$950,000,000
CREDIT AGREEMENT
Dated as of July 30, 1999
among
PRECISION CASTPARTS CORP.,
BANK OF AMERICA, N.A.
as Administrative Agent
and
Letter of Credit Issuing Bank
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
_______________________________________________________
Banc of America Securities LLC,
Sole Lead Arranger
and Sole Book Manager
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS 1
Section 1.01 Certain Defined Terms 1
Section 1.02 Other Interpretive Provisions 30
Section 1.03 Accounting Principles 32
ARTICLE II THE CREDITS
Section 2.01 Amounts and Terms of Commitment 32
Section 2.02 Loan Accounts 33
Section 2.03 Procedure for Borrowing 34
Section 2.04 Conversion and Continuation Elections 36
Section 2.05 Voluntary Termination or Reduction
of Commitments 37
Section 2.06 Swingline Loans 38
Section 2.07 Optional Prepayments 42
Section 2.08 Mandatory Prepayments of Loans;
Mandatory Commitment Reductions 42
Section 2.09 Repayment 44
Section 2.10 Interest 44
Section 2.11 Fees 45
Section 2.12 Computation of Fees and Interest 47
Section 2.13 Payments by the Company 47
Section 2.14 Payments by the Banks to the Agent 48
Section 2.15 Sharing of Payments, Etc. 49
ARTICLE III THE LETTERS OF CREDIT
Section 3.01 The Letter of Credit Facility 50
Section 3.02 Issuance, Amendment and Renewal
of Letters of Credit 52
Section 3.03 Risk Participations, Drawings and
Reimbursements 55
Section 3.04 Repayment of Participants 58
Section 3.05 Role of the Issuing Bank 59
Section 3.06 Obligations Absolute 60
Section 3.07 Cash Collateral Pledge 61
Section 3.08 Letter of Credit Fees 62
Section 3.09 Applicability of Uniform Customs
and Practice and ISP98 63
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
Section 4.01 Taxes 63
Section 4.02 Illegality 65
Section 4.03 Increased Costs and Reduction of Return 66
Section 4.04 Funding Losses 67
Section 4.05 Inability to Determine Rates 68
Section 4.06 Reserves on Offshore Rate Loans 68
Section 4.07 Certificate of Banks 69
Section 4.08 Substitution of Banks 69
Section 4.09 Survival 70
ARTICLE V CONDITIONS OF PRECEDENT
Section 5.01 Conditions of Initial Credit Extensions 70
Section 5.02 Conditions to Subsequent Credit Extensions 74
ARTICLE VI REPRESENTATIONS AND WARRANTIES
Section 6.01 Corporate Existence and Power 75
Section 6.02 Corporate Authorization; No Contravention 76
Section 6.03 Governmental Authorization 76
Section 6.04 Binding Effect 77
Section 6.05 Litigation 77
Section 6.06 No Defaults 78
Section 6.07 ERISA Compliance 78
Section 6.08 Use of Proceeds; Margin Regulations 79
Section 6.09 Title to Properties; Liens 79
Section 6.10 Taxes 79
Section 6.11 Financial Condition 80
Section 6.12 Environmental Matters 81
Section 6.13 Regulated Entities 81
Section 6.14 No Burdensome Restrictions; No Restrictions
on Subsidiary Dividends 81
Section 6.15 Copyrights, Patents, Trademarks and
Licenses, Etc. 82
Section 6.16 Subsidiaries 82
Section 6.17 Insurance 82
Section 6.18 Solvency 83
Section 6.19 Swap Obligations 83
Section 6.20 Year 2000 83
Section 6.21 Merger Representations 83
Section 6.22 Full Disclosure 84
ARTICLE VII AFFIRMATIVE COVENANTS
Section 7.01 Financial Statements 85
Section 7.02 Certificates; Other Information 86
Section 7.03 Notices 86
Section 7.04 Preservation of Corporate Existence, Etc. 88
Section 7.05 Maintenance of Property 89
Section 7.06 Insurance 89
Section 7.07 Payment of Obligations 89
Section 7.08 Compliance with Laws 90
Section 7.09 Compliance with ERISA 90
Section 7.10 Inspection of Property and Books
and Records 90
Section 7.11 Environmental Law 91
Section 7.12 Use of Proceeds 91
Section 7.13 Merger 91
Section 7.14 Further Assurances 91
ARTICLE VIII NEGATIVE COVENANTS
Section 8.01 Negative Pledges; Liens 92
Section 8.02 Disposition of Assets 95
Section 8.03 Consolidations and Mergers 97
Section 8.04 Loans and Investments 98
Section 8.05 Limitation on Indebtedness 99
Section 8.06 Transaction with Affiliates 100
Section 8.07 Use of Proceeds 101
Section 8.08 Contingent Obligations 101
Section 8.09 ERISA 102
Section 8.10 Change in Business 102
Section 8.11 Accounting Changes 102
Section 8.12 Transaction Documents 103
Section 8.13 Minimum Consolidated Net Worth 103
Section 8.14 Fixed Charge Coverage Ratio 103
Section 8.15 Leverage Ratio 103
Section 8.16 No Restrictions on Subsidiary Dividends 103
ARTICLE IX EVENTS OF DEFAULT
Section 9.01 Event of Default 104
Section 9.02 Remedies 108
ARTICLE X THE AGENT
Section 10.01 Appointment and Authorization; Agent 109
Section 10.02 Delegation of Duties 110
Section 10.03 Liability of Agent 110
Section 10.04 Reliance by Agent 111
Section 10.05 Notice of Default 112
Section 10.06 Credit Decision 112
Section 10.07 Indemnification of Agent 113
Section 10.08 Agent in Individual Capacity 114
Section 10.09 Successor Agent 114
Section 10.10 Withholding Tax 115
Section 10.11 Co-Agents; Lead Managers 117
ARTICLE XI MISCELLANEOUS
Section 11.01 Amendments and Waivers 117
Section 11.02 Notices 119
Section 11.03 No Waiver; Cumulative Remedies 120
Section 11.04 Costs and Expenses 120
Section 11.05 Company Indemnification 121
Section 11.06 Marshalling; Payments Set Aside 122
Section 11.07 Successors and Assigns 122
Section 11.08 Assignments, Participations, Etc. 123
Section 11.09 Confidentiality 126
Section 11.10 Set-off 127
Section 11.11 Automatic Debits of Fees 127
Section 11.12 Notification of Addresses, Lending
Offices, Etc. 128
Section 11.13 Counterparts 128
Section 11.14 Severability 128
Section 11.15 No Third Parties Benefited 128
Section 11.16 Governing Law and Jurisdiction 129
Section 11.17 Waiver of Jury Trial 129
Section 11.18 Entire Agreement 130
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of July
30, 1999, among PRECISION CASTPARTS CORP., an Oregon
corporation (the "Company"), the several financial
institutions from time to time party to this Agreement
(individually, a "Bank" and, collectively, the
"Banks"), The Bank of Nova Scotia and Wachovia Bank,
N.A., as co-syndication agents, and Bank of America,
N.A., as Issuing Bank, Swingline Bank and
administrative agent for itself and the other Banks (in
such capacity, the "Agent").
WHEREAS, the Banks have agreed to make available
to the Company a term loan and revolving credit
facility with letter of credit subfacility and a
swingline subfacility, upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein,
the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms.
The following terms have the following meanings
when used herein (including in the recitals hereof):
"Acquired Company" means ▇▇▇▇▇-▇▇▇▇▇▇
Company, a Massachusetts corporation.
"Acquisition" means any transaction or series
of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the
assets of a Person, or of any business or division
of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests,
membership interests or equity of any Person, or
otherwise causing any Person to become a
Subsidiary, or (c) a merger
Page 1
or consolidation or any other combination with
another Person (other than a Person that is a
Subsidiary), provided that the Company or the
Subsidiary is the surviving Person.
"Affiliate" means, as to any Person, any
other Person which, directly or indirectly, is in
control of, is controlled by, or is under common
control with, such Person. A Person shall be
deemed to control another Person if the
controlling Person possesses, directly or
indirectly, the power to direct or cause the
direction of the management and policies of the
other Person, whether through the ownership of
voting securities, membership interests, by
contract, or otherwise.
"Agent" means BofA in its capacity as
administrative agent for the Banks hereunder, and
any successor agent appointed or arising under
Section 10.09.
"Agent-Related Persons" means BofA and any
successor agent appointed or arising under Section
10.09 and any successor letter of credit issuing
bank hereunder, together with their respective
Affiliates (including, in the case of BofA, the
Lead Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agent's Payment Office" means the address
for payments set forth on Schedule 11.02 or such
other address in the United States as the Agent
may from time to time specify.
"Aggregate Commitment" means the combined
Commitments of the Banks.
"Agreement" means this Credit Agreement.
"Applicable Fee Amount" means with respect to
the commitment fees and Standby Letter of Credit
fees payable hereunder, the amount set forth
opposite the indicated Level below the heading
"Commitment Fee" or "Letter of Credit Fee," as
applicable, in the pricing grid set forth on
Annex I in accordance with the parameters for
calculations of such amount also set forth on
Annex I.
Page 2
"Applicable Margin" means, with respect to
Base Rate Loans and Offshore Rate Loans, the
amount set forth opposite the indicated Level
below the heading "Base Rate Spread" or "Offshore
Rate Spread," as applicable, in the pricing grid
set forth on Annex I in accordance with the
parameters for calculations of such amounts also
set forth on Annex I.
"Assignee" has the meaning specified in
subsection 11.08(a).
"Attorney Costs" means and includes all fees
and disbursements of any law firm or other
external counsel, the allocated cost of internal
legal services and all disbursements of internal
counsel.
"Bank" has the meaning specified in the
introductory clause hereto. References to the
"Banks" shall include each of the Issuing Bank and
the Swingline Bank in its capacity as such unless
the context otherwise clearly requires. For
purposes of clarification only, to the extent that
the Issuing Bank or the Swingline Bank may have
any rights or obligations in addition to those of
the Banks due to its status as Issuing Bank or
Swingline Bank, its status as such will be
specifically referenced.
"Bankruptcy Code" means the Federal
Bankruptcy Reform Act of 1978 (11 U.S.C. 101, et
seq.).
"Base Rate" means, for any day, the higher
of: (a) 0.50% per annum above the latest Federal
Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to
time by BofA as its "reference rate." (The
"reference rate" is a rate set by BofA based upon
various factors including BofA's costs and desired
return, general economic conditions and other
factors, and is used as a reference point for
pricing some loans, which may be priced at, above,
or below such announced rate.) Any change in the
reference rate announced by BofA shall take effect
at the opening of business on the day specified in
the public announcement of such change.
Page 3
"Base Rate Loan" means a Loan that bears
interest based on the Base Rate.
"BofA" means Bank of America, N.A., a
national banking association.
"Borrowing" means a borrowing hereunder
consisting of (i) Revolving Loans or Term Loans of
the same Type made to the Company on the same day
by the Banks under Article II, and, other than in
the case of Base Rate Loans, having the same
Interest Period, (ii) a Swingline Loan (or
Swingline Loans) made to the Company on the same
day by the Swingline Bank, or (ii) an L/C
Borrowing.
"Borrowing Date" means any date on which a
Borrowing occurs under Section 2.03 or
Section 2.06.
"Bridge Credit Agreement" means the Credit
Agreement, dated as of the date hereof, between
the Company and BofA.
"Bridge Loan Documents" means the Bridge
Credit Agreement, any promissory notes thereunder,
and all other documents delivered to BofA in
connection with the transactions contemplated by
the Bridge Credit Agreement.
"Business Day" means any day other than a
Saturday, Sunday or other day on which commercial
banks in New York City or San Francisco are
authorized or required by law to close and, if the
applicable Business Day relates to any Offshore
Rate Loan, means such a day on which dealings are
carried on in the London or other applicable
offshore Dollar interbank market.
"Capital Adequacy Regulation" means any
guideline, request or directive of any central
bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the
force of law, in each case, regarding capital
adequacy of any bank or of any corporation
controlling a bank.
"Cash Collateralize" means to pledge and
deposit with or deliver to the Agent, for the
benefit of the Agent, the
Page 4
Issuing Bank and the Banks, as collateral for the
L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance
reasonably satisfactory to the Agent and the
Issuing Bank (which documents are hereby consented
to by the Banks). Derivatives of such term shall
have corresponding meaning.
"Closing Date" means the date occurring on or
before March 1, 2000 on which all conditions
precedent set forth in Section 5.01 are satisfied
or waived by all Banks (or, in the case of
subsection 5.01(e), waived by the Person entitled
to receive such payment).
"Co-Agent" means each of The Bank of Nova
Scotia and Wachovia Bank, N.A., in its capacity as
co-syndication agent hereunder.
"Code" means the Internal Revenue Code of
1986.
"Commercial Letter of Credit" means a
commercial Letter of Credit Issued in respect of
the purchase of inventory or other goods and
services by the Company in the ordinary course of
business.
"Commitment," as to each Bank, means the sum
of its Revolving Commitment and Term Commitment.
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C.
