UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
November 20, 1998
(Date of earliest event reported)
Commission file number: 0-20704
ACX TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-1208699
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
16000 Table Mountain Parkway, Golden, Colorado 80403
(Address of principal executive offices) (Zip Code)
(303) 271-7000
(Registrant's telephone number, including area code)
Item 7. Financial Statements and Exhibits.
On November 20, 1998, ACX Technologies, Inc. entered into a
two-year, $250 million credit agreement with a group of financial
institutions. The credit agreement is included with this filing
as Exhibit 10.1.
The Financial Data Schedules of ACX Technologies, Inc. have been
amended for SFAS No. 128 and are included with this filing as
Exhibits 27.1 through 27.6, for the six quarters June 30, 1996
through September 30, 1997.
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 hereunto duly authorized.
December 22, 1998 ACX TECHNOLOGIES, INC.
By:/s/ Beth A. Parish
---------------------------
Beth A. Parish
(Controller and Principal
Accounting Officer)
Exhibit 10.1
$250,000,000
CREDIT AGREEMENT
dated as of
November 20, 1998
among
ACX TECHNOLOGIES, INC.
The Banks Listed Herein
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
and
ABN AMRO BANK N.V.,
as Co-Agents
and
WACHOVIA BANK, N.A.,
as Agent
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I
DEFINITIONS 1
SECTION 1.01. Definitions 19
SECTION 1.02. Accounting Terms and Determinations 20
SECTION 1.03. References 20
SECTION 1.04. Use of Defined Terms 20
SECTION 1.05. Terminology 20
ARTICLE II
THE CREDITS 20
SECTION 2.01. Commitments to Lend 21
SECTION 2.02. Method of Borrowing Syndicated Loans 23
SECTION 2.03. Money Market Loans 28
SECTION 2.04. Notes 28
SECTION 2.05. Maturity of Loans 30
SECTION 2.06. Interest Rates 32
SECTION 2.07. Fees 34
SECTION 2.08. Optional Termination or Reduction of
Commitments 34
SECTION 2.09. Mandatory Reduction and Termination of
Commitments 34
SECTION 2.10. Optional Prepayments 34
SECTION 2.11. Mandatory Prepayments 35
SECTION 2.12. General Provisions as to Payments 37
SECTION 2.13. Computation of Interest and Fees 37
ARTICLE III
CONDITIONS TO BORROWINGS 37
SECTION 3.01. Conditions to First Borrowing 40
SECTION 3.02. Conditions to All Borrowings 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 41
SECTION 4.02. Corporate and Governmental
Authorization No Contravention 41
SECTION 4.03. Binding Effect 41
SECTION 4.04. Financial Information 42
SECTION 4.05. No Litigation 42
SECTION 4.06. Compliance with ERISA 42
SECTION 4.07. Environmental Matters 43
SECTION 4.08. Taxes 43
SECTION 4.09. Subsidiaries 43
SECTION 4.10. No Regulatory Restrictions on
Borrowing 44
SECTION 4.11. Full Disclosure 44
SECTION 4.12. Y2K Plan 44
SECTION 4.13. Compliance with Laws; Payment of Taxes 45
SECTION 4.14. Ownership of Property; Liens 45
SECTION 4.15. No Default 45
SECTION 4.16. Capital Stock 45
SECTION 4.17. Margin Stock 45
SECTION 4.18. Insolvency 46
ARTICLE V
COVENANTS 46
SECTION 5.01. Information 49
SECTION 5.02. Payment of Obligations 50
SECTION 5.03. Maintenance of Property; Insurance 50
SECTION 5.04. Conduct of Business and Maintenance
of Existence 50
SECTION 5.05. Compliance with Laws 51
SECTION 5.06. Inspection of Property, Books and
Records 51
SECTION 5.07. Mergers and Sales of Assets 51
SECTION 5.08. Use of Proceeds 51
SECTION 5.09. Negative Pledge 53
SECTION 5.10. Debt/Capitalization Ratio 53
SECTION 5.11. Restricted Debt of Subsidiaries 53
SECTION 5.12. Debt/EBITDA Ratio 53
SECTION 5.13. Restricted Payments 53
SECTION 5.14. Lease Payments 54
SECTION 5.15. Investments 54
SECTION 5.16. Transactions with Affiliates 55
SECTION 5.17. Dissolution 55
SECTION 5.18. Change in Fiscal Year 55
SECTION 5.19. Y2K Compliance 55
SECTION 5.20. Assumption of ACXGL Senior Notes. 55
ARTICLE VI
DEFAULTS 55
SECTION 6.01. Events of Default 58
SECTION 6.02. Notice of Default 58
ARTICLE VII
THE AGENT 58
SECTION 7.01. Appointment; Powers and Immunities 60
SECTION 7.02. Reliance by Agent 60
SECTION 7.03. Defaults 60
SECTION 7.04. Rights of Agent and its Affiliates as
a Bank 61
SECTION 7.05. Indemnification 61
SECTION 7.06. Consequential Damages 61
SECTION 7.07. Payee of Note Treated as Owner 62
SECTION 7.08. Nonreliance on Agent and Other Bank 62
SECTION 7.09. Failure to Act 62
SECTION 7.10. Resignation or Removal of Agent 63
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION 63
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair 64
SECTION 8.02. Illegality 64
SECTION 8.03. Increased Cost and Reduced Return 66
SECTION 8.04. Base Rate Loans Substitute for
Euro-Dollar Loans 67
SECTION 8.05. Compensation 68
SECTION 8.06. Replacement of Banks 68
ARTICLE IX
MISCELLANEOUS 68
SECTION 9.01. Notices 69
SECTION 9.02. No Waivers 69
SECTION 9.03. Expenses; Documentary Taxes 69
SECTION 9.04. Indemnification 70
SECTION 9.05 Sharing of Setoffs 71
SECTION 9.06. Amendments and Waivers 72
SECTION 9.07. No Margin Stock Collateral 72
SECTION 9.08. Successors and Assigns 75
SECTION 9.09. Confidentiality 75
SECTION 9.10. Representation by Banks 75
SECTION 9.11. Obligations Several 76
SECTION 9.12. Georgia Law 76
SECTION 9.13. Interpretation 76
SECTION 9.14. Waiver of Jury Trial; Consent to
Jurisdiction 76
SECTION 9.15. Counterparts 77
SECTION 9.16. Severability 77
SECTION 9.17. Interest 77
SECTION 9.18. Source of Funds -- ERISA 78
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Jones, Day, Reavis &
Pogue, Special Counsel for the Banks and the
Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
Schedule 4.09 Subsidiaries
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 20, 1998, among
ACX TECHNOLOGIES, INC., the BANKS listed on the signature pages
hereof, WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in
this Section 1.01 shall, for all purposes of this Agreement and
any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the
meanings set forth herein:
"ACXGL" means ACX Group, Limited (formerly Britton
Group, plc), a limited company incorporated under the laws of
England and Wales with registered number 1816646.
"ACXGL Senior Notes" means the following series of
senior notes issued by ACXGL (under the name of Britton Group,
PLC): (i) $45,000,000 7.19% Series A Note maturing January 3,
2006 and (ii) $47,500,000 7.01% Series B Note maturing January 3,
2003.
"Adjusted London Interbank Offered Rate" applicable to
any Interest Period means a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the next higher
1/100th of 1%) by dividing (i) the applicable London Interbank
Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage. The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
"Affiliate" means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the
Borrower (a "Controlling Person"), (ii) any Person (other than
the Borrower or a Subsidiary) which is controlled by or is under
common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary) of which the Borrower owns, directly or
indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of
America, in its capacity as agent for the Banks hereunder, and its
successors and permitted assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of September 16, 1998, between the Borrower
and the Agent relating to the structure of the financial
accommodations set forth herein, and certain fees from time to
time payable by the Borrower to the Agent, together with all
amendments and supplements thereto.
"Aggregate Commitments" means the sum of all of the
Commitments.
"Agreement" means this Credit Agreement, together with
all amendments and supplements hereto.
"Anniversary Date" means each yearly anniversary of the
Closing Date.
"Applicable Margin" has the meaning set forth in
Section 2.06(a).
"Assignee" has the meaning set forth in Section
9.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.08(c) in the
form attached hereto as Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages
hereof as having a Commitment, and its successors and assigns, and
"Banks" means all such Banks.
"Base Rate" means for any Base Rate Loan for any day,
the rate per annum equal to the higher as of such day of (i) the
Prime Rate, or (ii) one-half of one percent above the Federal
Funds Rate. For purposes of determining the Base Rate for any day,
changes in the Prime Rate or the Federal Funds Rate shall be
effective on the date of each such change.
"Base Rate Loan" means a Syndicated Loan to be made as a
Base Rate Loan pursuant to the applicable Notice of Borrowing,
Section 2.02, or Article VIII, as applicable.
"Borrower" means ACX Technologies, Inc., a Colorado
corporation, and its successors and its permitted assigns.
"Borrower's 1997 Form 10-K" means the Borrower's annual
report on Form 10-K for 1997, as filed with the SEC pursuant to the
Exchange Act.
"Borrower's Latest Form 10-Q" means the Borrower's
quarterly report on Form 10-Q for the quarter ended June 30,
1998, as filed with the SEC pursuant to the Exchange Act.
"Borrowing" means a borrowing hereunder consisting of
Loans made to the Borrower (i) at the same time by all of the Banks,
in the case of a Syndicated Borrowing, or (ii) separately by one or
more Banks, in the case of a Money Market Borrowing, in each case
pursuant to Article II. A Borrowing is a "Base Rate Borrowing" if
such Loans are Base Rate Loans or a "Euro-Dollar Borrowing" if such
Loans are Euro-Dollar Loans. A Borrowing is a "Syndicated
Borrowing" if it is made pursuant to Section 2.01. A Borrowing is
a "Money Market Borrowing" if it is made pursuant to Section 2.03.
"Capital Stock" means any nonredeemable capital stock of
the Borrower or any Consolidated Subsidiary (to the extent issued
to a Person other than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental
Response Compensation and Liability Inventory System established
pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in
Section 8.02.
"Closing Certificate" has the meaning set forth in
Section 3.01(e).
"Closing Date" means November 20, 1998.
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor Federal tax code.
"Commitment" means (i) the amount set forth opposite
the name of such Bank on the signature pages hereof, and (ii)as to
any Bank which enters into any Assignment and Acceptance (whether
as transferor Bank or as Assignee thereunder), the amount of such
Bank's Commitment after giving effect to such Assignment and
Acceptance, in each case as such amount may be reduced from time to
time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Debt" means at any date the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
"Consolidated EBITDA" means, for any period (and with
respect to any Consolidated Subsidiary acquired during such period,
such Consolidated Subsidiary shall be included on a pro forma,
historical basis as if it had been a Consolidated Subsidiary during
such entire period), Consolidated Net Income for such period plus,
to the extent deducted in determining Consolidated Net Income for
such period, the aggregate amount of (i) Consolidated Interest
Expense, (ii) income tax expense and (iii) depreciation,
amortization and other similar non-cash charges.
"Consolidated Intangible Assets" means at any date the
amount of (i) all writeups (except write-ups resulting from foreign
currency translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of such
business) after September 30, 1997 in the book value of any asset
owned by the Borrower or a Consolidated Subsidiary and (ii) all
unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names,
anticipated future benefit of tax loss carry-forwards, copyrights,
organization or developmental expenses and other intangible assets
of the Borrower and its Consolidated Subsidiaries as of such date.
"Consolidated Interest Expense" means, for any period,
the interest expense of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis for such period.
"Consolidated Net Income" means, for any period (and with
respect to any Consolidated Subsidiary acquired during such period,
such Consolidated Subsidiary shall be included on a pro forma,
historical basis as if it had been a Consolidated Subsidiary during
such entire period), the Net Income of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis, but
excluding (i) extraordinary items and (ii) any equity interests of
the Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Net Worth" means, at any time, the
consolidated net worth of the Borrower and its Subsidiaries, as
determined in accordance with GAAP.
"Consolidated Operating Income" means, for any period
(and with respect to any Consolidated Subsidiary acquired during
such period, such Consolidated Subsidiary shall be included on a
pro forma, historical basis as if it had been a Consolidated
Subsidiary during such entire period), the consolidated operating
income of the Borrower and its Consolidated Subsidiaries for such
period, as determined in accordance with GAAP.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which, in accordance
with GAAP, would be consolidated with those of the Borrower in its
consolidated financial statements as of such date.
"Consolidated Tangible Assets" means, at any date, the
consolidated assets of the Borrower and its Consolidated
Subsidiaries less Consolidated Intangible Assets, all determined
as of such date.
"Consolidated Tangible Net Worth" means, at any date,
the consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries less Consolidated Intangible Assets, all
determined as of such date.
"Consolidated Total Assets" means, at any time, the
total assets of the Borrower and its Consolidated subbsidiaries,
determined on a consolidated basis, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time,
the sum of (i) Consolidated Net Worth, and (ii) Consolidated Total
Debt.
"Consolidated Total Debt" means, without duplication, all
of the following types of Debt of the Borrower and its Consolidated
Subsidiaries: (i) obligations for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments, (ii)
obligations as lessee under capital leases, (iii) obligations to
reimburse any bank or other Person in respect of amounts paid under
a letter of credit (other than a trade letter of credit) or similar
instrument, (iv) all Redeemable Preferred Stock of such Person (in
the event such Person is a corporation), and (v) Debt of the types
referred to in clauses (i) through (iv), inclusive, of this
definition of Persons other than the Borrower or any Guarantor
which are Guaranteed by the Borrower or any Consolidated Subsidiary.
"Credit Exposure" means, with respect to any Bank at any
time, (i) the amount of its Commitment (whether used or unused) at
such time or (ii) if the Commitments have terminated in their
entirety, the aggregate outstanding principal amount of its Loans
at such time.
"Debt" of any Person means, at any date, without
duplication, (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with GAAP, (v) all non-contingent
obligations (and, for purposes of Section 5.09 and the definitions
of Material Debt and Material Financial Obligations, all contingent
obligations) of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit or similar
instrument, (vi) all Debt secured by a Lien on any asset of such
Person, whether or not such Debt is otherwise an obligation of such
Person, and (vii) all Guarantees by such Person of Debt of another
Person (each such Guarantee to constitute Debt in an amount equal
to the amount of such other Person's Debt Guaranteed thereby).
"Debt/Capitalization Ratio" means the ratio of (i)
Consolidated Total Debt to (ii) Consolidated Total Capitalization.
"Debt/EBITDA Ratio" means the ratio of (i) Consolidated
Total Debt to (ii) Consolidated EBITDA.
"Debt Rating" means at any time the rating of the Notes
by Moody's or S&P (as such rating may change from time to time,
either pursuant to Section 2.06(f) or otherwise) or if only one of
them rates the Notes, such rating; provided, that in the event of
a (i) split rating, the highest rating shall apply or (ii) double
or greater split rating, the level above the lowest rating shall
apply.
"Default" means any condition or event which constitutes
an Event of Default or which with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Default Rate" means, with respect to any Loan, on any
day, the sum of 2% plus the then highest interest rate (including
the Applicable Margin) which may be applicable to any Loans
hereunder (irrespective of whether any such type of Loans are
actually outstanding hereunder).
"Derivatives Obligations" of any Person means all
obligations of such Person in respect of any rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination
of the foregoing transactions.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are
authorized by law to close.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to the environment or the
effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including (without
limitation) ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, or any successor law.
Any reference to any provision of ERISA shall also be deemed to be
a reference to any successor provision or provisions thereof.
"ERISA Group" means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with the Borrower or any Subsidiary, are treated as a
single employer under Section 414 of the Code.
"Euro-Dollar Business Day" means any Domestic Business
Day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Euro-Dollar Loan" means a Syndicated Loan which bears
or is to bear interest at a rate based upon the Adjusted London
Interbank Offered Rate, and to be made as a Euro-Dollar Loan
pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to
which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes
loans by a non-United States office of any Bank to United States
residents).
"Event of Default" has the meaning set forth in Section
6.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"Facility Fee" has the meaning specified in Section
2.07(b).
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward, if necessary, to the next higher 1/100th 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 Domestic Business Day next
succeeding such day, provided that (i) if the day for which such
rate is to be determined is not a Domestic Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic 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 rate charged to the Agent
on such day on such transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the
Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles
applied on a basis consistent with those which, in accordance with
Section 1.02, are to be used in making the calculations for
purposes of determining compliance with the terms of this Agreement.
