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TREDEGAR INDUSTRIES, INC.
AMENDED BY-LAWS
As amended and in effect on May 22, 1997
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TREDEGAR INDUSTRIES, INC.
AMENDED BY-LAWS
ARTICLE I
Meeting of Shareholders
Section 1. Places of Meetings. All meetings of the shareholders shall
be held at such place, either within or without the State of Virginia, as may,
from time to time, be fixed by the Board of Directors.
Section 2. Annual Meetings. The annual meeting of the shareholders, for
the election of directors and transaction of such other business as may come
before the meeting, shall be held in each year on the fourth Wednesday in May,
at 2:00 p.m., Richmond, Virginia time, or on such other date and at such other
time as the Board of Directors of the Corporation may designate from time to
time.
Section 3. Special Meetings. Special meetings of shareholders for any
purpose or purposes may be called at any time by the President of the
Corporation, or by a majority of the Board of Directors. At a special meeting no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting.
Section 4. Notice of Meetings. Except as otherwise required by law,
written or printed notice stating the place, day and hour of every meeting of
the shareholders and, in case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be mailed not less than ten nor more than sixty days before the date of the
meeting to each shareholder of record entitled to vote at such meeting, at his
address which appears in the share transfer books of the Corporation. Meetings
may be held without notice if all the shareholders entitled to vote at the
meeting are present in person or by proxy or if notice is waived in writing by
those not present, either before or after the meeting.
Section 5. Quorum. Except as otherwise required by the Articles of
Incorporation, any number of shareholders together holding at least a majority
of the outstanding shares of capital stock entitled to vote with respect to the
business to be transacted, who shall be present in person or represented by
proxy at any meeting duly called, shall constitute a quorum for the transaction
of business. If less than a quorum shall be in attendance at the time for which
a meeting shall have been called, the meeting may be adjourned from time to time
by a majority of the shareholders present or represented by proxy without notice
other than by announcement at the meeting.
Section 6. Voting. At any meeting of the shareholders each shareholder
of a class entitled to vote on the matters coming before the meeting shall have
one vote, in person or by proxy, for each share of capital stock standing in his
or her name on
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the books of the Corporation at the time of such meeting or on any date fixed by
the Board of Directors not more than seventy (70) days prior to the meeting.
Every proxy shall be in writing, dated and signed by the shareholder entitled to
vote or his duly authorized attorney-in-fact.
Section 7. Voting List. The officer or agent having charge of the stock
transfer books for shares of the Corporation shall make, at least ten (10) days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, with the address of
and the number of shares held by each. Such list, for a period of ten (10) days
prior to such meeting, shall be kept on file at the registered office of the
Corporation or at its principal place of business or at the office of its
transfer agent or registrar and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders. If the requirements of this section have not been
substantially complied with, the meeting shall, on the demand of any shareholder
in person or by proxy, be adjourned until the requirements are complied with.
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Section 8. Shareholder Proposals. To be properly brought before an
annual meeting of shareholders, business must be (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (iii) otherwise properly brought before
the meeting by a shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a shareholder,
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice must be
given, either by personal delivery or by United States mail, postage prepaid, to
the Secretary of the Corporation not later than ninety (90) days in advance of
the annual meeting. A shareholder's notice to the Secretary shall set forth as
to each matter the shareholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the annual
meeting (including the specific proposal to be presented) and the reasons for
conducting such business at the annual meeting, (ii) the name and record address
of the shareholder proposing such business, (iii) the class and number of shares
of the Corporation that are beneficially owned by the shareholder, and (iv) any
material interest of the shareholder in such business.
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In the event that a shareholder attempts to bring business before an
annual meeting without complying with the provisions of this Section 8, the
Chairman of the meeting shall declare to the meeting that the business was not
properly brought before the meeting in accordance with the foregoing procedures,
and such business shall not be transacted.
No business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Section 8, provided, however,
that nothing in this Section 8 shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting.
Section 9. Inspectors. An appropriate number of inspectors for any
meeting of shareholders may be appointed by the Chairman of such meeting.
Inspectors so appointed will open and close the polls, will receive and take
charge of proxies and ballots, and will decide all questions as to the
qualifications of voters, validity of proxies and ballots, and the number of
votes properly cast.
ARTICLE II
Directors
Section 1. General Powers. The property, affairs and business of the
Corporation shall be managed under the direction
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of the Board of Directors, and except as otherwise expressly provided by law,
the Articles of Incorporation or these By-laws, all of the powers of the
Corporation shall be vested in such Board.
Section 2. Number of Directors. The Board of Directors shall be ten
(10) in number.
Section 3. Election of Directors.
(a) Directors shall be elected at the annual meeting of
shareholders to succeed those Directors whose terms have expired and to fill any
vacancies thus existing.
(b) Directors shall hold their offices for terms as set forth
in the Articles of Incorporation and until their successors are elected. Any
director may be removed from office as set forth in the Articles of
Incorporation.
(c) Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of the majority of the remaining directors though
less than a quorum of the Board of Directors.
(d) A majority of the number of directors fixed by these
By-laws shall constitute a quorum for the transaction of
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business. The act of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 4. Meetings of Directors. Meetings of the Board of Directors
shall be held at places within or without the State of Virginia and at times
fixed by resolution of the Board, or upon call of the President, and the
Secretary or officer performing the Secretary's duties shall give not less than
twenty-four (24) hours' notice by letter, telegraph or telephone (or in person)
of all meetings of the directors, provided that notice need not be given of
regular meetings held at times and places fixed by resolution of the Board. An
annual meeting of the Board of Directors shall be held as soon as practicable
after the adjournment of the annual meeting of shareholders. Meetings may be
held at any time without notice if all of the Directors are present, or if those
not present waive notice in writing either before or after the meeting.
Directors may be allowed, by resolution of the Board, a reasonable fee and
expenses for attendance at meetings.
Section 5. Nominations. Subject to the rights of holders of any class
or series of stock having a preference over the common stock as to dividends or
upon liquidation, nominations for the election of Directors shall be made by the
Board of Directors or a committee appointed by the Board of Directors or by any
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shareholder entitled to vote in the election of Directors generally. However,
any shareholder entitled to vote in the election of Directors generally may
nominate one or more persons for election as Directors at a meeting only if
written notice of such shareholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Corporation not later than (i)
with respect to an election to be held at an annual meeting of shareholders,
ninety (90) days in advance of such meeting, and (ii) with respect to an
election to be held at a special meeting of shareholders for the election of
Directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to shareholders. Each notice shall set
forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the shareholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (d) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the
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Securities and Exchange Commission, had the nominee been nominated, or intended
to be nominated, by the Board of Directors; and (e) the consent of each nominee
to serve as a Director of the Corporation if so elected. The Chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
ARTICLE III
Committees
Section 1. Executive Committee. The Board of Directors shall, by vote
of a majority of the number of directors fixed by these By-laws, designate an
Executive Committee which shall consist of three or more directors, including
the President. The members of the Executive Committee shall serve until their
successors are designated by the Board of Directors, until removed or until the
Executive Committee is dissolved by the Board of Directors. All vacancies which
may occur in the Executive Committee shall be filled by the Board of Directors.
When the Board of Directors is not in session, the Executive Committee
shall have all power vested in the Board of Directors by law, the Articles of
Incorporation or these By-laws, except as otherwise provided in the Virginia
Stock Corporation Act and except that the Executive Committee shall not have the
power to elect the President of the Corporation. The Executive Committee
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shall report at the next regular or special meeting of the Board of Directors
all action which the Executive Committee may have taken on behalf of the Board
since the last regular or special meeting of the Board of Directors.
Meetings of the Executive Committee shall be held at such places and at
such times fixed by resolution of the Committee, or upon call of the President.
Not less than twelve (12) hours' notice shall be given by letter, telegraph or
telephone (or in person) of all meetings of the Executive Committee, provided
that notice need not be given of regular meetings held at times and places fixed
by resolution of the Committee and that meetings may be held at any time without
notice if all of the members of the Committee are present or if those not
present waive notice in writing either before or after the meeting. A majority
of the members of the Executive Committee then serving shall constitute a quorum
for the transaction of business at any meeting.
Section 2. Executive Compensation Committee. The Board of Directors, at
its regular annual meeting, shall designate an Executive Compensation Committee
which shall consist of three or more directors who shall not be eligible for
bonus, stock option or stock appreciation rights. In addition, the Board at any
time may designate one or more alternate members of such Committee who shall be
directors not eligible for bonus, stock option or stock appreciation rights who
may act in place of any absent regular
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member upon invitation by the Chairman or Secretary of the Committee.
With respect to bonuses, the Executive Compensation Committee shall
have and may exercise the powers to determine the amounts annually available for
bonuses pursuant to any bonus plan or formula approved by the Board, to
determine bonus awards to executive officers and to exercise such further powers
with respect to bonuses as may from time to time be conferred by the Board of
Directors.
With respect to salaries, the Executive Compensation Committee shall
have and may exercise the power to fix and determine from time to time all
salaries of the executive officers of the Corporation, and such further powers
with respect to salaries as may from time to time be conferred by the Board of
Directors.
The Executive Compensation Committee shall administer the Corporation's
Incentive Stock Option Plan (the Plan) and from time to time may grant,
consistent with the Plan, stock options and stock appreciation rights.
Vacancies in the Executive Compensation Committee shall be filled by
the Board of Directors, and members shall be subject to removal by the Board at
any time.
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The Executive Compensation Committee shall fix its own rules of
procedure. A majority of the number of regular members then serving shall
constitute a quorum; and regular and alternate members present shall be counted
to determine whether there is a quorum. The Executive Compensation Committee
shall keep minutes of its meetings, and all action taken by it shall be reported
to the Board of Directors.
Section 3. Audit Committee. The Board of Directors at its regular
annual meeting shall designate an Audit Committee which shall consist of three
or more directors whose membership on the Committee shall meet the requirements
set forth in the rules of the New York Stock Exchange, as amended from time to
time. Vacancies in the Committee shall be filled by the Board of Directors with
directors meeting the requirements set forth above, giving consideration to
continuity of the Committee, and members shall be subject to removal by the
Board at any time. The Committee shall fix its own rules of procedure and a
majority of the members serving shall constitute a quorum. The Committee shall
meet at least twice a year with both the internal and the Corporation's outside
auditors present at each meeting and shall keep minutes of its meetings and all
action taken shall be reported to the Board of Directors. The Committee shall
review the reports and minutes of any audit committees of the Corporation's
subsidiaries. The Committee shall review the Corporation's financial reporting
process, including accounting
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policies and procedures. The Committee shall examine the report of the
Corporation's outside auditors, consult with them with respect to their report
and the standards and procedures employed by them in their audit, report to the
Board the results of its study and recommend the selection of auditors for each
fiscal year.
Section 4. Nominating Committee. The Board of Directors shall designate
a Nominating Committee which shall consist of three or more directors. The
Committee shall make recommendations to the Board regarding nominees for
election as directors by the shareholders at each Annual Shareholders' Meeting
and make such other recommendations regarding tenure, classification and
compensation of directors as the Committee may deem advisable from time to time.
The Committee shall fix its own rules of procedure and a majority of the members
serving shall constitute a quorum.
Section 5. Other Committees of Board. The Board of Directors, by
resolution duly adopted, may establish such other committees of the Board having
limited authority in the management of the affairs of the Corporation as it may
deem advisable and the members, terms and authority of such committees shall be
as set forth in the resolutions establishing the same.
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Section 6. Advisory Committees to President. The President may
establish such advisory committees as he may deem advisable to assist him in the
administration and management of the business of the Corporation; such
committees shall consist of officers, employees or consultants to be appointed
by the President who shall serve for such terms and have such authority as may
be designated by the President.
ARTICLE IV
Officers
Section 1. Election. The officers of the Corporation shall consist of a
President, a Vice Chairman of the Board, one or more Vice Presidents (any one or
more of whom may be designated as Executive Vice Presidents or Senior Vice
Presidents), a Secretary and a Treasurer. In addition, such other officers as
are provided in Section 3 of this Article may from time to time be elected by
the Board of Directors. All officers shall hold office until the next annual
meeting of the Board of Directors or until their successors are elected. The
President shall be chosen from among the directors. Any two officers may be
combined in the same person as the Board of Directors may determine, except that
the President and Secretary may not be the same person.
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Section 2. Removal of Officers; Vacancies. Any officer of the
Corporation may be removed summarily with or without cause, at any time by a
resolution passed at any meeting by affirmative vote of a majority of the number
of directors fixed by these Bylaws. Vacancies may be filled at any meeting of
the Board of Directors.
Section 3. Other Officers. Other officers may from time to time be
elected by the Board, including, without limitation, one or more Assistant
Secretaries and Assistant Treasurers, and one or more Divisional Presidents and
Divisional Vice Presidents (any one or more of whom may be designated as
Divisional Executive Vice Presidents or Divisional Senior Vice Presidents).
Section 4. Duties. The officers of the Corporation shall have such
duties as generally pertain to their offices, respectively, as well as such
powers and duties as are hereinafter provided and as from time to time shall be
conferred by the Board of Directors. The Board of Directors may require any
officer to give such bond for the faithful performance of his duties as the
Board may see fit.
Section 5. Duties of the President. The President shall be the chief
executive and administrative officer of the Corporation, shall serve as the
Chairman of the Board of Directors and the Chairman of the Executive Committee
and shall
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have direct supervision over the business of the Corporation and its several
officers, subject to the Board of Directors. The President shall preside at all
meetings of shareholders and the Board of Directors. The President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases where the signing and the execution thereof
shall be expressly delegated by the Board of Directors or by these By-laws to
some other officer or agent of the Corporation or shall be required by law
otherwise to be signed or executed. He may appoint advisory committees as
provided in Section 6 of Article III. In addition, he shall perform all duties
incident to the office of the President and such other duties as from time to
time may be assigned to him by the Board of Directors.
Section 6. Duties of Vice Chairman. In the absence or incapacity of the
President, the Vice Chairman shall perform the duties of the Chairman of the
Board, shall have the same authority, including, but not limited to, presiding
at all meetings of the Board of Directors and the Corporation's shareholders,
and shall serve as a member of all committees of the Board of which the
President is a member. In addition, the Vice Chairman of the Board shall perform
all duties as from time to time may be assigned to him by the Board of
Directors.
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Section 7. Duties of the Vice Presidents. Each Vice President of the
Corporation (including any Executive Vice President and Senior Vice President)
shall have powers and duties as may from time to time be assigned to him by the
Board of Directors or the President. When there shall be more than one Vice
President of the Corporation, the Board of Directors may from time to time
designate one of them to perform the duties of the President in the absence of
the President, except that the Vice Chairman of the Board shall perform the
President's duties as Chairman of the Board and as a member of all committees of
the Board of which the President is a member. Any Vice President of the
Corporation may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts and other instruments, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-laws to some other officer or agent of the Corporation
or shall be required by law otherwise to be signed or executed.
Section 8. Duties of the Treasurer. The Treasurer shall have charge and
custody of and be responsible for all funds and securities of the Corporation,
and shall cause all such funds and securities to be deposited in such banks and
depositories as the Board of Directors from time to time may direct. He shall
maintain adequate accounts and records of all assets, liabilities and
transactions of the Corporation in accordance with generally
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accepted accounting practices; shall exhibit his accounts and records to any of
the directors of the Corporation at any time upon request at the office of the
Corporation; shall render such statements of his accounts and records and such
other statements to the Board of Directors and officers as often and in such
manner as they shall require; and shall make and file (or supervise the making
and filing of) all tax returns required by law. He shall in general perform all
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to him by the Board of Directors or the President.
Section 9. Duties of the Secretary. The Secretary shall act as
secretary of all meetings of the Board of Directors, the Executive Committee and
all other Committees of the Board, and the shareholders of the Corporation, and
shall keep the minutes thereof in the proper book or books to be provided for
that purpose. He shall see that all notices required to be given by the
Corporation are duly given and served; shall have custody of the seal of the
Corporation and shall affix the seal or cause it to be affixed to all
certificates for stock of the Corporation and to all documents the execution of
which on behalf of the Corporation under its corporate seal is duly authorized
in accordance with the provisions of these By-laws; shall have custody of all
deeds, leases, contracts and other important corporate documents; shall have
charge of the books, records and
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papers of the Corporation relating to its organization and management as a
Corporation; shall see that the reports, statements and other documents required
by law (except tax returns) are properly filed; and shall, in general, perform
all the duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the Board of Directors or the President.
Section 10. Other Duties of Officers. Any officer of the Corporation
shall have, in addition to the duties prescribed herein or by law, such other
duties as from time to time shall be prescribed by the Board of Directors or the
President.
Section 11. Duties of Divisional Officers. Divisional Presidents and
Divisional Vice Presidents shall be deemed to be officers of the Corporation
whose duties and authority shall relate only to the Division by which they are
employed, and they may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts and other instruments authorized by the Board that
relate only to the business and properties of such Division. Other divisional
officers may be designated from time to time by the Board of Directors and shall
serve at the pleasure of the Board and have such duties as may be assigned by
the Board and such officers shall be officers of the respective divisions but
shall not be deemed to be officers of the Corporation.