"Consolidated Funded Indebtedness" means, as
of the date of determination and without
duplication, all Indebtedness of the Company and
its Subsidiaries representing all Indebtedness of
the type described in clauses (a), (c), (d) and
(f) (other than the attributable interest
component thereof) of the definition of
Indebtedness, and any Guaranty Obligation of the
Company and its Subsidiaries with respect to such
Indebtedness of another Person, plus the
outstanding amount under any Permitted Receivables
Sale Facility.
"Consolidated Interest Expense" means, for
any period, gross consolidated interest expense
for the period
Page 5
(including all commissions, discounts, fees and
other charges in connection with standby letters
of credit and similar instruments) for the Company
and its Subsidiaries.
"Consolidated Net Income" means for any
period the net sales from operations of the
Company and its Subsidiaries less all their
operating and non-operating expenses (including
taxes on income), but excluding all amounts with
respect to the operations of any Subsidiary for
any period prior to the time it shall have become
an Subsidiary.
"Consolidated Net Worth" means, as of the
date of determination, the consolidated
shareholders' equity of the Company and its
Subsidiaries; provided, however, that any
reduction in shareholders' equity directly
resulting from a change in GAAP shall be
disregarded in determining Consolidated Net Worth
for the purposes of this Agreement, but only if
and to the extent such change is (a) (i) a
mandatory change required as a result of a
definitive pronouncement by the Financial
Accounting Standards Board and (ii) concurred with
by the Independent Auditor; and (b) has no cash or
other working capital effect on the consolidated
balance sheet of the Company and its Subsidiaries.
"Consolidated Total Assets" means, as of the
date of determination, the consolidated total
assets of the Company and its Subsidiaries.
"Consolidated Total Revenues" means, as of
the date of determination, the consolidated net
sales of the Company and its Subsidiaries.
"Contingent Obligation" means, as to any
Person, any direct or indirect liability of that
Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness,
lease, dividend, letter of credit or other
obligation (the "primary obligations") of another
Person (the "primary obligor"), including any
obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to
advance or provide funds for the payment or
discharge of any such primary obligation, or to
maintain
Page 6
working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of
income or financial condition of the primary
obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the
owner of any such primary obligation of the
ability of the primary obligor to make payment of
such primary obligation, (iv) in connection with
any synthetic lease or other similar off balance
sheet lease transaction, or (v) otherwise to
assure or hold harmless the holder of any such
primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect
to any Surety Instrument issued for the account of
that Person or as to which that Person is
otherwise liable for reimbursement of drawings or
payments; (c) to purchase any materials, supplies
or other property from, or to obtain the services
of, another Person if the relevant contract or
other related document or obligation requires that
payment for such materials, supplies or other
property, or for such services, shall be made
regardless of whether delivery of such materials,
supplies or other property is ever made or
tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract.
The amount of any Contingent Obligation shall, in
the case of Guaranty Obligations, be deemed equal
to the stated or determinable amount of the
primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or
if indeterminable, the maximum reasonably
anticipated liability in respect thereof, and in
the case of other Contingent Obligations other
than in respect of Swap Contracts, shall be equal
to the maximum reasonably anticipated liability in
respect thereof and, in the case of Contingent
Obligations in respect of Swap Contracts, shall be
equal to the Swap Termination Value.
"Contractual Obligation" means, as to any
Person, any provision of any security issued by
such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or
other instrument, document or agreement to which
such Person is a party or by which it or any of
its property is bound.
Page 7
"Conversion/Continuation Date" means any date
on which, under Section 2.04, the Company
(a) converts Loans of one Type to another Type, or
(b) continues as Loans of the same Type, but with
a new Interest Period, Loans having Interest
Periods expiring on such date.
"Credit Extension" means and includes (a) the
making of any Revolving Loans, Term Loans and
Swingline Loans hereunder, and (b) the Issuance of
any Letters of Credit hereunder.
"Default" means any event or circumstance
which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of
Default.
"Documents" means the Loan Documents, the
Transaction Documents and the Bridge Loan
Documents.
"Dollars," "dollars" and "$" each mean lawful
money of the United States.
"EBITDA" means, for any period, for the
Company and its Subsidiaries on a consolidated
basis the sum of (a) the net income (or net loss)
for such period (computed without giving effect to
extraordinary losses and extraordinary gains) plus
(b) all amounts treated as expenses for
depreciation, interest and the amortization of
intangibles of any kind to the extent included in
the determination of such net income (or loss),
plus (c) all accrued taxes on or measured by
income to the extent included in the determination
of such net income (or loss). In computing EBITDA
for any period before the Acquired Company became
a Subsidiary of the Company, EBITDA shall include
the EBITDA of the Acquired Company, except that
there shall be included in EBITDA of the Acquired
Company for the fiscal quarter ended August 31,
1998, up to $3,000,000, for the fiscal quarter
ended November 30, 1998, up to $2,000,000, and for
the fiscal quarter ended February 28, 1999, up to
$30,000,000, in respect of extraordinary and
nonrecurring charges. Additionally, when so
including EBITDA of the Acquired Company, to the
extent necessary the fiscal
Page 8
quarter(s) of the Acquired Company ending
immediately prior to the applicable fiscal
quarter(s) of the Company will be used.
"Effective Amount" means (i) with respect to
any Revolving Loans, Swingline Loans and Term
Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to
any Borrowings and prepayments or repayments of
Term Loans, Revolving Loans and Swingline Loans
occurring on such date; and (ii) with respect to
any outstanding L/C Obligations on any date, the
amount of such L/C Obligations on such date after
giving effect to any Issuances of Letters of
Credit occurring on such date and any other
changes in the aggregate amount of the L/C
Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any
reductions in the maximum amount available for
drawing under Letters of Credit taking effect on
such date; provided that for purposes of Section
2.08, the Effective Amount shall be determined
without giving effect to any mandatory prepayments
to be made under Section 2.08.
"Eligible Assignee" means (a) a commercial
bank organized under the laws of the United
States, or any state thereof, and having a
combined capital and surplus of at least
$250,000,000; (b) a commercial bank organized
under the laws of any other country which is a
member of the Organization for Economic
Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and
having a combined capital and surplus of at least
$250,000,000, provided that such bank is acting
through a branch or agency located in the United
States; and (c) a Person that is primarily engaged
in the business of commercial banking and that is
(i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a
Person of which a Bank is a Subsidiary. No
proposed assignee shall be an Eligible Assignee if
the effect of the assignment to the proposed
assignee would be to impose increased costs on the
Company pursuant to Section 4.01 or if the
representation contained in Section 4.01(f) would
not be true as to such Person if made as to such
Person on the date of assignment.
Page 9
"Environmental Claims" means all claims,
however asserted, by any Governmental Authority or
other Person alleging potential liability or
responsibility for violation of any Environmental
Law.
"Environmental Laws" means all federal, state
or local laws, statutes, common law duties, rules,
regulations, ordinances and codes, together with
all administrative orders, directed duties,
requests, licenses, authorizations and permits of,
and agreements with, any Governmental Authorities,
in each case relating to environmental, health,
safety and land use matters.
"ERISA" means the Employee Retirement Income
Security Act of 1974.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) under common control
with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event
with respect to a Pension Plan; (b) a withdrawal
by the Company or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is
treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by
the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan;
(e) an event or condition which might reasonably
be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not
delinquent
Page 10
under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate in excess of $5,000,000.
"Event of Default" means any of the events or
circumstances specified in Section 9.01.
"Exchange Act" means the Securities Exchange
Act of 1934.
"Existing Credit Facility" means the Credit
Agreement dated as of July 31, 1996, as amended,
among the Company, BofA as agent, the other
financial institutions party thereto, and others.
"Existing Lines of Business" means those
lines of business carried on by the Company, the
Acquired Company and their Subsidiaries on the
date hereof.
"Existing Securities" means the Company's
outstanding debt securities under that certain
Indenture dated as of December 17, 1997.
"Federal Funds Rate" means, for any day, the
rate set forth in the weekly statistical release
designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank
of New York with respect to the preceding Business
Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such
rate is not so published with respect to any such
preceding Business Day, the rate for such day will
be the arithmetic mean as determined by the Agent
of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three
leading brokers of Federal funds transactions in
New York City selected by the Agent.
"Fee Letter" has the meaning specified in
subsection 2.11(a).
"Fixed Charge Coverage Ratio" means for any
period the ratio of (i) (A) EBITDA minus (B) all
accrued taxes on or measured by income to the
extent included in the determination of net income
(or loss) included in the
Page 11
calculation of EBITDA for such period, in the case
of (A) and (B) calculated on a four quarter
rolling basis for the applicable fiscal quarter
and the three immediately preceding fiscal
quarters, to (ii) (A) Consolidated Interest
Expense, calculated on a four quarter rolling
basis for the applicable fiscal quarter and the
three immediately preceding fiscal quarters plus
(B) the current portion of long-term debt
(excluding therefrom up to $9,000,000 of
Indebtedness in respect of the Michigan Strategic
Fund Industrial Development Revenue Bonds (Norcor
Manufacturing Project) maturing December 1, 2000),
determined on a consolidated basis for the Company
and its Subsidiaries.
"Foreign Subsidiary" means each Subsidiary of
the Company organized under the laws of any
jurisdiction outside of the United States which is
also located outside of the United States.
"FRB" means the Board of Governors of the
Federal Reserve System, and any Governmental
Authority succeeding to any of its principal
functions.
"Further Taxes" means any and all present or
future taxes, levies, assessments, imposts,
duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise
taxes), and all liabilities with respect thereto,
imposed by any jurisdiction on account of amounts
payable or paid pursuant to Section 4.01.
"GAAP" means generally accepted accounting
principles set forth from time to time in the
opinions and pronouncements of the Accounting
Principles Board and the American Institute of
Certified Public Accountants and statements and
pronouncements of the Financial Accounting
Standards Board (or agencies with similar
functions of comparable stature and authority
within the U.S. accounting profession), which are
applicable to the circumstances as of the date of
application.
"Governmental Authority" means any nation or
government, any state or other political
subdivision thereof, any central bank (or similar
monetary or
Page 12
regulatory authority) thereof, any entity
exercising executive, legislative, judicial,
regulatory or administrative functions of or
pertaining to government, and any corporation or
other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the
foregoing.
"Guaranty Obligation" has the meaning
specified in the definition of "Contingent
Obligation."
"Honor Date" has the meaning specified in
subsection 3.03(b).
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976.
"Indebtedness" of any Person means, without
duplication, (a) all indebtedness for borrowed
money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property
or services (other than trade payables and accrued
liabilities incurred in the ordinary course of
business on ordinary terms); (c) all non-
contingent reimbursement or payment obligations
with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so
evidenced incurred in connection with the
acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any
conditional sale or other title retention
agreement, or incurred as financing, in either
case with respect to property acquired by the
Person (even though the rights and remedies of the
seller or bank under such agreement in the event
of default are limited to repossession or sale of
such property); (f) all obligations with respect
to capital leases; (g) all indebtedness referred
to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be
secured by) any Lien upon or in property
(including accounts and contracts rights) owned by
such Person, even though such Person has not
assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in
respect of indebtedness or obligations of others
of the kinds referred to in clauses
Page 13
(a) through (g) above; provided that Indebtedness
shall not include sales of Permitted Receivables
sold pursuant to Permitted Receivables Purchase
Facilities and indemnification, recourse or
repurchase obligations thereunder. For all
purposes of this Agreement, the Indebtedness of
any Person shall include any Indebtedness of any
partnership or joint venture in which such Person
is a general partner or a joint venturer to the
extent of any amount thereof as to which recourse
to such Person exists.
"Indemnified Liabilities" has the meaning
specified in Section 11.05.
"Indemnified Person" has the meaning
specified in Section 11.05.
"Independent Auditor" has the meaning
specified in subsection 7.01(a).
"Insolvency Proceeding" means, with respect
to any Person, (a) any case, action or proceeding
with respect to such Person before any court or
other Governmental Authority relating to
bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general
assignment for the benefit of creditors,
composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its
creditors generally or any substantial portion of
its creditors; in either case undertaken under
U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"Interest Payment Date" means (i) as to any
Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and,
as to any Base Rate Loan which is not a Swingline
Loan, the last Business Day of each calendar
quarter and the Revolving Termination Date (in the
case of Revolving Loans) and the Term Maturity
Date (in the case of Term Loans), and (ii) with
respect to any Base Rate Loan that is a Swingline
Loan, the Business Day on which principal of such
Swingline Loan is repaid or as otherwise provided
in Section 2.06(e); provided, however, that if any
Page 14
Interest Period for Offshore Rate Loan exceeds
three months, the date that falls three months
after the beginning of such Interest Period and
after each Interest Payment Date thereafter is
also an Interest Payment Date.