"Golden Properties" means Golden Properties, Ltd., a
partnership in which the Borrower is the general partner and has a
50% interest on the date hereof and which is in the business of
developing and selling real property.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of
such Debt or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation,
(b) "hazardous substance", "pollutant", or "contaminant" as defined
in CERCLA, or in any applicable state or local law or regulation,
(c) petroleum including, crude oil or any fraction thereof which
is not otherwise specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F) of section 101(14)
of CERCLA, (d) "chemical substances" and "mixtures", as defined
in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation or (e) pesticides, as defined in
the Federal Insecticide, Fungicide, and Rodenticide Act of 1975,
or in any applicable state or local law or regulation, as each
such Act, statute or regulation may be amended from time to time.
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the
first, second, third or sixth month thereafter, as the Borrower
may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c)
below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in
the appropriate subsequent calendar month) shall, subject
to paragraph (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar
month; and
(c) no Interest Period may be selected which would
end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period (subject to paragraph (b)
below) which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) no Interest Period may be selected which would
end after the Termination Date.
(3) with respect to each Money Market Borrowing, the period
commencing on the date of such Borrowing and ending on the Stated
Maturity Date or such other date or dates as may be specified in
the applicable Money Market Quote; provided that:
(a) any Interest Period (subject to clause (b)
below) which would otherwise end on a day which is not
a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins
before the Termination Date and would otherwise end
after the Termination Date.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution, loan,
Guarantee, time deposit or otherwise (but not including any demand
deposit).
"Lending Office" means, as to each Bank, its office
located at its address set forth on the signature pages hereof (or
identified on the signature pages hereof as its Lending Office) or
such other office as such Bank may hereafter designate as its
Lending Office by notice to the Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind,
or any other type of preferential arrangement that has
substantially the same practical effect as a security interest, in
respect of such asset. For purposes hereof, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement,
"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a
Syndicated Loan, or a Money Market Loan and "Loans" means Base
Rate Loans, Euro-Dollar Loans, Syndicated Loans, or Money Market
Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes and any
other document or instrument delivered from time to time in
connection with this Agreement, the Notes or the Loans, as such
documents and instruments may be amended or modified from time to
time.
"London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar
Loan, the rate per annum determined on the basis of the offered
rate for deposits in Dollars of amounts equal or comparable to the
principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rates appear on Dow
Jones Market Services, Inc. Page 3750 effective as of 11:00 A.M.,
London time, 2 Euro-Dollar Business Days prior to the first day
of such Interest Period, provided that if no such offered rates
appear on such page, the "London Interbank Offered Rate" for such
Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100th of 1%) of rates quoted by
not less than 2 major banks in New York City, selected by the
Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Interest
Period, for deposits in Dollars offered by leading European banks
for a period comparable to such Interest Period in an amount
comparable to the principal amount of such Euro-Dollar Loan.
"Margin Stock" means "margin stock" as defined in
Regulations T, U or X.
"Material Adverse Effect" has the meaning set forth in
Section 4.04(c).
"Material Debt" means Debt (except Debt outstanding
hereunder) of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in an
aggregate principal or face amount exceeding $10,000,000.
"Material Financial Obligations" means a principal or
face amount of Debt (other than the Loans) and/or payment or
collateralization obligations in respect of Derivatives Obligations
of the Borrower and/or one or more of its subsidiaries, arising in
one or more related or unrelated transactions, exceeding in the
aggregate $10,000,000.
"Material Plan" means, at any time, a Plan or Plans
ving aggregate Unfunded Liabilities in excess of $25,000,000.
"Money Market Borrowing Date" has the meaning specified
in Section 2.03.
"Money Market Loans" means Loans made pursuant to the
terms and conditions set forth in Section 2.03.
"Money Market Loan Notes" means the promissory notes of
the Borrower, substantially in the form of Exhibit A-2, evidencing
the obligation of the Borrower to repay the Money Market Loans,
together with all amendments, consolidations, modifications,
renewals and supplements thereto.
"Money Market Quote" has the meaning specified in
Section 2.03.
"Money Market Quote Request" has the meaning specified
in Section 2.03(b).
"Money Market Rate" has the meaning specified in
Section 2.03(c)(ii)(C).
"Moody's" means Moody's Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any
period, the aggregate amount of net income of such person, after
taxes, for such period, as determined in accordance with GAAP.
"Notes" means, individually and collectively, as the
context shall require or permit, each of the Syndicated Notes and
the Money Market Notes.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Officer's Certificate" has the meaning set forth in
Section 3.01(g).
"Participant" has the meaning set forth in Section
9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" means (i) at
any time no Debt Rating exists, the date (A) such Debt Rating
ceases to exist or (B) which is the last date on which financial
statements are permitted to be delivered pursuant to Section
5.01(a) or (b), as applicable, or (ii) the date the Debt Rating is
issued and each date on which the Debt Rating changes.
"Permitted Acquisitions" means acquisitions of the
stock or assets of another Person if (i) such Person or the assets
so acquired is or are to be used in the same or related line of
business to the lines of business of the Borrower and its
Subsidiaries, (ii) such acquisition does not involve, directly or
indirectly, any hostile tender offer for, or other hostile
acquisition of, stock of any corporation with a view toward
obtaining control of such other corporation and (iii) after giving
effect to such acquisition, no Default or Event of Default will be
in existence.
"Person" means an individual, a corporation, a
partnership, an unincorporated association, a trust or any other
entity or organization, including, but not limited to, a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and is
either (i) maintained by a member of the ERISA Group for employees
of any member of the ERISA Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a
member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years
made contributions.
"Prime Rate" refers to that interest rate so
denominated and set by Wachovia from time to time as an interest
rate basis for borrowings. The Prime Rate is but one of several
interest rate bases used by Wachovia. Wachovia lends at interest
rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary,
wherever located.
"Quarterly Date" means each March 31, June 30,
September 30, and December 31.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior
to the Termination Date either (i) mandatorily redeemable (by
sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the
day on which an outstanding Syndicated Loan is maturing or a Base
Rate Borrowing is being converted to a Euro-Dollar Borrowing, if
and to the extent that the proceeds thereof are used entirely for
the purpose of paying such maturing Loan or Loan being converted,
excluding any difference between the amount of such maturing Loan
or Loan being converted and any greater amount being borrowed on
such day and actually either being made available to the Borrower
pursuant to Section 2.02(c) or remitted to the Agent as provided
Section 2.12, in each case as contemplated in Section 2.02(d).
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Regulation T" means Regulation T of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Regulation X" means Regulation X of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Reported Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or, if the
Commitments are no longer in effect, Banks holding at least 66 2/3%
of the aggregate outstanding principal amount of the sum of the (i)
Syndicated Loans and (ii) Money Market Loans.
"Restricted Debt of Subsidiaries" means at any time the
aggregate principal or face amount of all Debt of Subsidiaries,
except Debt of a Subsidiary owed to the Borrower or to a
wholly-owned Subsidiary.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except
dividends payable solely in shares of its capital stock) or (ii)
any payment on account of the purchase. redemption, retirement or
acquisition of (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the
Borrower's capital stock (but not including payments of principal,
premium (if any) or interest made pursuant to the terms of
convertible debt securities prior to conversion).
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Group, a division
of McGraw-Hill, Inc.
"Stated Maturity Date" means, with respect to any Money
Market Loan, the Stated Maturity Date therefor specified by the
Bank in the applicable Money Market Quote.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly
or indirectly owned by the Borrower.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the
obligation of the Borrower to repay Syndicated Loans, together with
all amendments, consolidations, modifications, renewals and
supplements thereto.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar
Loans made pursuant to the terms and conditions set forth in
Section 2.01.
"Taxes" has the meaning set forth in Section 2.12(c).
"Temporary Cash Investment" means any Investment in (i)
direct obligations of the United States or any agency thereof or
obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-I by S&P (but in no event
less than A-3 in the event that the Moody's rating is used) or
P-1 by Moody's. (but in no event less than P-3 in the event that
the S&P rating is used), (iii) time deposits with, including
certificates of deposit issued by, any office located in the
clause (i) above entered into an office of a bank or trust
company meeting the criteria specified in clause (iii) above,
provided in each case that such Investment matures within one
year after it is acquired by the Borrower or a Subsidiary.
"Termination Date" means whichever is applicable of (i)
November 20, 2000, (ii) such later date to which it is extended by
the Banks pursuant to Section 2.05(b), in their sole and absolute
discretion, (iii) the date the Commitments are terminated pursuant
to Section 6.01 following the occurrence of an Event of Default,
or (iv) the date the Borrower terminates the Commitments entirely
pursuant to Section 2.08.
"Third Parties" means all lessees, sublessees, licensees
and other users of the Properties, excluding those users of the
Properties in the ordinary course of the Borrower's business and
on a temporary basis.
"Total Debt/EBITDA Ratio" means the ratio of (i)
Consolidated Total Debt to (ii) Consolidated EBITDA.
"Transferee" has the meaning set forth in Section
9.08(d).
"Unfunded Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the value of all
benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC for
purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or
any other Person under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to
any Bank, an amount equal to its Commitment less the aggregate
outstanding principal amount of its Syndicated Loans (but not its
Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national
banking association, and its successors.
"Y2K Plan" has the meaning set forth in Section 4.12.
"Year 2000 Compliant and Ready" means that (a) the
Borrower's and its Subsidiaries hardware and software systems
which are material to the operation of its business will in all
material respects: (i) handle date information involving any and
all dates before, during and/or after January 1, 2000, including
accepting input, providing output and performing date calculations
in whole or in part; (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and/or after
January 1, 2000 and without any change in performance; (iii) store
and provide date input information without creating any ambiguity
as to the century and; (b) the Borrower has developed alternative
plans to ensure business continuity in the event of the failure of
any or all of items (i) through (iii) in clause (a) above in this
definition.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all terms of an accounting
character used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared
in accordance with GAAP, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in GAAP) with the
most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Banks
unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (i) the Borrower
shall objected to determining such compliance on such basis at the
time of delivery of such financial statements, (ii) the Required
Banks shall so object in writing within 30 days after the delivery
of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used
in the preparation of the latest financial statements as to which
such objection shall not have been made (which, if objection is
made in respect of the first financial statements delivered under
Section 5.01 hereof, shall mean the financial statements referred
to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits",
"Schedules", "Sections" and other Subdivisions are references to
articles, exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. Use of Defined Terms. All terms defined
in this Agreement shall have the same defined meanings when used
in any of the other Loan Documents, unless otherwise defined
therein or unless the referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits",
"Schedules", "Sections" and other Subdivisions are references to
articles, exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. Use of Defined Terms. All terms defined
in this Agreement shall have the same defined meanings when used
in any of the other Loan Documents, unless otherwise defined
therein or unless the context shall require otherwise.
SECTION 1.05. Terminology. All personal pronouns used
in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders; the singular shall
include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of
this Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally
agrees, on the terms and conditions set forth herein, to make
Syndicated Loans to the Borrower from time to time before the
Termination Date; provided that,
(i) immediately after each such Syndicated Loan is
made, the aggregate outstanding principal amount of
Syndicated Loans by such Bank shall not exceed the
amount of its Commitment, and
(ii) the aggregate outstanding principal amount of
all Syndicated Loans and Money Market Loans shall not
exceed the aggregate amount of the Commitments.
Each Syndicated Borrowing under this Section shall be in an
aggregate principal amount of (i) for Base Rate Loans, $1,000,000
or any larger integral multiple of $100,000, and for Euro-Dollar
Loans, $5,000,000 or any larger integral multiple of $1,000,000,
except that any such Syndicated Borrowing may be in the aggregate
amount of the Unused Commitments and shall be made from the several
Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrower may borrow under this
Section 2.01, repay or, to the extent permitted by Section 2.10,
prepay Syndicated Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Method of Borrowing Syndicated Loans.
(a) The Borrower shall give the Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form of Exhibit E,
on the same day for a Base Rate Borrowing, and at least 3
Euro-Dollar Business Days' notice prior to each Euro-Dollar
Borrowing (all notices being effective on the day delivered so
long as the Agent shall have received same prior to 11:00 A.M.,
Atlanta, Georgia time) specifying:
(i) the date of such Syndicated Borrowing, which
shall be a Domestic Business Day in the case of a Base
Rate Borrowing or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated
Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar
Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
(b) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share of such Syndicated Borrowing and such
Notice of Borrowing, once received by the Agent, shall not
thereafter be revocable by the Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on
the date of each Syndicated Borrowing, each Bank shall (except as
provided in paragraph (d) of this Section) make available its
ratable share of such Syndicated Borrowing, in Federal or other
funds immediately available in Atlanta, Georgia, to the Agent at
its address determined pursuant to Section 9.01. Unless the Agent
determines that any applicable condition specified in Article III
has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower at the Agent's aforesaid
address. Unless the Agent receives notice from a Bank, at the
Agent's address referred to in or specified pursuant to Section
9.01, (i) in the case of a Base Rate Borrowing, no later than
1:00 P.M. (local time at such address) on the same day as such
Base Rate Borrowing and (ii) in the case of any other type of
Syndicated Borrowing, no later than 4:00 P.M. (local time of such
address) on the Domestic Business Day before the date of a
Syndicated Borrowing, the Agent shall be entitled to assume that
such Bank will make a Syndicated Loan in connection with such
Synciated Borrowing and, in reliance on such assumption, the Agent
may (but shall not be obligated to) make available such Bank's
ratable share of such Syndiacted Borrowing to the Borrower for
the account of such Bank. If the Agent makes such Bank's ratable
share available to the Borrower and such Bank does not in fact
make its ratable share of such Symdicated Borrowing available on
such date, the Agent shall be entitled to recover such Bank's
ratable share from such Bank or the Borrower (an for such purpose
shall be entitled to charge such amount to any account of the
Borrower maintained with the Agent), together with interest
thereon for each day during the period from the date of such
Syndicated Borrowing until such sum shall be paid in full at a
rate per annum equal to the rate at which the Agent determines
that it obtained (or could have obtained) overnight Federal funds
to cover such amount for each such day during such period, provided
that any (i) such payment by the Borrower of such Bank's ratable
share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank and (ii) until
such Bank has paid its ratable share of such Syndicated Borrowing,
together with interest pursuant to the foregoing, it will have no
interest in or rights with respect to such Syndicated Borrowing
for any purpose hereunder. If the Agent does not exercise its
option to advance funds for the account of such Bank, it shall
forthwith notify the Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on
a day on which the Borrower is to repay all or any part of an
outstanding Syndicated Loan from such Bank, such Bank shall apply
the proceeds of its new Syndicated Loan to make such repayment as
a Refunding Loan and only an amount equal to the difference (if
any) between the amount being borrowed and the amount of such
Refunding Loan shall be made available by such Bank to the Agent
as provided in paragraph (c) of this Section, or remitted by the
Borrower to the Agent as provided in Section 2.12, as the case
may be.
(e) Notwithstanding anything to the contrary contained
in this Agreement, no Euro-Dollar Borrowing or Money Market
Borrowing may be made if there shall have occurred a Default or an
Event of Default, which Default or Event of Default shall not have
been cured or waived, and in such circumstances, all Refunding
Loans shall be made as Base Rate Loans (but shall bear interest at
the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to
specify whether the Syndicated Loans comprising such Syndicated
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, such
Syndicated Loans shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period
applicable thereto with the proceeds of a new Syndicated Borrowing,
and the Borrower fails to repay such Syndicated Loans using its
own moneys and fails to give a Notice of Borrowing in connection
with such new Syndicated Borrowing, a new Syndicated Borrowing
shall be deemed to be made on the date such Syndicated Loans
mature in an amount equal to the prinicpal amount of the
Syndicated Loans so maturing, and the Syndicated Loans comprising
such new Syndicated Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained
herein, including, without limitation Section 2.01 and Section
2.03, there shall not be more than 8 Interest Periods and/or
Stated Maturity Dates applicable to the Euro-Dollar Loans and/or
Money Market Loans at any given time.
SECTION 2.03. Money Market Loans. (a) In addition to
making Syndicated Borrowings, so long as the Borrower is at
pricing Level I, II, III or IV under whichever is applicable of
Table A or Table B in Section 2.06(a), the Borrower may, as set
forth in this Section 2.03, request the Banks to make offers to
make Money Market Borrowings available to the Borrower. The
Banks may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03, provided that:
(i) the number of interest rates applicable to
Money Market Loans which may be outstanding at any given
time is subject to the provisions of Section 2.02(g);
(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal
amount of all Syndicated Loans, at any one time
outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(iii) the Money Market Loans of any Bank will be
deemed to be usage of the Commitments for the purpose of
calculating availability pursuant to Section 2.01(ii)
and 2.03(a)(ii), but will not reduce such Bank's
obligation to lend its pro rata share of the remaining
Unused Commitment.