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ARTICLE V
Capital Stock
Section 1. Certificates. The shares of capital stock of the Corporation
shall be evidenced by certificates in forms prescribed by the Board of Directors
and executed in any manner permitted by law and stating thereon the information
required by law. Transfer agents and/or registrars for one or more classes of
the stock of the Corporation may be appointed by the Board of Directors and may
be required to countersign certificates representing stock of such class or
classes. In the event that any officer whose signature or facsimile thereof
shall have been used on a stock certificate shall for any reason cease to be an
officer of the Corporation and such certificate shall not then have been
delivered by the Corporation, the Board of Directors may nevertheless adopt such
certificate and it may then be issued and delivered as though such person had
not ceased to be an officer of the Corporation.
Section 2. Lost, Destroyed and Mutilated Certificates. Holders of the
stock of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may, in its discretion, cause one or more new certificates for the
same number of shares in the aggregate to be issued to such stockholder upon the
surrender of the mutilated certificate or
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upon satisfactory proof of such loss or destruction, and the deposit of a bond
in such form and amount and with such surety as the Board of Directors may
require.
Section 3. Transfer of Stock. The stock of the Corporation shall be
transferable or assignable only on the books of the Corporation by the holders
in person or by attorney on surrender of the certificate for such shares duly
endorsed and, if sought to be transferred by attorney, accompanied by a written
power of attorney to have the same transferred on the books of the Corporation.
The Corporation will recognize the exclusive right of the person registered on
its books as the owner of shares to receive dividends and to vote as such owner.
Section 4. Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of the shareholders
or any adjournment thereof, or entitled to receive payment for any dividend, or
in order to make a determination of shareholders for any other proper purpose,
the Board of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
(70) days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If no record date is fixed for
the determination of shareholders entitled to notice of or to vote at a meeting
of shareholders, or shareholders entitled to receive
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payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the Board of Directors declaring such dividend
is adopted, as the case may be, shall be the record date for such determination
of shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section such
determination shall apply to any adjournment thereof.
ARTICLE VI
Miscellaneous Provisions
Section 1. Seal. The seal of the Corporation shall consist of a
flat-face circular die, of which there may be any number of counterparts, on
which there shall be engraved in the center the words "Tredegar Industries,
Inc."
Section 2. Fiscal Year. The fiscal year of the Corporation shall end on
December 31st of each year, and shall consist of such accounting periods as may
be recommended by the Treasurer and approved by the Executive Committee.
Section 3. Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its shareholders and Board of Directors; and shall keep at its registered
office or principal place of business, or at the office of its transfer agent or
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registrar a record of its shareholders, giving the names and addresses of all
shareholders, and the number, class and series of the shares being held.
Any person who shall have been a shareholder of record for at least six
months immediately preceding his demand or who shall be the holder of record of
at least five percent (5%) of all the outstanding shares of the Corporation,
upon written demand stating the purpose thereof, shall have the right to
examine, in person, or by agent or attorney at any reasonable time or times, for
any proper purpose, its books and records of account, minutes and records of
shareholders and to make extracts therefrom. Upon the written request of a
shareholder, the Corporation shall mail to such shareholder its most recent
published financial statements showing in reasonable detail its assets and
liabilities and the results of its operations.
The Board of Directors shall, subject to the provisions of the
foregoing paragraph of this section, to the provisions of Section 7 of Article I
and to the laws of the State of Virginia, have the power to determine from time
to time whether and to what extent and under what conditions and limitations the
accounts, records and books of the Corporation, or any of them, shall be open to
the inspection of the shareholders.
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Section 4. Checks, Notes and Drafts. Checks, notes, drafts and other
orders for the payment of money shall be signed by such persons as the Board of
Directors from time to time may authorize. When the Board of Directors so
authorizes, however, the signature of any such person may be a facsimile.
Section 5. Amendment of By-Laws. These By-laws may be amended or
altered at any meeting of the Board of Directors by affirmative vote of a
majority of the number of directors fixed by these By-laws. The shareholders
entitled to vote in respect of the election of directors, however, shall have
the power to rescind, alter, amend or repeal any By-laws and to enact By-laws
which, if expressly so provided, may not be amended, altered or repealed by the
Board of Directors.
Section 6. Voting of Stock Held. Unless otherwise provided by
resolution of the Board of Directors or of the Executive Committee, the
President or any Executive Vice President shall from time to time appoint an
attorney or attorneys or agent or agents of this Corporation, in the name and on
behalf of this Corporation, to cast the vote which this Corporation may be
entitled to cast as a shareholder or otherwise in any other corporation, any of
whose stock or securities may be held in this Corporation, at meetings of the
holders of the stock or other securities of such other corporation, or to
consent in writing to any action by any of such other corporation, and shall
instruct
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the person or persons so appointed as to the manner of casting such votes or
giving such consent and may execute or cause to be executed on behalf of this
Corporation and under its corporate seal or otherwise, such written proxies,
consents, waivers or other instruments as may be necessary or proper in the
premises; or, in lieu of such appointment, the President or any Executive Vice
President may attend in person any meetings of the holders of stock or other
securities of any such other corporation and there vote or exercise any or all
power of this Corporation as the holder of such stock or other securities of
such other corporation.
Section 7. Restriction on Transfer. To the extent that any provision of
the Rights Agreement between the Corporation and Sovran Bank, N.A., as Rights
Agent, dated as of June 15, 1989, is deemed to constitute a restriction on the
transfer of any securities of the Corporation, including, without limitation,
the Rights, as defined therein, such restriction is hereby authorized by the
By-laws of the Corporation.
Section 8. Control Share Acquisition Statute. Article 14.1 of the
Virginia Stock Corporation Act ("Control Share Acquisitions") shall not apply to
acquisitions of shares of stock of the Corporation.
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[EXECUTION COPY]
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of July 9, 1997
among
TREDEGAR INDUSTRIES, INC.,
THE BANKS NAMED HEREIN,
THE CHASE MANHATTAN BANK, as Administrative Agent,
NATIONSBANK, N.A., as Documentation Agent
and
LONG-TERM CREDIT BANK OF JAPAN, LIMITED, as Co-Agent
TABLE OF CONTENTS
Page
I. DEFINITIONS...........................................................1
SECTION 1.01. Defined Terms..........................................1
SECTION 1.02. Terms Generally.......................................13
II. THE CREDITS..........................................................14
SECTION 2.01. Commitments...........................................14
SECTION 2.02. Standby Loans.........................................14
SECTION 2.03. Standby Borrowing Procedure...........................15
SECTION 2.04. Competitive Bid Loans.................................16
SECTION 2.05. Refinancings..........................................20
SECTION 2.06. Fees..................................................20
SECTION 2.07. Repayment of Loans....................................21
SECTION 2.08. Interest on Loans.....................................21
SECTION 2.09. Default Interest......................................22
SECTION 2.10. Alternate Rate of Interest............................22
SECTION 2.11. Termination, Reduction, Extension and Increase
of Commitments...............................23
SECTION 2.12. Prepayment............................................24
SECTION 2.13. Reserve Requirements; Change in Circumstances.........25
SECTION 2.14. Change in Legality....................................26
SECTION 2.15. Indemnity.............................................27
SECTION 2.16. Pro Rata Treatment....................................28
SECTION 2.17. Sharing of Setoffs....................................28
SECTION 2.18. Payments..............................................28
SECTION 2.19. Taxes.................................................29
III. REPRESENTATIONS AND WARRANTIES.......................................31
SECTION 3.01. Organization; Powers..................................31
SECTION 3.02. Authorization; Governmental Approvals.................31
SECTION 3.03. Enforceability........................................31
SECTION 3.04. Financial Statements..................................31
SECTION 3.05. No Material Adverse Change............................32
SECTION 3.06. Title to Properties and Possession Under Leases.......32
SECTION 3.07. The Subsidiaries and the Company......................32
SECTION 3.08. Litigation: Compliance with Laws......................32
SECTION 3.09. Agreements............................................32
SECTION 3.10. Federal Reserve Regulations...........................33
SECTION 3.11. Investment Company Act; Public Utility Holding
Company Act...............................33
SECTION 3.12. Use of Proceeds.......................................33
SECTION 3.13. Tax Returns...........................................33
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TABLE OF CONTENTS (cont.)
Page
SECTION 3.14. No Material Misstatements.............................33
SECTION 3.15. Employee Benefit Plans................................33
SECTION 3.16. Environmental Matters.................................34
SECTION 3.17. Solvency..............................................34
IV. CONDITIONS OF LENDING................................................34
SECTION 4.01. All Borrowings........................................34
SECTION 4.02. Effectiveness of Agreement............................35
V. AFFIRMATIVE COVENANTS................................................36
SECTION 5.01. Existence; Businesses and Properties Compliance.......36
SECTION 5.02. Insurance.............................................37
SECTION 5.03. Obligations and Taxes.................................37
SECTION 5.04. Financial Statements, Reports, etc....................37
SECTION 5.05. Litigation and Other Notices..........................38
SECTION 5.06. ERISA.................................................38
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections................................39
SECTION 5.08. Use of Proceeds; Termination of Prior Credit
Agreement.................................39
VI. NEGATIVE COVENANTS...................................................39
SECTION 6.01. Liens.................................................39
SECTION 6.02. Sale and LeaseBack Transactions.......................41
SECTION 6.03. Obligations of Subsidiaries...........................41
SECTION 6.04. Mergers, Consolidations and Sales of Assets...........41
SECTION 6.05. Dividends and Distributions...........................42
SECTION 6.06. Transactions with Affiliates..........................42
SECTION 6.07. Consolidated Stockholders' Equity.....................42
SECTION 6.08. Debt Ratio............................................42
VII. EVENTS OF DEFAULT....................................................42
VIII. THE ADMINISTRATIVE AGENT.............................................45
IX. MISCELLANEOUS........................................................47
SECTION 9.01. Notices...............................................47
SECTION 9.02. Survival of Agreement.................................48
SECTION 9.03. Binding Effect........................................48
SECTION 9.04. Successors and Assigns................................48
SECTION 9.05. Expenses; Indemnity...................................51
SECTION 9.06. Right of Setoff.......................................52
ii
TABLE OF CONTENTS (cont.)
Page
SECTION 9.07. Applicable Law........................................52
SECTION 9.08. Waivers; Amendment....................................52
SECTION 9.09. Interest Rate Limitation..............................53
SECTION 9.10. Entire Agreement......................................53
SECTION 9.11. Waiver of Jury Trial..................................53
SECTION 9.12. Severability..........................................53
SECTION 9.13. Counterparts. .......................................54
SECTION 9.14. Headings..............................................54
SECTION 9.15. Confidentiality.......................................54
SECTION 9.16. Jurisdiction; Consent to Service of Process...........54
Exhibit A Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Assignment and Acceptance
Exhibit D Form of Opinion of Company's Counsel
Exhibit E1 Competitive Bid Loan Borrowing Request
Exhibit E2 Invitation for Bid Loan Offers
Exhibit E3 Competitor Bid Loan Offer
Exhibit E4 Competitive Bid Loan Acceptance/Rejection
iii
REVOLVING CREDIT FACILITY AGREEMENT dated as of July 9, 1997, among
TREDEGAR INDUSTRIES, INC., a Virginia corporation (the "Company"); the banks
listed in Schedule 2.01 hereto or subsequently becoming parties hereto as
provided herein (the "Banks"); THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Banks (in such capacity, the
"Administrative Agent"); NationsBank, N.A., a national banking association, as
documentation agent (the "Documentation Agent") and Long-Term Credit Bank of
Japan, Limited, as co-agent (the "Co-Agent"; and together with the
Administrative Agent, and the Documentation Agent, the "Agents")
The Company has requested the Banks to extend credit to the Company in
order to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(as herein defined) a principal amount not in excess of $275,000,000 at any time
outstanding. The proceeds of such borrowings are to be used for general
corporate purposes and to refinance existing indebtedness. The Banks are willing
to extend such credit to the Company on the terms and subject to the conditions
herein set forth.
Accordingly, the Company, the Agents and the Banks agree as follows:
I. DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Absolute Rate" shall mean, with respect to any Competitive Bid
Absolute Rate Borrowing for any Interest Period, a fixed percentage rate per
annum (expressed in the form of a decimal to no more than four decimal places)
offered by the Bank making such Competitive Bid Absolute Rate Loan and accepted
by the Company pursuant to Section 2.04.
"Additional Bank" shall mean each Bank that extends a Commitment to the
Company after the Closing Date pursuant to Section 2.11.
"Adjusted CD Rate" shall mean, with respect to any CD Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100 of 1%) equal to the sum of (a) a rate per annum equal to the
product of (i) the Fixed CD Rate in effect for such Interest Period and (ii)
Statutory Reserves, plus (b) the Assessment Rate, plus (c) 12.5 basis points.
For purposes hereof, the term "Fixed CD Rate", shall mean the arithmetic average
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(rounded upwards, if necessary, to the next 1/100 of 1%) of the prevailing rates
per annum bid at or about 10:00 a.m., New York City time, to the Administrative
Agent on the first Business Day of the Interest Period applicable to such CD
Borrowing by three New York City negotiable certificate of deposit dealers of
recognized standing selected by the Administrative Agent for the purchase at
face value of negotiable certificates of deposit of major United States money
center banks in a principal amount approximately equal to the Administrative
Agent's portion of such CD Borrowing.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves. For purposes
hereof, the term "LIBO Rate" shall mean the rate (rounded upwards, if necessary,
to the next 1/16 of 1%) at which dollar deposits approximately equal in
principal amount to the Administrative Agent's portion of such Eurodollar
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as effective. "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate. "Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City
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received at approximately 10:00 a.m., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate or both for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) or (c), or both, of the first sentence
of this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Spread" shall mean the applicable spread per annum set
forth below based upon the Company's Debt/Capitalization Ratio:
Category I Applicable Spread
Debt/Capitalization Ratio less than or equal to .1650%
35%
Category II
Debt/Capitalization Ratio greater than 35% .2250%
and less than or equal to 50%
Category III
Debt/Capitalization Ratio greater than 50% .3000%
For purposes of the foregoing, the Applicable Spread for any date shall
be determined by reference to the Debt/Capitalization Ratio as of the last day
of the Company's fiscal quarter most recently ended as of such date for which
financial statements have been delivered in accordance with Section 5.04, and
any change in the Applicable Spread shall become effective upon the delivery to
the Administrative Agent of a certificate of a Responsible Officer of the
Company with respect to the financial statements to be delivered, pursuant to
Section 5.04 for the fiscal quarter or year most recently ended, as the case may
be, (a) setting forth in reasonable detail the calculation of the
Debt/Capitalization Ratio for and at the end of such fiscal quarter or year and
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(b) stating that the signer has reviewed the terms of this Agreement and other
Loan Documents and has made, or caused to be made under his or her supervision,
a review in reasonable detail of the transactions and condition of the Company,
during the accounting period, and that the signer does not have knowledge of the
existence as at the date of such officer's certificate of any Event of Default
or Default and shall apply to Loans outstanding on such delivery date or made on
and after such delivery date. Notwithstanding the foregoing, at any time during
which the Company has failed to deliver the certificate referred to above with
respect to a fiscal quarter or year following the date that delivery of
financial statements relating to such fiscal quarter or year are required to be
delivered under Section 5.04, the Debt/Capitalization Ratio shall be deemed,
solely for the purposes of this definition, to be greater than 50% until such
time as the Company shall have delivered such certificate and financial
statements.
"Applicable Telerate Service Rate" means, with respect to any
Competitive Bid LIBOR Borrowing, the rate appearing on the Telerate Service for
such Borrowing (as determined pursuant to the definition of "Competitive Bid
LIBO Rate"), exclusive, however, of any LIBO Rate Bid Margin applicable thereto.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Bank and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit C.
"Banks" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrowing" shall mean a Loan or group of Loans of a single Type made
by the Banks on a single date and as to which a single Interest Period is in
effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Standby Loan or Competitive Bid LIBOR Loans, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be
-4-
classified and accounted for as capital leases on a balance sheet of such person
under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"CD Borrowing" shall mean a Borrowing comprised of CD Loans.
"CD Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Adjusted CD Rate in accordance with the
provisions of Article II.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) other than (i) any person or group
whose beneficial ownership of common stock is reported on Schedule 13D, filed
with respect to the common stock of the Company on July 20, 1989, as amended
prior to the date of this Agreement, (ii) spouses, children and lineal
descendants of such persons, (iii) trusts created for the benefit of such
persons, or (iv) any combination of the persons described in the foregoing
subclauses (i), (ii) or (iii) (an "Exempt Person") shall own directly or
indirectly, beneficially or of record, shares representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) a majority of the seats (other than vacant
seats) on the board of directors of the Company shall at any time have been
occupied by persons who were not Continuing Directors; or (c) any person or
group other than an Exempt Person shall otherwise directly or indirectly Control
the Company.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Bank and each Additional
Bank, as applicable, the Commitment of such Bank hereunder as set forth in
Schedule 2.01 hereto, as such Bank's Commitment may be increased or permanently
terminated or reduced from time to time pursuant to Section 2.11. The
Commitments shall automatically and permanently terminate on the Maturity Date.
"Competitive Bid Absolute Rate Borrowing" shall mean a Borrowing
comprised of Competitive Bid Absolute Rate Loans.