"Interest Period" means, as to any Offshore
Rate Loan, the period commencing on the Borrowing
Date of such Loan or on the
Conversion/Continuation Date on which the Loan is
converted into or continued as an Offshore Rate
Loan, and ending on the date one, two, three or
six months thereafter;
provided that:
(i) if any Interest Period would
otherwise end on a day that is not a Business
Day, that Interest Period shall be extended
to the following Business Day unless the
result of such extension would be to carry
such Interest Period into another calendar
month, in which event such Interest Period
shall end on the preceding Business Day;
(ii) any Interest Period that begins on
the last Business Day of a calendar month (or
on a day for which there is no numerically
corresponding day in the calendar month at
the end of such Interest Period) shall end on
the last Business Day of the calendar month
at the end of such Interest Period;
(iii) no Interest Period for any
Term Loan shall extend beyond the Term
Maturity Date, and no Interest Period for any
Revolving Loan shall extend beyond the
Revolving Termination Date; and
(iv) no Interest Period applicable to
a Term Loan or portion thereof
shall extend beyond any date
upon which is due any scheduled
principal payment in respect of
the Term Loans unless the
aggregate principal amount of
Term Loans represented by Base
Rate Loans, or by Offshore Rate
Loans having Interest Periods
that ▇▇▇▇
▇▇▇▇ 15
expire on or before such date,
equals or exceeds the amount of
such principal payment.
"Investment" has the meaning specified in
Section 8.04.
"IRS" means the Internal Revenue Service, and
any Governmental Authority succeeding to any of
its principal functions under the Code.
"Issuance Date" has the meaning specified in
subsection 3.01(a).
"Issue" means, with respect to any Letter of
Credit, to issue or to extend the expiry of, or to
renew, amend or increase the amount of such Letter
of Credit; and the terms "Issued," "Issuing" and
"Issuance" have corresponding meanings.
"Issuing Bank" means BofA in its capacity as
issuer of one or more Letters of Credit hereunder,
together with any replacement letter of credit
issuer arising under subsection 10.01(b) or
Section 10.09. Specific reference to the Issuing
Bank shall exclude the Issuing Bank in its
capacity as a Bank hereunder.
"Joint Venture" means a single-purpose
corporation, partnership, limited liability
company, joint venture or other similar legal
arrangement (whether created by contract or
conducted through a separate legal entity) now or
hereafter formed by the Company or any of its
Subsidiaries with another Person in order to
conduct a common venture or enterprise with such
Person.
"L/C Advance" means each Bank's participation
in any L/C Borrowing in accordance with its Pro
Rata Share.
"L/C Amendment Application" means an
application form for amendment of outstanding
Standby or Commercial Letters of Credit as shall
at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
Page 16
"L/C Application" means an application form
for issuances of Standby or Commercial Letters of
Credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit
resulting from a drawing under any Letter of
Credit which shall not have been reimbursed on the
date when made nor converted into a Borrowing of
Revolving Loans under subsection 3.03(b).
"L/C Commitment" means the commitment of the
Issuing Bank to Issue, and the commitment of the
Banks severally to participate in, Letters of
Credit from time to time Issued or outstanding
under Article III, in an aggregate amount not to
exceed on any date the amount of $50,000,000, as
the same shall be reduced as a result of a
reduction in the L/C Commitment pursuant to
Section 2.05; provided that the L/C Commitment is
a part of the combined Revolving Commitments,
rather than a separate, independent commitment;
and provided further that if as a result of any
Commitment reductions hereunder the L/C Commitment
shall exceed the combined Revolving Commitments ,
the L/C Commitment shall automatically reduce by
the amount of such excess.
"L/C Obligations" means at any time the sum
of (a) the aggregate undrawn amount of all Letters
of Credit then outstanding, plus (b) the amount of
all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of
Credit, the L/C Applications, the L/C Amendment
Applications and any other document relating to
any Letter of Credit, including any of the Issuing
Bank's standard form documents for letter of
credit issuances.
"Lead Arranger" means Banc of America
Securities LLC, a Delaware limited liability
company, in its capacity as Sole Lead Arranger and
Sole Book Manager.
"Lending Office" means, as to any Bank, the
office or offices of such Bank specified as its
"Lending Office" or
Page 17
"Domestic Lending Office" or "Offshore Lending
Office," as the case may be, on Schedule 11.02, or
such other office or offices as such Bank may from
time to time notify to the Company and the Agent.
"Letters of Credit" means any letters of
credit (whether Standby Letters of Credit or
Commercial Letters of Credit) Issued by the
Issuing Bank pursuant to Article III.
"Leverage Ratio" means for any period the
ratio of (i) Consolidated Funded Indebtedness to
(ii) EBITDA, calculated on a four quarter rolling
basis for the applicable fiscal quarter and the
three immediately preceding fiscal quarters.
"Lien" means any security interest, mortgage,
deed of trust, pledge, hypothecation, assignment,
charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement
of any kind or nature whatsoever in respect of any
property having the same practical effect as a
security interest (including those created by,
arising under or evidenced by any conditional sale
or other title retention agreement, the interest
of a lessor under a capital lease, any financing
lease having substantially the same economic
effect as any of the foregoing, or the filing of
any financing statement naming the owner of the
asset to which such lien relates as debtor, under
the Uniform Commercial Code or any comparable
law), but not including the interest of a lessor
under an operating lease or the interest of a
purchaser of Permitted Receivables under any
Permitted Receivables Purchase Facility.
"Loan" means an extension of credit, in the
form of a Revolving Loan, Term Loan or a Swingline
Loan by a Bank to the Company under Article II,
which may be a Base Rate Loan or an Offshore Rate
Loan (each a "Type" of Loan), or Article III in
the form of an L/C Advance.
"Loan Documents" means this Agreement, any
Notes, the Fee Letter, and all other documents
delivered to the Agent or any Bank in connection
with the transactions contemplated by this
Agreement.
Page 18
"Majority Banks" means at any time Banks then
holding in excess of 50% of the then aggregate
Credit Exposure of all the Banks, or, if no Credit
Exposure exists, Banks then having in excess of
50% of the sum of the combined Revolving
Commitments and the combined Term Commitments (if
any). As used in this definition, the "Credit
Exposure" of any Bank means (i) with respect to
any outstanding Revolving Loans, the aggregate
outstanding principal amount of the Revolving
Loans made by such Bank, (ii) with respect to any
outstanding Term Loans, the aggregate outstanding
principal amount of the Term Loans made by such
Bank, and (iii) with respect to any outstanding
Swingline Loans and L/C Obligations, the
participating interest therein equal to such
Bank's Pro Rata Share thereof.
"Margin Stock" means "margin stock" as such
term is defined in Regulation T, U or X of the
FRB.
"Material Adverse Effect" means (a) a
material adverse change in, or a material adverse
effect upon, the operations, business, or
condition (financial or otherwise) of the Company,
the Acquired Company and its Subsidiaries taken as
a whole, (b) a material impairment of the ability
of the Company or any Subsidiary to perform under
any Document and to avoid any Event of Default; or
(c) a material adverse effect upon the legality,
validity, binding effect or enforceability against
the Company or any Subsidiary of any Document.
For purposes of this definition, a liability shall
be considered to be material if it involves a cost
to or expenditure by the Person of $35,000,000 or
more, net of amounts recoverable from insurers
where coverage is not contested or pursuant to
uncontested rights of subrogation, contribution or
indemnity.
"Merger" means the merger of the Acquired
Company and the Purchaser, as contemplated by the
Merger Agreement.
"Merger Agreement" means the Agreement and
Plan of Merger, dated as of May 17, 1999, by and
among the Company, the Purchaser and the Acquired
Company.
Page 19
"Minimum Amount" means (i) in respect of any
Borrowing, conversion or continuation of Loans,
(a) in the case of Base Rate Loans or Offshore
Rate Loans, an aggregate minimum amount of
$5,000,000 or any integral multiple of $1,000,000
in excess thereof, (b) in the case of Swingline
Loans, an aggregate minimum amount of $1,000,000
or any integral multiple of $500,000 in excess
thereof (or such other amount as shall be
acceptable to the Swingline Bank); and (ii) in the
case of any reduction of the Commitments under
Section 2.05, or optional prepayment of Loans
under Section 2.07, $10,000,000 or any multiple of
$1,000,000 in excess thereof.
"Minimum Condition" means the minimum number
of shares required to be tendered and not
withdrawn prior to the expiration of the Offer, as
specified in the Merger Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service,
Inc.
"Multiemployer Plan" means a "multiemployer
plan," within the meaning of Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make
contributions or, during the preceding three
calendar years, has made, or been obligated to
make, contributions.
"Net Equity Proceeds" means, as to the
issuance of any equity securities, cash proceeds
received in connection therewith, net of ordinary
and necessary out-of-pocket costs and expenses
paid or incurred in connection therewith in favor
of any Person not an Affiliate of the Company.
"Net Proceeds" means, as to any Permitted
Receivable Purchase Facility, or the issuance of
any debt or equity securities, cash proceeds
received in connection therewith, net of ordinary
and necessary out-of-pocket costs and expenses
paid or incurred in connection therewith in favor
of any Person not an Affiliate of the Company.
"Note" means a Revolving Note or a Term Note.
Page 20
"Notice of Borrowing" means a notice in
substantially the form of Exhibit A.
"Notice of Conversion/Continuation" means a
notice in substantially the form of Exhibit B.
"Obligations" means the Revolving Loans,
Swingline Loans, Term Loans, L/C Obligations and
other Indebtedness arising under any Loan Document
owing by the Company to any Bank, the Agent, the
Issuing Bank, the Swingline Bank, or any
Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute
or contingent, due or to become due, now existing
or hereafter arising.
"Offer" means, collectively, the Tender Offer
Statement filed by the Purchaser on May 21, 1999
with the SEC on Schedule 14D-1, the Offer to
Purchase dated May 21, 1999, the related letter of
transmittal, and any public announcement relating
to the foregoing.
"Offshore Rate" means: (i) the rate of
interest per annum determined by the Agent to be
the rate of interest per annum (rounded upward to
the nearest 1/100th of 1%) appearing on Dow ▇▇▇▇▇
Page 3750 (as defined below) for Dollar deposits
in the approximate amount of the Offshore Rate
Loan to be made, continued or converted by BofA
and having a maturity comparable to such Interest
Period, at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of
such Interest Period, subject to clause
(ii) below; or (ii) if for any reason the rate is
not available as provided in the preceding clause
(i) of this definition, the "Offshore Rate"
instead means the rate of interest per annum
determined by the Agent to be the arithmetic mean
(rounded upward to the nearest 1/16th of 1%) of
the rates of interest per annum notified to the
Agent by BofA as the rate of interest at which
Dollar deposits in the approximate amount of the
Offshore Rate Loan to be made, continued or
converted by BofA, and having a maturity
comparable to such Interest Period, would be
offered to major banks in the London interbank
market at
Page 21
their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement
of such Interest Period. As used in this
definition, "Dow ▇▇▇▇▇ Page 3750" means the
display designated as "3750" on the Dow ▇▇▇▇▇
Market Service (formerly known as the Telerate
Service) or any replacement page thereof or
successor thereto.
"Offshore Rate Loan" means a Loan that bears
interest based on the Offshore Rate.
"Organization Documents" means, for any
Person, the certificate or articles of
incorporation , the bylaws, any certificate of
determination or instrument relating to the rights
of preferred shareholders of such corporation, any
shareholder rights agreement, any other applicable
organizational or constitutional documents and all
applicable resolutions of the board of directors
(or any committee thereof) of such Person.
"Other Taxes" means any present or future
stamp, court 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, performance,
enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan
Documents.
"Participant" has the meaning specified in
subsection 11.08(d).
"PBGC" means the Pension Benefit Guaranty
Corporation, or any Governmental Authority
succeeding to any of its principal functions under
ERISA.
"Pension Plan" means a pension plan (as
defined in Section 3(2) of ERISA) subject to Title
IV of ERISA which the Company sponsors, maintains,
or to which it makes, is making, or is obligated
to make contributions, or in the case of a
multiple employer plan (as described in Section
4064(a) of ERISA) has made contributions at any
time during the immediately preceding five (5)
plan years.
Page 22
"Permitted Liens" has the meaning specified
in Section 8.01.
"Permitted Receivables" shall mean all
obligations of any obligor (whether now existing
or hereafter arising) under a contract for sale of
goods or services by the Company or any of its
Subsidiaries, which shall include any obligation
of such obligor (whether now existing or hereafter
arising) to pay interest, finance charges or
amounts with respect thereto, and, with respect to
any of the foregoing receivables or obligations,
(a) all of the interest of the Company or any of
its Subsidiaries in the goods (including returned
goods) the sale of which gave rise to such
receivable or obligation after the passage of
title thereto to any obligor, (b) all other Liens
and property subject thereto from time to time
purporting to secure payment of such receivables
or obligations, and (c) all guarantees, insurance,
letters of credit and other agreements or
arrangements of whatever character from time to
time supporting or securing payment of any such
receivables or obligations.
"Permitted Receivables Purchase Facility"
shall mean any agreement of the Company or any of
its Subsidiaries providing for sales, transfers or
conveyances of Permitted Receivables purporting to
be sales (and considered sales under GAAP) that do
not provide, directly or indirectly, for recourse
against the seller of such Permitted Receivables
(or against any of such seller's Affiliates) by
way of a guaranty or any other support arrangement
with respect to the amount of such Permitted
Receivables (based on the financial condition or
circumstances of the obligor thereunder), other
than such limited recourse as is reasonable given
market standards for transactions of a similar
type, taking into account such factors as
historical bad debt loss experience and obligor
concentration levels.