(b) When the Borrower wishes to request offers to make
Money Market Loans, it shall give the Agent (which shall promptly
notify the Banks) notice substantially in the form of Exhibit I
hereto (a "Money Market Quote Request") so as to be received no
later than 11:00 A.M. (Atlanta, Georgia time) at least one Domestic
Business Day prior to the date of the Money Market Borrowing
proposed therein (or such other time and date as the Borrower and
the Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money Market
Borrowing, which shall be a Domestic Business Day (the
"Money Market Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated
Maturity Date") for repayment of each Money Market Loan to
be made as part of such Money Market Borrowing (which
Stated Maturity Date shall be that date occurring not
less than 7 days but not more than 180 days from the
date of such Money Market Borrowing); provided that the
Stated Maturity Date for any Money Market Loan may not
extend beyond the Termination Date (as in effect on the
date of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be
requested by the Borrower as a result of such Money
Market Borrowing, which shall be at least $5,000,000
(and in larger integral multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a)
to be violated.
The Borrower may request offers to make Money Market Loans having
up to 3 different Stated Maturity Dates in a single Money Market
Quote Request; provided that the request for each separate Stated
Maturity Date shall be deemed to be a separate Money Market Quote
Request for a separate Money Market Borrowing. Except as
otherwise provided in the immediately preceding sentence, after
the first Money Market Quote Request has been given hereunder, the
Borrower shall make no more than 1 Money Market Quote Request
within any 5 consecutive Domestic Business Days pursuant to this
Section 2.03.
(c) (i) Each Bank may, but shall have no
obligation to, submit a response containing an offer to
make a Money Market Loan substantially in the form of
Exhibit J hereto (a "Money Market Quote") in response to
any Money Market Quote Request; provided that, if the
Borrower's request under Section 2.03(b) specified more
than 1 Stated Maturity Date, such Bank may, but shall
have no obligation to, make a single submission
containing a separate offer for each such Stated Maturity
Date and each such separate offer shall be deemed to be
a separate Money Market Quote. Each Money Market Quote
must be submitted to the Agent not later than 10:30 A.M.
(Atlanta, Georgia time) on the Money Market Borrowing
Date; provided that any Money Market Quote submitted by
Wachovia may be submitted, and may only be submitted, if
Wachovia notifies the Borrower of the terms of the offer
contained therein no later than 10:15 A.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date (or 15
minutes prior to the time that the other Banks are
required to have submitted their respective Money Market
Quotes). Subject to Section 6.01, any Money Market Quote
so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing
Date and the Stated Maturity Date therefor;
(B) the principal amounts of the Money
Market Loan which the quoting Bank is willing
to make for the applicable Money Market Quote,
which principal amounts (x) may be greater
than or less than the Commitment of the
quoting Bank, (y) shall be at least $5,000,000
or a larger integral multiple of $1,000,000,
and (z) may not exceed the principal amount of
the Money Market Borrowing for which offers
were requested;
(C) the rate of interest per annum
(rounded upwards, if necessary, to the nearest
1/100th of 1%) offered for each such Money
Market Loan (such rate being hereinafter
referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no
Money Market Quote shall contain qualifying, conditional or
similar language or propose terms other than or in addition
to those set forth in the applicable Money Market Quote
Request (other than setting forth the maximum principal
amounts of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period) and, in
particular, no Money Market Quote may be conditioned upon
acceptance by the Borrowers of all (or some specified
minimum) of the principal amount of the Money Market Loan
for which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after
the Money Market Quote is submitted (but in any event not later
than 10:30 A.M. (Atlanta, Georgia time)) on the Money Market
Borrowing Date, notify the Borrower of the terms (i) of any Money
Market Quote submitted by a Bank that is in accordance with
Section 2.03(c) and (ii) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote
is submitted solely to correct a manifest error in such former
Money Market Quote. The Agent's notice to the Borrower shall
specify (A) the principal amounts of the Money Market Borrowing
for which offers have been received and (B) the respective
principal amounts and Money Market Rates so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time)
on the Money Market Borrowing Date, the Borrower shall notify the
Agent of its acceptance or nonacceptance of the offers so notified
to it pursuant to Section 2.03(d) and the Agent shall promptly
notify each affected Bank. In the case of acceptance, such notice
shall specify the aggregate principal amount of offers (for each
Stated Maturity Date) that are accepted. The Borrower may accept
any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $5,000,000 (and in
larger integral multiples of $1,000,000) but shall not
cause the limits specified in Section 2.03(a) to be
violated;
(iii) acceptance of offers may only be made in
ascending order of Money Market Rates; and
(iv) the Borrower may not accept any offer where
the Agent has advised the Borrower that such offer fails
to comply with Section 2.03(c)(ii) or otherwise fails to
comply with the requirements of this Agreement including
without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market
Rates for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Stated
Maturity Date, the principal amount of Money Market Loans in
respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (to the
nearest $100,000) in proportion to the aggregate principal amount
of such offers. Determinations by the Borrower of the amounts of
Money Market Loans shall be conclusive in the absence of manifest
error.
(f) Any Bank whose offer to make any Money Market Loan
has been accepted shall, not later than 12:00 P.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date, make the
appropriate amount of such Money Market Loan available to the
Agent at its address referred to in Section 9.01 in immediately
available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower on such date by depositing the same, in
immediately available funds, not later than 4:00 P.M. (Atlanta,
Georgia time), in an account of such Borrower maintained with
Wachovia.
(g) After any Money Market Loan has been funded, the
Agent shall notify the Banks of the aggregate principal amount of
the Money Market Quotes received and the highest and lowest rates
included in such Money Market Quotes.
SECTION 2.04. Notes. (a) The Syndicated Loans of each
Bank shall be evidenced by a single Syndicated Loan Note payable
to the order of such Bank for the account of its Lending Office in
an amount equal to the original principal amount of such Bank's
Commitment.
(b) The Money Market Loans made by any Bank to the
Borrower shall be evidenced by a single Money Market Note payable
to the order of such Bank for the account of its Lending Office in
an amount equal to the original principal amount of the Aggregate
Commitments.
(c) Upon receipt of each Bank's Notes pursuant to
Section 3.01, the Agent shall deliver such Notes to such Bank.
Each Bank shall record, and prior to any transfer of its Notes
shall endorse on the schedules forming a part thereof appropriate
notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with
respect thereto, and such schedules of each such Bank's Notes
shall constitute rebuttable resumptive evidence of the
respective principal amounts owing and unpaid on such Bank's
Notes; provided that the failure of any Bank to make, or any
error in making, any such recordation or endorsement shall not
affect the obligation of the Borrower hereunder or under the
Notes or the ability of any Bank to assign its Notes. Each Bank
is hereby irrevocably authorized by the Borrower so to endorse
its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.05. Maturity of Loans. (a) Each Loan
included in any Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest
Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding
principal amount of the Loans, together with all accrued but
unpaid interest thereon, if any, shall be due and payable on
November 20, 2000, unless the Termination Date is otherwise
extended by the Banks, in their sole and absolute discretion.
Upon the written request of the Borrower, which request shall be
delivered to the Agent at least 45 days, but not more than 60 days,
prior to each Extension Date (as such term is hereinafter defined),
the Banks shall have the option without any obligation whatsoever
so to do) of extending the Termination Date for additional
one-year periods on each of November 20, 1999 and November 20, 2000
(each, an "Extension Date"). Each Bank shall notify the Borrower
and the Agent at least 30 days prior to the relevant Extension
Date whether or not it chooses to extend the Termination Date for
such an additional one-year period (but any Bank which fails to
give such notice within such period shall be deemed not to have
extended); provided, that the Termination Date shall not be
extended with respect to any of the Banks unless:
(i) the Required Banks are willing to extend the
Termination Date; and
(ii) on or before the Extension Date, as to the
Commitment of any Bank which gave notice that it chooses
not to extend, or which is deemed pursuant to the
foregoing not to have extended (any such Bank being a
"Terminating Bank"), one of the following shall occur:
(x) the remaining Banks shall purchase ratable
assignments (without any obligation so to do) from
such Terminating Bank (in the form of an Assignment
and Acceptance) in accordance with their respective
percentage of the remaining Aggregate Commitments;
provided, that, such Banks shall be provided such
opportunity (which opportunity shall allow such
Banks at least 5 Domestic Business Days in which to
make a decision) prior to the Borrower finding
another bank pursuant to the immediately succeeding
clause (y); and, provided, further, that, should
any of the remaining Banks elect not to purchase
such an assignment from any Terminating Bank which
includes the ratable interest that was otherwise
available to such non-purchasing remaining Bank or
Banks, as the case may be, or
(y) the Borrower shall find another bank,
acceptable to the Agent, willing to accept an
assignment from such Terminating Bank (in the form
of an Assignment and Acceptance) on or before the
Extension Date, or
(z) the Borrower shall reduce the aggregate
Commitments in an amount equal to the Commitment of
any such Terminating Bank.
SECTION 2.06. Interest Rates. (a) "Applicable Margin"
means:
(i) for the first 90 days after the Closing Date, (x) for
any Base Rate Loan, 0.00%, and (y) for any Euro-Dollar Loan,
0.50%; and
(ii) thereafter, (x) for any Base Rate Loan, 0.00% and (y)
for each Euro-Dollar Loan, the percentage determined on each
Performance Pricing Determination Date by reference to Table A set
forth below as to such type of Loan and the Debt/EBITDA Ratio for
the four Fiscal Quarters ending immediately prior to such
Performance Pricing Determination Date (except in the case of the
Performance Pricing Determination Date which occurs 95 days after
the end of each Fiscal Year, the Debt/EBITDA Ratio shall be based
on such Fiscal Year); provided, that from and after the time that
a Debt Rating is assigned by both Moody's and S&P, reference
instead shall be made to Table B set forth below as to such type
of Loan and the Debt Rating for such quarterly or annual period.
TABLE A
- -------------------------------------------------------------
Level I Level II Level III Level IV Level V
- ---------- ------- -------- --------- -------- --------
Debt/ <1.5 >or= 1.5 >or= 2.0 >or= 2.5 >or= 3.0
BITDA to 1.0 to 1.0 to 1.0 to 1.0 to 1.0
Ratio but <2.0 but <2.5 but <3.0
to 1.0 to 1.0 to 1.0
- ---------- ------- -------- --------- -------- --------
Applicable
Margin 0.30% 0.40% 0.50% 0.625% 0.775%
- -------------------------------------------------------------
TABLE B
- -------------------------------------------------------------
Level I Level II Level III Level IV Level V
- ---------- ------- -------- --------- -------- -------
Debt >Baa1 Baa1 Baa2 Baa3 <Baa3
Rating and and and and and
BBB+ BBB+ BBB BBB- BBB-
- ---------- ------- -------- --------- --------- -------
Applicable
Margin 0.30% 0.40% 0.50% 0.625% 0.825%
- -------------------------------------------------------------
Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal
to the Base Rate for such date plus the Applicable Margin. Such
interest shall be payable for each Interest Period on the last day
thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
(b) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin plus the applicable Adjusted London Interbank
Offered Rate for such Interest Period; provided that if any
Euro-Dollar Loan shall, as a result of clause (1)(c) of the
definition of Interest Period, have an Interest Period of less
than 30 days, such Euro-Dollar Loan shall bear interest during
such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after
the first day thereof. Any overdue principal of and, to the
extent permitted by law, overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
(c) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date
such Money Market Loan is made until it becomes due, at a rate per
annum equal to the applicable Money Market Rate set forth in the
relevant Money Market Quote. Such interest shall be payable on
the Stated Maturity Date thereof, and, if the Stated Maturity Date
occurs more than 90 days after the date of the relevant Money
Market Loan, at intervals of 90 days after the first day thereof.
Any overdue principal of and, to the extent permitted by law,
overdue interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum
equal to the Default Rate. Any overdue principal of and, to the
extent permitted by law, overdue interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to the Default Rate.
(d) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give prompt
notice to the Borrower and the Banks by telecopier of each rate of
interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of
a Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) may, at
the election of the Required Banks, bear interest at the Default
Rate.
(f) Upon the request of Agent, at the direction of the
Required Banks, made not more than once in any period of 18
consecutive months, the Borrower shall apply to Moody's or S&P for
a new (or confirmation of the old) Debt Rating.
SECTION 2.07. Fees. (a) The Borrower shall pay to the
Agent for the ratable account of each Bank a facility fee (the
"Facility Fee") on the maximum amount of the Aggregate Commitments
in effect for any relevant period, irrespective of usage,
calculated in the manner provided in Section 2.06(a)(ii), at a
rate per annum equal to (i) for the first 90 days after the
Closing Date, 0.20%; and (ii) thereafter, the rate determined on
each Performance Pricing Determination Date by reference to Table A
set forth below and the Debt/EBITDA Ratio for the four Fiscal
Quarters ending immediately prior to such Performance Pricing
Determination Date (except in the case of the Performance Pricing
Determination Date which occurs 95 days after the end of each
Fiscal Year, the Debt/EBITDA Ratio shall be based on such Fiscal
Year); provided, that from and after the time that a Debt Rating
is assigned by both Moody's and S&P, reference instead shall be
made to Table B set forth below as to the Debt Rating for such
quarterly or annual period. The Facility Fee shall accrue at all
times from and including the Closing Date to but excluding the
Termination Date and shall be payable, in arrears, on each
Quarterly Date and on the Termination Date.
TABLE A
- -------------------------------------------------------------
Level I Level II Level III Level IV Level V
- -------- ------- -------- --------- --------- --------
Debt/ <1.5 >or= 1.5 >or= 2.0 >or= 2.5 >or= 3.0
EBITDA to 1.0 to 1.0 to 1.0 to 1.0 to 1.0
Ratio but <2.0 but <2.5 but <3.0
to 1.0 to 1.0 to 1.0
- -------- ------- -------- --------- --------- --------
Facility
Fee 0.15% 0.175% 0.20% 0.225% 0.275%
- -------------------------------------------------------------
TABLE B
- -------------------------------------------------------------
Level I Level II Level III Level IV Level V
- -------- ------- -------- --------- --------- --------
Debt >Baa1 Baa1 Baa2 Baa3 <Baa3
Rating and and and and and
BBB+ BBB+ BBB BBB- BBB-
- -------- ------- -------- --------- --------- --------
Facility
Fee 0.15% 0.175% 0.20% 0.225% 0.30%
- -------------------------------------------------------------
(b) In determining the amounts to be paid by the
Borrower pursuant to Sections 2.06(a), and 2.07(a), the Borrower
and the Banks shall refer to the Borrower's Debt Rating, or if
Borrower has no Debt Rating, its Debt/EBITDA Ratio, from time to
time. Each change in fees as a result of a change in the
Borrower's Debt Rating or Debt/EBITDA Ratio shall be effective
immediately as of each Performance Pricing Determination Date, and
each change in interest as a result of a change in the Borrower's
Debt Rating or Debt/EBITDA Ratio shall be effective only for Loans
(including Refunding Loans) which are made on or after the
relevant Performance Pricing Determination Date. All
determinations hereunder shall be made by the Agent unless the
Required Banks shall object to any such determination. The
Borrower shall promptly notify the Agent of any change in the Debt
Rating.
(c) The Borrower shall pay to the Agent, for the
account and sole benefit of the Agent, such fees and other
amounts at such times as set forth in the Agent's Letter
Agreement.
SECTION 2.08. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic
Business Days' notice to the Agent (which notice the Agent shall
promptly forward to the Banks), terminate at any time, or
proportionately reduce the Unused Commitments from time to time by
an aggregate amount of at least $10,000,000, or any larger
integral multiple of $5,000,000. If the Commitments are
terminated in their entirety, all accrued fees (as provided under
Section 2.07) shall be due and payable on the effective date of
such termination.
SECTION 2.09. Mandatory Reduction and Termination of
Commitments. The Commitments shall terminate on the Termination
Date and any Loans (together with accrued interest thereon) then
outstanding shall be due and payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrower
may, upon at least 1 Domestic Business Day's notice to the Agent
(which notice the Agent shall promptly forward to the Banks),
prepay any Base Rate Borrowing in whole or in part at any time,
in minimum amounts of $1,000,000, or any larger integral multiple
of $100,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base
Rate Loans of the several Banks included in such Base Rate
Borrowing.
(b) Except as provided in Section 8.02, the Borrower
may not prepay all or any portion of the principal amount of any
Euro-Dollar Loan or Money Market Loan prior to the end of the
relevant Interest Period.