"Competitive Bid Absolute Rate Loan" shall mean any Competitive Bid
Loan bearing interest at a rate determined by reference to the Absolute Rate in
accordance with Article II.
"Competitive Bid LIBO Rate" shall mean, with respect to any Competitive
Bid LIBOR Borrowing for any Interest Period, the rate (plus (or minus) the LIBO
Rate Bid Margin) appearing on the Telerate Service with respect to U.S. dollars
(or on any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on
-5-
such Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits of
U.S. dollars in the London interbank market) at approximately 10:30 a.m., London
time, two Business Days prior to the commencement of such Interest Period. In
the event that such rate is not available at such time for any reason, then the
"Competitive Bid LIBO Rate" with respect to such Competitive Bid LIBOR Borrowing
for such Interest Period shall be the rate at which deposits of $5,000,000 for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 10:30 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Competitive Bid LIBOR Borrowing" shall mean a Borrowing comprised of
Competitive Bid LIBOR Loans.
"Competitive Bid LIBOR Loans" shall mean any Competitive Bid Loan
bearing interest at a rate determined by reference to the Competitive Bid LIBO
Rate in accordance with the provisions of Article II.
"Competitive Bid Loan" shall mean a Loan made by a Bank to the Company
as part of a Competitive Bid Loan Borrowing resulting from the procedures
described in Section 2.04.
"Competitive Bid Loan Acceptance" shall mean an acceptance by the
Company of a Competitive Bid Loan Offer pursuant to Section 2.04(d),
substantially in the form of Exhibit E-4 attached hereto.
"Competitive Bid Loan Borrowing" shall mean Competitive Bid Loans made
by each of the Banks whose offer to make such Competitive Bid Loans as part of
such Borrowing has been accepted by the Company pursuant to Section 2.04(d).
"Competitive Bid Loan Borrowing Request" shall mean a certificate
requesting Competitive Bid Loans, duly executed by a Responsible Officer,
substantially in the form of Exhibit E-1 attached hereto.
"Competitive Bid Loan Offer" shall mean an offer by a Bank to make a
Competitive Bid Loan pursuant to Section 2.04(c), substantially in the form of
Exhibit E-3 attached hereto.
"Competitive Bid Outstanding Balance" shall mean, at any time, the then
aggregate outstanding principal amount of all Competitive Bid Loans.
"Consolidated Net Income" with respect to any person for any period
shall mean (a) the aggregate net income (or net loss) of such person for such
period equal to net revenues and other proper income or gain of such person for
such period (including gains on the sale of capital assets) less, without
duplication of any items deducted in determining such net revenues, income or
gain, the aggregate for such person during such period of, (i) cost of goods
sold, (ii) interest
-6-
expense, (iii) operating expense, (iv) selling, general and administrative
expenses, (v) taxes, (vi) depreciation, depletion and amortization and (vii) any
other items that are treated as expenses under GAAP, plus (b) write-downs of
assets, losses from discontinued operations and other extraordinary losses (net
of tax benefits), in each case to the extent taken into account in determining
the net revenues, income or gain referred to in (a) above.
"Consolidated Stockholders' Equity" shall mean, at any time (a) the sum
of (i) the Company's issued capital stock taken at par or stated value at such
time, (ii) the Company's capital surplus at such time and (iii) the Company's
retained earnings at such time, less (b) the Company's treasury stock and
minority interest in Subsidiaries at such time, all determined in accordance
with GAAP.
"Consolidated Total Capitalization" shall mean, at any time, the sum of
the Company's Consolidated Total Debt and Consolidated Stockholders' Equity at
such time.
"Consolidated Total Debt" shall mean, at any time, all Indebtedness of
the Company and its consolidated Subsidiaries at such time, computed and
consolidated in accordance with GAAP.
"Continuing Director" shall mean (a) any member of the Board of
Directors of the Company on the date of this Agreement and (b) any person whose
subsequent nomination for election or election to the Board of Directors was
recommended or approved by a majority of the Continuing Directors serving as
such at the time of such nomination.
"Control" shall mean the 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.
"Debt/Capitalization Ratio" shall mean the ratio of the Company's
Consolidated Total Debt to the Company's Consolidated Total Capitalization.
"Default" shall mean an event which upon notice or lapse of time or
both would constitute an Event of Default.
"dollars" and the symbol "$" shall mean the lawful currency of the
United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Company is a member and
which is treated as a single employer under Section 414 of the Code.
-7-
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Existing Credit Agreement" shall have the meaning assigned to such
term in Section 4.02(f).
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Facility Fee Percentage" shall mean the applicable percentage set
forth below based upon the Company's Debt/Capitalization Ratio:
Facility Fee
Category I Percentage
Debt/Capitalization Ratio less .0850%
than or equal to 35%
Category II
Debt/Capitalization Ratio greater than 35% .1000%
and less than or equal to 50%
Category III
Debt/Capitalization Ratio greater than 50% .1500%
For purposes of the foregoing, the Facility Fee Percentage for any date
shall be determined by reference to the Debt/Capitalization Ratio as of the last
day of the Company's fiscal quarter most recently ended as of such date for
which financial statements have been delivered in accordance with Section 5.04,
and any change in the Facility Fee Percentage shall become effective upon the
delivery to the Administrative Agent of a certificate of a Responsible Officer
of the Company with respect to the financial statements to be delivered,
pursuant to Section 5.04 for the fiscal quarter or year most recently ended, as
the case may be, (a) setting forth in reasonable detail the calculation of the
Debt/Capitalization Ratio for and at the end of such fiscal quarter or year and
(b) stating that the signer has reviewed the terms of this Agreement and other
Loan Documents and has made, or caused to be made under his or her supervision,
a review in reasonable detail of the transactions and condition of the Company,
during the accounting period, and that the signer does not have knowledge of the
existence as at the date of such officer's certificate of any Event of Default
or Default. Notwithstanding the foregoing, at any time during which the Company
has failed to deliver the certificate referred to
\
-8-
above with respect to a fiscal quarter or year following the date that delivery
of financial statements relating to such fiscal quarter or year are required to
be delivered under Section 5.04, the Debt/Capitalization Ratio shall be deemed,
solely for the purposes of this definition, to be greater than 50% until such
time as the Company shall have delivered such certificate and financial
statements.
"Fees" shall mean the Facility Fee, Utilization Fee and the
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Increased Commitment Date" shall mean, with respect to any Additional
Bank, the date on which such Bank extends a Commitment to the Company pursuant
to Section 2.11.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (other than accounts payable),
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services, (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed,
provided that the amount of such Indebtedness shall be deemed to be the lesser
of (i) the outstanding principal amount of such Indebtedness plus all accrued
and unpaid interest relating thereto and (ii) the fair market value of the
property secured by any such Lien, (g) all Guarantees by such person of
-9-
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner unless such Indebtedness is without any recourse
whatsoever to such person as a general partner of any such partnership.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable thereto and, in the case of a Eurodollar
Standby Loan or Competitive Bid LIBOR Loans with an Interest Period of more than
three months' duration or a CD Loan or a Competitive Bid Absolute Rate Loan with
an Interest Period of more than 90 days' duration, each day that would have been
the Interest Payment Date for such Loan had successive Interest Periods of 3
months or 90 days, respectively, been applicable to such Loan and, in addition,
the date of any refinancing or conversion of such Loan with or to a Loan of a
different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing or any
Competitive Bid LIBOR Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day (or if there is no
corresponding day, the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the Company may elect, (b) as to any CD Borrowing, a
period of 30, 60, 90 or 180 days' duration, as the Company may elect, commencing
on the date of such Borrowing, (c) as to any ABR Borrowing, the period
commencing on the date of such Borrowing and ending on the date 90 days
thereafter or, if earlier, on the Maturity Date or the date of prepayment of
such Borrowing and (d) as to any Competitive Bid Absolute Rate Borrowing, the
period commencing on the date of such Borrowing and ending on the date specified
as the last day of the Interest Period in the Competitive Bid Loan Offer in
which the offers to make such Borrowing were extended, which shall not be
earlier than seven days after the date of such Borrowing or later than 360 days
after the date of such Borrowing; provided, however, that if any Interest Period
would end on a day which shall not be a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, with respect to
Eurodollar Standby Loans and Competitive Bid LIBOR Loans only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Invitation for Bid Loan Offers" means an invitation to the Banks,
substantially in the form of Exhibit E-2 hereto, sent by the Administrative
Agent on behalf of the Company pursuant to Section 2.04(b) inviting the Banks to
submit Competitive Bid Loan Offers in accordance with Section 2.04(c).
"LIBO Rate Bid Margin" shall mean with respect to any Competitive Bid
LIBO Rate Loan made by any Bank, a percentage (expressed in the form of a
decimal to no more than four decimal places) which shall be determined by such
Bank and specified in its Competitive Bid
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Loan Offer for such Loan, which percentage shall be added to (or subtracted
from) the Applicable Telerate Service Rate by such Bank in such Competitive Bid
Loan Offer.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan" shall mean any Standby Loan, whether made as a Eurodollar
Standby Loan, a CD Loan or an ABR Loan and any Competitive Bid Loan, whether
made as a Competitive Bid LIBOR Loan or a Competitive Bid Absolute Rate Loan.
"Loan Documents" shall mean this Agreement (including all exhibits and
schedules attached hereto).
"Margin Stock" shall have the meaning given such term under Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole, (b) material
impairment of the ability of the Company to perform any of its obligations under
any Loan Document to which it is or will be a party or (c) material impairment
of the rights of or benefits available to the Banks under any Loan Document.
"Maturity Date" shall mean the Original Maturity Date, or any
anniversary of such date to which the Maturity Date shall have been extended
pursuant to Section 2.11(d).
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Original Maturity Date" shall mean the fifth anniversary of the date
of this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code which
is maintained for employees of the Company or any ERISA Affiliate.
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"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Banks" shall mean, at any time, Banks having Commitments
representing at least 66-2/3% of the Total Commitment and, for purposes of
acceleration pursuant to clause (ii) of Article VII and at any time when no
Commitment is in effect, Banks holding Loans representing at least 66-2/3% of
the aggregate principal amount of the Loans outstanding.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Significant Subsidiary" shall mean any Subsidiary whose gross revenues
or assets constitute 1% or more of consolidated gross revenues or consolidated
assets of the Company and its Subsidiaries.
"Standby Borrowing" shall mean a borrowing consisting of simultaneous
Standby Loans from each of the Banks.
"Standby Borrowing Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A.
"Standby Loans" shall mean the revolving loans made by the Banks to the
Company pursuant to Section 2.03. Each Standby Loan shall be a Eurodollar
Standby Loan, a CD Loan or an ABR Loan.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of
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the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and any
other banking authority to which the Administrative Agent is subject for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to (i) the applicable Interest Period, in the case of the
Adjusted CD Rate, and (ii) three months, in the case of the Base CD Rate (as
such term is used in the definition of "Alternate Base Rate"). Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) which is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Company.
"Taxes" shall have the meaning assigned such term in Section 2.19(a).
"Total Commitment" shall mean at any time the aggregate amount of the
Banks' Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the LIBO
Rate, the Competitive Bid LIBO Rate, the Adjusted CD Rate, the Alternate Base
Rate and the Absolute Rate.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.06(c).
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an
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accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided, however, that, for purposes of determining
compliance with any covenant set forth in Article VI, such terms shall be
construed in accordance with GAAP as in effect on the date of this Agreement
applied on a basis consistent with the application used in the Company's audited
financial statements referred to in Section 3.04.
II THE CREDITS
SECTION 2.01 Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Standby Loans to the Company, at any
time and from time to time on and after the date hereof and each Additional Bank
agrees, separately and not jointly, to make Standby Loans to the Company, at any
time and from time after the Increased Commitment Date relative to such
Additional Bank, and, in each case, until the earlier of the Maturity Date and
the termination of the Commitment of such Bank, in an aggregate principal amount
at any time outstanding not to exceed such Bank's Commitment subject, however,
to the condition that at all times the outstanding aggregate principal amount of
all Standby Loans made by a Bank shall equal the product of (i) the percentage
which its Commitment represents of the Total Commitment times (ii) the
outstanding aggregate principal amount of all Standby Loans requested by the
Company from the Banks pursuant to Section 2.03. Each Bank's Commitment is set
forth opposite its respective name in Schedule 2.01, as such Schedule may be
amended or otherwise modified from time to time pursuant to Section 2.11. Such
Commitments may be terminated, reduced, extended or increased from time to time
pursuant to Section 2.11.
Within the foregoing limits, the Company may borrow, repay, prepay and
reborrow hereunder, on and after the date hereof and prior to the Maturity Date,
subject to the terms, provisions and limitations set forth herein.
SECTION 2.02 Standby Loans. (a) Each Standby Loan shall be made as
part of a Borrowing consisting of Loans made by the Banks ratably in accordance
with their Commitments; provided, however, that the failure of any Bank to make
any Standby Loan shall not in itself relieve any other Bank of its obligation to
lend hereunder (it being understood, however, that no Bank shall be responsible
for the failure of any other Bank to make any Loan required to be made by such
other Bank). Standby Loans comprising each Borrowing shall be in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than
$5,000,000 (or an aggregate principal amount equal to the remaining balance of
the available Commitments).
(b) Each Standby Borrowing shall be comprised entirely of Eurodollar
Standby Loans, CD Loans or ABR Loans, as the Company may request pursuant to
Section 2.03. Each Bank may at its option make any Eurodollar Standby Loan by
causing any domestic or foreign branch or Affiliate of such Bank to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Company to repay such Loan in accordance with the terms of this
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Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, any term or provision hereof to the contrary notwithstanding
(including Section 2.04), that the Company shall not be entitled to request any
Borrowing which, if made, would result in an aggregate of more than ten separate
Loans of any Bank being outstanding hereunder at any one time. For purposes of
the foregoing, Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Bank shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Administrative Agent in New York, New York, not later
than 12:00 noon, New York City time, and the Administrative Agent shall by 3:00
p.m., New York City time, credit the amounts so received to the general deposit
account of the Company with the Administrative Agent or, if a Borrowing shall
not occur on such date because any condition precedent herein specified shall
not have been met, return the amounts so received to the respective Banks.
Subject to Section 2.05, Standby Loans shall be made by the Banks pro rata in
accordance with Section 2.16. Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Borrowing that such Bank
will not make available to the Administrative Agent such Bank's portion of such
Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative Agent may, in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent that such Bank shall not have made such portion
available to the Administrative Agent, such Bank and the Company (without
prejudice to the Company's rights against the defaulting Bank) severally agree
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Company until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Company, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Bank, the Federal Funds Effective Rate. If such Bank shall repay to
the Administrative Agent such corresponding amount, such amount shall constitute
such Bank's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Company
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03 Standby Borrowing Procedure. In order to request a
Standby Borrowing, the Company shall give written or telex notice (or telephone
notice promptly confirmed in writing or by telex) to the Administrative Agent in
the form of Exhibit A (a) in the case of a Eurodollar Standby Borrowing, not
later than 10:00 a.m., New York City time, three Business Days before a proposed
borrowing, (b) in the case of a CD Borrowing, not later than 10:00 a.m., New
York City time, two Business Days before a proposed borrowing and (c) in the
case of an ABR Borrowing, not later than 10:30 a.m., New York City time, one
Business Day before a proposed borrowing. Such notice shall be irrevocable and
shall in each case refer to this Agreement and specify (i) whether the Borrowing
then being requested is to be a Eurodollar
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Standby Borrowing, a CD Borrowing or an ABR Borrowing; (ii) the date of such
Borrowing (which shall be a Business Day), and the amount thereof; and (iii) if
such Borrowing, is to be a Eurodollar Standby Borrowing or CD Borrowing, the
Interest Period with respect thereto. If no election as to the Type of Borrowing
is specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing or CD
Borrowing is specified in any such notice, then the Company shall be deemed to
have selected an Interest Period of one month's duration, in the case of a
Eurodollar Borrowing, or 30 days' duration, in the case of a CD Borrowing. If
the Company shall not have given notice in accordance with this Section 2.03 of
its election to refinance a Standby Borrowing prior to the end of the Interest
Period in effect for such Borrowing, then the Company shall (unless such
Borrowing is repaid at the end of such Interest Period) be deemed to have given
notice of an election to refinance such Borrowing with an ABR Borrowing. The
Administrative Agent shall promptly advise the Banks of any notice given
pursuant to this Section 2.03 and of each Bank's portion of the requested
Borrowing.
SECTION 2.04 Competitive Bid Loans. Subject to the terms and
conditions of this Agreement (including Article IV), each Bank severally agrees
that the Company may, on its behalf or on behalf of any of its Subsidiaries,
request that Competitive Bid Loan Borrowings under this Section 2.04 be made
from time to time on any Business Day prior to the date occurring one month
prior to the earlier of the Maturity Date and the termination of the Commitments
in the manner set forth below; provided, however, that following the making of
each Competitive Bid Loan Borrowing (and any concurrent payment of Standby Loans
with the proceeds thereof), the aggregate amount of all Loans then outstanding
shall not exceed the amount equal to the Total Commitment.