"Permitted Swap Obligations" means all
obligations (contingent or otherwise) of the
Company or any Subsidiary existing or arising
under Swap Contracts, provided that each of the
following criteria is satisfied: (a) such
Page 23
the ordinary course of business for the purpose of
directly mitigating risks associated with
liabilities, commitments or assets held or
reasonably anticipated by such Person, or changes
in the value of securities issued by such Person
in conjunction with a securities repurchase
program not otherwise prohibited hereunder, and
not for purposes of speculation or taking a
"market view;" (b) such Swap Contracts do not
contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party from its
obligation to make payments on outstanding
transactions to the defaulting party, or (ii) any
provision creating or permitting the declaration
of an event of default, termination event or
similar event upon the occurrence of an Event of
Default hereunder (other than an Event of Default
under subsection 9.01(a).
"Person" means an individual, partnership,
corporation, limited liability company, business
trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority
or any other entity of whatever nature.
"Plan" means an employee benefit plan (as
defined in Section 3(3) of ERISA) which the
Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make
contributions and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any
time, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at
such time of (a) in the case of the Revolving
Commitments or the Revolving Loans, such Bank's
Revolving Commitment divided by the combined
Revolving Commitments of all Banks (or, if all
Revolving Commitments have been terminated, the
aggregate principal amount of such Bank's
Revolving Loans divided by the aggregate principal
amount of the Revolving Loans then held by all
Banks), and (b) in the case of the Term
Commitments or the Term Loans, such Bank's Term
Commitment divided by the combined Term
Commitments of all Banks (or, if all Term
Commitments have been terminated, the aggregate
principal amount of such Bank's Term Loans divided
by the aggregate
Page 24
principal amount of Term Loans then held by all
Banks). The initial Pro Rata Share of each Bank
is set forth opposite such Bank's name in Schedule
2.01 under the heading "Pro Rata Share."
"Purchaser" means WGC Acquisition Corp., a
Massachusetts corporation and a Wholly-Owned
Subsidiary of the Company.
"Reimbursement Date" has the meaning set
forth in Section 3.03.
"Replacement Bank" has the meaning specified
in Section 4.08.
"Reportable Event" means, any of the events
set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than any such event
for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the
PBGC.
"Requirement of Law" means, as to any Person,
any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable
to or binding upon the Person or any of its
property or to which the Person or any of its
property is subject.
"Responsible Officer" means the chief
executive officer or the president of the Company
(or any other officer having substantially the
same authority and responsibility) or the vice
president and chief financial officer of the
Company (or any other officer having substantially
the same authority and responsibility); and, with
respect certification of financial statements or
compliance with financial covenants, the treasurer
of the Company (or any other officer having
substantially the same authority and
responsibility).
"Revolving Commitment," as to each Bank, has
the meaning specified in subsection 2.01(b).
Page 25
"Revolving Loan" has the meaning specified in
Section 2.01.
"Revolving Note" means a promissory note
executed by the Company in favor of a Bank
pursuant to subsection 2.02(b), in substantially
the form of Exhibit F.
"Revolving Termination Date" means the
earlier to occur of: (a) the sixth anniversary of
the Closing Date (provided that if such sixth
anniversary shall not be a Business Day, then the
Business Day immediately preceding such sixth
anniversary); and (b) the date on which the
Revolving Commitments terminate in accordance with
the provisions of this Agreement.
"S&P" means Standard & Poor's Ratings Group.
"SEC" means the Securities and Exchange
Commission, or any Governmental Authority
succeeding to any of its principal functions.
"Senior Notes" means the notes to be issued
by the Company in a registered offering or
pursuant to Rule 144A or in a private placement in
an aggregate principal amount not to exceed
$300,000,000.
"Significant Subsidiary" means at any time
(i) each U.S. Subsidiary, and (ii) each Foreign
Subsidiary, provided that such Foreign Subsidiary
has at such time either (A) net sales for the
preceding four fiscal quarter period in excess of
1% of Consolidated Total Revenues or (B) total
assets, as of the last day of the preceding fiscal
quarter, constituting 1% or more of Consolidated
Total Assets, in each case based upon the
Company's most recent annual or quarterly
financial statements delivered to the Agent under
Section 7.01.
"Solvent" means, as to any Person at any
time, that (a) the fair value of the property of
such Person is greater than the amount of such
Person's liabilities (including disputed,
contingent and unliquidated liabilities) as such
value is established and liabilities evaluated for
purposes of Section 101(31) of the Bankruptcy
Page 26
Code and, in the alternative, for purposes of the
Uniform Fraudulent Transfer Act (as enacted in the
State of Oregon); (b) the present fair saleable
value of the property of such Person is not less
than the amount that will be required to pay the
probable liability of such Person on its debts as
they become absolute and matured; (c) such Person
is able to realize upon its property and pay its
debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they
mature in the normal course of business; (d) such
Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not
engaged in business or a transaction, and is not
about to engage in business or a transaction, for
which such Person's property would constitute
unreasonably small capital.
"Standby Letter of Credit" means a standby
Letter of Credit Issued to support obligations of
the Company, contingent or otherwise.
"Subsidiary" of a Person means any
corporation, association, partnership, limited
liability company, joint venture or other business
entity of which more than 50% of the voting stock,
membership interests or other equity interests (in
the case of Persons other than corporations), is
owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the
Person, or a combination thereof. Unless the
context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of
the Company.
"Surety Instruments" means all letters of
credit (including standby and commercial),
banker's acceptances, bank guaranties, shipside
bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement, whether
or not in writing, relating to any transaction
that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option,
equity or equity index swap or option, bond, note
or ▇▇▇▇ option, interest rate option, forward
Page 27
foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate
swap, swaption, currency option or any other,
similar transaction (including any option to enter
into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise
clearly requires, any master agreement relating to
or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of
any one or more Swap Contracts, after taking into
account the effect of any legally enforceable
netting agreement relating to such Swap Contracts,
(a) for any date on or after the date such Swap
Contracts have been closed out and termination
value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior
to the date referenced in clause (a) the amount(s)
determined as the ▇▇▇▇-to-market value(s) for such
Swap Contracts, as determined based upon one or
more mid-market or other readily available
quotations provided by any recognized dealer in
such Swap Contracts (which may include any Bank).
"Swingline Bank" means BofA, in its capacity
as maker of Swingline Loans hereunder. Specific
reference to the Swingline Bank shall exclude the
Swingline Bank in its capacity as a Bank
hereunder.
"Swingline Commitment" has the meaning
specified in subsection 2.06(a).
"Swingline Loan" has the meaning specified in
subsection 2.06(a).
"Taxes" means any and all present or future
taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges,
and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent,
respectively, taxes imposed on or measured by its
net income (or taxes imposed in lieu of such net
income taxes) by the jurisdiction (or any
political subdivision thereof) under the laws of
which such Bank or the Agent, as the case may be,
is organized or maintains a Lending Office.
Page 28
"Tender Offer" means the offer to purchase
all outstanding shares of common stock of the
Acquired Company for cash in accordance with the
terms of the Offer.
"Tender Offer Expiry Date" means the date on
which all conditions to the Purchaser's obligation
to purchase shares of the Acquired Company
pursuant to the Tender Offer as set forth in
Section 1.1(a) of the Merger Agreement have been
satisfied or waived.
"Term Availability Expiry Date" means the
earliest to occur of: (a) March 1, 2000; (b) the
effective date of the Merger; and (c) the date on
which the Term Commitments terminate in accordance
with the provisions of this Agreement.
"Term Commitment," as to each Bank, has the
meaning specified in subsection 2.01(a).
"Term Loan" has the meaning specified in
Section 2.01.
"Term Maturity Date" means the sixth
anniversary of the Closing Date (provided that if
such sixth anniversary shall not be a Business
Day, then the Business Day immediately preceding
such sixth anniversary).
"Term Note" means a promissory note executed
by the Company in favor of a Bank pursuant to
subsection 2.02(b), in substantially the form of
Exhibit G.
"Transaction" means, collectively, the
Acquisition of the Acquired Company, through the
Tender Offer undertaken by the Purchaser and the
Merger.
"Transaction Documents" means the Merger
Agreement, together with the Offer, and all other
documents and agreements entered into between the
Acquired Company and the Company, the Purchaser
and any of the Company's other Subsidiaries in
furtherance of the transactions contemplated by
the foregoing.
Page 29
"Type" has the meaning specified in the
definition of "Loan."
"UCC" means the Uniform Commercial Code as in
effect in New York.
"Unfunded Pension Liability" means the excess
of a Plan's benefit liabilities under Section
4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with
the assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." each means the
United States of America.
"U.S. Subsidiary" means a Subsidiary that is
incorporated under the laws of any jurisdiction
(including territories) of the United States or
located in and a resident of the United States.
"Wholly-Owned Subsidiary" means any
corporation in which (other than directors'
qualifying shares required by law) 100% of the
capital stock of each class having ordinary voting
power, and 100% of the capital stock of every
other class, in each case, at the time as of which
any determination is being made, is owned,
beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 Other Interpretive Provisions.
(a) (a) The meanings of defined terms are
equally applicable to the singular and plural forms of
the defined terms.
(b) The words "hereof," "herein,"
"hereunder" and similar words refer to this Agreement
as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and
Exhibit references are to this Agreement unless
otherwise specified.
Page 30
(c) The term "documents" includes any and
all instruments, documents, agreements, certificates,
indentures, notices and other writings, however
evidenced.
(d) The term "including" is not limiting and
means "including without limitation."
(e) The term "to the best knowledge of the
Company", or any other term of similar import, means to
the actual knowledge of any executive officer of the
Company or any employee of the Company with management
responsibility for the subject matter as to which the
Company's knowledge is relevant.
(f) In the computation of periods of time
from a specified date to a later specified date, the
word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding," and the word
"through" means "to and including."
(g) Unless otherwise expressly provided
herein, (i) references to agreements (including this
Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such
amendments and other modifications are not prohibited
by the terms of any Loan Document, and (ii) references
to any statute or regulation are to be construed as
including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
(h) The captions and headings of this
Agreement are for convenience of reference only and
shall not affect the interpretation of this Agreement.
(i) This Agreement and other Loan Documents
may use several different limitations, tests or
measurements to regulate the same or similar matters.
All such limitations, tests and measurements are
cumulative and shall each be performed in accordance
with their terms. Unless otherwise expressly provided,
any reference to any action of the Agent or the Banks
by way of consent, approval or waiver shall be deemed
modified by the phrase "in its/their sole discretion."
(j) This Agreement and the other Loan
Documents are
Page 31
the result of negotiations among the Agent, the Company
and the other parties, have been reviewed by counsel to
the Agent, the Company and such other parties, and are
the products of all parties. Accordingly, they shall
not be construed against the Banks or the Agent merely
because of the Agent's or Banks' involvement in their
preparation.
1.03 Accounting Principles.
(a) (a) Unless the context otherwise
clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial
computations required under this Agreement shall be
made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and
"fiscal quarter" refer to such fiscal periods of the
Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) (a) The Term Credit.
Each Bank severally agrees, on the terms and
conditions set forth herein, to make loans to the
Company (each such loan, a "Term Loan") from time to
time on any Business Day during the period from the
Closing Date to the Term Availability Expiry Date, in
an aggregate amount not to exceed the amount set forth
opposite such Bank's name on Schedule 2.01 under the
heading "Term Commitment" (such amount, as the same may
be reduced under Section 2.08 or reduced or increased
as a result of one or more assignments under Section
11.08, such Bank's "Term Commitment"); provided,
however, that after giving effect to any Borrowing of
Term Loans, (i) the Effective Amount of Term Loans of
such Bank shall not exceed its Term Commitment; and
(ii) the Effective Amount of all outstanding Revolving
Loans plus the Effective Amount of all Swingline Loans
plus the Effective Amount of all L/C Obligations plus
the Effective Amount of all outstanding Term Loans
shall not exceed the Aggregate Commitment. Amounts
borrowed as Term Loans which are repaid or prepaid by
the Company may not be reborrowed.
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(b) The Revolving Credit. Each Bank
severally agrees, on the terms and conditions set forth
herein, to make loans to the Company (each such loan, a
"Revolving Loan") from time to time on any Business Day
during the period from the Closing Date to the
Revolving Termination Date, in an aggregate amount not
to exceed at any time the amount set forth opposite
such Bank's name on Schedule 2.01 under the heading
"Revolving Commitment" (such amount, as the same may be
reduced under Section 2.05 or reduced or increased as a
result of one or more assignments under Section 11.08,
such Bank's "Revolving Commitment"); provided, however,
that after giving effect to any Borrowing of Revolving
Loans, (i) the Effective Amount of all outstanding
Revolving Loans and Swingline Loans, and the Effective
Amount of all L/C Obligations, shall not at any time
exceed the combined Revolving Commitments; (ii) the
Effective Amount of the Revolving Loans of any Bank,
plus the participation of such Bank in the Effective
Amount of all L/C Obligations and Swingline Loans,
shall not at any time exceed such Bank's Revolving
Commitment; and (iii) the Effective Amount of all
outstanding Revolving Loans plus the Effective Amount
of all Swingline Loans plus the Effective Amount of all
L/C Obligations plus the Effective Amount of all
outstanding Term Loans shall not exceed the Aggregate
Commitment. Within the limits of each Bank's
Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this
subsection 2.01(b), prepay under Section 2.07 and
reborrow under this subsection 2.01(b).