(c) Upon receipt of a notice of prepayment pursuant to
this Section 2.10, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share of such
prepayment and such notice, once received by the Agent, shall not
thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. On each date on
which the Commitments are reduced pursuant to Section 2.08 or
Section 2.09, the Borrower shall repay or prepay such principal
amount of the outstanding Loans, if any (together with interest
accrued thereon and any amount due under Section 8.05(a)), as may
be necessary so that after such payment the aggregate unpaid
principal amount of the Loans (together with interest accrued
thereon) and does not exceed the amount of the Aggregate
Commitments as then reduced.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, without any setoff,
counterclaim or any deduction whatsoever, not later than 11:00
A.M. (Atlanta, Georgia time) on the date when due, in Federal or
other funds immediately available in Atlanta, Georgia, to the
Agent at its address referred to in Section 9.01. The Agent will
promptly distribute to each Bank (and, following the occurrence
and during the continuance of an Event of Default, for application
by such Bank against amounts owing to such Bank by the Borrower
in such order as such Bank shall elect) its ratable share of each
such payment received by the Agent for the account of the Banks;
provided, that, should the Agent actually receive any relevant
payment from the Borrower prior to 11:00 A.M. (Atlanta, Georgia
time) on the date when due, the Agent shall initiate the
distribution process (by wire or otherwise) to such Bank of each
such Bank's ratable portion of any payment received by the Agent
prior to 5:00 P.M. (Atlanta, Georgia time).
(b) Whenever any payment of principal of, or interest
on, the Base Rate Loans, Money Market Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of or interest
on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and
all other amounts to be made by the Borrower pursuant to this
Agreement with respect to any Loan or fee relating thereto shall
be paid without deduction for, and free from, any tax, imposts,
levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of
each Bank, taxes imposed on or measured by its net income, and
applicable law to make any such withholding or deduction of Taxes
with respect to any Loan or fee or other amount, the Borrower
shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which
such deduction or withholding is made all receipts and other
documents evidencing such payment and shall pay to such Bank
additional amounts as may be necessary in order that the amount
received by such Bank after the required withholding or other
payment shall equal the amount such Bank would have received
had no such withholding or other payment been made. If no
withholding or deduction of Taxes are payable in respect to any
Loan or fee relating thereto, the Borrower shall furnish any
Bank, at such Bank's request, a certificate from each applicable
taxing authority or an opinion of counsel acceptable to such
Bank, in either case stating that such payments are exempt from
or not subject to withholding or deduction of Taxes. If the
Borrower fails to provide such original or certified copy of a
receipt evidencing payment of Taxes or certificate(s) or opinion
of counsel of exemption, the Borrower hereby agrees to compensate
such Bank for, and indemnify them with respect to, the tax
consequences of the Borrower's failure to provide evidence of tax
payments or tax exemption.
Each Bank which is not organized under the laws of the
United States or any state thereof agrees, as soon as practicable
after receipt by it of a request by the Borrower to do so, to file
all appropriate forms and take other appropriate action to obtain
a certificate or other appropriate document from the appropriate
governmental authority in the jurisdiction imposing the relevant
Taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Notes without
deduction and free from withholding of any Taxes imposed by such
jurisdiction; provided that if it is unable, for any reason, to
establish such exemption, or to file such forms and, in any event,
during such period of time as such request for exemption is
pending, the Borrower shall nonetheless remain obligated under the
terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes
paid by the Borrower pursuant to this Section 2.12(c), it will pay
to the Borrower the amount of such refund promptly upon receipt
thereof; provided that if at any time thereafter it is required to
return such refund, the Borrower shall promptly repay to it the
amount of such refund.
Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations
of the Borrower and the Banks contained in this Section 2.12(c)
shall be applicable with respect to any Participant, Assignee or
other Transferee, and any calculations required by such provisions
(i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and
the payment in full or cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees.
Interest on Base Rate Loans shall be computed on the basis of a
360 day year and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest on
the Euro-Dollar Loans and the Money Market Loans shall be computed
on the basis of a year of 360 days and paid for the actual number
of days elapsed, calculated as to each Interest Period from and
including the first day thereof to but excluding the last day
thereof. Facility Fees and any other fees payable hereunder from
time to time shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the
first day but excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The
obligation of each Bank to make a Syndicated Loan on the occasion
of the first Syndicated Borrowing is subject to the satisfaction
of the conditions set forth in Section 3.02 and receipt by the
Agent of the following (in sufficient number of counterparts as to
the items described in (a), (c), (d), (e) for delivery of a
counterpart to each Bank and retention of one counterpart by the
Agent):
(a) from each of the parties hereto of either (i) a
duly executed counterpart of this Agreement signed by
such party or (ii) a facsimile transmission of such
counterpart of this Agreement, with the originals to be
sent to the Agent by overnight courier;
(b) a (i) duly executed Syndicated Note and (ii) a
duly executed Money Market Note for the account of each
Bank complying with the provisions of Section 2.04;
(c) an opinion letter (together with any opinions
of local counsel relied on therein) of Holme, Roberts &
Owen, counsel for the Borrower, dated the Closing Date,
substantially in the form of Exhibit B and covering such
additional matters relating to the transactions
contemplated hereby as the Agent or any Bank may
reasonably request;
(d) an opinion letter of Jones, Day, Reavis &
Pogue, special counsel for the Banks and the Agent,
dated the Closing Date, substantially in the form of
Exhibit C and covering such additional matters relating
to the transactions contemplated hereby as the Agent or
any Bank may reasonably request;
(e) a certificate (the "Closing Certificate"),
dated the Closing Date, substantially in the form of
Exhibit G, signed by a principal financial officer of
the Borrower, to the effect that (i) no Default has
occurred and is continuing on the date of the first
Borrowing and (ii) the representations and warranties of
the Borrower contained in Article IV are true on and as
of the date of the first Borrowing hereunder;
(f) copies of all financial information pertaining
to the Borrower filed by the Borrower or any of its
Affiliates with the Securities and Exchange Commission
(including, without limitation, on Form 10 and in the
Information Statement) reflecting no material change
from the pro forma financial information and condition
of the Borrower previously furnished to the Agent and
the Banks;
(g) all documents which the Agent or any Bank may
reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity
of this Agreement, the Notes, and the other Loan
Documents and any other matters relevant hereto, or
thereto, all in form and substance satisfactory to the
Agent, including, without limitation, a certificate of
the Borrower, substantially in the form of Exhibit H
(the "Officer's Certificate") signed by the Secretary or
an Assistant Secretary of the Borrower, certifying as to
the names, true signatures and incumbency of the officer
or officers, respectively, of the Borrower authorized to
execute and deliver the Loan Documents and certified
copies of the following items, for the Borrower:
(i) Certificate of Incorporation, (ii) Bylaws, (iii) a
certificate of the Secretary of State of Colorado as to
the good standing of each as a corporation in that state,
and (iv) the action taken by its Board of Directors
authorizing the execution, delivery and performance of
this Agreements, the Notes, and the other Loan Documents
to which the Borrower is a party;
(h) evidence satisfactory to the Agent of
cancellation of (i) the Credit Agreement dated as of
March 23, 1998, as amended among the Borrower and
Wachovia Bank, N.A., as Agent, and the other lenders
parties thereto and (ii) the Credit Agreement dated as
of January 9, 1998, among the Borrower, Morgan Guaranty
Trust Company of New York as Agent and the other lenders
parties thereto, and in each case, payment in full of
all obligations thereunder (provided, that the proceeds
of the first Borrowing hereunder may be used for such
purpose);
(i) payment of the fees payable to the Agent, for
its own account, pursuant to the Agent's Letter
Agreement; and
(j) a Notice of Borrowing or notification pursuant
to Section 2.03(e) of acceptance of one or more Money
Market Quotes, as applicable.
In addition, if the Borrower desires funding of a Euro-Dollar
Loan on the Closing Date, the Agent shall have received, the
requisite number of days prior to the Closing Date, a funding
indemnification letter satisfactory to it, pursuant to which
(i) the Agent and the Borrower shall have agreed upon the interest
rate, amount of Borrowing and Interest Period for such Euro-Dollar
Loan, and (ii) the Borrower shall indemnify the Banks from any
loss or expense arising from the failure to close on the
anticipated Closing Date identified in such letter or the failure
to borrow such Euro-Dollar Loan on such date.
SECTION 3.02. Conditions to All Borrowings. The
obligation of each Bank to make a Syndicated Loan on the occasion
of each Syndicated Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of a Notice of Borrowing;
(b) the fact that, immediately before and after
such Borrowing, no Default shall have occurred and be
continuing;
(c) the fact that the representations and
warranties of the Borrower contained in Article IV of
this Agreement shall be true on and as of the date of
such Borrowing (except for the representations and
warranties contained in Section 4.09(b), which
representations and warranties must be true only as of
the Closing Date); and
(d) the fact that, immediately after such
Borrowing, (i) the aggregate outstanding principal
amount of the Syndicated Loans of each Bank will not
exceed the amount of its Commitment and (ii) the
aggregate amount of all of the Syndicated Loans and the
Money Market Loans will not exceed the amount of the
Aggregate Commitments.
Each Borrowing (both Syndicated and Money Market) shall be deemed
to be a representation and warranty by the Borrower on the date of
such Borrowing as to the accuracy of the facts specified in
paragraphs (b), (c) and (d) of this Section; provided that if such
Borrowing consists solely of a Refunding Loan, such Borrowing
shall not be deemed to be such a representation and warranty to
the effect set forth in Section 4.04(c) as to any event, act or
condition having a Material Adverse Effect which has theretofore
been disclosed in writing by the Borrower to the Banks.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of Colorado and has all corporate
powers and all material governmental licenses, consents,
authorizations and approvals required to carry on its business as
now conducted.
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention. The execution, delivery and performance by the
Borrower of this Agreement, the Notes and the other Loan Documents
are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the Borrower's
articles of incorporation or by-laws or of any material agreement,
judgment, injuction, order, decree or other instrument binding
upon the Borrower or any Subsidiary or result in the creation or
imposition of any Lien on any asset of the Borrower or any
Subsidiary.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower and
each Note, and the other Loan Documents to which the Borrower is a
party, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of
equity.
SECTION 4.04. Financial Information. (a) The
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1997 and the related consolidated
statements of income and cash flows for the Fiscal Year then ended,
reported on by Price Waterhouse LLP and set forth in the Borrower's
1997 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of
operations and cash flows for such Fiscal Year.
(b) The unaudited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of September 30,
1998 and the related unaudited consolidated statements of income
and cash flows for the nine months then ended, a copy of which has
been delivered to each of the Banks, fairly present, on a basis
consistent with the financial statements referred to in subsection
(a) of this Section, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such
nine-month period (subject to normal year-end adjustments).
(c) Since December 31, 1997 there has been no material
adverse change in the business, financial position, results of
operations or prospects of the Borrower and its Consolidated
Subsidiaries, considered as a whole (any such change being
referred to herein as a "Material Adverse Effect").
SECTION 4.05. No Litigation. There is no action, suit
or proceeding pending against, or to the Borrower's knowledge
threatened against or affecting, the Borrower or any Subsidiary
before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business,
consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, or shich in any manner draws into question
the validity or enforceability of this Agreement or the Notes or
any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA. Each member of the
ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan
and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver of the
minimum funding standard under Section 412 of the Code in respect
of any Plan, (ii) failed to make any contribution or payment to
any Plan or Multiemployer Plan, or made any amendment to any Plan,
which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Code
or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary
course of its business, the Borrower conducts an ongoing review of
the effect of Environmental Laws on the business, operations and
properties of the Borrower and its Subsidiaries, in the course of
which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of
or change in the nature of operations conducted thereat, any
costs or liabilities in connection with off-site disposal of
wastes or Hazardous Substances and any actual or potential
liabilities to third parties, including employees, and any
related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that such associated liabilities
and costs, including the costs of complying with Environmental
Laws, are unlikely to have a material adverse effect on the
business, financial condition or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. The Borrower and its Subsidiaries
have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Borrower or any Subsidiary. The
charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges
are, in the Borrower's opinion, adequate.
SECTION 4.09. Subsidiaries. (a) Each of the Borrower's
corporate Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(b) The Borrower has no Subsidiaries except for those
Subsidiaries listed on Schedule 4.09, which accurately sets forth
each such Subsidiary's complete name and jurisdiction of
incorporation.
SECTION 4.10. No Regulatory Restrictions on Borrowing.
Neither the Borrower nor any of its Subsidiaries is (i) an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended, or (iii) otherwise subject to any
regulatory scheme which restricts its ability to incur debt.
SECTION 4.11. Full Disclosure. All information
heretofore furnished by the Borrower to the Agent or any Bank for
purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will
be, true and accurate in all material respects on the date as of
which such information is stated or certified. The Borrower has
disclosed to the Banks in writing any and all facts which
materially and adversely affect, or may affect (to the extent the
Borrower can now reasonably foresee), the business, operations or
financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the Borrower's ability to
perform its obligations under this Agreement.
SECTION 4.12. Y2K Plan. The Borrower has developed and
has delivered to the Agent and the Banks a comprehensive plan (the
"Y2K Plan") for insuring that the Borrower's and its Subsidiaries'
software and hardware systems which impact or affect in any
material way the business operations of the Borrower and its
Subsidiaries' will be Year 2000 Compliant and Ready. All hardware
and software systems will be Year 2000 Compliant and Ready by
September 1, 1999.
SECTION 4.13. Compliance with Laws; Payment of Taxes.
The Borrower and its Subsidiaries are in compliance with all
applicable laws, regulations and similar requirements of
governmental authorities, except where such compliance is being
contested in good faith through appropriate proceedings. There
have been filed on behalf of the Borrower and its Subsidiaries all
material Federal, state and local income, excise, property and
other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment
received by or on behalf of the Borrower or any Subsidiary have
been paid, except for any taxes which are being contested in good
faith and by proper proceedings and as to which adequate reserves
have been maintained. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Borrower,
adequate. United States income tax returns of the Borrower and
its Subsidiaries have been examined and closed through the Fiscal
Year ended 1990.
SECTION 4.14. Ownership of Property; Liens. Each of
the Borrower and its Consolidated Subsidiaries has title to or
valid lease interests in its material properties sufficient for
the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.09.
SECTION 4.15. No Default. Neither the Borrower nor any
of its Consolidated Subsidiaries is in default under or with
respect to any agreement, instrument or undertaking to which it is
a party or by which it or any of its property is bound which has a
reasonable possibility of having or causing a Material Adverse
Effect. No Default or Event of Default has occurred and is
continuing.
SECTION 4.16. Capital Stock. All Capital Stock,
debentures, bonds, notes and all other securities of the Borrower
and its Subsidiaries presently issued and outstanding are validly
and properly issued in accordance with all applicable laws,
including but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are
owned by the Borrower free and clear of any Lien or adverse claim.
At least a majority of the issued shares of capital stock of each
of the Borrower's Subsidiaries (other than Wholly Owned
Subsidiaries) is owned by the Borrower free and clear of any Lien
adverse claim.
SECTION 4.17. Margin Stock. Neither the Borrower nor
any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of purchasing or carrying
any Margin Stock, and no part of the proceeds of any Loan will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock,
or be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation X.
SECTION 4.18. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of the
Loans under this Agreement: (i) the Borrower will not (x) be
"insolvent," within the meaning of such term as used in O.C.G.A.
Section 18-2-22 or as defined in Section 101 of the "Bankruptcy
Code", or Section 2 of either the "UFTA" or the "UFCA", or as
defined or used in any "Other Applicable Law" (as those terms are
defined below), or (y) be unable to pay its debts generally as
such debts become due within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA,
or (z) have an unreasonable small capital to engage in any
business transaction, whether current or contemplated, within the
meaning of Section 548 of the Bankruptcy Code, Section 4 of the
UFTA or Section 5 of the UFCA; and (ii) the obligations of the
Borrower under the Loan Documents and with respect to the Loans
will not be rendered avoidable under any Other Applicable Law.