(a) Competitive Bid Loan Borrowing Request. The Company may request
Competitive Bid Loan Borrowings under this Section by delivering to the
Administrative Agent not later than 10:30 a.m. (New York City time) at least
four but not more than seven Business Days prior to the date of the proposed
Competitive Bid Loan Borrowing, a Competitive Bid Loan Borrowing Request (which
may contain requests for up to three different Competitive Bid Loans with three
different Interest Periods, but having the same date of funding) specifying:
(i) the principal amount of each Competitive Bid Loan
to be made as part of such proposed Competitive Bid Loan Borrowing,
(ii) the proposed date (which shall be a Business Day)
and aggregate principal amount or amounts of each Competitive Bid Loan
to be made as part of such proposed Competitive Bid Loan Borrowing
(which shall be in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000),
(iii) whether each Competitive Bid Loan being requested
is to be a Competitive Bid LIBOR Loan or a Competitive Bid Absolute
Rate Loan, and
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(iv) the proposed Interest Period for such Competitive
Bid Loan Borrowing, provided that such Interest Period shall not end on
a date later than the Maturity Date.
The Company shall not deliver to the Administrative Agent any Competitive Bid
Loan Borrowing Request within five Business Days after the delivery of any other
Competitive Bid Loan Request.
(b) Invitation for Bid Loan Offers. Promptly upon receipt of a
Competitive Bid Loan Borrowing Request but in no event later than 3:00 p.m. (New
York City time) on the date of such receipt, the Administrative Agent shall send
to the Banks by telecopy an Invitation for Bid Loan Offers, which shall
constitute an invitation on behalf of the Company to each Bank to submit one or
more Competitive Bid Loan Offers offering to make the Competitive Bid Loans to
which such Competitive Bid Loan Borrowing Request relates in accordance with
this Section 2.04.
(c) Submission and Contents of Bid Loan Offers.
(i) If any Bank, in its sole discretion, elects to offer to make a
Competitive Bid Loan to the Company as part of a proposed
Competitive Bid Loan Borrowing at a rate of interest specified
by such Bank in its sole discretion, it shall deliver to the
Administrative Agent not later than 9:30 a.m. (New York City
time) on the third Business Day prior to the proposed date of
Borrowing, a Competitive Bid Loan Offer, which must comply
with the requirements of this clause; provided, however, that
Competitive Bid Loan Offers submitted by the Administrative
Agent (or any affiliate of the Administrative Agent) in the
capacity of a Bank may be submitted, and may only be
submitted, if the Administrative Agent or such affiliate
notifies the Company of the terms of the offer or offers
contained therein not later than 9:15 a.m. (New York City
time) on the third Business Day prior to the proposed date of
Borrowing. Each Competitive Bid Loan Offer shall specify
(A) the proposed date of Borrowing, which shall be the same
as that set forth in the applicable Invitation for Bid
Loan Offers,
(B) the principal amount of the Competitive Bid Loan which
the Bank submitting such Competitive Bid Loan Offer
would be willing to make as part of such proposed
Competitive Bid Loan Borrowing (which shall be in an
aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000
and which amount may exceed such Bank's Commitment),
(C) the Competitive Bid LIBO Rate and LIBO Rate Bid Margin
or the Absolute Rate, as applicable for each
Competitive Bid Loan such Bank would be willing to
make, and
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(D) the identity of the quoting Bank;
provided, however, that any Competitive Bid Loan Offer submitted by a Bank
pursuant to this Section 2.04(c) shall be irrevocable, unless otherwise
consented to in writing by the Administrative Agent acting upon the instructions
of the Company.
(ii) Any Competitive Bid Loan Offer that: is not substantially in
the form of Exhibit E-3 hereto, as determined by the
Administrative Agent in its sole discretion, or does not
specify all of the information required in this Section
2.04(c); contains qualifying, conditional or similar language;
contains proposed terms other than or in addition to those set
forth in the applicable Invitation for Bid Loan Offers; or
arrives after the time set forth in this Section 2.04(c) shall
be disregarded by the Administrative Agent.
(iii) The Administrative Agent shall (by telephone, promptly
confirmed in writing) promptly notify the Company of the terms
of any Competitive Bid Loan Offer submitted by a Bank that is
in accordance with this Section 2.04(c), as well as the
identity of any such Bank.
(d) Competitive Bid Loan Acceptance. The Company shall, before 10:30
a.m. (New York City time) on the third Business Day prior to the proposed date
of such proposed Competitive Bid Loan Borrowing, either
(i) irrevocably cancel the Competitive Bid Loan Borrowing Request
that requested such Competitive Bid Loan Borrowing by giving
the Administrative Agent telephonic notice, promptly confirmed
in writing (and the Administrative Agent shall promptly so
notify each of the Banks) to that effect (and, for purposes of
this Section, a failure on the part of the Company to timely
notify the Administrative Agent under the terms of this clause
shall be deemed to be non-acceptance of all Competitive Bid
Loan Offers so notified to the Company pursuant to Section
2.04(d)), or
(ii) (A) irrevocably accept, in whole or in part, one or more of
the Competitive Bid Loan Offers made by any Bank or Banks
pursuant to Section 2.04(c), in its sole discretion, by giving
the Administrative Agent telephonic notice (promptly confirmed
in writing by delivery to the Administrative Agent of a
Competitive Bid Loan Acceptance), and the Administrative Agent
shall, promptly upon receiving such telephonic notice from the
Company, notify each Bank whose Competitive Bid Loan Offer has
been accepted, in whole or in part, of (1) the amount of the
Competitive Bid Loan Borrowing to be made on such date, and
(2) the amount of the Competitive Bid Loan (which amount shall
not be greater than the amount offered by such Bank for such
Competitive Bid Loan pursuant to Section 2.04(c)) to be made
by such Bank as part of such Competitive Bid Loan Borrowing,
and (B) irrevocably reject any remaining Competitive Bid Loan
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Offers made by Banks pursuant to Section 2.04(c) by giving the
Administrative Agent telephonic notice, promptly confirmed in
writing (and the Agent shall promptly so notify the Banks) to
that effect; provided, however, that
(1) the Company shall not accept an offer made at a
particular Competitive Bid LIBO Rate if the Company has
decided to reject an offer made in respect of the same
Competitive Bid Loan Borrowing with the same Interest Period
and a lower Competitive Bid LIBO Rate,
(2) the Company shall not accept an offer made at a
particular Absolute Rate if the Company has decided to reject
an offer made in respect of the same Competitive Bid Loan
Borrowing with the same Interest Period and a lower Absolute
Rate, and, if the Company accepts only a portion of any
Competitive Bid Loan Offer, such partial acceptance must be in
a minimum principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof,
(3) the aggregate principal amount of the Competitive
Bid Loan Offers accepted by the Company shall not exceed the
principal amount specified in the Competitive Bid Loan
Borrowing Request therefor,
(4) if the Company shall accept an offer or offers
made at a particular Competitive Bid LIBO Rate or Absolute
Rate, as applicable, but the amount of such offer or offers
shall cause the total amount of offers accepted by the Company
to exceed the amount specified in the Competitive Bid Loan
Borrowing Request therefor, then the Company shall (x) accept
a portion of such offer or offers in an aggregate amount equal
to the amount specified in the Competitive Bid Loan Borrowing
Request less the amount of all other offers accepted at lower
Absolute Rates or lower Competitive Bid LIBO Rates, as the
case may be, with respect to such Competitive Bid Loan
Borrowing Request, and (y) allocate the Competitive Bid Loans
in respect of which such offers are accepted among the Banks
submitting such offers as nearly as possible in proportion to
the aggregate amount of such offers made by each Bank
(provided, that if the available principal amount of
Competitive Bid Loans to be so allocated is not sufficient to
enable Competitive Bid Loans to be so allocated to each such
Bank in a minimum principal amount of $5,000,000, the number
of such Banks shall be reduced by the Administrative Agent by
lot until the Competitive Bid Loans to be made by such
remaining Banks would be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof,
(5) no bid shall be accepted for a Competitive Bid
Loan unless such Competitive Bid Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of
$1,000,000 and is part of a Competitive Bid Loan Borrowing in
a minimum principal amount of $5,000,000, and
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(6) the Company may not accept any offer that is
described in clause (ii) of Section 2.04(c) or that otherwise
fails to comply with the requirements of this Agreement.
A notice given by the Company pursuant to this clause (B) of this Section
2.04(d) (ii) shall be irrevocable.
(e) Funding of Competitive Bid Loans. Not later than 12:00 noon (New
York City time) on the date specified for each Competitive Bid Loan Borrowing
hereunder, each Bank participating therein shall deposit with the Administrative
Agent same day funds in the amount of the Competitive Bid Loan to be made by it
on such date. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Banks. The amount so
received by the Administrative Agent shall be made available to the Company by
wire transfer to the accounts the Company notified to the Administrative Agent
in writing. As soon as practicable after the Competitive Bid Loan Borrowing, the
Administrative Agent shall notify each Bank of the amount of the Competitive Bid
Loan Borrowing, the applicable Competitive Bid LIBO Rates and/or Absolute Rates
accepted, the consequent Competitive Bid Outstanding Balance, the date on which
such Competitive Bid Loan Borrowing was made and the corresponding Interest
Period applicable to all Competitive Bid Loans that are part of such Competitive
Bid Loan Borrowing.
SECTION 2.05 Refinancings. The Company may refinance all or any part
of any Borrowing with a Borrowing of the same or a different Type made pursuant
to Section 2.03 or 2.04, subject to the conditions and limitations set forth
herein and elsewhere in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.07 with the
proceeds of a new Borrowing hereunder and the proceeds of the new Borrowing, to
the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Banks to the Administrative Agent or by the
Administrative Agent to the Company pursuant to Section 2.02(c).
SECTION 2.06 Fees. (a) The Company agrees to pay to each Bank, through
the Administrative Agent, on each March 31 , June 30, September 30 and December
31, commencing September 30, 1997, and on the date on which the Commitment of
such Bank shall be terminated as provided herein, a facility fee (a "Facility
Fee") equal to the Facility Fee Percentage of the daily average amount of the
Commitment of such Bank, whether used or unused, during the preceding quarter
(or other period commencing with the date of this Agreement or ending with the
Maturity Date or any date on which the Commitment of such Bank shall be
terminated). All Facility Fees shall be computed on the basis of the actual
number of days elapsed over a 360-day year. The Facility Fee due to each Bank
shall commence to accrue on the Closing Date and shall cease to accrue on the
earlier of the Maturity Date and the termination of the Commitment of such Bank
as provided herein.
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(b) The Company agrees to pay the Administrative Agent, for its own
account, the fees set forth in the Engagement Letter dated June 12, 1997, among
the Administrative Agent, Chase Securities Inc. and the Company at the times and
in the amounts set forth therein.
(c) The Company agrees to pay to each Bank, through the Administrative
Agent, on each March 31, June 30, September 30 and December 31, commencing
September 30, 1997, and on each date on which the Commitment of such Bank shall
be terminated as provided herein, a utilization fee (the "Utilization Fee")
equal to .05% per annum on the outstanding principal amount of the Loans of such
Bank for each day during the preceding quarter or such shorter period on which
the outstanding aggregate principal amount of the Loans exceeds 50% of the Total
Commitment. All Utilization Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days.
(d) The Company agrees to pay to the Administrative Agent, for its own
account, a fee equal to $1,000 with respect to each Competitive Bid Loan
Borrowing Request delivered to the Administrative Agent, such fee to be payable
on the date such Competitive Bid Loan Borrowing Request is delivered.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Banks. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.07 Repayment of Loans. (a) The Company agrees to pay the
outstanding principal balance of each Loan on the last day of the Interest
Period applicable to such Loan and on the Maturity Date. Each Loan shall bear
interest from the date of such Borrowing on the outstanding principal balance
thereof as set forth in Section 2.08.
(b) Each Bank shall, and is hereby authorized by the Company to
maintain, in accordance with its usual practice, records evidencing the
indebtedness of the Company to such Bank hereunder from time to time, including
the date, amount and Type of and the Interest Period applicable to each Loan
made by such Bank from time to time and the amounts of principal and interest
paid to such Bank from time to time in respect of each such Loan.
(c) The entries made in the records maintained pursuant to paragraph
(b) of this Section 2.07 and in the Register maintained by the Administrative
Agent pursuant to Section 9.04(d) shall be prima facie evidence of the existence
and amounts of the obligations of the Company to which such entries relate;
provided, however, that the failure of any Bank or the Administrative Agent to
maintain or to make any entry in such records or the Register, as applicable, or
any error therein shall not in any manner affect the obligation of the Company
to repay any Loans in accordance with the terms of this Agreement.
SECTION 2.08 Interest on Loans. (a) subject to the provisions of
Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted
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LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Spread in effect at such time.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each CD Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted CD Rate for the Interest Period in effect plus the Applicable Spread in
effect at such time.
(c) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (if the Alternate Base Rate is based on
the Prime Rate, computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be, or if the Alternate Base Rate is
based on the Base CD Rate or the Federal Funds Effective Rate, computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to the Alternate Base Rate.
(d) Subject to the provisions of Section 2.09, the Loans comprising
each Competitive Bid LIBOR Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal to the Competitive Bid LIBO Rate for the Interest Period in effect
for such Borrowing plus (or minus) the LIBO Rate Bid Margin in effect at such
time.
(e) Subject to the provisions of Section 2.09, the Loans comprising
each Competitive Bid Absolute Rate Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be) at a rate per annum equal to the Absolute Rate for the
Interest Period in effect for such Borrowing.
(f) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Adjusted LIBO Rate, Adjusted CD Rate or Alternate Base Rate for
each Interest Period or day within an Interest Period, as the case may be, shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.09 Default Interest. If the Company shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Company shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the Alternate Base Rate plus
2%.
SECTION 2.10 Alternate Rate of Interest. (a) In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing or a Competitive Bid LIBOR Borrowing
the Administrative Agent shall have determined that dollar deposits in the
principal amounts of the Loans comprising such
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Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately
and fairly reflect the cost to any Bank of making or maintaining its Eurodollar
Standby Loan or Competitive Bid LIBOR Loan, as applicable, during such Interest
Period, or that reasonable means do not exist for ascertaining the Adjusted LIBO
Rate, the Administrative Agent shall, as soon as practicable thereafter, give
written or telex notice of such determination to the Company and the Banks. In
the event of any such determination, until the Administrative Agent shall have
advised the Company and the Banks that the circumstances giving rise to such
notice no longer exist, any request by the Company for a Eurodollar Standby
Borrowing pursuant to Section 2.03 and any request for a Competitive Bid LIBOR
Borrowing pursuant to Section 2.04. shall be deemed to be a request for an ABR
Borrowing in the case of Eurodollar Standby Borrowings or Competitive Absolute
Rate Loans in the case of Competitive Bid LIBOR Loans. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
(b) In the event, and on each occasion, that on or before the day on
which the Adjusted CD Rate for a CD Borrowing is to be determined the
Administrative Agent shall have determined that such Adjusted CD Rate cannot be
determined for any reason, including the inability of the Agent to obtain
sufficient bids in accordance with the terms of the definition of Fixed CD Rate,
or the Agent shall determine that the Adjusted CD Rate for such CD Borrowing
will not adequately and fairly reflect the cost to any Bank of making or
maintaining its CD Loan during such Interest Period, the Administrative Agent
shall, as soon as practicable thereafter, give written or telex notice of such
determination to the Company and the Banks. In the event of any such
determination, any request by the Company for a CD Borrowing pursuant to Section
2.03 shall, until the Administrative Agent shall have advised the Company and
the Banks that the circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.11 Termination, Reduction, Extension and Increase of
Commitments. (a) The Commitments shall be automatically terminated on the
Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telex notice to the Administrative Agent, the Company may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; provided, however, that each partial reduction of the Commitments
shall be in an integral multiple of $1,000,000 and in a minimum principal amount
of $10,000,000.
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Banks in accordance with their respective applicable Commitments. The
Company shall pay to the Administrative Agent for the account of the Banks, on
the date of each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
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(d) Not later than the date 45 days prior to (i) the first anniversary
of the date hereof or (ii) any anniversary of the date hereof during the 45 days
prior to which the Commitments shall have been extended as provided in this
paragraph (d), the Company may deliver to the Administrative Agent (which shall
promptly transmit to each Bank) a notice requesting that the Commitments be
extended to the first anniversary of the Maturity Date at the time in effect.
Within 30 days after its receipt of any such notice, each Bank shall notify the
Administrative Agent of its willingness or unwillingness so to extend its
Commitment. In the event each Bank shall be willing to extend its Commitment,
the Administrative Agent shall so notify the Company and each Bank and the
Maturity Date shall without further act be extended to the first anniversary of
the date which shall theretofore have been the Maturity Date.