2.02 Loan Accounts.
(a) (a) The Loans made by each Bank and
the Letters of Credit Issued by the Issuing Bank shall
be evidenced by one or more accounts or records
maintained by such Bank or Issuing Bank, as the case
may be, in the ordinary course of business. The
accounts or records maintained by the Agent, the
Issuing Bank and each Bank shall be conclusive absent
manifest error of the amount of the Loans made by the
Banks to the Company and the Letters of Credit Issued
for the account of the Company, and the interest and
payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or
otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the
Loans or any Letter of Credit.
Page 33
(b) Upon the request of any Bank made
through the Agent, the Loans made by such Bank may be
evidenced by one or more Notes, instead of or in
addition to loan accounts. Each such Bank shall
endorse on the schedules annexed to its Notes the date,
amount and maturity of each Loan made by it and the
amount of each payment of principal made by the Company
with respect thereto. Each such Bank is irrevocably
authorized by the Company to endorse its Notes and each
Bank's record shall be conclusive absent manifest
error; provided, however, that the failure of a Bank to
make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect
the obligations of the Company hereunder or under any
such Note to such Bank.
2.03 Procedure for Borrowing.
(a) (a) Each Borrowing of Revolving
Loans or Term Loans shall be made upon the Company's
irrevocable written notice delivered to the Agent in
the form of a Notice of Borrowing (which notice must be
received by the Agent (i) not later than 9:00 a.m. San
Francisco time at least three Business Days prior to
the requested Borrowing Date, in the case of Offshore
Rate Loans and (ii) not later than 9:00 a.m. San
Francisco time at least one Business Day before the
requested Borrowing Date, in the case of Base Rate
Loans), specifying:
(A) the amount of the Borrowing, which
shall be in a Minimum Amount;
(B) whether Revolving or Term Loans, or
Revolving Loans and Term Loans, are
requested, and in the latter case the
respective amounts thereof;
(C) the requested Borrowing Date, which
shall be a Business Day;
(D) the Type of Loans comprising the
Borrowing; and
(E) if applicable, the duration of the
Interest Period applicable to such Loans
included in such notice, subject to the
provisions of the definition of "Interest
Period" herein. If the Notice of Borrowing
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fails to specify the duration of the Interest
Period for any Borrowing comprised of
Offshore Rate Loans, such Interest Period
shall be 90 days or three months,
respectively;
provided, however, that with respect to the
Borrowing to be made on the Closing Date, the
Notice of Borrowing shall be delivered to the
Agent not later than 8:00 a.m. (San Francisco
time) one Business Day before the Closing
Date and such Borrowing will consist of Base
Rate Loans only; and further provided that if
so requested by the Agent (which shall be
solely for the purpose of facilitating
syndication of the Commitments and the
Loans), all Borrowings during the first 60
days following the Closing Date shall have
the same Interest Period and shall be Base
Rate Loans or Offshore Rate Loans for
Interest Periods no longer than one month.
(b) The Agent will promptly notify each Bank
of its receipt of any Notice of Borrowing and of the
amount of such Bank's Pro Rata Share of that Borrowing.
(c) Each Bank will make the amount of its
Pro Rata Share of each Borrowing available to the Agent
for the account of the Company at the Agent's Payment
Office by 11:00 a.m. (San Francisco time) on the
Borrowing Date requested by the Company in funds
immediately available to the Agent. The proceeds of
each such Borrowing will then be made available to the
Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the
aggregate of the amounts made available to the Agent by
the Banks and in like funds as received by the Agent,
or if requested by the Company, by wire transfer in
accordance with written instructions provided to the
Agent by the Company of such funds as received by the
Agent, unless on the date of the Borrowing all or any
portion of the proceeds thereof shall then be required
to be applied to the repayment of any outstanding
Loans, in which case such proceeds or portion thereof
shall be applied to the payment of such Loans.
Page 35
(d) After giving effect to any Borrowing,
unless the Agent shall otherwise consent, there may not
be more than ten different Interest Periods in effect.
2.04 Conversion and Continuation Elections.
(a) (a) The Company may, upon
irrevocable written notice to the Agent in accordance
with subsection 2.04(b):
(i) elect, as of any Business Day, in
the case of Base Rate Loans (other than Swingline
Loans), or as of the last day of the applicable
Interest Period, in the case of any other Type of
Revolving Loans or Term Loans, to convert any such
Loans (or any part thereof in a Minimum Amount)
into Loans of any other Type; or
(ii) elect, as of the last day of the
applicable Interest Period, to continue any
Revolving Loans or Term Loans having Interest
Periods expiring on such day (or any part thereof
in a Minimum Amount);
provided that if at any time the aggregate amount of
Offshore Rate Loans in respect of any Borrowing is
reduced, by payment, prepayment, or conversion of part
thereof to be less than $5,000,000, such Offshore Rate
Loans shall automatically convert into Base Rate Loans,
and on and after such date the right of the Company to
continue such Loans as, and convert such Loans into,
Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent
(i) not later than 9:00 a.m. (San Francisco time) at
least three Business Days in advance of the Conversion/
Continuation Date, if the Loans are to be converted
into or continued as Offshore Rate Loans; and (ii) not
later than 9:00 a.m. (San Francisco time) at least one
Business Day in advance of time on the
Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
Page 36
(B) the aggregate amount of Loans to be
converted or continued;
(C) the Type of Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions
into Base Rate Loans, the duration of the
requested Interest Period, subject to the
provisions of the definition of "Interest
Period" herein.
(c) If upon the expiration of any Interest
Period applicable to Offshore Rate Loans, the Company
has failed to select timely a new Interest Period to be
applicable to such Offshore Rate Loans, or if any
Default or Event of Default then exists, the Company
shall be deemed to have elected to convert such
Offshore Rate Loans into Base Rate Loans effective as
of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank
of its receipt of a Notice of Conversion/Continuation,
or, if no timely notice is provided by the Company, the
Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and
continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans
with respect to which the notice was given held by each
Bank.
(e) Unless the Majority Banks otherwise
consent, during the existence of a Default or an Event
of Default, the Company may not elect to have a Loan
converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or
continuation of Loans, unless the Agent shall otherwise
consent, there may not be more than ten different
Interest Periods in effect.
2.05 Voluntary Termination or Reduction of
Commitments.
(a) (a) The Company may, upon not less
than three Business Days' prior notice to the Agent,
terminate the Revolving Commitments, or permanently
reduce the Revolving
Page 37
Commitments, provided that the aggregate amount of any
partial reduction is in a Minimum Amount; unless, after
giving effect thereto and to any prepayments of any
Loans made on the effective date thereof, (a) the
Effective Amount of all Swingline Loans, Revolving
Loans and L/C Obligations together would exceed the
amount of the combined Revolving Commitments then in
effect, or (b) the Effective Amount of all L/C
Obligations then outstanding would exceed the L/C
Commitment. Once reduced in accordance with this
Section 2.05, the Revolving Commitments may not be
increased. Any reduction of the Revolving Commitments
shall be applied to each Bank according to its Pro Rata
Share. If and to the extent specified by the Company
in the notice to the Agent, some or all of the
reduction in the Revolving Commitments shall be applied
to reduce the L/C Commitment and the Swingline
Commitment. All accrued commitment and letter of
credit fees to, but not including, the effective date
of any termination of Revolving Commitments, shall be
paid on the effective date of such termination.
(b) At no time shall the Swingline
Commitment exceed the combined Revolving Commitments,
and any reduction of the Revolving Commitments which
reduces the combined Revolving Commitments below the
then-current amount of the Swingline Commitment shall
result in an automatic corresponding reduction of the
Swingline Commitment to the amount of the combined
Revolving Commitments , as so reduced, without any
action on the part of the Swingline Bank.
2.06 Swingline Loans.
(a) (a) Subject to the terms and
conditions hereof, the Swingline Bank agrees to make a
portion of the Revolving Commitments available to the
Company by making swingline loans denominated in
Dollars (individually, a "Swingline Loan", and,
collectively, the "Swingline Loans") to the Company on
any Business Day during the period from the Closing
Date to the Revolving Termination Date in accordance
with the procedures set forth in this Section 2.06 in
an aggregate principal amount at any one time
outstanding not to exceed Twenty-Five Million Dollars
($25,000,000), notwithstanding the fact that such
Swingline Loans, when aggregated with any other Credit
Extensions made by or participated in by the Swingline
Bank, may exceed the Swingline Bank's Revolving
Commitment (the amount of such commitment of the
Page 38
Swingline Bank to make Swingline Loans to the Company
pursuant to this subsection 2.06(a), as the same shall
be reduced pursuant to subsection 2.05 or as a result
of any assignment pursuant to Section 11.08, the
Swingline Bank's "Swingline Commitment"); provided that
at no time shall (i) the sum of the Effective Amount of
all Swingline Loans plus the Effective Amount of all
Revolving Loans plus the Effective Amount of all L/C
Obligations exceed the combined Revolving Commitments,
or (ii) the Effective Amount of all Swingline Loans
exceed the Swingline Commitment. Additionally, no more
than three Swingline Loans may be outstanding at any
one time, and all Swingline Loans shall at all times be
Base Rate Loans or accrue interest at such other rate
as may be agreed to by the Swingline Bank and the
Company. Within the foregoing limits, and subject to
the other terms and conditions hereof, the Company may
borrow under this subsection 2.06(a), prepay pursuant
to Section 2.07 and reborrow pursuant to this
subsection 2.06(a).
(b) The Company shall provide the Agent
irrevocable written notice (including notice via
facsimile confirmed immediately by a telephone call) in
the form of a Notice of Borrowing of any Swingline Loan
requested hereunder (which notice must be received by
the Agent prior to 11:00 a.m. (San Francisco time) on
the requested Borrowing Date) specifying (i) the amount
to be borrowed, which shall be in a Minimum Amount
(unless otherwise agreed by the Swingline Bank), and
(ii) the requested Borrowing Date, which shall be a
Business Day. Unless the Swingline Bank has received
notice prior to 12:00 Noon (San Francisco time) on such
Borrowing Date from the Agent (including at the request
of any Bank) (A) directing the Swingline Bank not to
make the requested Swingline Loan as a result of the
limitations set forth in the proviso set forth in the
first sentence of subsection 2.06(a); or (B) that one
or more conditions specified in Article V are not then
satisfied; then, subject to the terms and conditions
hereof, the Swingline Bank will, not later than
2:00 p.m. (San Francisco time) on the Borrowing Date
specified in such Notice of Borrowing, make the amount
of its Swingline Loan available to the Company by
crediting the account of the Company on the books of
BofA or if requested by the Company, by wire transfer
in accordance with written instructions provided to
Page 39
the Agent by the Company. The Agent will notify the
Banks on a quarterly basis if any Swingline Loan
Borrowings occurred during such quarter.
(c) The Company shall repay to the Swingline
Bank in full on the Revolving Termination Date the
aggregate principal amount of the Swingline Loans
outstanding on the Revolving Termination Date.
(d) With respect to any Swingline Loan, for
one Business Day during each successive ten -Business
Day period the principal amount of such Swingline Loan
shall be $0 (a "Clean-Up Day"). The Company shall
prepay the outstanding principal amount of such
Swingline Loan to the extent required so that a Clean-
Up Day may occur in each such ten (10) - Business Day
period as provided in this subsection 2.06(d) (which
Swingline Loan may not be reborrowed until such Clean-
Up Day has ended).
