67,126 64,126 52,662
<LOSS-PROVISION> 403 360 290
<INTEREST-EXPENSE> 324 383 1,509
<INCOME-PRETAX> 15,568 13,773 10,077
<INCOME-TAX> 5,838 5,234 3,930
<INCOME-CONTINUING> 9,730 8,539 6,147
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 9,730 8,539 6,147
<EPS-PRIMARY> .28 .25 .22
<EPS-DILUTED> .28 .25 .21
</TABLE>