(e) The Company may, from time to time on any Business Day occurring
after the Closing Date and prior to the Original Maturity Date, by written
request made to the Administrative Agent, request that the Total Commitment be
increased, and, subject to the consent to such request by the Administrative
Agent (such consent to be in writing and not to be unreasonably withheld) and so
long as no Default or Event of Default has occurred and is continuing, (i) the
Company, the Administrative Agent and any Bank or (as the case may be) any Banks
may agree to increase the Commitments of such Bank or Banks (such agreement to
be in writing and to be at the sole and absolute discretion of each such Bank)
or (ii) the Company, the Administration Agent and one or more Additional Banks
may agree that such Additional Bank or Additional Banks (as the case may be)
shall become a party hereto and each such Additional Bank shall be deemed, for
all purposes, a "Bank" hereunder, and each Additional Bank shall agree severally
and not jointly to extend a Commitment to make Standby Loans to the Company in
accordance with the provisions of this Agreement, in which case the Total
Commitment and, with respect to increases in the Total Commitment pursuant to
clause (i) above, the Commitment of each such Bank agreeing to increase its
Commitments shall be increased accordingly; provided that, (x) no increase in
any Bank's Commitment shall result in such Banks' Commitment exceeding 20% of
the Total Commitment, (y) any such increase of the Total Commitment and any
Borrowings after giving effect to any such increase shall be in a manner which
ensures pro rata Borrowings hereunder, and (z) in any event (including after
giving effect to any such increase), the "Total Commitment" shall not at any
time exceed $350,000,000. Promptly following any increase of the Total
Commitment (and corresponding adjustments to the Commitments of the Banks)
pursuant to this clause (e ), the Administrative Agent shall provide written
notice of the same to each of the Banks and the Banks and the Additional Banks
hereby covenant and agree to execute and deliver an amendment or supplement to
this Agreement and to Schedule 2.01 hereof giving effect to such increase of the
Commitments and the addition of each Additional Bank (if any).
SECTION 2.12 Prepayment. (a) The Company shall have the right at any
time and from time to time to prepay any Standby Borrowing in whole or in part,
upon at least three Business Days' prior written or telex notice (or telephone
notice promptly confirmed by written or telex notice) to the Administrative
Agent; provided, however, that each partial prepayment shall be in an amount
which is an integral multiple of $1,000,000 and not less than $5,000,000. The
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Company may not prepay any Competitive Bid Loan Borrowing without the consent of
each Bank participating in such Competitive Bid Loan Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11, the Company shall pay or prepay so much of the Loans
as shall be necessary in order that the aggregate principal amount of the Loans
outstanding will not exceed the aggregate Commitments after giving effect to
such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Company to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.15 but otherwise without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.13 Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Bank of the principal
of or interest on any, Competitive Bid LIBOR Loans, Eurodollar Standby Loan or
CD Loan made by such Bank or any other fees or amounts payable hereunder (other
than changes in respect of taxes imposed on the overall net income of such Bank
by the jurisdiction in which such Bank has its principal office or by any
political subdivision or taxing authority therein), shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by, such Bank (except
any reserve requirement reflected in the Adjusted LIBO Rate), or shall impose on
such Bank or the London interbank market any other condition affecting this
Agreement or any Competitive Bid LIBOR Loan, Eurodollar Standby Loan or CD Loan
made by such Bank, and the result of any of the foregoing shall be to increase
the cost to such Bank of making or maintaining any Competitive Bid LIBOR Loan,
Eurodollar Standby Loan or CD Loan or to reduce the amount of any sum received
or receivable by such Bank hereunder (whether of principal, interest or
otherwise) in respect thereof by an amount deemed by such Bank to be material,
then the Company shall pay to such Bank upon demand such additional amount or
amounts as will compensate such Bank for such additional cost incurred or
reduction suffered.
(b) If any Bank shall have determined that the applicability of any
law, rule, regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards", or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or any
lending office of such Bank) or any Bank's holding company
-25-
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Bank's capital
or on the capital of such Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by such Bank pursuant hereto to a level below
that which such Bank or such Bank's holding company could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's
policies and the policies of such Bank's holding company with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank or such Bank's holding company for any such reduction
suffered.
(c) A certificate of a Bank setting forth such amount or amounts as
shall be necessary to compensate such Bank (or participating banks or other
entities pursuant to Section 9.04) as specified in paragraph (a) or (b) above,
as the case may be, shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay each Bank the amount shown as due
on any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right with respect to such period or any other period. The
protection of this Section shall be available to each Bank regardless of any
possible contention of invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have been
imposed.
SECTION 2.14 Change in Legality. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Standby Loan or Competitive Bid LIBOR Loan or to
give effect to its obligations as contemplated hereby with respect to any
Competitive Bid LIBOR Loan or Eurodollar Standby Loan, then, by written notice
to the Company and to the Administrative Agent, such Bank may:
(i) declare that Competitive Bid LIBOR Loans and Eurodollar
Standby Loans will not thereafter be made by such Bank hereunder,
whereupon any request by the Company for a Competitive Bid LIBOR
Borrowing or Eurodollar Standby Borrowing shall, as to such Bank only,
be deemed a request for an ABR Loan in the case of Eurodollar Standby
Loans or a Competitive Bid Absolute Rate Loan in the case of a
Competitive Bid LIBOR Loan, in each case unless such declaration shall
be subsequently withdrawn;
(ii) require that all outstanding Eurodollar Standby Loans
made by it be converted to ABR Loans or all outstanding Competitive
LIBOR Loans made by it be converted to Competitive Bid Absolute Rate
Loans, in which event all such Eurodollar Standby Loans shall be
automatically converted to ABR Loans and all Competitive Bid LIBOR
Loans
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shall be automatically converted to Competitive Bid Absolute Rate
Loans, as of the effective date of such notice as provided in paragraph
(b) below.
In the event any Bank shall exercise its rights under (i) or (ii)
above, all payments and prepayments of principal which would otherwise have been
applied to repay the Eurodollar Standby Loans or Competitive Bid LIBOR Loans
that would have been made by such Bank or the converted Eurodollar Standby Loans
or converted Competitive Bid LIBOR Loans, as applicable, of such Bank shall
instead be applied to repay the ABR Loans or the Competitive Bid Absolute Rate
Loans, as applicable made by such Bank in lieu of, or resulting from the
conversion of, such Eurodollar Standby Loans or the Competitive Bid LIBOR Loans,
as applicable.
(b) For purposes of this Section 2.14, a notice to the Company by any
Bank shall be effective as to each Eurodollar Standby Loan or Competitive Bid
LIBOR Loan, as applicable, if lawful, on the last day of the Interest Period
currently applicable to such Eurodollar Standby Loan or Competitive Bid LIBOR
Loan; in all other cases such notice shall be effective on the date of receipt
by the Company.
SECTION 2.15 Indemnity. The Company shall indemnify each Bank against
any loss or expense which such Bank may sustain or incur as a consequence of (a)
any failure by the Company to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, (b) any failure by the Company to
borrow or to refinance or continue any Loan hereunder after irrevocable notice
of such borrowing, refinancing or continuation has been given pursuant to
Section 2.03 or 2.04, (c) any payment, prepayment or conversion of a Eurodollar
Standby Loan, Competitive Bid LIBOR Loan, or CD Loan required by any other
provision of this Agreement or otherwise made or deemed made on a date other
than the last day of the Interest Period applicable thereto, (d) any default in
payment or prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date thereof,
by irrevocable notice of prepayment or otherwise) or (e) the occurrence of any
Event of Default, including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any part
thereof as a Eurodollar Standby Loan, Competitive Bid LIBOR Loan or CD Loan.
Such loss or reasonable expense shall include an amount equal to the excess, if
any, as reasonably determined by such Bank, of (i) its cost of obtaining the
funds for the Loan being paid, prepaid, converted or not borrowed (based on the
Adjusted LIBO Rate, Competitive Bid LIBO Rate or Adjusted CD Rate, as
applicable) for the period from the date of such payment, prepayment, conversion
or failure to borrow to the last day of the Interest Period for such Loan (or,
in the case of a failure to borrow, the Interest Period for such Loan which
would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in reemploying the funds so paid, prepaid, converted or not borrowed for
such period or Interest Period, as the case may be. A certificate of any Bank
setting forth any amount or amounts which such Bank is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error.
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SECTION 2.16 Pro Rata Treatment. Except as required under Sections
2.13 and 2.14, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Facility
Fees, each payment of the Utilization Fees, each reduction of the Commitments
and each refinancing of any Borrowing with a Borrowing of any Type, shall be
allocated pro rata among the Banks in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans);
provided, however, that payments or prepayments of principal or interest in
respect of any Competitive Bid Loan Borrowing shall be allocated pro rata among
the Banks participating in such Competitive Bid Loan Borrowing. Each Bank agrees
that in computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.17 Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Company, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of its Loans shall be proportionately less
than the unpaid principal portion of the Loans of any other Bank, it shall
promptly purchase from such other Bank at face value a participation in the
Loans of such other Bank, so that the aggregate unpaid principal amount of the
Loans and participations in Loans held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount of all Loans then
outstanding as the principal amount of its Loans prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all Loans outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Company expressly
consents to the foregoing arrangements and agrees that any Bank holding a
participation in a Loan deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Company to such Bank by reason thereof as fully as if such
Bank had made a Loan directly to the Company in the amount of such
participation.
SECTION 2.18 Payments. (a) The Company shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the
Administrative Agent at Loan and Agency Services, Attn: Andrew N. Stasiw, One
Chase Manhattan Plaza, 8th Floor, New York, New York 10081 (Telecopy No.
(212)-552-5662), in immediately available funds.
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(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.19 Taxes. (a) Any and all payments by the Company hereunder
shall be made, in accordance with Section 2.18, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding
taxes imposed on the Administrative Agent's or any Bank's income, and franchise
taxes imposed on the Administrative Agent or any Bank, by the United States or
any jurisdiction under the laws of which it is organized or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Company shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder to the Banks or the Administrative Agent (i) the
sum payable shall be increased by the amount necessary so that after making all
required deductions(including deductions applicable to additional sums payable
under this Section 2.19) such Bank or the Administrative Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank and the Administrative Agent
for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.19) paid by
such Bank or the Administrative Agent, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank or the
Administrative Agent, as the case may be, makes written demand therefor. If a
Bank or the Administrative Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes, it shall promptly notify
the Company of the availability of such refund and shall, within 30 days after
receipt of a request by the Company, apply for such refund at the Company's
expense. If any Bank or the Administrative Agent receives a refund in respect of
any Taxes or Other Taxes for which such Bank or the Administrative Agent has
received payment from the Company hereunder it shall promptly notify the Company
of such refund and shall, within 30 days after receipt of a request by the
Company (or promptly upon receipt, if the
-29-
Company has requested application for such refund pursuant hereto), repay such
refund to the Company without interest, provided that the Company, upon the
request of such Bank or the Administrative Agent, agrees to return such refund
(plus penalties, interest or other charges) to such Bank or the Administrative
Agent in the event such Bank or the Administrative Agent is required to repay
such refund.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Company in respect of any payment to any Bank or the
Administrative Agent, the Company will furnish to the Administrative Agent, at
its address referred to in Section 2.18, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Bank which is organized outside the United States shall
promptly notify the Company of any change in its funding office and upon written
request of the Company shall, prior to the immediately following due date of any
payment by the Company hereunder, deliver to the Company such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form 4224 and any
other certificate or statement of exemption required by Treasury Regulation
Section 1.1441-1(a) or Section 1.1441-6(c) or any subsequent version thereof,
properly completed and duly executed by such Bank establishing that such payment
is (i) not subject to withholding under the Code because such payment is
effectively connected with the conduct by such Bank of a trade or business in
the United States or (ii) totally exempt from United States tax under a
provision of an applicable tax treaty. Unless the Company and the Administrative
Agent have received forms or other documents satisfactory to them indicating
that payments hereunder are not subject to United States withholding tax or are
subject to such tax at a rate reduced by an applicable tax treaty, the Company
or the Administrative Agent shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Bank or assignee
organized under the laws of a jurisdiction outside the United States.
(g) Any Bank claiming any additional amounts payable pursuant to this
Section 2.19 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue and would not, in the sole
determination of such Bank, be otherwise disadvantageous to such Bank.
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III. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Banks that:
SECTION 3.01 Organization; Powers. Each of the Company and the
Subsidiaries (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Effect,
and (d) in the case of the Company, has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated thereby to which it is or
will be a party and to borrow hereunder.
SECTION 3.02 Authorization; Governmental Approvals. The execution,
delivery and performance by the Company of each of the Loan Documents, the
actions taken by the Company in connection with the borrowings hereunder (the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Company or any
Subsidiary, (B) any order of any Governmental Authority applicable to the
Company or (C) any provision of any indenture, agreement or other instrument to
which the Company or any Subsidiary is a party or by which any of them or any of
their property is or may be bound , (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon any property or assets of the Company or
any Subsidiary except Liens set forth on Schedule 6.01. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other person is required for the due execution,
delivery or performance by the Company of this Agreement, or any other Loan
Document to which it is a party.
SECTION 3.03 Enforceability. This Agreement has been duly executed and
delivered by the Company and constitutes, and each other Loan Document when
executed and delivered by the Company will constitute, a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms.
SECTION 3.04 Financial Statements. The Company has heretofore
furnished to the Banks (a) consolidated balance sheets and statements of income
and changes in stockholders' equity and cash flows as of and for the fiscal year
ended December 31, 1996, audited by and accompanied by the opinion of Coopers &
Lybrand, independent public accountants, and (b) its consolidated balance sheets
and statements of income and consolidated statement of cash flows as of and for
the fiscal quarter ended March 31, 1997, certified by its chief financial
officer. Such financial statements present fairly the financial condition and
results of operations of the Company and its consolidated Subsidiaries as of
such dates and for such periods. Such balance
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sheets and notes thereto disclose all material liabilities, direct or
contingent, of the Company and its Subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
SECTION 3.05 No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Company and the Subsidiaries, taken as a whole,
since December 31, 1996.
SECTION 3.06 Title to Properties and Possession Under Leases. (a) Each
of the Company and the Subsidiaries will on the Closing Date and at all times
thereafter, have good and marketable title to, or valid leasehold interests in,
all its material properties and assets, except for minor defects in title that
do not interfere with its ability to conduct its business as currently conducted
or to utilize such properties and assets for their intended purposes and except
for Liens permitted by Section 6.01. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.01.
(b) Each of the Company and the Subsidiaries (or their respective
predecessors) has complied with all obligations under all material leases to
which it is a party and all such leases are in full force and effect. Each of
the Company and the Subsidiaries enjoys peaceful and undisturbed possession
under all such material leases.
SECTION 3.07 The Subsidiaries and the Company. Schedule 3.07 sets
forth as of the Closing Date a list of all Subsidiaries and the percentage
ownership interest of the Company therein.
SECTION 3.08 Litigation: Compliance with Laws. (a) Except as set forth
in Schedule 3.08, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any business, property or rights of any such person (i) which
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, could, individually or in the aggregate, result in a Material
Adverse Effect.
(b) Neither the Company nor any of the Subsidiaries is in violation of
any law, rule or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default could result in a Material Adverse Effect.
SECTION 3.09 Agreements. (a) Neither the Company nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or, in the absence of a material default
by the Company or such Subsidiary, could result in a Material Adverse Effect.
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(b) Neither the Company nor any of its Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could result in a Material Adverse Effect.
SECTION 3.10 Federal Reserve Regulations. (a) Neither the Company nor
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including Regulation G, U or X.
SECTION 3.11 Investment Company Act; Public Utility Holding Company
Act. Neither the Company nor any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.12 Use of Proceeds. The Company will use the proceeds of the
Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.13 Tax Returns. Each of the Company and the Subsidiaries has
filed or caused to be filed all Federal, state and local tax returns required to
have been filed by it and has paid or caused to be paid all taxes shown to be
due and payable on such returns or on any assessments received by it, except
taxes that are being contested in accordance with Section 5.03.
SECTION 3.14 No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Company to the Administrative Agent or any Bank in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading.
SECTION 3.15 Employee Benefit Plans. Each of the Company and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Company or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $1,000,000 the value of the assets of such Plan.
Neither the Company nor any ERISA
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Affiliate has incurred any Withdrawal Liability that could result in a Material
Adverse Effect. Neither the Company nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated where such
reorganization or termination has resulted or could reasonably be expected to
result, through increases in the contributions required to be made to such Plan
or otherwise, in a Material Adverse Effect.
SECTION 3.16 Environmental Matters. Each of the Company and the
Subsidiaries, and each of their respective businesses, has complied in all
material respects with all Federal, state, local and other statutes, ordinances,
orders, judgments, rulings and regulations relating to environmental pollution
or to environmental regulation or control. Neither the Company nor any
Subsidiary has received notice of any failure so to comply which alone or
together with any other such failure could result in a Material Adverse Effect.
The Company's and the Subsidiaries', plants do not manage any hazardous wastes,
hazardous substances, hazardous materials, toxic substances or toxic pollutants,
as those terms are used in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act or the Clean Water Act, in violation of any regulations
promulgated pursuant thereto or in any other applicable law where such violation
could result, individually or together with other violations, in a Material
Adverse Effect.
SECTION 3.17 Solvency. On the date hereof and on the date of each
Borrowing hereunder after giving effect to each Loan to be made and the use of
the proceeds thereof, (a) the fair salable value of the assets of the Company
will exceed the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of the
Company as they mature; (b) the assets of the Company will not constitute
unreasonably small capital to carry out its business as conducted or as proposed
to be conducted; and (c) the Company will not intend to, and will not believe
that it will, incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be received by it and the
amounts to be payable on or in respect of its obligations).