(e) If:
(i) any Swingline Loan required to be
prepaid under subsection 2.06(d) shall remain
outstanding at 5:00 p.m. (San Francisco time) on
the Business Day immediately prior to a Clean-Up
Day and by such time on such Business Day the
Agent shall have received neither: (A) a Notice
of Borrowing delivered pursuant to Section 2.03
requesting that Revolving Loans be made pursuant
to subsection 2.01 on the Clean-Up Day in an
amount at least equal to the principal amount of
such Swingline Loan; nor (B) any other notice
indicating the Company's intent to repay such
Swingline Loan with funds obtained from other
sources; or
(ii) any such Swingline Loan shall
remain outstanding during the existence of a
Default or Event of Default and the Swingline Bank
shall in its sole discretion notify the Agent that
the Swingline Bank desires that such Swingline
Loan be converted into Revolving Loans;
then the Agent shall be deemed to have received a
Notice of Borrowing from the Company pursuant to
Section 2.03 requesting that Base Rate Loans be made
pursuant to subsection 2.01(b) on such Clean-Up Day
Page 40
(in the case of the circumstances described in clause
(i) above) or on the first Business Day subsequent to
the date of such notice from the Swingline Bank (in the
case of the circumstances described in clause
(ii) above) in an amount equal to the amount of such
Swingline Loan, and the procedures set forth in
subsections 2.03(b) and 2.03(c) shall be followed in
making such Base Rate Loans; provided that such Base
Rate Loans shall be made notwithstanding the Company's
failure to comply with Section 5.02, or any other
requirement contained in the definition of "Minimum
Amount" and provided, further, that if a Borrowing of
Revolving Loans becomes legally impracticable and if so
required by the Swingline Bank at the time such
Revolving Loans are required to be made by the Banks in
accordance with this subsection 2.06(e), each Bank
agrees that in lieu of making Revolving Loans as
described in this subsection 2.06(e), such Bank shall
purchase a participation from the Swingline Bank in the
applicable Swingline Loan in an amount equal to such
Bank's Pro Rata Share of such Swingline Loan, and the
procedures set forth in subsections 2.03(b) and 2.03(c)
shall be followed in connection with the purchases of
such participations. Upon such purchases of
participations the prepayment requirements of
subsection 2.06(d) shall be deemed waived with respect
to such Swingline Loan. If any such Swingline Loan
shall remain outstanding in lieu of a Borrowing of
Revolving Loans as provided above, interest on such
Swingline Loan shall be due and payable on demand. The
proceeds of such Base Rate Loans, or participations
purchased, shall be applied to repay such Swingline
Loan. A copy of each notice given by the Agent to the
Banks pursuant to this subsection 2.06(e) with respect
to the making of Revolving Loans, or the purchases of
participations, shall be promptly delivered by the
Agent to the Company. Each Bank's obligation in
accordance with this Agreement to make the Revolving
Loans, or purchase the participations, as contemplated
by this subsection 2.06(e), shall be absolute and
unconditional and shall not be affected by any
circumstance, including (1) any set-off, counterclaim,
recoupment, defense or other right which such Bank may
have against the Swingline Bank, the Company or any
other Person for any reason whatsoever; (2) the
occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect; or (3) any other
circumstance, happening or event whatsoever, whether or
Page 41
not similar to any of the foregoing.
2.07 Optional Prepayments
. Subject to Section 4.04, the Company may, at
any time or from time to time, upon not less than
(i) three Business Days' irrevocable notice to the
Agent (in the case of any Offshore Rate Loans), and
(ii) one Business Day's irrevocable notice to the Agent
(in the case of any Base Rate Loans), ratably prepay
Term Loans, Revolving Loans or Swingline Loans in whole
or in part, in Minimum Amounts. Such notice of
prepayment shall specify the date and amount of such
prepayment, whether such prepayment of Loans is of Term
Loans, Revolving Loans or Swingline Loans (or a
combination thereof), and the Type(s) of Loans to be
prepaid. The Agent will promptly notify the Swingline
Bank (in the case of any prepayment of Swingline Loans)
and each Bank of its receipt of any such notice, and of
such Bank's Pro Rata Share of such prepayment. If such
notice is given by the Company, the Company shall make
such prepayment and the payment amount specified in
such notice shall be due and payable on the date
specified therein, together with (other than in the
case of Base Rate Loans) accrued interest to each such
date on the amount prepaid and any amounts required
pursuant to Section 4.04. Optional prepayments of Term
Loans shall be applied in inverse order of maturity.
2.08 Mandatory Prepayments of Loans; Mandatory
Commitment Reductions.
(a) (a) If on the Term Availability
Expiry Date the aggregate Term Commitments shall exceed
the outstanding principal amount of the Term Loans
made, such unused portion of the Term Commitments shall
automatically terminate on the Term Availability Expiry
Date.
(b) If on any date the Effective Amount of
L/C Obligations exceeds the L/C Commitment, the Company
shall Cash Collateralize on such date the outstanding
Letters of Credit in an amount equal to the excess of
the maximum amount then available to be drawn under the
Letters of Credit over the Aggregate L/C Commitment.
Subject to Section 4.04, if on any date after giving
effect to any Cash Collateralization made on such date
Page 42
pursuant to the preceding sentence, the Effective
Amount of all Loans then outstanding plus the Effective
Amount of all L/C Obligations shall exceed the combined
Revolving Commitments, the Company shall immediately,
and without notice or demand, prepay the outstanding
principal amount of the Loans and L/C Advances by an
amount equal to the applicable excess.
(c) If the Company or any Subsidiary shall
at any time or from time to time receive payment of the
proceeds of any sales of Permitted Receivables under a
Permitted Receivables Purchase Facility, then (i) the
Company shall promptly notify the Agent thereof
(including the amount of the estimated Net Proceeds to
be received by the Company or such Subsidiary in
respect thereof) and (ii) promptly upon, and in no
event later than one Business Day after, receipt by the
Company or the Subsidiary of the Net Proceeds of such
sale, the Company shall prepay Term Loans in an
aggregate amount equal to the amount of such Net
Proceeds, to be applied pro rata (on a weighted basis)
to remaining maturities.
(d) Any prepayments pursuant to this Section
2.08 shall be applied first to any Base Rate Loans then
outstanding and then to Offshore Rate Loans with the
shortest Interest Periods remaining; provided, however,
that if the amount of Base Rate Loans then outstanding
is not sufficient to satisfy the entire prepayment
requirement, the Company may, at its option, place any
amounts which it would otherwise be required to use to
prepay Offshore Rate Loans on a day other than the last
day of the Interest Period therefor in an interest-
bearing account pledged to the Agent for the benefit of
the Banks until the end of such Interest Period at
which time such pledged amounts will be applied to
prepay such Offshore Rate Loans. The Company shall
pay, together with each prepayment under this Section
2.08, accrued interest on the amount of any Offshore
Rate Loans prepaid and any amounts required pursuant to
Section 4.04.
(e) Upon the making of any mandatory prepayment under
this Section 2.08 at any time prior to the Term Availability
Expiry Date, the Term Commitments of each Bank shall
automatically be reduced by an amount equal to such Bank's
ratable share of the aggregate of principal repaid, effective as
of the earlier of the date that such prepayment is made or the
date by which such prepayment is due and payable hereunder. All
accrued
Page 43
commitment fees to, but not including the effective
date of any reduction or termination of Term
Commitments, shall be paid on the effective date of
such reduction or termination.
2.09 Repayment.
(a) (a) The Term Credit. The Company
shall repay to the Agent for the account of the Banks
on the last Business Day of each calendar quarter the
aggregate principal amount of Term Loans as set forth
in Schedule 2.09 (each a "Principal Payment Date");
provided that on the Term Maturity Date the Company
shall repay the aggregate principal amount of Term
Loans outstanding on such date.
(b) The Revolving Credit. The Company
shall repay to Agent for the account of the Banks on
the Revolving Termination Date the aggregate principal
amount of Revolving Loans outstanding on such date.
2.10 Interest.
(a) (a) (i) Each Revolving Loan and
Term Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the Offshore Rate or
the Base Rate, as the case may be (and subject to the
Company's right to convert to other Types of Loans
under Section 2.04), plus the Applicable Margin.
(ii) Each Swingline Loan shall bear interest on the
outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to
the Base Rate plus the Applicable Margin, or at such
other rate as may be agreed to by the Swingline Bank.
(b) Interest on each Revolving Loan, Term
Loan and Swingline Loan shall be paid in arrears on
each Interest Payment Date applicable to such Loan.
Interest shall also be paid on the date of any
prepayment of Loans (other than Base Rate Loans) under
Section 2.06 or 2.07 for the portion of such Loans so
prepaid and upon payment (including prepayment) in full
thereof and, during the existence of any Event of
Default, interest shall be paid on demand of the Agent
at the request or with the consent of the Majority
Banks.
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(c) Notwithstanding subsection (a) of this
Section, while any Event of Default exists or after
acceleration, the Company shall pay interest (after as
well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all
outstanding Obligations, at a rate per annum which is
determined by adding 2% per annum to the Applicable
Margin then in effect for such Loans and, in the case
of Obligations not subject to an Applicable Margin, at
a rate per annum equal to the Base Rate plus the
Applicable Margin then in effect for Base Rate Loans,
plus 2% per annum; provided, however, that on and after
the expiration of any Interest Period applicable to any
Offshore Rate Loan outstanding on the date of
occurrence of such Event of Default or acceleration,
the principal amount of such Loan shall, during the
continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal
to the Base Rate, plus the Applicable Margin then in
effect for Base Rate Loans, plus 2% per annum.
(d) Anything herein to the contrary
notwithstanding, the obligations of the Company to any
Bank hereunder shall be subject to the limitation that
payments of interest shall not be required for any
period for which interest is computed hereunder, to the
extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary
to the provisions of any law applicable to such Bank
limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such
Bank, and in such event the Company shall pay such Bank
interest at the highest rate permitted by applicable
law.
2.11 Fees.
In addition to certain fees described in Section
3.08:
(a) Arrangement, Agency and Other Fees. The
Company shall pay an arrangement fee to the Lead
Arranger for the Lead Arranger's own account, an agency
fee to the Agent for the Agent's own account, and other
fees to the Issuing Bank, as required by the letter
agreement (the "Fee Letter") among the Company, the
Lead Arranger, Agent and Issuing Bank dated May 14,
1999.
Page 45
(b) Commitment Fees. The Company shall pay
to the Agent for the account of each Bank a commitment
fee on the actual daily unused portion of such Bank's
Revolving Commitment and Term Commitment, computed on a
quarterly basis in arrears on the last Business Day of
each calendar quarter based upon the daily utilization
for that quarter as calculated by the Agent at a rate
per annum equal to the Applicable Fee Amount. For
purposes of calculating utilization under this
subsection, the Commitments shall be deemed used to the
extent of the Effective Amount of Revolving Loans and
Term Loans then outstanding, plus the Effective Amount
of L/C Obligations then outstanding. Swingline Loans
shall not constitute utilization. Such commitment fee
shall accrue from the date hereof to the Revolving
Termination Date (in the case of the Revolving
Commitments) and the Term Availability Expiry Date (in
the case of the Term Commitments) and shall be due and
payable quarterly in arrears on the last Business Day
of each calendar quarter to the Revolving Termination
Date (in the case of the Revolving Commitments) and the
Term Availability Expiry Date (in the case of the Term
Commitments), with the final payment to be made on the
Revolving Termination Date or Term Availability Expiry
Date, as the case may be; provided that in connection
with any reduction or termination of Commitments under
Section 2.05 or Section 2.08, the accrued commitment
fee calculated for the period ending on such date shall
also be paid on the date of reduction or termination.
The commitment fees provided in this subsection shall
accrue at all times after the above-mentioned
commencement date, including at any time during which
one or more conditions in Article V are not met.
(c) Utilization Fee. If at any time the
Applicable Margin is determined by reference to Level 1
as set forth in the Pricing Grid in Annex I, the
Company shall pay to the Agent for the account of each
Bank a utilization fee on the outstanding Loans at any
time that the aggregate outstanding Loans (including
Swingline Loans) exceed 33% of the Aggregate
Commitment, equal to .125% per annum (any period during
which such utilization fee is payable being hereinafter
referred to as a "Utilization Fee Accrual Period").
Such utilization fee shall be computed on a quarterly
basis in arrears on the last Business Day of each
calendar quarter, shall accrue from the first day of
any Utilization Fee Accrual Period to the last day
thereof and
Page 46
shall be due and payable quarterly in arrears on the
last Business Day of each calendar quarter to the
Revolving Termination Date (in the case of the
Revolving Loans) and the Term Maturity Date (in the
case of the Term Loans), with the final payment to be
made on the Revolving Termination Date or Term Maturity
Date, as the case may be. The utilization fee, if
applicable, will be added to the Applicable Margin.
2.12 Computation of Fees and Interest.
(a) (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by
BofA's "reference rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual
days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest
being paid than if computed on the basis of a 365-day
year). Interest and fees shall accrue during each
period during which interest or such fees are computed
from the first day thereof to the last day thereof.
(b) Each determination of an interest rate
by the Agent shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
The Agent will, at the request of the Company or any
Bank, deliver to the Company or the Bank, as the case
may be, a statement showing the quotations used by the
Agent in determining any interest rate and the
resulting interest rate.
2.13 Payments by the Company.
(a) (a) All payments to be made by the
Company shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided
herein, all payments by the Company shall be made to
the Agent for the account of the Banks at the Agent's
Payment Office, and shall be made in Dollars and in
immediately available funds, no later than 11:00 a.m.
(San Francisco time) on the date specified herein. The
Agent will promptly distribute to each Bank its Pro
Rata Share (or other applicable share as expressly
provided herein) of such payment in like funds as
received. Any payment received by the Agent later than
11:00 a.m. (San Francisco time) shall be deemed to have
been received on the following Business Day and
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any applicable interest or fee shall continue to
accrue. The Agent will promptly distribute to each
Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like
funds as received.
(b) Subject to the provisions set forth in
the definition of "Interest Period" herein, whenever
any payment is due on a day other than a Business Day,
such payment shall be made on the following Business
Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the
case may be.
(c) Unless the Agent receives notice from
the Company prior to the date on which any payment is
due to the Banks that the Company will not make such
payment in full as and when required, the Agent may
assume that the Company has made such payment in full
to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each
Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent the Company
has not made such payment in full to the Agent, each
Bank shall repay to the Agent on demand such amount
distributed to such Bank, together with interest
thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank until the
date repaid.