For purposes of this Section 4.18, "Bankruptcy Code" means Title
11 of the United States Code, "UFTA" means the Uniform Fraudulent
Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act,
and "Other Applicable Law" means any other applicable state law
pertaining to fraudulent transfers or acts voidable by creditors,
in each case as such law may be amended from time to time.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Credit Exposure hereunder or any interest or fees accrued
hereunder remain unpaid:
SECTION 5.01. Information. The Borrower will deliver
to the Agent, for prompt redelivery to each of the Banks:
(a) as soon as available and in any event within
95 days after the end of each Fiscal Year, a consolidated
Act, and
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Credit Exposure hereunder or any interest or fees accrued
hereunder remain unpaid:
SECTION 5.01. Information. The Borrower will deliver
to the Agent, for prompt redelivery to each of the Banks:
(a) as soon as available and in any event within
95 days after the end of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income and cash flows for
such Fiscal Year, setting forth in each case in comparative
form the figures for the previous Fiscal Year, all reported
on in a manner acceptable to the SEC by
PricewaterhouseCooper LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within
50 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the
end of such Fiscal Quarter, the related consolidated
statement of income for such Fiscal Quarter and the related
consolidated statement of cash flows for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting
forth in the case of each such statement of income and cash
flows in comparative form the figures for the corresponding
period in the previous Fiscal Year, all certified (subject
to normal year-end adjustments) as to fairness of
presentation and consistency with GAAP by the Borrower's
chief financial officer or controller;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and (b)
above, a certificate, substantially in the form of Exhibit F
(a "Compliance Certificate"), of the Borrower's chief
financial officer or controller (i) setting forth in
reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements
of Sections 5.07 and 5.09 to 5.15, inclusive, on the date of
such financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and
the action which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a
statement of the firm of independent public accountants
which reported on such statements stating whether anything
has come to their attention to cause them to believe that
any Default existed on the date of such statements;
(e) within 5 Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a
certificate of the chief financial officer, treasurer or the
controller of the Borrower setting forth the details thereof
and the action which the Borrower is taking or proposes to
take with respect thereto;
(f) promptly after the mailing thereof to the
Borrower's shareholders generally, copies of all financial
statements, reports and proxy statements so mailed;
(g) promptly after the filing thereof, copies of all
registration statements (other than the exhibits thereto and
any registration statements on Form S-8 or its equivalent)
and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) filed by the Borrower with the SEC;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy
of the notice of such reportable event given or required to
be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan to which Borrower or any
member of the ERISA Group has an obligation to contribute is
in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver of
the minimum funding standard under Section 412 of the Code,
a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 404 1 (c) of ERISA, a copy
of such notice and other information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails
to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which
has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of
the Borrower's chief financial officer or controller setting
forth details as to such occurrence and the action, if any,
which the Borrower or applicable member of the ERISA Group
is required or proposes to take;
(i) from time to time such additional information
regarding the financial position or business of the Borrower
and its Subsidiaries as the Agent, at the request of any
Bank, may reasonably request;
(j) simultaneously with the delivery of each set of
annual and quarterly financial statements referred to in
paragraphs (a) and (b) above, a statement of the Chief
Executive Officer, Chief Financial Officer, or Controller of
the Borrower to the effect that nothing has come to his or
her attention to cause him or her to believe that the Y2K
Plan milestones have not been met in a manner such that the
Borrower's and its Subsidiaries' hardware and software
systems will not be Year 2000 Compliant and Ready by
September 1, 1999;
(k) within 5 Domestic Business Days after the Borrower
becomes aware of any material deviations from the Y2K Plan
which would cause substantial compliance with the Y2K Plan
not to be achieved by September 30, 1999, a statement of the
Chief Executive Officer, Chief Financial Officer, or Chief
Technology Officer setting forth the details thereof and the
action which the Borrower is taking or proposes to take with
respect thereto;
(l) promptly upon the receipt thereof, a copy of any
third party assessments of the Borrower's Y2K Plan together
with any recommendations made by such third party with
respect to Year 2000 compliance; and
(m) from time to time such additional information
regarding the financial position or business of the Borrower
and its Subsidiaries as the Agent, at the request of any
Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower
will pay and discharge, and will cause each Subsidiary to pay and
discharge, at or before maturity, all their respective material
obligations and liabilities (including, without limitation, tax
liabilities and claims of materialmen, warehousemen and the like
which if unpaid might by law give rise to a Lien), except where
the same are contested in good faith by appropriate proceedings,
and will maintain, and will cause each Subsidiary to maintain, in
accordance with GAAP, appropriate reserves for the accrual
thereof.
SECTION 5.03. Maintenance of Property; Insurance. (a)
The Borrower will keep, and will cause each Subsidiary to keep,
all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted.
(b) The Borrower will, and will cause each Subsidiary to,
maintain (either in the Borrower's name or in such Subsidiary's
own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at
least such amounts (with no greater risk retention) and against
at least such risks as are usually maintained, retained or
insured against in the same general area by companies of
established repute engaged in the same or a similar business.
The Borrower will furnish to the Banks, upon request from the
Agent, information presented in reasonable detail as to the
insurance so carried.
SECTION 5.04. Conduct of Business and Maintenance of
Existence. The Borrower and its Subsidiaries will continue to
engage in business of the same general type as now conducted by
the Borrower and its Subsidiaries, and will preserve, renew and
keep in full force and effect their respective corporate
existences and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business;
provided that nothing in this Section shall prohibit (i) a merger
or consolidation permitted by Section 5.07, (ii) the dissolution
of a Subsidiary permitted by Section 5.17, (iii) the merger of a
Subsidiary into the Borrower if, after giving effect thereto, no
Default shall have occurred and be continuing, or (iv) the merger
or consolidation of a Subsidiary with or into a Person other than
the Borrower if the corporation surviving such consolidation or
merger is a Subsidiary and, after giving effect thereto, no
Default shall have occurred and be continuing.
SECTION 5.05. Compliance with Laws. The Borrower will
comply, and will cause each Subsidiary to comply, in all material
respects with all applicable laws, ordinances, rules, regulations
and requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and
regulations thereunder), except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and
Records. The Borrower will (i) keep, and will cause each
Subsidiary to keep, proper books of record and account in which
full and correct entries shall be made of all dealings and
transactions in relation to its business and activities, and (ii)
will permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense to visit and
inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public
accountants, all at such reasonable times and as often as may
reasonably be requested.
SECTION 5.07. Mergers and Sales of Assets. (a) The
Borrower will not consolidate or merge with or into any other
Person; provided that the Borrower may merge with another Person
if (i) the Borrower is the corporation surviving such merger and
(ii) after giving effect to such merger, no Default shall have
occurred and be continuing.
(b) The Borrower and its Subsidiaries will not sell, lease
or otherwise transfer, directly or indirectly, any the assets of
the Borrower and its Subsidiaries, to any other Person; provided
that during any Fiscal Year, the Borrower and its Subsidiaries
may sell assets to Persons, other than Golden Properties, so long
as (x) the aggregate value of all assets so transferred during
any Fiscal Year does not exceed 25% of Consolidated Total Assets
as of the end of the immediately preceding Fiscal Year, and (y)
the aggregate operating income derived from all assets so
transferred during any Fiscal Year does not exeed 25% of
Consolidated Operating Income as of the end of the immediately
preceding Fiscal Year; provided that for purposes of this Section
5.07(y), $32,700,000 (as an estimate of certain one-time, non-
recurring charges) shall be added to Consolidated Operating
Income for Fiscal Year 1998.
SECTION 5.08. Use of Proceeds. The proceeds of the
Loans will be used by the Borrower for Permitted Acquisitions and
general corporate purposes. None of such proceeds will be used,
directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any Margin Stock.
SECTION 5.09. Negative Pledge. Neither the Borrower
nor any Subsidiary (other than Golden Properties) will create,
assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement in
an aggregate principal or face amount not exceeding
$10,000,000;
(b) any Lien existing on any asset of any Person at
the time such Person becomes a Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring such asset, provided that such Lien
attaches to such asset concurrently with or within 180 days
after the acquisition thereof,
(d) any Lien on any asset of any Person existing at
the time such Person is merged or consolidated with or into
the Borrower or a Subsidiary and not created in
contemplation of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Subsidiary and not
created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any
Lien permitted by any of the foregoing clauses of this
Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) Liens arising in the ordinary course of its
business which (i) do not secure Debt or Derivatives
Obligations and (ii) do not secure any single obligation (or
class of obligations having a common cause) in an amount
exceeding $25,000,000;
(h) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate amount
of cash and cash equivalents subject to such Liens may at no
time exceed $25,000,000; and
(i) Liens not otherwise permitted by the foregoing
clauses of this Section; provided that the aggregate
outstanding principal or face amount of (x) all Debt of the
Borrower secured by Liens permitted solely by this clause
(i) and (y) all Restricted Debt of Subsidiaries shall not at
any time exceed (a) from the Closing Date until May 22,
1999, 15% of Consolidated Tangible Assets, and (b)
thereafter, 10% of Consolidated Tangible Assets.
SECTION 5.10. Debt/Capitalization Ratio. The
Debt/Capitalization Ratio will at all times be less than 0.50 to
1.00.
SECTION 5.11. Restricted Debt of Subsidiaries. The
aggregate outstanding principal or face amount of (x) all
Restricted Debt of Subsidiaries and (y) all Debt of the Borrower
secured by Liens permitted solely by clause (i) of Section 5.09
will not at any time exceed (a) from the Closing Date until May
22, 1999, 15% of Consolidated Tangible Assets, and (b)
thereafter, 10% of Consolidated Tangible Assets.
SECTION 5.12. Debt/EBITDA Ratio. At the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending
December 31, 1998, the Debt/EBITDA Ratio for the Fiscal Quarter
then ended and the immediately preceding 3 Fiscal Quarters shall
have been less than 3.5 to 1.0.
SECTION 5.13. Restricted Payments. Neither the Borrower
nor any Subsidiary will declare or make any Restricted Payment
unless, after giving effect thereto, the aggregate of all
Restricted Payments declared or made subsequent to September 30,
1998 does not exceed the sum of (i) $50,000,000 plus (ii) 75% of
cumulative Consolidated Net Income (or minus 100% of cumulative
consolidated net loss) of the Borrower and its Consolidated
Subsidiaries for the period from October 1, 1998 through the end
of the most recent full Fiscal Quarter (treated for this purpose
as a single accounting period).
SECTION 5.14. Lease Payments. Neither the Borrower nor
any Subsidiary will incur or assume (whether pursuant to a
Guarantee or otherwise) any liability for rental payments under a
lease with a lease term (as defined in Financial Accounting
Standards Board Statement No. 13, as in effect on the date
hereof) of five years or more if, after giving effect thereto,
the aggregate amount of minimum lease payments that the Borrower
and its Subsidiaries have so incurred or assumed will exceed
$10,000,000 for any calendar year under all such leases
(excluding capital leases).
SECTION 5.15. Investments. Neither the Borrower nor
any Subsidiary will hold, make or acquire any Investment in any
Person other than:
(a) Investments existing on the date hereof in
Subsidiaries and, subject to the limitations of Section
5.04, additional Investments on or after the date hereof in
Subsidiaries (including Subsidiaries acquired or formed
after the Closing Date), other than Golden Properties;
(b) Temporary Cash Investments;
(c) loans and advances to employees of the Borrower or
a Subsidiary in the ordinary course of business in an
aggregate outstanding amount at no time exceeding
$2,000,000;
(d) Permitted Acquisitions; and
(e) any Investment not otherwise permitted by the
foregoing clauses of this Section, other than Investments in
Golden Properties, if, immediately after such Investment is
made or acquired, the aggregate net book value of all
Investments permitted by this clause (e) does not exceed
$50,000,000 at any time outstanding.
SECTION 5.16. Transactions with Affiliates. The
Borrower will not, and will not permit any Subsidiary to,
directly or indirectly, pay any funds to or for the account of,
make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee
or other agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise) in, lease, sell, transfer or
otherwise dispose of any assets, tangible or intangible, to, or
participate in, or effect, any transaction with, any Affiliate
except on an arms-length basis on terms at least as favorable to
the Borrower or such Subsidiary as could have been obtained from
a third party that was not an Affiliate; provided that the
foregoing provisions of this Section shall not prohibit any such
Person from declaring or paying any lawful dividend or other
payment ratably in respect of all its capital stock of the
relevant class so long as, after giving effect thereto, no
Default shall have occurred and be continuing.
SECTION 5.17. Dissolution. Neither the Borrower nor
any of its Subsidiaries shall suffer or permit dissolution or
liquidation either in whole or in part, except through corporate
reorganization to the extent permitted by Section 5.07; provided,
that, nothing in the foregoing shall prohibit the termination of
the corporate existence of a Subsidiary if the Borrower in good
faith determines that such termination is in the best interest of
the Borrower and is not materially disadvantageous to the Banks
SECTION 5.18. Change in Fiscal Year. The Borrower will
not change its Fiscal Year without the consent of the Required
Banks.
SECTION 5.19. Y2K Compliance. The Borrower will have
all material hardware and software systems Year 2000 Compliant
and Ready (including all internal and external testing) on or
before September 30, 1999.
SECTION 5.20. Assumption of ACXGL Senior Notes. On or
before May 20, 1999, the Borrower shall deliver to the Agent
evidence satisfactory to the Agent that the ACXGL Senior Notes
have been assumed by the Borrower, with a full release of ACXGL,
and rank pari passu with the Borrower's obligations under this
Agreement.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall fail to pay when due any
principal of any Loan or shall fail to pay within 5 days of
the due date thereof any interest, fee or other amount
payable by it hereunder; or
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.01(e), 5.06(ii), 5.07
through 5.18, inclusive, or Section 5.20; or
(c) the Borrower shall fail to observe or perform any
covenant or agreement (other than those covered by clause
(a) or (b) above) contained in this Agreement, for 30 days
after (i) the Agent gives notice thereof to the Borrower at
the request of any Bank, or (ii) the Borrower otherwise
becomes aware of such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been
incorrect or misleading in any material respect when made
(or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make
one or more payments in respect of Material Financial
Obligations when due or within any applicable grace period;
or
(f) any event or condition shall occur which results
in the acceleration of the maturity of any Material Debt or
enables (or, with the giving of notice or lapse of time or
both, would enable) the holder of such Debt or any Person
acting on such holder's behalf to accelerate the maturity
thereof, or
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking
liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws
as now or hereafter in effect; or
(i) any member of the ERISA Group shall fail to pay
when due an amount or amounts aggregating in excess of
$10,000,000 which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed
to administer, any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of
the ERISA Group to incur a current payment obligation in
excess of $25,000,000; or
(j) judgments or orders for the payment of money
exceeding $10,000,000 in aggregate amount shall be rendered
against the Borrower or any Subsidiary and such judgments or
orders shall continue unsatisfied and unstayed for a period
of 10 days; or
(k) any person or group of persons (within the meaning
of Section 13 or 14 of the Exchange Act) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under said Act) of 50% or more of the
outstanding shares of common stock of the Borrower; or,
during any period of 12 consecutive calendar months,
individuals who were directors of the Borrower on the first
day of such period shall cease to constitute a majority of
the Borrower's board of directors;
then, and in every such event, the Agent shall:
(i) if requested by the Required Banks, by notice to
the Borrower terminate the Commitments or reduce the
Commitments ratably to an aggregate amount specified in
such notice, whereupon the Commitments shall be so
terminated or reduced forthwith;
(ii) any Bank may terminate its obligation to fund a
Money Market Loan in connection with any relevant Money
Market Quote; and
(iii) if requested by the Required Banks, by notice to
the Borrower declare the Loans (together with accrued
interest thereon) to be, and the Loans (together with
accrued interest thereon) shall thereupon become,
immediately due and payable without presentment,
demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower;
provided that, if any Event of Default specified in clause (g) or
(h) of this Section occurs with respect to the Borrower, then
without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon terminate and the
Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by
the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereon from and after the date
of such Event of Default. Notwithstanding the foregoing, the
Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request
of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give
notice to the Borrower of any Default under Section 6.01(c)
promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes the Agent to
act as its agent hereunder and under the other Loan Documents
with such powers as are specifically delegated to the Agent by
the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no
duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee for any
Bank; (b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or
other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or any
other document referred to or provided for herein or therein or
for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or
under any other Loan Document except to the extent requested by
the Required Banks, and then only on terms and conditions
satisfactory to the Agent, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under
any other Loan Document or any other document or instrument
referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or
willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. The provisions of this Article VII are
solely for the benefit of the Agent and the Banks, and the
Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and
duties under this Agreement and under the other Loan Documents,
the Agent shall act solely as agent of the Banks and does not
assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and
administrative in nature, and the Agent shall not have by reason
of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be
entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telefax,
telegram or cable) reasonably believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants or other experts selected by the
Agent. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Agent shall in all
cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed
by the Required Banks, and such instructions of the Required
Banks in any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed
to have knowledge of the occurrence of a Default or an Event of
Default (other than the nonpayment of principal of or interest on
the Loans) unless the Agent has received notice from a Bank or
the Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a
Default or an Event of Default, the Agent shall give prompt
notice thereof to the Banks. The Agent shall give each Bank
prompt notice of each nonpayment of principal of or interest on
the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to
Section 9.06) take such action hereunder with respect to such
Default or Event of Default as shall be directed by the Required
Banks, provided 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 advisable in the best interests of the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a
Bank. With respect to the Loans made by the Agent and any
Affiliate of the Agent, Wachovia in its capacity as a Bank
hereunder and any Affiliate of the Agent or such Affiliate in its
capacity as a Bank hereunder shall have the same rights and
powers hereunder as any other Bank and may exercise the same as
though Wachovia were not acting as the Agent, and the term "Bank"
or "Banks" shall, unless the context otherwise indicates, include
Wachovia in its individual capacity and any Affiliate of the
Agent in its individual capacity. The Agent and any Affiliate of
the Agent may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with the Borrower (and
any of the Borrower's Affiliates) as if Wachovia were not acting
as the Agent, and the Agent and any Affiliate of the Agent may
accept fees and other consideration from the Borrower (in
addition to any agency fees and arrangement fees heretofore
agreed to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally
agrees to indemnify the Agent, to the extent the Agent shall not
have been reimbursed by the Borrower, ratably in accordance with
its Commitment, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or any other Loan
Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and
is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or
the enforcement of any of the terms hereof or thereof or any such
other documents; provided, however that no Bank shall be liable
for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity
furnished to the Agent for any purpose shall, in the opinion of
the Agent, be insufficient or become impaired, the Agent may call
for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. Consequential Damages. THE AGENT SHALL
NOT BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY
OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The
Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a written notice
of the assignment or transfer thereof shall have been filed with
the Agent and the provisions of Section 9.08(c) have been
satisfied. Any requests, authority or consent of any Person who
at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of that Note or
of any Note or Notes issued in exchange therefor or replacement
thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance
on the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking
action under this Agreement or any of the other Loan Documents.