IV. CONDITIONS OF LENDING
SECTION 4.01 All Borrowings. The obligations of the Banks to make
Loans hereunder on the date of each Borrowing hereunder, including each
Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.05, shall be subject to satisfaction of the following conditions
precedent:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article
III (excluding, in the case of a refinancing of a Borrowing with a new
Borrowing that does not increase the
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aggregate principal amount of the Loans of any Bank outstanding, the
representations set forth in Sections 3.05 and 3.08(a)) shall be true
and correct in all material respects on and as of the date of such
Borrowing with the same effect as if made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date.
(c) The Company shall be in compliance with all the terms
and provisions set forth herein on its part to be observed or
performed (including but not limited to, compliance with the financial
ratios and restrictions set forth in Sections 6.02, 6.04, 6.05, 6.07
and 6.08), and at the time of and immediately after such Borrowing no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02 Effectiveness of Agreement. The obligations of the Banks
to make Loans hereunder shall be subject to satisfaction on the Closing Date of
the following additional conditions precedent:
(a) The Administrative Agent shall have received a favorable
written opinion of Nancy M. Taylor, Esq. dated the Closing Date and
addressed to the Banks, to the effect set forth in Exhibit D hereto.
(b) All legal matters incident to this Agreement and the
borrowings hereunder shall be satisfactory to the Banks and their
counsel and to Mayer, Brown & Platt, counsel for the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy
of the certificate or articles of incorporation, including all
amendments thereto, of the Company, certified as of a recent date by
the Secretary of State of the state of its organization, and a
certificate as to the good standing of the Company as of a recent
date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of the Company dated the Closing Date
and certifying (A) that attached thereto is a true and complete copy
of the by-laws of the Company as in effect on the Closing Date and at
all times since a date prior to the date of the resolutions described
in clause (B) below, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of the
Loan Documents and the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of the
Company have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant
to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other
document delivered in connection herewith
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on behalf of the Company; (iii) a certificate of another officer as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above; and (iv)
such other documents as the Banks or their counsel or Mayer, Brown &
Platt, counsel for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Company, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received payment of
the fees then due set forth in the Engagement Letter dated June 12,
1997, among the Administrative Agent, Chase Securities Inc. and the
Company in the amounts set forth therein.
(f) The commitments under the Revolving Credit Facility
Agreement dated as of September 7, 1995, among the Company, the
lenders party thereto, The Chase Manhattan Bank (as successor of the
merger with Chemical Bank), as administrative agent, NationsBank,
N.A., and LTCB Trust Company, as co-agents (the "Existing Credit
Agreement"), shall have been terminated and all principal, interest
and other amounts outstanding thereunder shall have been paid in full.
V. AFFIRMATIVE COVENANTS
The Company covenants and agrees with each Bank and the Agents that so
long as this Agreement shall remain in effect or the principal of or interest on
any Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall be unpaid, unless the Required Banks shall otherwise consent in
writing, the Company will, and will cause each of the Subsidiaries to:
SECTION 5.01 Existence; Businesses and Properties Compliance. (a) Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly permitted
under Section 6.04.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations and orders
of any Governmental Authority, whether now in effect or hereafter enacted; and
at all times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
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SECTION 5.02 Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by
it; and maintain such other insurance as may be required by law.
SECTION 5.03 Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Company shall have
set aside on its books adequate reserves with respect thereto.
SECTION 5.04 Financial Statements, Reports, etc. In the case of the
Company, furnish to the Administrative Agent and each Bank:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheets and related statements of income and cash
flows, showing the financial condition of the Company and its
consolidated Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of such Subsidiaries
during such year, all audited by Coopers & Lybrand or other
independent public accountants of recognized national standing
acceptable to the Required Banks and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present
the financial condition and results of operations of the Company on a
consolidated basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheets
and related statements of income and cash flows, showing the financial
condition of the Company and its consolidated Subsidiaries as of the
close of such fiscal quarter and the results of its operations and the
operations of such Subsidiaries during such fiscal quarter and the
then elapsed portion of the fiscal year, all certified by one of its
Financial Officers as fairly presenting the financial condition and
results of operations of the Company on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under (a) or (b) above, a certificate of the accounting firm or
Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that
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no Event of Default or Default has occurred or, if such an Event of
Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii) setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating
compliance with the covenants contained in Sections 6.05, 6.07 and
6.08;
(d) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other
materials filed by it with the Securities and Exchange Commission, or
any governmental authority succeeding to any of or all the functions
of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Company or any Subsidiary, or compliance with the terms of any
Loan Document, as the Administrative Agent or any Bank may reasonably
request.
SECTION 5.05 Litigation and Other Notices. Furnish to the
Administrative Agent and each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature
and extent thereof and the corrective action (if any) proposed to be
taken with respect thereto;
(b) the filing or commencement of, or any threat or notice
of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Company or any Affiliate thereof
which, if adversely determined, could result in a Material Adverse
Effect;
(c) any development that has resulted in, or could
reasonably be anticipated to result in, a Material Adverse Effect.
SECTION 5.06 ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Administrative Agent and
each Bank (i) as soon as possible, and in any event within 30 days after any
Responsible Officer of the Company or any ERISA Affiliate either knows or has
reason to know that any Reportable Event has occurred that alone or together
with any other Reportable Event could reasonably be expected to result in
liability of the Company to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer setting forth details as to such
Reportable Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) promptly after receipt thereof, a Copy of any notice the Company
or any ERISA Affiliate may receive from the PBGC relating to the intention of
the PBGC to terminate any Plan or Plans (other than a Plan maintained by an
ERISA Affiliate which is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 412 of the Code) or to appoint a trustee to
administer any Plan or Plans, (iii) within 20 days after the due date for filing
with the
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PBGC pursuant to Section 412(n) of the Code of a notice of failure to make a
required installment or other payment with respect to a Plan, a statement of a
Financial Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Company or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Company or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, in each case within the meaning of Title IV of ERISA.
SECTION 5.07 Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Company or any Subsidiary at reasonable times
and as often as requested and to make extracts from and copies of such financial
records, and permit any representatives designated by any Bank to discuss the
affairs, finances and condition of the Company or any Subsidiary with the
officers thereof and independent accountants therefor.
SECTION 5.08 Use of Proceeds; Termination of Prior Credit Agreement.
(a) Simultaneous with or prior to the first Borrowing under this Agreement, (i)
use a portion of the proceeds of such Borrowing or other funds to pay in full
all principal, interest and other amounts outstanding under the Existing Credit
Agreement, if any, and (ii) terminate all commitments under the Existing Credit
Agreement.
(b) Use the remaining proceeds of the Loans only for the purposes set
forth in the preamble to this Agreement.
VI. NEGATIVE COVENANTS
The Company covenants and agrees with each Bank and the Agents that, so
long as this Agreement shall remain in effect or the principal of or interest on
any Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall be unpaid, unless the Required Banks shall otherwise consent in
writing, the Company will not, and will not cause or permit any of the
Subsidiaries to:
SECTION 6.01 Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary, but excluding Margin Stock to the extent that the
value of such Margin Stock, determined in accordance with Regulation U, exceeds
25% of the value (as so determined) of the assets and properties that would be
subject to this Section 6.01 without giving effect to this parenthetical, or
such other maximum amount or percentage as is then provided for or permitted
under Regulation U or any successor regulation in order that no Loan shall be
deemed "indirectly secured" by Margin Stock for purposes of such regulation),
now owned or hereafter acquired by it or on any income or rights in respect of
any thereof, except:
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(a) Liens on property or assets of the Company and its
Subsidiaries existing on the date hereof and set forth in Schedule
6.0l; provided that such Liens shall secure only those obligations
which they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition and (ii) such Lien does not apply to any other
property or assets of the Company or any Subsidiary;
(c) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations which are not due or which are being
contested in compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Company or any of its Subsidiaries;
(h) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Company or any Subsidiary;
provided that (i) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (ii) the Indebtedness secured thereby
does not exceed 80% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such
acquisition (or construction) and (iii) such security interests do not
apply to any other property or assets of the Company or any
Subsidiary; and
(i) Liens other than those referred to in subparagraphs (a)
through (h) above, provided that the sum of the aggregate amount of
all Indebtedness or other obligations which are secured or evidenced
by Liens other than those referred to in subparagraphs (a) through (h)
above plus the fair market value in the aggregate of properties sold
by the
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Company in the sale and lease-back transactions permitted under Section
6.02, does not at any time exceed an amount equal to 10% of
Consolidated Stockholders' Equity.
SECTION 6.02 Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided, however, that the
Company shall be permitted to enter into any such arrangements to the extent
that the sum of the fair market value in the aggregate of properties sold by the
Company pursuant to all such arrangements, plus the aggregate amount of
indebtedness secured by Liens under paragraph (i) of Section 6.01, is not
greater than 10% of Consolidated Stockholders' Equity.
SECTION 6.03 Obligations of Subsidiaries. Permit the Subsidiaries to
incur Indebtedness, except for Indebtedness which in the aggregate for all the
Subsidiaries constitutes not more than 10% of Consolidated Stockholders' Equity
at any time or Indebtedness to the Company incurred by the Subsidiaries in the
ordinary course of business.
SECTION 6.04 Mergers, Consolidations and Sales of Assets. Merge into
or consolidate with any other person, or permit any other person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of its
assets (whether now owned or hereafter acquired) or any capital stock of any
Subsidiary (other than any Margin Stock to the extent the value of such Margin
Stock, determined in accordance with Regulation U, together with the value of
other Margin Stock owned by the Company and its Subsidiaries, exceeds 25% of the
aggregate value of the assets of the Company and its Subsidiaries), or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or any substantial part of the assets or capital stock of any other person;
provided that nothing in the foregoing shall prohibit:
(a) the Company and any of its Subsidiaries from purchasing
or selling inventory in the ordinary course of business in
arm's-length transactions;
(b) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and
be continuing (i) any entity from merging into the Company or any
wholly owned Subsidiary in a transaction in which the Company or such
wholly owned Subsidiary, as the case may be, is the surviving
corporation, and (ii) the Company and any Subsidiary from acquiring
all or any substantial part of the assets or capital stock of any
other person; and
(c) the Company and any of its Subsidiaries from selling,
transferring, leasing or otherwise disposing of (in one transaction or
in a series of transactions) during any fiscal year in arm's-length
transactions (i) assets the fair market value of which is not more
than 10% of the consolidated assets of the Company calculated in
accordance with GAAP, determined as of the beginning of such fiscal
year and (ii) any other assets to the
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extent the Commitments of the Banks are permanently reduced pursuant to
Section 2.11 by the amount of the proceeds received by the Company from
the sale of such assets.
SECTION 6.05 Dividends and Distributions. Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its capital stock or set aside any amount for any
such purpose; provided, however, that (a) any Subsidiary may declare and pay
dividends or make other distributions to the Company and (b) if no Event of
Default or Default shall have occurred and be continuing, the Company may at any
time declare and pay dividends in an aggregate amount not at any time to exceed
$48,003,000 plus the Company's Consolidated Net Income for the period (which
shall be treated as a single accounting period) beginning on April 1, 1994 and
ending on the last day of the fiscal quarter for which financial statements of
the Company shall at such time most recently have been delivered pursuant to
Section 5.04.
SECTION 6.06 Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that as long as no Default or Event of Default shall have occurred and be
continuing, the Company or any Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Company or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties.
SECTION 6.07 Consolidated Stockholders' Equity. Permit Consolidated
Stockholders' Equity of the Company to be less than $100,000,000 at any time.
SECTION 6.08 Debt Ratio. Permit the Debt/Capitalization Ratio to
exceed 0.60 to 1.00 at any time.
VII. EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
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(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b) above)
due under any Loan Document, when and as the same shall become due and payable,
and such default shall continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by the
Company or any Subsidiary of any covenant, condition or agreement contained in
Section 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by the
Company or any Subsidiary of any covenant, condition or agreement contained in
any Loan Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of ten Business Days after notice
thereof from the Administrative Agent or any Bank to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any Indebtedness in an
aggregate principal amount in excess of $5,000,000, when and as the same shall
become due and payable, or (ii) fail to observe or perform any other term,
covenant, condition or agreement on its part to be performed under any agreement
or instrument evidencing or governing any such Indebtedness if the effect of any
failure referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Company or any Subsidiary, or of a substantial part of the
property or assets of the Company or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Company or any Subsidiary or for a substantial part of the property or
assets of the Company or a Subsidiary or (iii) the winding-up or liquidation of
the Company or any Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) the Company or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or condsent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or such
Significant Subsidiary or for a substantial part of the property or assets of
the Company or such Significant Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
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(v) make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Company or any Subsidiary to enforce any such
judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section 412(n)(1)
of the Code), shall have occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of the Company to the PBGC
or to a Plan in an aggregate amount exceeding $5,000,000 and, within 30 days
after the reporting of any such Reportable Event to the Administrative Agent or
after the receipt by the Administrative Agent of the statement required pursuant
to Section 5.06, the Administrative Agent shall have notified the Company in
writing that (i) the Required Banks have made a determination that, on the basis
of such Reportable Event or Reportable Events or the failure to make a required
payment, there are reasonable grounds (A) for the termination of such Plan or
Plans by the PBGC, (B) for the appointment by the appropriate United States
District Court of a trustee to administer such Plan or Plans or (C) for the
imposition of a lien in favor of a Plan and (ii) as a result thereof an Event of
Default exists hereunder; or a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans; or the PBGC shall institute
proceedings to terminate any Plan or Plans;
(k) the Company or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan, (ii) the Company or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability or is not in fact
contesting such Withdrawal Liability in a timely and appropriate manner and
(iii) the amount of the Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or dates of
such notification), exceeds $5,000,000 or requires payments exceeding $1,000,000
in any year;
(l) the Company or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if solely as a result of such reorganization or termination the aggregate annual
contributions of the Company and its ERISA Affiliates to all Multiemployer Plans
that are then in reorganization or have been or are being terminated have been
or will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an amount
exceeding $1,000,000; or
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(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Banks shall, by notice to the Company, take either or both of the
following actions, at the same or either or both of different times: (i)
terminate forthwith the Commitments and (ii) declare the Loans then outstanding
to be forthwith due and payable, whereupon the principal of the Loans, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Company accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Company, anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to the Company described in
paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Company
accrued hereunder and under any other Loan Document, shall automatically become
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Company, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
VIII. THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as sole Administrative Agent
on behalf of the Banks. Each of the Banks, and each subsequent Bank, hereby
irrevocably authorizes the Administrative Agent to take such actions on behalf
of such Bank or holder and to exercise such powers as are specifically delegated
to the Administrative Agent by the terms and provisions hereof, together with
such actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Banks, without hereby limiting any
implied authority, (a) to receive on behalf of the Banks all payments of
principal of and interest on the Loans and all other amounts due to the Banks
hereunder, and promptly to distribute to each Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the Banks to the
Company of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Bank copies of all notices, financial
statements and other materials delivered by the Company pursuant to this
Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or administrative agents shall be liable as such for any action taken
or omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Company of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Administrative Agent shall not be
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responsible to the Banks or any subsequent Bank for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or any
other Loan Documents or other instruments or agreements. The Administrative
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks
and, except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Banks and each
subsequent Bank. The Administrative Agent shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Company on account of the failure of or delay in performance or breach by any
Bank of any of its obligations hereunder or to any Bank on account of the
failure of or delay in performance or breach by any other Bank or the Company of
any of their respective obligations hereunder or under any other Loan Document
or in connection herewith or therewith. The Administrative Agent may execute any
and all duties hereunder by or through administrative agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the advice of such
counsel.
The Banks hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Banks.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Banks and the Company. Upon any such resignation, the Required
Banks shall appoint either NationsBank, N.A. or Long-Term Credit Bank of Japan,
Limited as successor Administrative Agent and, if such appointment is not
accepted by NationsBank, N.A. or Long-Term Credit Bank of Japan, Limited, the
Required Banks shall have the right to appoint a different successor. If no
successor shall have been appointed by the Required Banks and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent, which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.05 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 Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent and its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Bank and may exercise the same as though it
were not the Administrative Agent, and
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the Administrative Agent and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent.
Each Bank agrees (i) to reimburse the Administrative Agent, on demand,
in the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Banks by the Administrative Agent,
including counsel fees and compensation of administrative agents and employees
paid for services rendered on behalf of the Banks, which shall not have been
reimbursed by the Company and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or
administrative agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against it in
its capacity as the Administrative Agent or any of them in any way relating to
or arising out of this Agreement or any other Loan Document or any action taken
or omitted by it or any of them under this Agreement or any other Loan Document,
to the extent the same shall not have been reimbursed by the Company; provided
that no Bank shall be liable to the Administrative Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or administrative agents.
Each Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder. Neither
NationsBank, N.A. nor Long-Term Credit Bank of Japan, Limited shall have any
duties or obligations whatsoever under this Agreement or any other document or
matter related hereto, other than as a Bank, unless appointed as successor
Administrative Agent pursuant to this Article VIII.
IX. MISCELLANEOUS
SECTION 9.01 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telex, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Company, to it at 1100 Boulders Parkway,
Richmond, Virginia 23225, Attention of Norman A. Scher (Telecopy No.
(804) 330-1777);
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(b) if to the Administrative Agent, to it at 270 Park
Avenue, New York, New York 10017, Attention of Stewart U. Wallace,
Managing Director (Telecopy No. (212) 270-1403); and
(c) if to a Bank, to it at its address (or telecopy number)
set forth in Schedule 2.01.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telex, graphic scanning or other telegraphic communications equipment
of the sender, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Company herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the making by the Banks of
the Loans, regardless of any investigation made by the Banks or on their behalf,
and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid and so long as
the Commitments have not been terminated.