2.14 Payments by the Banks to the Agent.
(a) (a) Unless the Agent receives notice
from a Bank on or prior to the Closing Date or, with
respect to any Borrowing after the Closing Date, at
least one Business Day prior to the date of such
Borrowing, that such Bank will not make available as
and when required hereunder to the Agent for the
account of the Company the amount of that Bank's Pro
Rata Share of the Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent
in immediately available funds on the Borrowing Date
and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the
Company on such date a corresponding amount. If and to
the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds
and the
Page 48
Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business
Day following such Borrowing Date make such amount
available to the Agent, together with interest at the
Federal Funds Rate for each day during such period. A
notice of the Agent submitted to any Bank with respect
to amounts owing under this subsection (a) shall be
conclusive, absent manifest error. If such amount is
so made available, such payment to the Agent shall
constitute such Bank's Loan on the date of Borrowing
for all purposes of this Agreement. If such amount is
not made available to the Agent on the Business Day
following the Borrowing Date, the Agent will notify the
Company of such failure to fund and, upon demand by the
Agent, the Company shall pay such amount to the Agent
for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing,
at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such
Borrowing.
(b) The failure of any Bank to make any Loan
on any Borrowing Date shall not relieve any other Bank
of any obligation hereunder to make a Loan on such
Borrowing Date, but no Bank shall be responsible for
the failure of any other Bank to make the Loan to be
made by such other Bank on any Borrowing Date.
2.15 Sharing of Payments, Etc.
If, other than as expressly provided elsewhere
herein, any Bank shall obtain on account of the Loans
made by it any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other
share contemplated hereunder), such Bank shall
immediately (a) notify the Agent of such fact, and
(b) purchase from the other Banks such participations
in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment
pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter
recovered from the purchasing Bank, such purchase shall
to that extent be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price paid
therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of
(i) the amount of such paying Bank's required repayment
to (ii) the total amount so
Page 49
recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Company
agrees that any Bank so purchasing a participation from
another Bank may, to the fullest extent permitted by
law, exercise all its rights of payment (including the
right of set-off, but subject to Section 11.10) with
respect to such participation as fully as if such Bank
were the direct creditor of the Company in the amount
of such participation. The Agent will keep records
(which shall be conclusive and binding in the absence
of manifest error) of participations purchased under
this Section and will in each case notify the Banks
following any such purchases or repayments.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) (a) On the terms and conditions set
forth herein (i) the Issuing Bank agrees, (A) from time
to time on any Business Day during the period from the
Closing Date to the Revolving Termination Date to issue
Letters of Credit for the account of the Company, and
to amend or renew Letters of Credit previously issued
by it, in accordance with subsections 3.02(c) and
3.02(d), and (B) to honor drafts under the Letters of
Credit; and (ii) the Banks severally agree to
participate in Letters of Credit Issued for the account
of the Company; provided that the Issuing Bank shall
not be obligated to Issue, and no Bank shall be
obligated to participate in, any Letter of Credit if as
of the date of Issuance of such Letter of Credit and
after giving effect thereto (the "Issuance Date")
(1) the Effective Amount of all L/C Obligations plus
the Effective Amount of all Revolving Loans plus the
Effective Amount of all Swingline Loans shall exceed
the combined Revolving Commitments, (2) the
participation of any Bank in the Effective Amount of
all L/C Obligations and Swingline Loans plus the
Effective Amount of the Revolving Loans of such Bank
shall exceed such Bank's Revolving Commitment, (3) the
Effective Amount of L/C Obligations shall exceed the
L/C Commitment, or (4) the Effective Amount of all L/C
Obligations plus the Effective Amount of all Revolving
Loans plus the Effective Amount of all Term Loans plus
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the Effective Amount of all Swingline Loans shall
exceed the Aggregate Commitment. Within the foregoing
limits, and subject to the other terms and conditions
hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, the
Company may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and
reimbursed.
(b) The Issuing Bank is under no obligation
to Issue any Letter of Credit if:
(i) any order, judgment or decree of
any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the
Issuing Bank from Issuing such Letter of Credit,
or any Requirement of Law applicable to the
Issuing Bank or any request or directive (whether
or not having the force of law) from any
Governmental Authority with jurisdiction over the
Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the Issuance of letters
of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank
with respect to such Letter of Credit any
restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise
compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing
Bank any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which
the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to
it;
(ii) the Issuing Bank has received
written notice from any Bank, the Agent or the
Company, on or prior to the Business Day prior to
the requested date of Issuance of such Letter of
Credit, that one or more of the applicable
conditions contained in Article V is not then
satisfied;
(iii) the expiry date of any requested
Letter of Credit is (A) more than 365 days after
the date of Issuance, unless the Majority Banks
have approved such expiry date in writing, or
(B) less than 30 days prior to the Revolving
Termination Date, unless all of the Banks
Page 51
have approved such expiry date in writing;
(iv) the expiry date of any requested
Letter of Credit is prior to the maturity date of
any financial obligation to be supported by the
requested Letter of Credit;
(v) any requested Letter of Credit
does not provide for drafts, or is not otherwise
in form and substance acceptable to the Issuing
Bank, or the Issuance of a Letter of Credit shall
violate any applicable policies of the Issuing
Bank;
(vi) any Standby Letter of Credit is
for the purpose of supporting the issuance of any
letter of credit by any other Person;
(vii) any Letter of Credit is in a face
amount less than $500,000 (for Commercial Letters
of Credit, unless otherwise agreed by the Issuing
Bank) or $5,000,000 (for Standby Letters of
Credit); or
(viii) any Letter of Credit is to be
denominated in a currency other than Dollars.
(c) Letters of Credit issued under this
Article III shall be either Standby Letters of Credit
or Commercial Letters or Credit.
3.02 Issuance, Amendment and Renewal of Letters of
Credit.
(a) (a) Each Letter of Credit shall be
issued upon the irrevocable written request of the
Company received by the Issuing Bank (with a copy sent
by the Company to the Agent) at least four Business
Days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion)
prior to the proposed date of issuance. Each such
request for issuance of a Letter of Credit shall be by
facsimile, confirmed immediately in an original
writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to the Issuing
Bank: (i) the proposed date of issuance of the Letter
of Credit (which shall be a Business Day); (ii) the
face amount of the Letter of Credit; (iii) the expiry
date of the
Page 52
Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented
by the beneficiary of the Letter of Credit in case of
any drawing thereunder; (vi) the full text of any
certificate to be presented by the beneficiary in case
of any drawing thereunder; and (vii) such other matters
as the Issuing Bank may require.
(b) At least two Business Days prior to the
Issuance of any Letter of Credit, the Issuing Bank will
confirm with the Agent (by telephone or in writing)
that the Agent has received a copy of the L/C
Application or L/C Amendment Application from the
Company and, if not, the Issuing Bank will provide the
Agent with a copy thereof. Unless the Issuing Bank has
received notice on or before the Business Day
immediately preceding the date the Issuing Bank is to
issue a requested Letter of Credit from the Agent
(A) directing the Issuing Bank not to issue such Letter
of Credit because such issuance is not then permitted
under subsection 3.01(a) as a result of the limitations
set forth in clauses (1) through (3) thereof or
subsection 3.01(b)(ii); or (B) that one or more
conditions specified in Article V are not then
satisfied; then, subject to the terms and conditions
hereof, the Issuing Bank shall, on the requested date,
issue a Letter of Credit for the account of the Company
in accordance with the Issuing Bank's usual and
customary business practices.
(c) From time to time while a Letter of
Credit is outstanding and prior to the Revolving
Termination Date, the Issuing Bank will, upon the
written request of the Company received by the Issuing
Bank (with a copy sent by the Company to the Agent) at
least four Business Days (or such shorter time as the
Issuing Bank may agree in a particular instance in its
sole discretion) prior to the proposed date of
amendment (including a renewal or extension thereof),
amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be
made by facsimile, confirmed immediately in an original
writing, made in the form of an L/C Amendment
Application and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of
Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed
amendment; and
Page 53
(iv) Issuing Bank shall be under no obligation to amend
any Letter of Credit if: (A) the Issuing Bank would
have no obligation at such time to issue such Letter of
Credit in its amended form under the terms of this
Agreement; or (B) the beneficiary of any such Letter of
Credit does not accept the proposed amendment to the
Letter of Credit. The Agent will promptly notify the
Banks of the Issuance of any Standby Letter of Credit
notified to it by the Issuing Bank. The Banks
acknowledge and agree that the Agent will not notify
them of the receipt by the Agent of any L/C Application
or L/C Amendment Application or of the Issuance of any
Commercial Letter of Credit. From time to time the
Agent will notify the Banks of the amount of all
outstanding Letters of Credit hereunder.
(d) The Issuing Bank and the Banks agree
that, while a Letter of Credit is outstanding and prior
to the Revolving Termination Date, the Issuing Bank
shall be entitled to authorize the renewal of any
Letter of Credit issued by it. The Issuing Bank shall
be under no obligation so to renew any Letter of Credit
if: (A) the Issuing Bank would have no obligation at
such time to issue or amend such Letter of Credit in
its renewed form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does
not accept the proposed renewal of the Letter of
Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless
the beneficiary thereof receives notice from the
Issuing Bank that such Letter of Credit shall not be
renewed, and if at the time of renewal the Issuing Bank
would be entitled to authorize the automatic renewal of
such Letter of Credit in accordance with this
subsection 3.02(e) upon the request of the Company but
the Issuing Bank shall not have received any written
direction by the Company with respect thereto, the
Issuing Bank shall nonetheless be permitted to allow
such Letter of Credit to renew, and the Company and the
Banks hereby authorize such renewal, and, accordingly,
the Issuing Bank shall be deemed to have received an
L/C Amendment Application from the Company requesting
such renewal.
(e) The Issuing Bank may, at its election
(or as required by the Agent at the direction of the
Majority Banks), deliver any notices of termination or
other communications to any Letter of Credit
beneficiary or transferee, and take any other action as
Page 54
necessary or appropriate, at any time and from time to
time, in order to cause the expiry date of such Letter
of Credit to be a date not later than the Revolving
Termination Date.
(f) This Agreement shall control in the
event of any conflict with any L/C-Related Document
(other than any Letter of Credit).
(g) The Issuing Bank will also deliver to
the Agent, concurrently or promptly following its
delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such
Letter of Credit or amendment to or renewal of a Letter
of Credit.
3.03 Risk Participations, Drawings and
Reimbursements.
(a) (a) Immediately upon the Issuance of
each Letter of Credit, each Bank shall be deemed to,
and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank a participation in such
Letter of Credit and each drawing thereunder in an
amount equal to the product of (i) the Pro Rata Share
of such Bank, times (ii) the maximum amount available
to be drawn under such Letter of Credit and the amount
of such drawing, respectively. Each Issuance of a
Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Bank by an amount equal to
the amount of such participation.
(b) In the event of any request for a
drawing under a Letter of Credit by the beneficiary or
transferee thereof, the Issuing Bank will promptly
notify the Company and specify in such notice the date
such drawing will be honored by the Issuing Bank (the
"Honor Date"). If the Issuing Bank so notifies the
Company prior to 9:00 a.m. (San Francisco time) on the
Honor Date, the Company, as account party under such
Letter of Credit, shall reimburse the Issuing Bank no
later than 11:00 a.m. (San Francisco time) on the Honor
Date for the amount paid by the Issuing Bank under such
Letter of Credit or, if the Issuing Bank shall so
notify the Company after 9:00 a.m. (San Francisco time)
on the Honor Date, the Company, as account party under
such Letter of Credit, shall reimburse the Issuing Bank
Page 55
no later than 11:00 a.m. (San Francisco time) on the
next succeeding Business Day for the amount paid by the
Issuing Bank under such Letter of Credit on the Honor
Date (each such date, a "Reimbursement Date"), in each
case, in an amount equal to the amount so paid by the
Issuing Bank. In the event the Company fails to
reimburse the Issuing Bank for the full amount of any
drawing under any Letter of Credit by the required time
as provided above on the Reimbursement Date, the
Issuing Bank will promptly notify the Agent, and the
Agent will promptly notify each Bank thereof (including
the amount thereof and such Bank's Pro Rata Share
thereof), and the Company shall be deemed to have
requested that Base Rate Loans be made by the Banks to
the Company to be disbursed on the Reimbursement Date
for such Letter of Credit, subject to the amount of the
unutilized portion of the Revolving Commitments and
subject to the conditions set forth in Section 5.02.
The Company hereby directs that the proceeds of any
such Loans deemed to be made by it shall be used to pay
its reimbursement obligations in respect of any such
drawing. Solely for the purposes of making such Loans,
the Minimum Amount limitations set forth in
Section 2.03 shall not be applicable. Any notice given
by the Issuing Bank or the Agent pursuant to this
subsection 3.03(b) may be oral if immediately confirmed
in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
In the event that any amount of any drawing under any
Letter of Credit is not reimbursed by the Company on
the Honor Date, such unreimbursed amount shall bear
interest until it is either deemed to be an L/C
Borrowing as provided in subsection (d) or deemed to be
converted to a Base Rate Loan as provided in this
subsection (b), at a rate per annum equal to the Base
Rate, plus the Applicable Margin then in effect for
Base Rate Loans.