The Agent shall not be required to keep itself (or any Bank)
informed as to the performance or observance by the Borrower of
this Agreement or any of the other Loan Documents or any other
document referred to or provided for herein or therein or to
inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by
the Agent hereunder or under the other Loan Documents, the Agent
shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other
Person (or any of their Affiliates) which may come into the
possession of the Agent.
SECTION 7.09. Failure to Act. Except for action
expressly required of the Agent hereunder or under the other Loan
Documents, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction by the Banks
of their indemnification obligations under Section 7.05 against
any and all liability and expense which may be incurred by the
Agent by reason of taking, continuing to take, or failing to take
any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject
to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving 30
days notice to the Banks and the Borrower and the Agent may be
removed at any time with or without cause by the Required Banks.
Upon any such removal or notice of resignation, the Required
Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required
Banks and shall have accepted such appointment within 30 days
after the retiring Agent's notice of resignation or the Required
Banks' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent. Any
successor Agent shall be a bank which has a combined capital and
surplus of at least $500,000,000. 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 shall be discharged from
its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this
Article VII shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period:
(a) the Agent determines that deposits in Dollars (in
the applicable amounts) are not being offered in the
relevant market for such Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate, as determined by the Agent, will not
adequately and fairly reflect the cost to such Banks of
funding Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks to make Euro-Dollar Loans shall be
suspended. Unless the Borrower notifies the Agent at least 2
Euro-Dollar Business Days before the date of any such relevant
Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof,
the adoption of any applicable law, rule or regulation, or any
change therein or any existing or future law, rule or regulation,
or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such
event being referred to as a "Change of Law"), or compliance by
any Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority shall
make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such
Bank shall so notify the Agent, the Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Bank (but no other Bank unless such other Bank
shall have notified the Agent of similar circumstances) to make
Euro-Dollar Loans shall be suspended. Before giving any notice
to the Agent pursuant to this Section, such Bank shall designate
a different Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and
fund any of its outstanding Euro-Dollar Loans to maturity and
shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each
Euro-Dollar Loan of such Bank, together with accrued interest
thereon and any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal
amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of
the other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a)
If after the date hereof, a Change of Law or compliance by any
Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority:
(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Loans,
Notes or its obligation to make Loans, or shall change the
basis of taxation of payments to any Bank (or its Lending
Office) of the principal of or interest on its Loans or any
other amounts due under this Agreement in respect of its
Loans or its obligation to make Loans (except for changes in
the rate of tax on the overall net income of such Bank or
its Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Lending Office is
located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Lending
Office); or
(iii) shall impose on any Bank (or its Lending Office)
or on the United States market for the London interbank
market any other condition affecting its Loans, Notes or its
obligation to make Loans;
and the result of any of the foregoing is to increase the cost to
such Bank (or its Lending Office) of making or maintaining any
Loan, or to reduce the amount of any sum received or receivable
by such Bank (or its Lending Office) under this Agreement or
under its Notes with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction; provided, however,
that the Borrower shall not be responsible to the Banks for any
increased cost or reduced return, under this Section 8.03(a)
which accrued at any time before that date which is 90 calendar
days prior to the date upon which the Borrower is notified of
same.
(b) If any Bank shall have determined that after the
date hereof the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof, or
compliance by any Bank (or its Lending Office) with any request
or directive regarding capital adequacy (whether or not having
the force of law) of any Authority, has or would have the effect
of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that
which such Bank could have achieved but for such adoption, change
or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time, within 15 days after
demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for
such reduction; provided, however, that the Borrower shall not be
responsible to the Banks for any increased cost or reduced
return, under this Section 8.03(b) which accrued at any time
before that date which is 90 calendar days prior to the date upon
which the Borrower is notified of same.
(c) Each Bank will promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation
pursuant to this Section and will designate a different Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section
and setting forth in reasonable detail the additional amount or
amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such Bank
may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be
applicable with respect to any Participant, Assignee or other
Transferee, and any calculations required by such provisions
shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for
Euro-Dollar Loans. If (i) the obligation of any Bank to make or
maintain Euro-Dollar Loans has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under Section
8.03, and the Borrower shall, by at least 5 Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected
that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for
compensation no longer apply:
(a) all Loans which would otherwise be made by such
Bank as Euro-Dollar Loans shall be made instead as Base Rate
Loans (in all cases interest and principal on such Loans
shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans, has been
repaid, all payments of principal which would otherwise be
applied to repay such Euro-Dollar Loans shall be applied to
repay its Base Rate Loans instead.
SECTION 8.05. Compensation. Upon the request of any
Bank, delivered to the Borrower and the Agent, the Borrower shall
pay to such Bank such amount or amounts as shall compensate such
Bank for any loss, cost or expense incurred by such Bank as a
result of:
(a) any payment or prepayment (pursuant to Section
2.10, 2.11, 6.01, 8.02 or otherwise) of a Euro-Dollar Loan on a
date other than the last day of an Interest Period for such
Euro-Dollar Loan; or
(b) any failure by the Borrower to prepay a
Euro-Dollar Loan on the date for such prepayment specified in the
relevant notice of prepayment hereunder; or
(c) any failure by the Borrower to borrow a
Euro-Dollar Loan on the date for the Euro-Dollar Borrowing of
which such Euro-Dollar Loan is a part specified in the applicable
Notice of Borrowing delivered pursuant to Section 2.02; such
compensation to include, without limitation, an amount equal to
the excess, if any, of (x) the amount of interest which would
have accrued on the amount so paid or prepaid or not prepaid or
borrowed for the period from the date of such payment, prepayment
or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the
case of a failure to prepay or borrow, the Interest Period for
such Euro-Dollar Loan which would have commenced on the date of
such failure to prepay or borrow) at the applicable rate of
interest for such Euro-Dollar Loan provided for herein over (y)
the amount of interest (as reasonably determined by such Bank)
such Bank would have paid on (i) deposits in Dollars of
comparable amounts having terms comparable to such period placed
with it by leading banks in the London interbank market.
SECTION 8.06. Replacement of Banks. If any Bank (a
"Notice Bank") makes demand for amounts owed under Section 8.03
(other than due to any change in the Eurodollar Reserve
Percentage), or gives notice under Section 8.02 that it can no
longer participate in Eurodollar Loans, then in each case the
Borrower shall have the right, if no Default or Event of Default
exists, and subject to the terms and conditions set forth in
Section 9.08(c), to designate an assignee (a "Replacement Bank")
to purchase the Notice Bank's share of outstanding Syndicated
Loans, Money Market Loans and all other Obligations and to assume
the Notice Bank's obligations to the Borrower under this
Agreement; provided, that, any Replacement Bank must be
reasonably acceptable to the Agent and the Required Banks (and,
in any event, may not be an Affiliate of the Borrower). Subject
to the foregoing, the Notice Bank agrees to assign without
recourse to the Replacement Bank its share of outstanding
Syndicated Loans and Money Market Loans and its Commitment, and
to delegate to the Replacement Bank its obligations to the
Borrower under this Agreement and its future obligations to the
Agent under this Agreement. Upon such sale and delegation by the
Notice Bank and the purchase and assumption by the Replacement
Bank, and compliance with the provisions of Section 9.08(c), the
Notice Bank shall cease to be a "Bank" hereunder and the
Replacement Bank shall become a "Bank" under this Agreement;
provided, however, that any Notice Bank shall continue to be
entitled to the indemnification provisions contained elsewhere
herein.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including bank wire, telecopier or similar writing) and shall be
given to such party at its address or telecopier number set forth
on the signature pages hereof or such other address or telecopier
number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other
communication shall be effective (i) if given by telecopier, when
such telecopy is transmitted to the telecopier number specified
in this Section 9.01 and the appropriate confirmation is
received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section
9.01; provided that notices to the Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the
Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note or other Loan Document shall operate
as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The
Borrower shall pay (i) subject to the terms of the Agent's Letter
Agreement, all reasonable out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Banks
and the Agent, in connection with the preparation of this
Agreement and the other Loan Documents, any waiver or consent
hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a
Default occurs, all reasonable out-of-pocket expenses incurred by
the Agent and the Banks, including fees and disbursements of
counsel and any allocated costs of internal counsel, in
connection with such Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses
incurred in enforcing this Agreement and the other Loan
Documents. The Borrower shall indemnify the Agent and each Bank
against any transfer taxes, documentary taxes, assessments or
charges made by any Authority by reason of the execution and
delivery of this Agreement or the other Loan Documents.
SECTION 9.04. Indemnification. The Borrower shall
indemnify the Agent, the Banks and each Affiliate thereof and
their respective directors, officers, employees and agents from,
and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages
arise out of or result from any actual or proposed use by the
Borrower of the proceeds of any extension of credit by any Bank
hereunder or breach by the Borrower of this Agreement or any
other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or
any of the Banks to enforce this Agreement (except an enforcement
action on which the Borrower prevails on the merits) or any of
the other Loan Documents) or other proceeding (including, without
limitation, any threatened investigation or proceeding) relating
to the foregoing, and the Borrower shall reimburse the Agent and
each Bank, and each Affiliate thereof and their respective
directors, officers, employees and agents, upon demand for any
reasonable expenses (including, without limitation, legal fees
and any allocated costs of internal counsel) incurred in
connection with any such investigation or proceeding; but
excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified.
SECTION 9.05 Sharing of Setoffs. Each Bank agrees
that if it shall, by exercising any right of setoff or
counterclaim or resort to collateral security or otherwise,
receive payment of a proportion of the aggregate amount of
principal and interest owing with respect to the Note held by it
which is greater than the proportion received by any other Bank
in respect of the aggregate amount of all principal and interest
owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks owing to
such other Banks, and such other adjustments shall be made, as
may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks owing to
such other Banks shall be shared by the Banks pro rata; provided
that (i) nothing in this Section shall impair the right of any
Bank to exercise any right of setoff or counterclaim it may have
and to apply the amount subject to such exercise to the payment
of indebtedness of the Borrower other than its indebtedness under
the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such
purchasing Bank, such purchase from each other Bank shall be
rescinded and such other Bank shall repay to the purchasing Bank
the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of
such other Bank's required repayment to (y) the total amount so
recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of
setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were
a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.06. Amendments and Waivers. (a) Any
provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower
and the Required Banks (and, if the rights or duties of the Agent
are affected thereby, by the Agent); provided that, no such
amendment or waiver shall, unless signed by all Banks, (i)
increase the Commitment of any Bank or subject any Bank to any
additional obligation, (ii) change the principal of or lower the
rate of interest on any Loan or lower any fees hereunder (other
than fees payable to the Agent, subject to its consent), (iii)
change the date fixed for any payment of principal of or interest
on any Loan or any fees hereunder, (iv) change the amount of
principal, interest or fees due on any date fixed for the payment
thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other
provision of this Agreement, (vi) change the manner of
application of any payments made under this Agreement or the
Notes, (vii) release or substitute all or any substantial part of
the collateral (if any) held as security for the Loans, or (viii)
release any Guarantee given to support payment of the Loans.
(b) The Borrower will not solicit, request or
negotiate for or with respect to any proposed waiver or amendment
of any of the provisions of this Agreement unless each Bank shall
be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an
informed decision with respect thereto. Executed or true and
correct copies of any waiver or consent effected pursuant to the
provisions of this Agreement shall be delivered by the Borrower
to each Bank forthwith following the date on which the same shall
have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental
or additional interest, fee or otherwise, to any Bank (in its
capacity as such) as consideration for or as an inducement to the
entering into by such Bank of any waiver or amendment of any of
the terms and provisions of this Agreement unless such
remuneration is concurrently paid, on the same terms, ratably to
all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the
Banks represents to the Agent and each of the other Banks that it
in good faith is not, directly or indirectly (by negative pledge
or otherwise), relying upon any Margin Stock as collateral in the
extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.08. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns; provided that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more
Persons (each a "Participant") participating interests in any
Loan owing to such Bank, any Note held by such Bank, any
Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank's obligations
under this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under
this Agreement, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event
shall a Bank that sells a participation be obligated to the
Participant to take or refrain from taking any action hereunder
except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of
or interest on the related loan or loans, (ii) the change of the
amount of any principal, interest or fees due on any date fixed
for the payment thereof with respect to the related loan or
loans, (iii) the change of the principal of the related loan or
loans, (iv) any change in the rate at which either interest is
payable thereon or (if the Participant is entitled to any part
thereof) fee is payable hereunder from the rate at which the
Participant is entitled to receive interest or fee (as the case
may be) in respect of such participation, or (v) the release or
substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any
Guarantee given to support payment of the Loans. Each Bank
selling a participating interest in any Loan, Note, Commitment or
other interest under this Agreement, other than a Money Market
Loan or Money Market Note or participating interest therein,
shall, within 10 Domestic Business Days of such sale, provide the
Borrower and the Agent with written notification stating that
such sale has occurred and identifying the Participant and the
interest purchased by such Participant. The Borrower agrees that
each Participant shall be entitled to the benefits of Article
VIII with respect to its participation in Loans outstanding from
time to time.
(c) Any Bank may at any time assign to one or more
banks or financial institutions (each an "Assignee") all, or in
the case of its Syndicated Loans and Commitments, a proportionate
part of all its Syndicated Loans and Commitments, of its rights
and obligations under this Agreement, the Notes and the other
Loan Documents, and such Assignee shall assume all such rights
and obligations, pursuant to an Assignment and Acceptance,
executed by such Assignee, such transferor Bank and the Agent
(and, in the case of an Assignee that is not then a Bank, subject
to clause (iii) below, by the Borrower); provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c)
unless the Assignee shall agree to assume ratably equivalent
portions of the transferor Bank's Commitment, (ii) if a Bank is
assigning only a portion of its Commitment, then, the amount of
the Commitment being assigned (determined as of the effective
date of the assignment) shall be in an amount not less than
$5,000,000, and (iii) except during the continuance of a Default,
no interest may be sold by a Bank pursuant to this paragraph (c)
to any Assignee that is not then a Bank (or an Affiliate of a
Bank) without the consent of the Borrower and the Agent, which
consent shall not be unreasonably withheld. Upon (A) execution
of the Assignment and Acceptance by such transferor Bank, such
Assignee, the Agent and (if applicable) the Borrower, (B)
delivery of an executed copy of the Assignment and Acceptance to
the Borrower and the Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and (D) payment
of a processing and recordation fee of $3,500 to the Agent, such
Assignee shall for all purposes be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank under
this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further
consent or action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to an
Assignee pursuant to this paragraph (c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to such Assignee.
(d) Subject to the provisions of Section 9.09, the
Borrower authorizes each Bank to disclose to any Participant,
Assignee or other transferee (each a "Transferee") and, with the
Borrower's consent (which shall not be unreasonably withheld),
any prospective Transferee any and all financial information in
such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement
or which has been delivered to such Bank by the Borrower in
connection with such Bank's credit evaluation prior to entering
into this Agreement.
(e) No Transferee shall be entitled to receive any
greater payment under Section 8.03 than the transferor Bank would
have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section
8.02 or 8.03 requiring such Bank to designate a different Lending
Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any
portion of the Loans and/or obligations owing to it to any
Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect
of such assigned Loans and/or obligations made by the Borrower to
the assigning and/or pledging Bank in accordance with the terms
of this Agreement shall satisfy the Borrower's obligations
hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the
assigning and/or pledging Bank from its obligations hereunder.
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
commercially reasonable efforts to keep any information delivered
or made available by the Borrower to it which is clearly
indicated to be confidential information, confidential from
anyone other than persons employed or retained by such Bank or
its affiliates who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans;
provided, however that nothing herein shall prevent any Bank from
disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (iv) which has been publicly
disclosed, (v) to the extent reasonably required in connection
with any litigation to which the Agent, any Bank or their
respective Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any remedy
hereunder, (vii) to such Bank's legal counsel and independent
auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights
hereunder which has agreed in writing to be bound by the
provisions of this Section 9.09; provided that should disclosure
of any such confidential information be required by virtue of
clause (ii) of the immediately preceding sentence, to the extent
permitted by law, any relevant Bank shall promptly notify the
Borrower of same so as to allow the Borrower to seek a protective
order or to take any other appropriate action; provided, further,
that, no Bank shall be required to delay compliance with any
directive to disclose any such information so as to allow the
Borrower to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank
hereby represents that it is a commercial lender or financial
institution which makes Loans in the ordinary course of its
business and that it will make its Loans hereunder for its own
account in the ordinary course of such business; provided,
however that, subject to Section 9.08, the disposition of the
Notes and other Loan Documents held by that Bank shall at all
times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations of
each Bank hereunder are several, and no Bank shall be responsible
for the obligations or commitment of any other Bank hereunder.