SECTION 9.03 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Bank, and thereafter shall be
binding upon and inure to the benefit of the Company, the Administrative Agent
and each Bank and their respective successors and assigns, except that the
Company shall not have the right to assign its obligations or rights hereunder
or any interest herein without the prior written consent of all the Banks.
SECTION 9.04 Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and (to the extent permitted by Section 9.04) assigns of
such party; and all covenants, promises and agreements by or on behalf of the
Company, the Administrative Agent or the Banks that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Bank may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment by a Bank to an Affiliate
of such Bank or another existing Bank (or its Affiliate), the Company and the
Administrative Agent must give their prior written consent to such assignment
(which
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consent shall not be unreasonably withheld), (ii) each such assignment shall be
of a constant, and not a varying, percentage of all the assigning Bank's rights
and obligations under this Agreement, (iii) the amount of the commitment or of
the outstanding Competitive Bid Loans of the assigning Bank subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $20,000,000 or such assigning Bank's entire Commitment or all of its
outstanding Competitive Bid Loans, if such Commitment or outstanding Competitive
Bid Loans are less than $20,000,000 and the amount of the Commitment or
outstanding Competitive Bid Loans of such Bank remaining after such assignment
shall not be less than $20,000,000 or shall be zero, (iv) the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance and a processing and recordation fee of $3,000, and
(v) each assignee shall deliver to the Administrative Agent a completed
Administrative Questionnaire in the form of Exhibit B. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank under this
Agreement and (B) the assigning Bank thereunder shall, to the extent provided in
such assignment, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Bank's rights and obligations under this Agreement, such
assigning Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim, such
assigning Bank makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto;
(ii) such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or any
Subsidiary or the performance or observance by the Company of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will independently and without reliance upon the Administrative Agent,
such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably
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incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Banks, and
the Commitment of, and principal amount of the Loans owing to, each Bank
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and the
Company, the Administrative Agent and the Banks may treat each person whose name
is recorded in the Register pursuant to the terms hereof as a Bank hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Company and any Bank, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Bank and an assignee, the processing and recordation
fee referred to in paragraph (b) above and, if required, the written consent of
the Company to such assignment, the Administrative Agent shall (subject to the
consent of the Administrative Agent to such assignment, if required), (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Banks.
(f) Each Bank may without the consent of the Company or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Bank's obligations under this Agreement shall
remain unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13 and 2.15 and to the indemnification
provisions contained in Section 9.05 to the same extent as if they were Banks
and (iv) the Company, the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, and such Bank shall retain
the sole right to enforce the obligations of the Company relating to the Loans
and to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers with respect to any
fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, or the dates fixed for payments of principal
of or interest on the Loans).
(g) Any Bank or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company furnished to such Bank by or
on behalf of the Company; provided that, prior to any such disclosure, each such
assignee or participant or proposed assignee or participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to
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preserve the confidentiality of any confidential information relating to the
Company received from such Bank.
(h) Notwithstanding any other provision set forth in this Agreement,
any Bank may, at any time, assign or pledge all or any portion of its Loans and
rights under this Agreement to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Federal Reserve Board, provided, that no such
pledge or assignment shall release the assigning Bank from any of its
obligations hereunder or substitute any such pledge or assignee for such Bank as
a party hereto.
(i) The Company shall not assign or delegate any of its respective
rights and duties hereunder.
SECTION 9.05 Expenses; Indemnity. (a) The Company agrees to pay all
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation of this Agreement and the other Loan Documents (including those
set forth in the Engagement Letter dated June 12, 1997, among the Administrative
Agent, Chase Securities Inc. and the Company) or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Administrative Agent or any Bank in connection with the
enforcement or protection of their rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made hereunder,
including the fees and disbursements of Mayer, Brown & Platt, counsel for the
Administrative Agent, and, in connection with any such amendment, modification
or waiver or any such enforcement or protection, the fees and disbursements of
any other counsel for the Administrative Agent or any Bank. The Company further
agrees that it shall indemnify the Banks from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Agreement or any of the other Loan
Documents.
(b) The Company agrees to indemnify the Administrative Agent, each
Bank and its directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees and expenses, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee.
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(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent or any Bank. All amounts due
under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06 Right of Setoff. If an Event of Default shall have
occurred and be continuing and any Bank shall have requested the Administrative
Agent to declare the Loans immediately due and payable pursuant to Article VII,
each Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Company against any of and all the obligations of the Company now or
hereafter existing under this Agreement and other Loan Documents held by such
Bank, irrespective of whether or not such Bank shall have made any demand under
this Agreement or such other Loan Document and although such obligations may be
unmatured. The rights of each Bank under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Bank may have.
SECTION 9.07 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08 Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Bank in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Banks hereunder and under the other Loan Documents
are cumulative and exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Company therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Company in any case
shall entitle the Company to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Banks; provided, however, that no
such agreement shall (i) change the principal amount of, or extend or advance
the maturity of or any date for the payment of any principal of or interest on,
any Loan, or waive or excuse any such payment or any part thereof, or change the
rate of interest on any Loan, without the prior written consent of each Bank
affected
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thereby, (ii) change the Commitment, Facility Fees or Utilization Fees of any
Bank without the prior written consent of such Bank, or (iii) amend or modify
the provisions of Section 2.15, the provisions of this Section or the definition
of the "Required Banks", without the prior written consent of each Bank;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent.
SECTION 9.09 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges which are treated as interest under applicable law
(collectively, the "Charges") as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Bank, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Bank in accordance with applicable law, the rate of interest
payable on such Loan, together with all Charges payable to such Bank, shall be
limited to the Maximum Rate.
SECTION 9.10 Entire Agreement. This Agreement and the other Loan
Documents and the letter agreements referred to in Section 2.06(b) constitute
the entire contract between the parties relative to the subject matter hereof.
Any previous agreement among the parties with respect to the subject matter
hereof is superseded by this Agreement and the other Loan Documents. Nothing in
this Agreement or in the other Loan Documents, expressed or implied, is intended
to confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
SECTION 9.11 Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Agreement or any of the other Loan Documents.
Each party hereto (a) certifies that no representative, administrative agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 9.11.
SECTION 9.12 Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held 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. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
-53-
SECTION 9.13 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15 Confidentiality. Any information obtained by the
Administrative Agent or any of the Banks from the Company shall not be disclosed
by the Administrative Agent or such Bank to any other person if such information
is not otherwise in the public domain except (i) to its officers, directors,
employees, administrative agents, independent accountants, Affiliates and legal
counsel (it being understood that the persons to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (ii) pursuant to statutory and
regulatory requirements or requests of regulatory authorities, (iii) pursuant to
any mandatory court order, subpoena or other legal process, (iv) to the
Administrative Agent or any other Bank, (v) pursuant to any agreement heretofore
or hereafter made between such Bank and the Company which permits such
disclosure, (vi) in connection with the exercise of any remedy under or
litigation in connection with the Loan Documents or (vii) subject to Section
9.04(g), to any participant in or assignee of, or prospective participant in or
assignee of, any Loan or Commitment.
SECTION 9.16 Jurisdiction; Consent to Service of Process. (a) The
Company hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any Bank
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against the Company or its properties in the courts
of any jurisdiction.
(b) The Company hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
-54-
Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
-55-
IN WITNESS WHEREOF, the Company, the Agents and the Banks have caused
this Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
TREDEGAR INDUSTRIES, INC.
By: /s/ N. A. Scher
Name: Norman Scher
Title: Executive Vice President and CFO
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
By: /s/ Stephanie Parker
Name: Stephanie Parker
Title: Assistant Vice President
NATIONSBANK, N.A., individually and
as Documentation-Agent,
By: /s/ E. Turner Coggin
Name: E. Turner Coggin
Title: Senior Vice President
LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
individually and as Co-Agent,
By: /s/ Satoru Otsubo
Name: Satoru Otsubo
Title:Joint General Manager
-56-
BANKS
THE BANK OF NOVA SCOTIA
By: /s/ James R. Trimble
Name: James R. Trimble
Title: Senior Relationship Manager
THE BANK OF NEW YORK
By: /s/ Ann Marie Hughes
Name: Ann Marie Hughes
Title: Assistant Vice President
CENTRAL FIDELITY NATIONAL BANK
By: /s/ Harry A. Turton, Jr.
Name: Harry A. Turton, Jr.
Title: Vice President
CRESTAR BANK
By: /s/ Christopher B. Werner
Name: Christopher B. Werner
Title: Vice President
FIRST UNION NATIONAL BANK OF VIRGINIA
By: /s/ Carrie H. McAllister
Name: Carrie H. McAllister
Title: Assistant Vice President
-57-
MELLON BANK
By: /s/ Michael C. Haines
Name: Michael C. Haines
Title: Banking Officer
SIGNET BANK
By: /s/ J. Charles Link
Name: J. Charles Link
Title: Senior Vice President
SOCIETE GENERALE
By: /s/ Ralph Saheb
Name: Ralph Saheb
Title: Vice President
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By: /s/ John C. Kissinger
Name: John C. Kissinger
Title: Join General Manager
WACHOVIA BANK, N.A.
By: /s/ Michael H. Trainor
Name: Michael H. Trainor
Title: Assistant Vice President
-58-
Schedule 2.01
Notice Information Commitment
THE CHASE MANHATTAN BANK $27,000,000
270 Park Avenue
New York, New York 10017
Attention: Stephanie Parker
Telephone: 212-270-6532
Facsimile: 212-270-1403
TREDEGAR INDUSTRIES, INC.
1100 Boulders Parkway
Richmond, Virginia 23225
Attention: Norman Scher
Telephone: (804) 330-1020
Facsimile: (804) 330-1777
NATIONSBANK 25,000,000
1111 East Main Street
4th Floor, Pavilion Building
Richmond, Virginia 23277
Attention: E. Turner Coggin
Telephone: (804) 788-3455
Facsimile: (804) 788-3669
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED 25,000,000
NEW YORK BRANCH
165 Broadway
New York, New York 10006
Attention: Kathy Santiago
Telephone: (212) 335-4400
Facsimile: (212) 608-2371
THE BANK OF NOVA SCOTIA 24,000,000
One Liberty Plaza
New York, New York 10006
Attention: James R. Trimble
Telephone: (212) 225-6405
Facsimile: (212) 225-5090
THE BANK OF NEW YORK 19,000,000
One Wall Street
New York, New York 10286
Attention: Ann Marie Hughes
Telephone: (212) 635-1339
Facsimile:
CENTRAL FIDELITY NATIONAL BANK 24,000,000
P.O. Box 27602
Richmond, Virginia 23261
Attention: Harry A. Turton
Telephone: (804) 697-6801
Facsimile: (804) 697-7465
CRESTAR BANK 24,000,000
P.O. Box 26665
Richmond, Virginia 23261-6665
Attention: Christopher B. Werner
Telephone: (804) 782-5998
Facsimile: (804) 782-5413
FIRST UNION NATIONAL BANK OF VIRGINIA 19,000,000
Portfolio Management Department
2810 Parham Road
Richmond, Virginia 23294
Attention: Carrie H. McAllister
Telephone: (804) 346-1395
Facsimile: (804) 346-1396
MELLON BANK 15,000,000
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258-0001
Attention: Michael C. Haines
Telephone: (412) 236-4808
Facsimile: (412) 234-8888
SIGNET BANK 15,000,000
800 East Main Street
P.O. Box 75870
Richmond, Virginia 23260-5970
Attention: J. Charles Link
Telephone: (804) 771-7034
Facsimile: (804) 771-7151
SOCIETE GENERALE 19,000,000
Trammell Crow Center
Suite 4800
2001 Ross Avenue
Dallas, Texas 76201
Attention: Ralph Saheb
Telephone: (214) 979-2764
Facsimile: (214) 979-1104
THE SUMITOMO BANK, LIMITED 15,000,000
NEW YORK BRANCH
277 Park Avenue
New York, New York 10172
Attention: John C. Kissinger
Telephone: (212) 224-4000
Facsimile:
WACHOVIA BANK, N.A. 24,000,000
100 North Main Street
Winston-Salem, North Carolina 27150-3099
Attention: Michael H. Trainor
Telephone: (910) 732-2530
Facsimile: (910) 732-6935
SCHEDULE 3.07
Part I
Part I
UNITED STATES SUBSIDIARIES
Percentage of
Common Stock
Owned Directly
or Indirectly
by the Company
APPX Software, Inc. 100%
BLC G.P., Inc. 100%
Bon L Campo Limited Partnership 100%
The William L. Bonnell Company, Inc. 100%
Capitol Products Corporation 100%
Fiberlux, Inc. 100%
Idlewood Properties, Inc. 100%
Molecumetics Institute, Ltd.1 90.5%
Molecumetics, Ltd. 90.5%
Tredegar Development Corporation 100%
Tredegar Exploration, Inc. 100%
Tredegar Investments, Inc. 100%
Tredegar Reserves, Inc. 100%
Virginia Techport, Inc. 100%
WLB L.P., Inc. 100%
- --------
1This company is a wholly-owned subsidiary of Molecumetics, Ltd., of which the
Company owns 90.5% of the outstanding common stock.
SCHEDULE 3.07
Part II
Part II
NON-UNITED STATES SUBSIDIARIES
Percentage of
Common Stock
Owned Directly
or Indirectly
by the Company
Guangzhou Tredegar Films Company Limited 98%
Tredegar Brasil Industria de Plasticos Ltda. 100%
Tredegar Film Products Argentina S.A. 99.99%
Tredegar Film Products, B.V. 100%
Tredegar Foreign Sales Corporation 100%
SCHEDULE 3.08
LITIGATION
None.
SCHEDULE 6.01
LIENS
Lien Claim Affidavit dated August 11, 1995 by Alamo Concrete Products, Ltd.
against Tannco Construction Co., recorded in Volume 154, Page 520 of the
Official Records of Wharton County, Texas, affecting the real property of Bon L
Campo Limited Partnership located at 902 Gladys Street, El Campo, Wharton
County, Texas. Such Lien Claim Affidavit was existing at the time Bon L Campo
Limited Partnership acquired the real property from Reynolds Metal Company on
May 30, 1997. Reynolds Metal Company is attempting to clear such Lien Claim
Affidavit and has indemnified Bon L Campo Limited Partnership from any loss
arising therefrom.
Exhibit A
FORM OF STANDBY BORROWING REQUEST
The Chase Manhattan Bank,
as Administrative Agent
Loan & Agency Services
1 CMP - 8th Floor
New York, New York 10081
Attention: Andrew Stasiw
[Date]
Dear Sirs:
The undersigned, TREDEGAR INDUSTRIES, INC. (the "Company"),
refers to the Revolving Credit Facility Agreement dated as of July 9, 1997 (as
the same may be modified, amended, extended or restated from time to time, the
"Credit Agreement"), among the Company and the Banks named therein. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Company hereby gives you
notice pursuant to Section 2.03 of the Credit Agreement that it requests a
Standby Borrowing under the Credit Agreement, and in that connection sets forth
below the terms on which such Standby Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day) _________________________
(B) Principal Amount of
Standby Borrowing1 _________________________
(C) Interest rate basis2 _________________________
(D) Interest Period and the last
day thereof3 _________________________
- --------
1 Not less than $5,000,000 and in integral multiples of $1,000,000.
2 Eurodollar Standby Loan, CD Loan or ABR Loan.
3 Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
Upon acceptance of any or all of the Loans made by the Banks in
response to this request, the Company shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c) of
the Credit Agreement have been satisfied.
Very truly yours,
TREDEGAR INDUSTRIES, INC.,
By__________________________
Title: [Responsible Officer]
2
EXHIBIT B
[Form of]
Administrative Questionnaire--Tredegar Industries, Inc.
Loan and Agency Services (ABS) will be providing the administrative servicing on
the above mentioned credit.
Please accurately complete the following information and return via FAX to the
attention of Andrew N. Stasiw at your earliest convenience.
The FAX number for return is 212/552-5662.
LEGAL NAME OF LENDER (TO APPEAR ON THE SIGNATURE LINE IN DOCUMENTATION):
- --------------------------------------------------------------------------------
GENERAL INFORMATION - Domestic Lending Office:
Institution Name:____________________________________________________
Street Address:______________________________________________________
City/State/Zip:______________________________________________________
GENERAL INFORMATION - Eurodollar Lending Office:
Institution Name:____________________________________________________
Street Address:______________________________________________________
City/State/Zip:______________________________________________________
TAX WITHHOLDING:
Non-Resident Alien:
_____Yes* _____No
*Form 4224 Enclosed
Tax ID Number: _______________________
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact: _________________________________________
Street Address: __________________________________________
City/State/Zip: __________________________________________
Phone Number: _________________________
FAX Number: _________________________
Back-up Contact: ________________________________________
Street Address: ________________________________________
City/State/Zip: ________________________________________
Phone Number: ________________________
FAX Number: ________________________
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYMENTS, INTEREST, ETC ...