Nothing contained in this Agreement and no action taken by the
Banks pursuant hereto shall be deemed to constitute the Banks to
be a partnership, an association, a joint venture or any other
kind of entity. The amounts payable at any time hereunder to
each Bank shall be a separate and independent debt, and each Bank
shall be entitled to protect and enforce its rights arising out
of this Agreement or any other Loan Document and it shall not be
necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each
Note shall be construed in accordance with and governed by the
law of the State of Georgia.
SECTION 9.13. Interpretation. No provision of this
Agreement or any of the other Loan Documents shall be construed
against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.14. Waiver of Jury Trial; Consent to
Jurisdiction. The Borrower (a) and each of the Banks and the
Agent irrevocably waives, to the fullest extent permitted by law,
any and all right to trial by jury in any legal proceeding
arising out of this Agreement, any of the other Loan Documents,
or any of the transactions contemplated hereby or thereby, (b)
and each of the Banks and the Agent submits to the nonexclusive
personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the
enforcement of this Agreement, the Notes and the other Loan
Documents, (c) and each of the Banks and the Agent waives any and
all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation, inconvenience of
forum) to jurisdiction or venue within the State of Georgia for
the purpose of litigation to enforce this Agreement, the Notes or
the other Loan Documents, and (d) agrees that service of process
may be made upon it in the manner prescribed in Section 9.01 for
the giving of notice to the Borrower. Nothing herein contained,
however, shall prevent the Agent from bringing any action or
exercising any rights against any security and against the
Borrower personally, and against any assets of the Borrower,
within any other state or jurisdiction.
SECTION 9.15. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 9.16. Severability. In case any one or more of
the provisions contained in this Agreement, the Notes or any of
the other Loan Documents should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.17. Interest. In no event shall the amount
of interest, and all charges, amounts or fees contracted for,
charged or collected pursuant to this Agreement, the Notes or the
other Loan Documents and deemed to be interest under applicable
law (collectively, "Interest") exceed the highest rate of
interest allowed by applicable law (the "Maximum Rate"), and in
the event any such payment is inadvertently received by any Bank,
then the excess sum (the "Excess") shall be credited as a payment
of principal, unless the Borrower shall notify such Bank in
writing that it elects to have the Excess returned forthwith. It
is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid
by the Borrower under applicable law. The right to accelerate
maturity of any of the Loans does not include the right to
accelerate any interest that has not otherwise accrued on the
date of such acceleration, and the Agent and the Banks do not
intend to collect any unearned interest in the event of any such
acceleration. All monies paid to the Agent or the Banks
hereunder or under any of the Notes or the other Loan Documents,
whether at maturity or by prepayment, shall be subject to rebate
of unearned interest as and to the extent required by applicable
law. By the execution of this Agreement, the Borrower covenants,
to the fullest extent permitted by law, that (i) the credit or
return of any Excess shall constitute the acceptance by the
Borrower of such Excess, and (ii) the Borrower shall not seek or
pursue any other remedy, legal or equitable , against the Agent
or any Bank, based in whole or in part upon contracting for
charging or receiving any Interest in excess of the Maximum Rate.
For the purpose of determining whether or not any Excess has been
contracted for, charged or received by the Agent or any Bank, all
interest at any time contracted for, charged or received from the
Borrower in connection with this Agreement, the Notes or any of
the other Loan Documents shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Commitments. The
Borrower, the Agent and each Bank shall, to the maximum extent
permitted under applicable law, (i) characterize any non-
principal payment as an expense, fee or premium rather than as
Interest and (ii) exclude voluntary prepayments and the effects
thereof. The provisions of this Section shall be deemed to be
incorporated into each Note and each of the other Loan Documents
(whether or not any provision of this Section is referred to
therein). All such Loan Documents and communications relating to
any Interest owed by the Borrower and all figures set forth
therein shall, for the sole purpose of computing the extent of
obligations hereunder and under the Notes and the other Loan
Documents be automatically recomputed by the Borrower, and by any
court considering the same, to give effect to the adjustments or
credits required by this Section.
SECTION 9.18. Source of Funds -- ERISA. Each of the
Banks hereby severally (and not jointly) represents to the
Borrower that no part of the funds to be used by such Bank to
fund the Loans hereunder from time to time constitutes (i) assets
allocated to any separate account maintained by such Bank in
which any employee benefit plan (or its related trust) has any
interest nor (ii) any other assets of any employee benefit plan.
As used in this Section, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective
authorized officers as of the day and year first above written.
ACX TECHNOLOGIES, INC. (SEAL)
By:
Title:
16000 Table Mountain Parkway
Golden, Colorado 80401
Attention: Mr. Jed J. Burnham
Telecopier number: (303) 271-7108
Confirmation number: (303) 271-7112
Commitments
$60,000,000 WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
By:
Title:
Lending Office
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: U.S. Corporate Division
Telecopier number: 404-332-6898
Confirmation number: 404-332-1159
$32,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Bank (SEAL)
By:
Title:
Domestic Lending Office & Address
for Notices
60 Wall Street
New York, New York 10260-0060
Attention: Loan Department
Telecopier number: (212) 648-5014
Confirmation number: (212) 648-6955
Euro-Dollar Lending Office
Nassau, Bahamas Office
c/o J.P. Morgan Services, Inc.
Euro-Loan Servicing Unit
902 Market Street
Wilmington, Delaware 19801
$43,750,000 BANK OF AMERICA NATIONAL TRUST (SEAL)
AND SAVINGS ASSOCIATION
By:
Title:
Lending Office
GPO Account Administration #5693
1850 Gateway Boulevard
Concord, California 94520
Attention: Ms. Angela Johnson
Telecopier number: (925) 675-7531
Confirmation number: (925) 675-7337
$43,750,000 ABN AMRO BANK N.V. (SEAL)
By:
Title:
By:
Title:
Lending Office
135 S. LaSalle Street
Chicago Branch
Suite 425
Chicago, Illinois 60674-9135
Attention: Mr. Sean M. Stack
Telecopier number: (312) 606-8425
Confirmation number: (312) 904-2543
$30,000,000 NORWEST BANK COLORADO, N.A. (SEAL)
By:
Title:
Lending Office
1740 Broadway
Denver, Colorado 80274-8673
Attention: Ms. Sandra A. Sauer
Telecopier number: (303) 863-6670
Confirmation number: (303) 863-5341
$40,000,000 TORONTO DOMINION (TEXAS), INC. (SEAL)
By:
Title:
Lending Office
909 Fannin
Houston, Texas 77010
Attention: Mr. Warren Finlay -
Manager, Credit
Telecopier number: (713) 951-9921
Confirmation number: (713) 653-8208
TOTAL Commitments:
$250,000,000
EXHIBIT A-1
SYNDICATED LOAN NOTE
As of November 20, 1998
For value received, ACX TECHNOLOGIES, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of
, a (the "Bank"), for the account of its
Lending Office, the principal sum of
and No/100 Dollars ($ ), or such lesser amount as shall
equal the unpaid principal amount of each Syndicated Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred
to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Syndicated Loan Note on the dates and at
the rate or rates provided for in the Credit Agreement referred to
below. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the
Credit Agreement. All such payments of principal and interest shall
be made in lawful money of the United States in Federal or other
immediately available funds at the office of Wachovia Bank, N.A.,
191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such
other address as may be specified from time to time pursuant to the
Credit Agreement.
All Syndicated Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable
thereto, and all repayments of the principal thereof shall be
recorded by the Bank and, prior to any transfer hereof, endorsed by
the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; provided that the
failure of the Bank to make any such recordation or endorsement
shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Syndicated Loan Note is one of the Syndicated Loan
Notes referred to in the Credit Agreement dated as of November 20,
1998 among the Borrower, the Banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Agent (as the same may be amended
and modified from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions
for the optional and mandatory prepayment and the repayment hereof
and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
ACX TECHNOLOGIES, INC. (SEAL)
By:
Title:
Syndicated Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
EXHIBIT A-2
MONEY MARKET LOAN NOTE
As of November 20, 1998
For value received, ACX TECHNOLOGIES, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of
, a (the "Bank"), for the account of its
Lending Office, the principal sum of
and No/100 Dollars ($ ), or such lesser amount as
shall equal the unpaid principal amount of each Money Market Loan
made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below, on the dates and in the amounts provided in
the Credit Agreement. The Borrower promises to pay interest on
the unpaid principal amount of this Money Market Loan Note on the
dates and at the rate or rates provided for in the Credit
Agreement referred to below. Interest on any overdue principal
of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate,
as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at
the office of Wachovia Bank, N.A., 191 Peachtree Street, N.E.,
Atlanta, Georgia 30303-1757, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time
applicable thereto, and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan
Notes referred to in the Credit Agreement dated as of November
20, 1998 among the Borrower, the Banks listed on the signature
pages thereof, Wachovia Bank, N.A., as Agent (as the same may be
amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the
same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory prepayment and the
repayment hereof and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Money
Market Loan Note to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
ACX TECHNOLOGIES, INC. (SEAL)
By:
Title:
Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of Stated
of Principal Maturity Notation
Date Loan Repaid Date Made By
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in
Section 3.01 of the Credit
Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Division
Dear Sirs:
We have acted as counsel for ACX TECHNOLOGIES, INC. (the
"Borrower") in connection with the Credit Agreement (the "Credit
Agreement") dated as of November 20, 1998 among the Borrower, the
banks listed on the signature pages thereof, Wachovia Bank, N.A.,
as Agent. Terms defined in the Credit Agreement are used herein
as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact
and law as we have deemed necessary or advisable for purposes of
this opinion. We have assumed for purposes of our opinions set
forth below that the execution and delivery of the Credit
Agreement by each Bank and by the Agent have been duly authorized
by each Bank and by the Agent.
Upon the basis of the foregoing, we are of the opinion
that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of Colorado
and has all corporate powers required to carry on its business as
now conducted.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement the Notes and the other Loan
Documents to which it is a party (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of, or
filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument which to
our knowledge is binding upon the Borrower and (v) to our
knowledge, except as provided in the Credit Agreement, do not
result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower, enforceable against the
Borrower in accordance with its terms, and the Notes constitute
valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity.
4. To our knowledge, there is no action, suit or
proceeding pending, or threatened, against or affecting the
Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a
whole, or which in any manner questions the validity or
enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
7. Neither the Borrower nor any of its Subsidiaries is
a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as
amended.
8. The choice of Georgia law to govern the Credit
Agreement, the Notes, and the other Loan Documents in which such
choice is stipulated is a valid and effective choice of law under
the laws of the State of Colorado and adherence to existing
judicial precedents generally would require a court sitting in
the State of New York to abide by such choice of law, unless a
fundamental policy of the State of Colorado would be violated.
We are not aware of any provision of the Credit Agreement, the
Notes or the other Loan Documents which would violate a
fundamental policy of the State of Colorado.
We are qualified to practice in the State of Colorado and do
not purport to be experts on any laws other than the laws of the
United States, the State of Colorado and, based upon the general
corporate laws of the States of Arkansas, Delaware, Oklahoma,
Oregon and Wyoming and this opinion is rendered only with respect
to such laws. We have made no independent investigation of the
laws of any other jurisdiction.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you,
any Assignee, Participant or other Transferee under the Credit
Agreement, and Jones, Day, Reavis & Pogue (in connection with the
delivery of their opinion to the Agent and the Banks) without our
prior written consent.
Very truly yours,
EXHIBIT C
OPINION OF
JONES, DAY, REAVIS & POGUE, SPECIAL COUNSEL
FOR THE BANKS AND THE Agent
[Dated as provided in
Section 3.01 of the Credit
Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Division
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of November 20, 1998
among ACX TECHNOLOGIES, INC., a Colorado corporation (the
"Borrower"), the banks listed on the signature pages thereof (the
"Banks"), Wachovia Bank, N.A., as Agent (the "Agent"), and have
acted as special counsel for the Banks and the Agent for the
purpose of rendering this opinion pursuant to Section 3.01(d) of
the Credit Agreement. Terms defined in the Credit Agreement are
used herein as therein defined.
This opinion letter is limited by, and is in accordance
with, the January 1, 1992 edition of the Interpretive Standards
applicable to Legal Opinions to Third Parties in Corporate
Transactions adopted by the Legal Opinion Committee of the
Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this
reference.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact
and law as we have deemed necessary or advisable for purposes of
this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and
each of the Notes by or on behalf of the Borrower, we are of the
opinion that the Credit Agreement constitutes a valid and binding
agreement of the Borrower, each Note constitutes valid and
binding obligations of the Borrower, enforceable in accordance
with its terms except as: (i) the enforceability thereof may be
affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws
applicable to creditors' rights or the collection of debtors'
obligations generally; (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the
Credit Agreement and the Notes may be further limited by the laws
of the State of Georgia; provided, however, such additional laws
do not, in our opinion, substantially interfere with the
practical realization of the benefits expressed in the Credit
Agreement and the Notes, except for the economic consequences of
any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion
as to the effect (if any) of any law of any jurisdiction except
the State of Georgia. We express no opinion as to the effect of
the compliance or noncompliance of the Agent or any of the Banks
with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory
status or the nature of the business of the Agent or any of the
Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you
and any Assignee, Participant or other Transferee under the
Credit Agreement without our prior written consent.
Very truly yours,
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated ,
Reference is made to the Credit Agreement dated as of
June 13, 1995 (together with all amendments and modifications
thereto, the "Credit Agreement") among ACX TECHNOLOGIES, INC., a
Colorado corporation (the "Borrower"), the Banks (as defined in
the Credit Agreement), Wachovia Bank, N.A., as Agent (the
"Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
(the "Assignor") and
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse to the Assignor, and the Assignee
hereby purchases and assumes from the Assignor, a %
interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a % interest (which
on the Effective Date hereof is $ ) in the
Assignor's Commitment and a interest (which on the
Effective Date hereof is $ ) in the Syndicated
Loans [and Money Market Loans] owing to the Assignor and a %
interest in the Notes held by the Assignor (which on the
Effective Date hereof is $ ).
2. The Assignor (i) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement or any other instrument or document
furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder,
that such interest is free and clear of any adverse claim and
that as of the date hereof its Commitment (without giving effect
to assignments thereof which have not yet become effective) is $
and the aggregate outstanding principal amount of the Syndicated
Loans [and Money Market Loans] owing to it (without giving effect
to assignments thereof which have not yet become effective) is $
; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any
of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iii)
attaches the Notes referred to in paragraph 1. above and requests
that the Agent exchange such Notes for new Notes as follows: a
Syndicated Loan Note dated , in the principal
amount of $ payable to the order of the Assignor
[and a Money Market Loan Note dated , in the
principal amount of $ payable to the order of the
Assignee]].
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.04(a) thereof (or
any more recent financial statements of the Borrower delivered
pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor
or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a bank or financial
institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under
the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi)
specifies as its Lending Office (and address for notices) the
office set forth beneath its name on the signature pages hereof,
(vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its
corporate powers and have been duly authorized by all necessary
corporate action, (viii) makes the representation and warranty
contained in Section 9.18 of the Credit Agreement [and (ix)
attaches the forms prescribed by the Internal Revenue Service of
the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and the Notes or such other documents
as are necessary to indicate that all such payments are subject
to such taxes at a rate reduced by an applicable tax treaty].
4. The Effective Date for this Assignment and
Acceptance shall be , 19 (the "Effective Date").
Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for execution and acceptance by
the Agent and, if required by the Credit Agreement, to the
Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [If required by the Credit Agreement],
from and after the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent rights and
obligations have been transferred to it by this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this
Assignment and Acceptance, relinquish its rights (other than
under Section 8.03 of the Credit Agreement) and be released from
its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [If required by the Credit Agreement],
from and after the Effective Date, the Agent shall make all
payments in respect of the interest assigned hereby to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to such acceptance by
the Agent directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
Georgia.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Agent
By:
Title:
ACX TECHNOLOGIES, INC.
By:
Title:
[IF REQUIRED BY THE CREDIT
AGREEMENT]
EXHIBIT E
NOTICE OF BORROWING
,
Wachovia Bank, N.A., as Agent
191 Peachtree Street, N.W.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to
time, the "Credit Agreement") dated as of November 20,
1998 by and among ACX Technologies, Inc., the Banks from
time to time parties thereto, Wachovia Bank, N.A., as
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used
herein shall have the meanings attributable thereto in the Credit
Agreement.