Contact(s): ________________________________________
Street Address: ________________________________________
City/State/Zip: ________________________________________
Phone Number: _________________________
FAX Number: _________________________
ACCOUNT INFORMATION - PLEASE PROVIDE ONLY ONE SET OF INSTRUCTIONS FOR ALL TYPES
OF PAYMENT:
Name of Bank where funds are to be transferred:
---------------------------------------
Routing Transit/ABA Number of Bank where funds are to be transferred:
----------------------------------------------------------
Name of Account: ___________________________________
Account Number: ___________________________________
Additional Information: ___________________________________
-----------------------------------
It is very important that all of the above information is accurately filled in
and promptly returned. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call Andrew N. Stasiw at 212/552-7909. Thank you.
2
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated _____________________ , 19_____
Reference is made to the Revolving Credit Facility Agreement
dated as of July 9, 1997 (as the same may be modified, amended, extended or
restated from time to time, the "Credit Agreement"), among Tredegar Industries,
Inc., a Virginia corporation (the "Company") and the Banks named therein.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement.
_____________________________________(the "Assignor") and
_____________ ________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, % interest in and
to all the Assignor's rights and obligations under the Credit Agreement as of
the Assignment Date (as defined below) (including, without limitation, such
percentage interest in the Commitment of the Assignor on the Assignment Date and
such percentage interest in the Standby Loans [and Competitive Bid Loans] owing
to the Assignor outstanding on the Assignment Date together with such percentage
interest in all unpaid interest with respect to such Standby Loans [,
Competitive Bid Loans] and Facility Fees accrued to the Assignment Date).
2. The Assignor (i) represents that as of the date hereof, its
Commitment (without giving effect to assignments thereof which have not yet
become effective) is [$________] and the outstanding balance of its Standby
Loans (unreduced by any assignments thereof which have not yet become effective)
is $_________ [and the outstanding balance of its Competitive Bid Loans
(unreduced by any assignments thereof which have not yet become effective) is
$_________]; (ii) 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 and that such interest is free and clear of any adverse claim; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the performance or
observance by the Company of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to
Section 3.04 or 5.04 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; (iii) agrees that it will, independently and
without reliance upon the Administrative 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; (iv) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Administrative 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 the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; and (vi) agrees that it, will keep confidential all
information with respect to the Company furnished to it by the Company or the
Assignor (other than information generally available to the public or otherwise
available to the Assignor on a nonconfidential basis and other than disclosures
to bank regulatory authorities and otherwise as required by law or in connection
with the enforcement of the Loan Documents) [; and (vii) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the Assignee's exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are subject to
such tax at a rate reduced by an applicable tax treaty].1
4. The effective date for this Assignment and Acceptance shall be
___________________________ (the "Assignment Date").2
Following the execution of this Assignment and Acceptance, it will be delivered
to the Administrative Agent for acceptance and recording by the Administrative
Agent pursuant to Section 9.04 (e) of the Credit Agreement.
5. Upon such acceptance and recording, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after the
Assignment Date, the Administrative Agent shall make all payments in
- --------
1 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
2 See Section 9.04. Such date shall be at least five Business Days after the
execution of this Assignment and Acceptance and delivery thereof to the
Administrative Agent.
2
respect of the interest assigned hereby (including payments of principal,
interest, fees and other amounts) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments for periods prior to the
Assignment Date by the Administrative Agent or with respect to the making of
this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[NAME OF ASSIGNOR],
by:_______________________
Title:
[NAME OF ASSIGNEE],
by:_______________________
Title:
Accepted this __day
of _____, 19__
THE CHASE MANHATTAN BANK,
as Administrative Agent
by:______________________
Title:
3
Exhibit D
[Tredegar Letterhead]
July 9, 1997
To the Banks party to the Credit Agreement
referred to below
In care of The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Gentlemen:
I am General Counsel to Tredegar Industries, Inc., a Virginia
corporation (the "Company"), and have acted as counsel to the Company in
connection with the Revolving Credit Facility Agreement (as the same may be
modified, amended, extended or restated from time to time, the "Credit
Agreement") dated as of July 9, 1997, among the Company and the Banks named in
the Credit Agreement, providing for loans to be made to the Company in the
aggregate principal amount of $275,000,000. Unless otherwise noted, terms
defined in the Credit Agreement are used herein as defined therein.
In connection with the foregoing, I have reviewed the Credit
Agreement. I have also examined and relied upon copies, certified or otherwise
authenticated to my satisfaction, of documents reflecting corporate action of
the Company with respect to the Credit Agreement and certificates of public
officials, and have reviewed such other documents and matters of law as I have
deemed necessary to enable me to express the opinions set forth herein. As to
questions of fact material to my opinion, I have relied upon certificates of
officers of the Company and representations in the Credit Agreement by the
Company.
I do not purport to express an opinion on any laws other than
those of the Commonwealth of Virginia and the United States of America, except
that I have assumed that the laws of the State of New York are the same as the
Commonwealth of Virginia with respect to the opinions expressed in Paragraph 3
below.
Based upon and subject to the foregoing, and to the further
limitations and qualifications stated below, I am of the opinion that:
1. Each of the Company and the Subsidiaries of the Company listed
on Schedule 3.07 (Part I) of the Credit Agreement (the "United States
Subsidiaries" and each a "United States Subsidiary") (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to transact business in
each state where the failure to so qualify would have a material effect on the
business or financial condition of the Company and the Subsidiaries taken as a
whole and (b) has all requisite power and authority to own its property and
assets and to carry on its
business as now conducted and as proposed to be conducted. The Company has the
necessary corporate power to enter into and perform its obligations under the
Credit Agreement and to borrow under the Credit Agreement.
2. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Credit Agreement, the
borrowings by the Company under the Credit Agreement (a) have been duly
authorized by all necessary corporate action of the Company and all requisite
stockholder action, and do not and will not violate any provision of the
articles of incorporation or by-laws of the Company or any United States
Subsidiary or any provision of law or regulation, including Regulations G, U and
X, (b) do not, to the best of my knowledge, result in the breach of, or
constitute a default or require any consent under, or result in the creation of
any Lien upon any of its properties, revenues or assets pursuant to, any
indenture or other agreement or instrument to which the Company or any United
States Subsidiary is a party or by which the Company or any United States
Subsidiary or their properties may be bound, or (c) result in the creation or
imposition of any Lien upon property or assets of the Company or any United
States Subsidiary except Liens permitted by Section 6.01 of the Credit
Agreement.
3. The Credit Agreement constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms, except, in
each case, as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4. To the best of my knowledge, there are no legal or arbitral
proceedings, and no proceedings by or before any Governmental Authority, pending
or threatened against or affecting the Company or any properties or rights of
the Company that, if adversely determined, would have a material adverse effect
on (a) the financial condition, operations or business of the Company, or (b)
the ability of the Company to perform any of its obligations under the Loan
Documents or the Transactions or any rights or remedies available to the Banks
under the Loan Documents.
5. No authorizations, consents, approvals, licenses, filings or
registrations, with any Governmental Authority are required in connection with
the execution, delivery or performance by the Company of its obligations under
the Credit Agreement, other than those the failure of which to obtain would not
give rise to a Material Adverse Effect.
6. To the best of my knowledge, neither the Company nor any of the
United States Subsidiaries is in violation of any law, rule or regulation, or in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could result in a
Material Adverse Effect.
7. Neither the Company nor any United States Subsidiary is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
I have not been asked to and do not express any opinion with respect to
any matters except as expressly set forth above. This opinion is solely for your
benefit and may not be distributed to or relied upon by any other person, quoted
in whole or in part or otherwise reproduced in any other document without my
prior written consent.
Very truly yours,
Nancy M. Taylor
Exhibit E-1
COMPETITIVE BID LOAN BORROWING REQUEST
, 199
The Chase Manhattan Bank,
as Administrative Agent
Loan & Agency Services
1 CMP - 8th Floor
New York, New York 10081
Attention: Christopher Consomer
Tredegar Industries, Inc.
Reference is made to the Revolving Credit Facility Agreement, dated as
of July 9, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Tredegar Industries, Inc., a Virginia
corporation (the "Company"), the various financial institutions as are or may
become parties thereto (the "Banks"), The Chase Manhattan Bank, as
administrative agent for the Banks (the "Administrative Agent"), NationsBank,
N.A., as documentation agent and Long-Term Credit Bank of Japan, Limited, as
co-agent. Terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
This is a Competitive Bid Loan Borrowing Request* pursuant to Section
2.04(a) of the Credit Agreement requesting Competitive Bid Loan Offers for the
following Competitive Bid Loans:
- --------
* A Competitive Bid Loan Borrowing Request may be transmitted in writing, by
telecopy, or by telephone, immediately confirmed by telecopy. In any case, a
Competitive Bid Loan Borrowing Request shall contain the information specified
in the second paragraph of this form.
================================================================================
Loan 1 Loan 2* Loan 3**
- --------------------------------------------------------------------------------
Aggregate Principal
Amount** $ $ $
- --------------------------------------------------------------------------------
Date of Competitive
Bid Loan Borrowing
- --------------------------------------------------------------------------------
Interest Period and
last day thereof
- --------------------------------------------------------------------------------
Applicable Interest
Rate***
================================================================================
The Company hereby acknowledges that, pursuant to Section 4.01 of the Credit
Agreement, each of the delivery of this Borrowing Request and the acceptance by
the Company of the proceeds of the Borrowing requested hereby constitute a
representation and warranty by the Company that, on the date of such Borrowing,
and before and after giving effect thereto and to the application of the
proceeds therefrom, all statements set forth in clauses (b) and (c) of Section
4.01 are true and correct in all material respects.
The Company agrees that if prior to the date of the Borrowing requested
hereby any matter certified to herein by it will not be true and correct at such
date as if then made, it will immediately so notify the Administrative Agent.
Except to the extent, if any, that prior to the time of the Borrowing requested
hereby the Administrative Agent shall receive written notice to the contrary
from the Company, each matter certified to herein shall be deemed once again to
be certified as true and correct at the date of such Borrowing as if then made.
Very truly yours,
TREDEGAR INDUSTRIES, INC.
By
Name:
Title:
- --------
* Include if applicable.
** Must be an aggregate principal amount which is an integral multiple of
$1,000,000 and not less than $5,000,000.
*** Indicate whether the Competitive
Loan is to be a Competitive Bid LIBOR Loan or a Competitive Bid Absolute Rate
Loan.
2
Exhibit E-2
INVITATION FOR BID LOAN OFFERS
[NAME OF LENDER]
=======================
Attention: ___________
Invitation for Bid Loan Offers to Tredegar Industries, Inc.
Pursuant to Section 2.04(b) of the Revolving Credit Facility Agreement,
dated as of July 9, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Tredegar Industries, Inc., a
Virginia corporation (the "Company"), the various financial institutions as are
or may become parties thereto (the "Banks"), The Chase Manhattan Bank, as
administrative agent for the Banks (the "Administrative Agent"), NationsBank,
N.A., as documentation agent and Long-Term Credit Bank of Japan, Limited, as
co-agent(capitalized terms used herein are used as defined in the Credit
Agreement), we are pleased on behalf of the Company to invite you to submit
Competitive Bid Loan Offers to the Company for the following proposed
Competitive Bid Loan(s):
*1. Date of Proposed Competitive Bid Loan Borrowing:
__________ __, 19__.
2. Principal Amount
$
3. The Competitive Bid Loan Maturity Date will be
__________ __, 199_.
4. The Competitive Bid Loan Interest Payment Date(s) will be
________ __, 199_.
5. The Competitive Bid Loan will be a [Competitive Bid LIBOR
Loan] [Competitive Bid Absolute Rate Loan].
- --------
* Information to be repeated if multiple Competitive Bid Loans have been
requested in a single Competitive Bid Loan Borrowing Request.
PLEASE RESPOND TO THIS INVITATION BY NO LATER THAN 9:30 am (NEW YORK
CITY TIME) ON ____________ __, 199_.
THE CHASE MANHATTAN BANK, as
Administrative Agent
By____________________________
Title:
2
Exhibit E-3
COMPETITIVE BID LOAN OFFER
, 199
The Chase Manhattan Bank,
as Administrative Agent
Loan & Agency Services
1 CMP - 8th Floor
New York, New York 10081
Attention: Christopher Consomer
Tredegar Industries, Inc.
Reference is made to the Revolving Credit Facility Agreement, dated as
of July 9, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Tredegar Industries, Inc., a Virginia
corporation (the "Company"), the various financial institutions as are or may
become parties thereto (the "Banks"), The Chase Manhattan Bank, as
administrative agent for the Banks (the "Administrative Agent"), NationsBank,
N.A., as documentation agent and Long-Term Credit Bank of Japan, Limited, as
co-agent. Terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
In accordance with Section 2.04(c) of the Credit Agreement, the
undersigned Bank offers to make Competitive Bid Loans thereunder in the
following amounts with the following maturity dates:
================================================================================
Aggregate Maximum Amount: $ *
Bid Loan Borrowing:
, 199
================================================================================
Competitive Bid Loan Maturity Maximum Amount: $
Date/Interest Period $ offered at **
1: , 199 /___ days $ offered at **
================================================================================
Competitive Bid Loan Maturity Maximum Amount: $
Date/Interest Period 2***: $ offered at **
, 199 /___ days $ offered at **
================================================================================
Competitive Bid Loan Maturity Maximum Amount: $
Date/Interest Period 3***: $ offered at **
, 199 /____days $ offered at **
================================================================================
Very truly yours,
[NAME OF BANK]
By
Name:
Title:
Telephone No.:
Telecopy No.:
- ------------------------
* Must be in an integral multiple of $1,000,000 and not less than $5,000,000.
** Insert the Competitive Bid LIBO Rate and LIBO Rate Bid Margin or Absolute
Rate, as applicable.
***Include if applicable.
2
Exhibit E-4
COMPETITIVE BID LOAN ACCEPTANCE/REJECTION
, 199
The Chase Manhattan Bank,
as Administrative Agent
Loan & Agency Services
1 CMP - 8th Floor
New York, New York 10081
Attention: Christopher Consomer
Tredegar Industries, Inc.
Reference is made to the Revolving Credit Facility Agreement, dated as
of July 9, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Tredegar Industries, Inc., a Virginia
corporation (the "Company"), the various financial institutions as are or may
become parties thereto (the "Banks"), The Chase Manhattan Bank, as
administrative agent for the Banks (the "Administrative Agent"), NationsBank,
N.A., as documentation agent and Long-Term Credit Bank of Japan, Limited, as
co-agent. Terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
In accordance with Section 2.04(d) of the Credit Agreement, the
undersigned accepts and confirms the offers by the Bank(s) to make Competitive
Bid Loans to the undersigned on
__, 19 under Section 2.04 of the Credit Agreement in the (respective)
amount(s) set forth below:
Interest Period/
Principal Amount Interest Rate Maturity Date Lender
We hereby reject the following bids:
Interest Period/
Principal Amount Interest Rate Maturity Date Lender
The $______ should be deposited in Chase account number ________ on
[date].
Very truly yours,
TREDEGAR INDUSTRIES, INC.
By
Name:
Title:
Exhibit 11 - Computations of Earnings Per Share
Tredegar Industries, Inc. and Subsidiaries
(In Thousands, Except Per-Share Amounts)
(Unaudited)
Second Quarter Six Months
Ended June 30 Ended June 30
------------------------ ------------------------
1997 1996 1997 1996
Net income $ 16,347 $ 8,673 $ 27,301 $ 25,020
============ =========== =========== ============
Earnings per common and dilutive common
equivalent share as reported (1) $ 1.25 $ .66 $ 2.08 $ 1.92
============ =========== =========== ============
PRIMARY EARNINGS PER SHARE:
Shares issuable upon the assumed exercise
of outstanding stock options (2) 866 908 850 820
Weighted average common shares outstanding
during period 12,263 12,216 12,253 12,200
------------ ----------- ----------- ------------
Weighted average common and dilutive common
equivalent shares 13,129 13,124 13,103 13,020
============ =========== =========== ============
Primary earnings per share (1) $ 1.25 $ .66 $ 2.08 $ 1.92
============ =========== =========== ============
FULLY DILUTED EARNINGS PER SHARE:
Shares issuable upon the assumed exercise
of outstanding stock options (3) 908 922 921 893
Weighted average common shares outstanding
during period 12,263 12,216 12,253 12,200
------------ ----------- ----------- ------------
Weighted average common and dilutive common
equivalent shares 13,171 13,138 13,174 13,093
============ =========== =========== ============
Fully diluted earnings per share (3) $ 1.24 $ .66 $ 2.07 $ 1.91
============ =========== =========== ============
Notes to Exhibit 11:
(1) Shares used to compute earnings per common and dilutive common
equivalent share in the consolidated statements of income include
common stock equivalents.
(2) Computed using the average market price during the related period.
(3) Computed using the higher of the average market price during the
related period and the market price at the end of the related period.
Fully diluted earnings per common and dilutive common equivalent share
is not materially different (dilutive by 3% or more) from earnings per
common and dilutive common equivalent share reported in the
consolidated statements of income.
5
6-MOS
DEC-31-1997
JUN-30-1997
109,151
0
79,281
3,409
20,413
218,162
273,479
177,322
379,657
81,861
30,000
0
0
112,412
124,425
379,657
278,314
286,217
221,255
221,255
21,530
157
1,142
42,133
14,832
27,301
0
0
0
27,301
2.08
0.00