This Notice of Borrowing is delivered to you pursuant to
Section 2.02 of the Credit Agreement.
The Borrower hereby requests a Syndicated Borrowing in the
aggregate principal amount of $ to be made on
, , and for interest to accrue thereon at the rate
established by the Credit Agreement for [Base Rate Loans]
[Euro-Dollar Loans]. The duration of the Interest Period with
respect thereto shall be [30 days] [1 month] [2 months] [3
months] [6 months].
The Borrower has caused this Notice of Borrowing to be
executed and delivered by its duly authorized officer this
day of , .
ACX TECHNOLOGIES, INC.
By:
Title:
EXHIBIT F
Compliance Certificate
Reference is made to the Credit Agreement dated as of
June 13, 1995 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among ACX Technologies,
Inc., the Banks from time to time parties thereto, Wachovia Bank,
N.A., as Agent. Capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
, the duly authorized of ACX Technologies,
Inc. hereby certifies to the Agent and the Banks (i) that the
information contained in the Compliance Check List attached
hereto is true, accurate and complete as of , , (ii)
that no Defaults or Events of Default exist and (iii) restates
and reaffirms that the representations and warranties contained
in Article IV of the Credit Agreement are true on and as of the
date hereof as though restated on and as of this date.
By:
Title:
COMPLIANCE CHECK LIST
(ACX Technologies, Inc.)
1. Mergers and Sales of Assets (Section 5.07)
(a) . . .
(b) The Borrower and its Subsidiaries will not sell,
lease or otherwise transfer, directly or indirectly, any the
assets of the Borrower and its Subsidiaries, to any other
Person; provided that during any Fiscal Year, the Borrower
and its Subsidiaries may sell assets to Persons, other than
Golden Properties, so long as (x) the aggregate value of all
assets so transferred during any Fiscal Year does not exceed
25% of Consolidated Total Assets as of the end of the
immediately preceding Fiscal Year, and (y) the aggregate
Operating Income derived from all assets so transferred
during any Fiscal Year does not exeed 25% of Consolidated
Operating Income as of the end of the immediately preceding
Fiscal Year.
(a) Aggregate amount of assets sold
during Fiscal Quarter just ended $
(b) Aggregate amount of assets sold
during 3 prior Fiscal Quarters $
(c) sum of (a) and (b) $
(d) Consolidated Total Assets as of most
recent Fiscal Year $
(e) 25% of (d) $
(f) Consolidated Operating Income as of most
recent Fiscal Year $
(g) 25% of (f) $
Limitation: (c) may not exceed
lesser of (e) and (g)
2. Negative Pledge (Section 5.09)
Neither the Borrower nor any Subsidiary (other than Golden
Properties) will create, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired by it, except:
(a) . . . (f);
(g) Liens arising in the ordinary course of its
business which (i) do not secure Debt or Derivatives
Obligations and (ii) do not secure any single obligation (or
class of obligations having a common cause) in an amount
exceeding $25,000,000;
(h) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate amount
of cash and cash equivalents subject to such Liens may at no
time exceed $25,000,000; and
(i) Liens not otherwise permitted by the foregoing
clauses of this Section; provided that the aggregate
outstanding principal or face amount of (x) all Debt of the
Borrower secured by Liens permitted solely by this clause (i)
and (y) all Restricted Debt of Subsidiaries shall not at any
time exceed 10% of Consolidated Tangible Assets.
(a) Aggregate amount of Liens of the
types described in clause (g) $
Limitation $25,000,000
(b) Aggregate amount of Liens of the
types described in clause (h) $
Limitation $25,000,000
(c) Aggregate Restricted Debt of
Subsidiaries $
(d) Consolidated Tangible Assets $
(e) Sum of (c) and (d) $
(f) 10% of (e) $
(g) Aggregate amount of Debt secured
by liens permitted by paragraphs
(a) through (h) $
Limitation -- (g) may not exceed (f)
3. Debt/Capitalization Ratio (Section 5.10)
The Debt/Capitalization Ratio will at all times be less than
0.50 to 1.00.
(a) Consolidated Total Debt Schedule - 1 $
(b) Consolidated Net Worth $
(c) Sum of (a) and (b) $
(d) Actual ratio of (a) to (c) ___ to 1.00
Permitted Ratio < 0.50 to 1.00
4. Restricted Debt of Subsidiaries (Section 5.11)
The aggregate outstanding principal or face amount of (x) all
Restricted Debt of Subsidiaries and (y) all Debt of the
Borrower secured by Liens permitted solely by clause (i) of
Section 5.09 will not at any time exceed 10% of Consolidated
Tangible Assets.
(a) sum of lines (c) and (g) of Para. 2 above $
(b) 10% of line (d) of Para. 2 above $
Limitation--(a) may not exceed (b)
5. Debt/EBITDA Ratio (Section 5.12)
At the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending December 31, 1998, the Debt/EBITDA Ratio for
the Fiscal Quarter then ended and the immediately preceding 3
Fiscal Quarters shall have been less than 3.5 to 1.0.
(a) Consolidated Net Income Schedule - 2 $
(b) Consolidated Interest Expense Schedule - 2 $
(c) Taxes Schedule - 2 $
(d) Depreciation Schedule - 2 $
(e) Amortization Schedule - 2 $
(f) Other Non-Cash Charges Schedule - 2 $
(g) Sum of (a), plus (b), plus (c), plus (d),
plus (e), plus (f) $
(h) Actual Ratio of line (a) of Para. 3 above
to (g) to 1.00
Permitted Ratio < 3.5 to 1.00
6. Restricted Payments (Section 5.13)
Neither the Borrower nor any Subsidiary will declare or make
any Restricted Payment unless, after giving effect thereto,
the aggregate of all Restricted Payments declared or made
subsequent to June 30, 1998 does not exceed the sum of (i)
$50,000,000 plus (ii) 75% of cumulative Consolidated Net
Income (or minus 100% of cumulative consolidated net loss) of
the Borrower and its Consolidated Subsidiaries for the period
from July 1, 1998 through the end of the most recent full
Fiscal Quarter (treated for this purpose as a single
accounting period).
(a) Restricted Payments declared or paid
subsequent to June 30, 1998 $
(b) Cumulative Consolidated Net Income
from July 1, 1998 to end of most
recent Fiscal Quarter[1] $
(c) 75% of (b) $
(d) Sum of $50,000,000 and (a) and (c) $
Limitation (a) may not exceed (d)
(e) Cumulative consolidated net loss[2]
from July 1, 1998 to end of most
recent Fiscal Quarter $
(f) Sum of $50,000,000, less (e) $
Limitation (e) may not exceed (f)
7. Lease Payments (Section 5.14)
Neither the Borrower nor any Subsidiary will incur or assume
(whether pursuant to a Guarantee or otherwise) any liability
for rental payments under a lease with a lease term (as
defined in Financial Accounting Standards Board Statement No.
13, as in effect on the date hereof) of five years or more
if, after giving effect thereto, the aggregate amount of
minimum lease payments that the Borrower and its Subsidiaries
have so incurred or assumed will exceed $10,000,000 for any
calendar year under all such leases (excluding capital
leases).
(a) Aggregate amount of minimum lease
payments for current calendar year
under lease with a lease term (per
FASB 13) of 5 or more years $
Limitation $10,000,000
8. Investments (Section 5.15)
Neither the Borrower nor any Subsidiary will hold, make or
acquire any Investment in any Person other than:
(a) . . . (b)
(c) loans and advances to employees of the Borrower or
a Subsidiary in the ordinary course of business in an
aggregate outstanding amount at no time exceeding $2,000,000;
(d) . . .
(e) any Investment not otherwise permitted by the
foregoing clauses of this Section, other than Investments in
Golden Properties, if, immediately after such Investment is
made or acquired, the aggregate net book value of all
Investments permitted by this clause (e) does not exceed
$50,000,000 at any time outstanding.
(a) loans and advances in the ordinary
course of business to employees $
Limitation $2,000,000
(b) Other Investments not permitted
by clauses (a) through (d), inclusive $
Limitation $50,000,000
COMPLIANCE CHECK LIST
(ACX Technologies, Inc.)
,
Schedule - 1
Consolidated Total Debt
(a) Obligations for borrowed money or
evidenced by bonds, debentures,
notes or other similar instruments $
(b) Obligations under capital leases $
(c) Obligations in respect of letters of credit[3] $
(d) Redeemable Preferred Stock $
(e) Guarantees of Obligations of the types
described in (a) through (d), inclusive[4] $
Total Consolidated Total Debt $
COMPLIANCE CHECK LIST
(ACX Technologies, Inc.)
,
Schedule - 2
Consolidated EBITDA5
(a) Consolidated Net Income for
quarter $
quarter $
quarter $
quarter $
Total $
(b) Consolidated Interest Expense for
quarter $
quarter $
quarter $
quarter $
Total $
(c) taxes for
quarter $
quarter $
quarter $
quarter $
Total $
(d) depreciation for
quarter $
quarter $
quarter $
quarter $
Total $
(e) amortization for
quarter $
quarter $
quarter $
quarter $
Total $
(f) other non-cash charges for
quarter $
quarter $
quarter $
quarter $
Total $
Total Consolidated EBITDA $
_______________________________
[1] If there was a cumulative consolidated net loss, skip to
(e)
[2] Ignore (e) and (f) if (e) is used
[3] Exclude trade letters of credit
[4] Exclude Guarantees of obligations of the Borrower or any
Guarantor
5 With respect to any Consolidated Subsidiary acquired
during such period, such Consolidated Subsidiary shall be
included on a pro forma, historical basis as if it had
been a Consolidated Subsidiary during such entire period.
EXHIBIT G
ACX Technologies, Inc.
CLOSING CERTIFICATE
Reference is made to the Credit Agreement ("the Credit
Agreement") dated as of November 20, 1998, among ACX
Technologies, Inc., the Banks listed therein, Wachovia Bank,
N.A., as Agent. Capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(f) of the Credit Agreement,
, the duly authorized
hereby certifies to the Agent and the Banks that (i) no Default
has occurred and is continuing as of the date hereof, and (ii)
the representations and warranties contained in Article IV of the
Credit Agreement are true on and as of the date hereof.
Certified as of this day of November 20, 1998.
By:
Printed Name:
Title:
EXHIBIT H
ACX TECHNOLOGIES, INC.
SECRETARY'S CERTIFICATE
The undersigned, ,
, Secretary of ACX Technologies, Inc., a Colorado corporation
(the "Borrower"), hereby certifies that [s]he has been duly
elected, qualified and is acting in such capacity and that, as
such, [s]he is familiar with the facts herein certified and is
duly authorized to certify the same, and hereby further
certifies, in connection with the Credit Agreement dated as of
November 20, 1998 among the Borrower, Wachovia Bank, N.A. as
Agent, and certain other Banks listed on the signature pages
thereof, that:
1. Attached hereto as Exhibit A is a complete and correct
copy of the Certificate of Incorporation of the Borrower as in
full force and effect on the date hereof as certified by the
Secretary of State of the State of Colorado, the Borrower's state
of incorporation.
2. Attached hereto as Exhibit B is a complete and correct
copy of the Bylaws of the Borrower as in full force and effect on
the date hereof.
3. Attached hereto as Exhibit C is a complete and correct
copy of the resolutions duly adopted by the Board of Directors of
the Borrower on , 19 approving, and
authorizing the execution and delivery of, the Credit Agreement,
the Notes and the other Loan Documents (as such terms are defined
in the Credit Agreement) to which the Borrower is a party. Such
resolutions have not been repealed or amended and are in full
force and effect, and no other resolutions or consents have been
adopted by the Board of Directors of the Borrower in connection
therewith.
4. , who is
of the Borrower signed the Credit Agreement, the Notes and the
other Loan Documents to which the Borrower is a party, was duly
elected, qualified and acting as such at the time [s]he signed
the Credit Agreement, the Notes and other Loan Documents to which
the Borrower is a party, and [his/her] signature appearing on the
Credit Agreement, the Notes and the other Loan Documents to which
the Borrower is a party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her]
hand as of the day of November, 1998.
EXHIBIT I
Money Market Quote Request
Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: U.S. Corporate Division
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance
with Section 2.03 of the Credit Agreement (as amended or modified
from time to time, the "Credit Agreement") dated as of November
20, 1998 among ACX TECHNOLOGIES, INC., the Banks from time to
time parties thereto, Wachovia Bank, N.A., as Agent. Terms
defined in the Credit Agreement are used herein as defined
therein.
The Borrower hereby requests that the Agent obtain quotes for
a Money Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
, (the "Money Market Borrowing Date").[1]
2. The aggregate amount of the Money Market Borrowing shall
be $ .[2]
3. The Stated Maturity Date(s) applicable to the Money
Market Borrowing shall be days.[3]
[1] The date must be a Domestic Business Day.
[2] The amount of the Money Market Borrowing is subject to
Section 2.03(a) and (b).
[3] The Stated Maturity Dates are subject to Section 2.03(b)(ii).
The Borrower may request that up to 3 different Stated
Maturity Dates be applicable to any Money Market Borrowing,
provided, that (i) each such Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request and (ii)
the Borrower shall specify the amounts of such Money Market
Borrowing to be subject to each such different Stated
Maturity Date.
EXHIBIT J
Money Market Quote
Wachovia Bank, N.A.
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: U.S. Corporate Division
Re: Money Market Quote to ACX TECHNOLOGIES, INC. (the
"Borrower")
This Money Market Quote is given in accordance with
Section 2.03(c)(ii) of the Credit Agreement (as amended or
modified from time to time, the "Credit Agreement") dated as of
November 20, 1998 among ACX TECHNOLOGIES, INC., the Banks from
time to time parties thereto, Wachovia Bank, N.A., as Agent.
Terms defined in the Credit Agreement are used herein as defined
therein.
In response to the Borrower's invitation dated
, , we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Borrowing:1*
4. We hereby offer to make Money Market Loan(s) in the
following minimum and maximum principal amounts, for the
following Interest Periods and at the following rates:
Minimum Maximum
Principal Principal
(or, net (or, net Stated Rate Per
proceeds) proceeds) Maturity Annum 4*
Amount 2* Amount 2* Date 3* Interest
* All numbered footnotes appear on the last page of this
Exhibit J.
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions
set forth in the Credit Agreement, irrevocably obligate(s) us to
make the Money Market Loan(s) for which any offer(s) [is] [are]
accepted, in whole or in part (subject to the last sentence of
Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:
Authorized Officer
*1 As specified in the related Money Market Quote Request.
*2 The principal amount bid for each Stated Maturity Date may
not exceed the principal amount requested. Money Market
Quotes must be made for at least $5,000,000 or a larger
integral multiple of $1,000,000.
*3 The Stated Maturity Dates are subject to Section 2.03(b)(ii).
*4 Subject to Section 2.03(c)(ii)(C).
Schedule 4.09
[TO BE UPDATED BY THE BORROWER]
Subsidiaries
Name Jurisdiction of
Incorporation
Coors Porcelain Company (operating
under the trade name Coors
Ceramics Company) Colorado
Alpha Optical Systems, Inc. Mississippi
Alumina Ceramics Arkansas
Coors Ceramicon Designs, Ltd. Colorado
Coors Ceramics Electronics, Limited United Kingdom
Coors Ceramics, GmbH Germany
Coors Electronic Package Company Delaware
Coors Technical Ceramics Company Tennessee
Coors Wear Products, Inc. Colorado
Wilbanks International, Inc. Oregon
Golden Aluminum Company Colorado
Golden Pacific Holding Company Wyoming
Golden Pacific Aluminum (80%
Owned) Australia
GAC Technology Company Colorado
Lauener Engineering, AG Switzerland
Lauener Engineering, Ltd. Delaware
Graphic Packaging Corporation Delaware
Gravure International Corporation, Inc. Delaware
Graphic Packaging Flexible
Corporation Delaware
Hawkins Street Company, Inc. North Carolina
Graphic Packaging Holdings Corporation Canada
Graphic Packaging Canada Operation Canada
Golden Technologies Company, Inc. Colorado
CLM2, Inc. Colorado
Chronopol, Inc. Colorado
EcoPol, LLC (50% Owned) Colorado
Golden Equities, Inc. Colorado
Golden Properties, Ltd. (Controlled
by general partner Golden
Equities, Inc.) Colorado
GEI Brokers, Inc. Colorado
Mecor, Inc. (50% Owned) Colorado
Photon Energy, Inc. (operating under
the name Golden Photon, Inc.) Colorado
ZeaGen, Inc. (formerly Coors BioTech,
Inc.) Colorado
Indian Sun Distributing Company Colorado
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