(c) Each Bank shall upon receipt of any
notice pursuant to subsection 3.03(b) make available to
the Agent for the account of the Issuing Bank an amount
in Dollars and in immediately available funds equal to
its Pro Rata Share of the amount of the drawing,
whereupon such Bank shall (subject to subsection
3.03(d)) be deemed to have made a Revolving Loan
consisting of a Base Rate Loan to the Company in that
amount. The Agent will promptly give notice of the
occurrence of the Reimbursement Date, but failure of
Page 56
the Agent to give any such notice on the Reimbursement
Date or in sufficient time to enable any Bank to effect
such payment on such date shall not relieve such Bank
from its obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing
that is not converted into Revolving Loans in whole or
in part, because of the Company's failure to satisfy
the conditions set forth in Section 5.02 or for any
other reason, the Company shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the
amount of such drawing, which L/C Borrowing shall be
due and payable on demand (together with interest) and
shall bear interest at a rate per annum equal to the
Base Rate, plus the Applicable Margin then in effect
for Base Rate Loans, plus 2% per annum. In such event,
each Bank shall upon receipt of any notice pursuant to
subsection 3.03(b) make available to the Agent for the
account of the Issuing Bank an amount in Dollars and in
immediately available funds equal to its Pro Rata Share
of the amount of the drawing. Each Bank's payment to
the Issuing Bank pursuant to this subsection 3.03(d)
shall be deemed payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C
Advance from such Bank in satisfaction of its
participation obligation under this Section 3.03.
(e) If any Bank fails to make available to
the Agent for the account of the Issuing Bank the
amount of such Bank's Pro Rata Share of the amount of
any drawing by no later than 12:00 noon (San Francisco
time) on the Reimbursement Date, then interest shall
accrue on such Bank's obligation to make such payment,
from the Reimbursement Date to the date such Bank makes
such payment, at (i) the Federal Funds Rate in effect
from time to time during the period commencing on the
Reimbursement Date and ending on the date three
Business Days thereafter, and (ii) thereafter at the
Base Rate as in effect from time to time, payable on
demand of the Agent.
(f) Each Bank's obligation in accordance
with this Agreement to make or participate in the
Revolving Loans or L/C Advances, as contemplated by
this Section 3.03, as a result of a drawing under a
Letter of Credit, shall be absolute and unconditional
and without recourse to the Issuing Bank and shall not
be affected by any circumstance, including (i) any set-
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off, counterclaim, recoupment, defense or other right
which such Bank may have against the Issuing Bank, the
Company or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default, an
Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the
foregoing; provided, however, that each Bank's
obligation to make Revolving Loans under this Section
3.03 is subject to the conditions set forth in Section
5.02.
3.04 Repayment of Participations.
(a) (a) Upon (and only upon) receipt by
the Agent for the account of the Issuing Bank of
immediately available funds from the Company (i) in
reimbursement of any payment made by the Issuing Bank
under the Letter of Credit with respect to which any
Bank has paid the Agent for the account of the Issuing
Bank for such Bank's participation in the Letter of
Credit pursuant to Section 3.03 or (ii) in payment of
interest thereon, the Agent will pay to each Bank, in
the same funds as those received by the Agent for the
account of the Issuing Bank, the amount of such Bank's
Pro Rata Share of such funds, and the Issuing Bank
shall receive the amount of the Pro Rata Share of such
funds of any Bank that did not so pay the Agent for the
account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is
required at any time to return to the Company, or to a
trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of
the payments made by the Company to the Agent for the
account of the Issuing Bank pursuant to subsection
3.04(a) in reimbursement of a payment made under the
Letter of Credit or interest or fee thereon, each Bank
shall, on demand of the Agent, forthwith return to the
Agent or the Issuing Bank the amount of its Pro Rata
Share of any amounts so returned by the Agent or the
Issuing Bank plus interest thereon from the date such
demand is made to the date such amounts are returned by
such Bank to the Agent or the Issuing Bank, at a rate
per annum equal to the Federal Funds Rate in effect
from time to time.
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3.05 Role of the Issuing Bank.
(a) (a) Each Bank and the Company agree
that, in paying any drawing under a Letter of Credit,
the Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft and
certificates expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the
respective correspondents, participants or assignees of
the Issuing Bank shall be liable to any Bank for:
(i) any action taken or omitted in connection herewith
at the request or with the approval of the Banks
(including the Majority Banks, as applicable); (ii) any
action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of
any L/C-Related Document.
(c) The Company hereby assumes all risks of
the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended
to, and shall not, preclude the Company's pursuing such
rights and remedies as it may have against the
beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of
the Issuing Bank, shall be liable or responsible for
any of the matters described in clauses (i) through
(vii) of Section 3.06; provided, however, anything in
such clauses to the contrary notwithstanding, that the
Company may have a claim against the Issuing Bank, and
the Issuing Bank may be liable to the Company, to the
extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered
by the Company which the Company proves were caused by
the Issuing Bank's willful misconduct or gross
negligence or the Issuing Bank's willful failure to pay
under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation
of the foregoing: (i) the Issuing Bank may accept
documents that appear on their face to be in order,
without responsibility for further investigation,
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regardless of any notice or information to the
contrary; and (ii) the Issuing Bank shall not be
responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for
any reason.
3.06 Obligations Absolute.
The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the
Issuing Bank for a drawing under a Letter of Credit,
and to repay any L/C Borrowing and any drawing under a
Letter of Credit converted into Revolving Loans, shall
be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement
and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or
enforceability of this Agreement or any L/C-
Related Document;
(ii) any change in the time, manner or
place of payment of, or in any other term of, all
or any of the obligations of the Company in
respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure
from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-
off, defense or other right that the Company may
have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank or any
other Person, whether in connection with this
Agreement, the transactions contemplated hereby or
by the L/C-Related Documents or any unrelated
transaction;
(iv) any draft, demand, certificate or
other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement
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therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or
otherwise of any document required in order to
make a drawing under any Letter of Credit;
(v) any payment by the Issuing Bank
under any Letter of Credit against presentation of
a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or
any payment made by the Issuing Bank under any
Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor
to any beneficiary or any transferee of any Letter
of Credit, including any arising in connection
with any Insolvency Proceeding;
(vi) any exchange, release or non-
perfection of any collateral, or any release or
amendment or waiver of or consent to departure
from any other guarantee, for all or any of the
obligations of the Company in respect of any
Letter of Credit; or
(vii) any other circumstance or
happening whatsoever, whether or not similar to
any of the foregoing, including any other
circumstance that might otherwise constitute a
defense available to, or a discharge of, the
Company or a guarantor.
3.07 Cash Collateral Pledge.
Upon (i) the request of the Agent, (A) if the
Issuing Bank has honored any full or partial drawing
request on any Letter of Credit and such drawing has
resulted in an L/C Borrowing hereunder, or (B) if, as
of the Revolving Termination Date, any Letters of
Credit may for any reason remain outstanding and
partially or wholly undrawn, or (ii) the occurrence of
the circumstances described in subsection 2.08(b)
requiring the Company to Cash Collateralize Letters of
Credit, then the Company shall immediately Cash
Collateralize the L/C Obligations in an amount equal to
such L/C Obligations. The Company shall, to the extent
necessary, make such additional pledges from time to
time as shall be necessary to ensure that all L/C
Obligations remain at all times fully cash
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collateralized. The Company hereby grants the Agent,
for the benefit of the Agent, the Issuing Bank and the
Banks, a security interest in all such cash and deposit
account balances contemplated by this Section 3.07 or
Section 9.02. Cash collateral held under this Section
3.07 or Section 9.02 shall be maintained in blocked
deposit accounts at BofA.
3.08 Letter of Credit Fees.
(a) (a) The Company shall pay to the
Agent for the account of each of the Banks a letter of
credit fee with respect to the Standby Letters of
Credit equal to the rate per annum equal to the
Applicable Fee Amount of the actual daily maximum
amount available to be drawn of the outstanding Standby
Letters of Credit, computed on a quarterly basis in
arrears on the last Business Day of each calendar
quarter based upon Standby Letters of Credit
outstanding for that quarter as calculated by the
Agent. Such letter of credit fees shall be due and
payable quarterly in arrears on the last Business Day
of each calendar quarter during which Standby Letters
of Credit are outstanding, commencing on the first such
quarterly date to occur after the Closing Date, to the
Revolving Termination Date, with the final payment to
be made on the Revolving Termination Date.
(b) The Company shall pay to the Issuing
Bank, for the Issuing Bank's sole account, a letter of
credit fronting fee for each Letter of Credit Issued by
the Issuing Bank in accordance with the terms of the
Fee Letter. Such Letter of Credit fronting fee shall
be due and payable on each date of Issuance of a Letter
of Credit.
(c) The Company shall pay to the Issuing
Bank, for the Issuing Bank's sole account, a letter of
credit fee with respect to the amount from time to time
available to be drawn under Commercial Letters of
Credit in such amount and on such dates as shall
separately be agreed between the Issuing Bank and the
Company.
(d) The Company shall pay to the Issuing
Bank, for the Issuing Bank's sole account, from time to
time on demand the normal issuance, presentation,
amendment and other processing
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fees, and other standard costs and charges, of the
Issuing Bank relating to letters of credit as from time
to time in effect.
3.09 Applicability of Uniform Customs and Practice
and ISP98
. Unless otherwise expressly agreed by the
Issuing Bank and the Company when a Letter of Credit is
issued and subject to applicable laws, performance
under Letters of Credit by the Issuing Bank, its
correspondents, and beneficiaries will be governed by
(i) with respect to Standby Letters of Credit, the
rules of the "International Standby Practices 1998"
(ISP98) or such later revision as may be published by
the Institute of International Banking Law & Practice
on any date any Standby Letter of Credit may be issued,
and (ii) with respect to Commercial Letters of Credit,
the rules of the Uniform Customs and Practice for
Documentary Credits, as published in its most recent
version by the International Chamber of Commerce (the
"ICC") on the date any Commercial Letter of Credit is
issued.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) (a) Any and all payments by the
Company to each Bank or the Agent under this Agreement
and any other Loan Document shall be made free and
clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other
Taxes.
(b) If the Company shall be required by law
to deduct or withhold any Taxes, Other Taxes or Further
Taxes from or in respect of any sum payable hereunder
to any Bank or the Agent, then:
(i) the sum payable shall be increased
as necessary so that, after making all required
deductions and withholdings (including deductions
and withholdings applicable to additional sums
payable under this Section),
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such Bank or the Agent, as the case may be,
receives and retains an amount equal to the sum it
would have received and retained had no such
deductions or withholdings been made;
(ii) the Company shall make such
deductions and withholdings;
(iii) the Company shall pay the full
amount deducted or withheld to the relevant taxing
authority or other authority in accordance with
applicable law; and
(iv) the Company shall also pay to each
Bank or the Agent for the account of such Bank, at
the time interest is paid, Further Taxes in the
amount that the respective Bank specifies as
necessary to preserve the after-tax yield such
Bank would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold
harmless each Bank and the Agent for the full amount of
(i) Taxes, (ii) Other Taxes, and (iii) Further Taxes in
the amount that the respective Bank specifies as
necessary to preserve the after-tax yield such Bank
would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto,
whether or not such Taxes, Other Taxes or Further Taxes
were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the
date such Bank or the Agent makes written demand
therefor.
(d) Within 30 days after the date of any
payment by the Company of Taxes, Other Taxes or Further
Taxes, the Company shall furnish to each Bank or the
Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of
payment reasonably satisfactory to such Bank or the
Agent.
(e) If the Company is required to pay any
amount to any Bank or the Agent pursuant to subsection
(b) or (c) of this Section, then such Bank shall use
reasonable efforts (consistent with legal and
regulatory restrictions) to change the
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jurisdiction of its Lending Office so as to eliminate
any such additional payment by the Company which may
thereafter accrue, if such change in the sole judgment
of such Bank is not otherwise disadvantageous to such
Bank.
(f) Each non-United States Bank represents
and warrants to the Agent and the Company as of the
date hereof that under applicable law and treaties no
tax will be required to be withheld by such Bank with
respect to any payments to be made to such Bank
hereunder.
4.02 Illegality.
(a) (a) If any Bank determines that the
introduction of any Requirement of Law, or any change
in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it
unlawful, or that any central bank or other
Governmental Authority has asserted that it is
unlawful, for any Bank or its applicable Lending Office
to make Offshore Rate Loans, then, on notice thereof by
such Bank to the Company through the Agent, any
obligation of that Bank to make Offshore Rate Loans
shall be suspended until such Bank notifies the Agent
and the Company that the circumstances giving rise to
such determination no longer exist.
(b) If a Bank determines that it is unlawful
to maintain any Offshore Rate Loan, the Company shall,
upon its receipt of notice of such fact and demand from
such Bank (with a copy to the Agent), prepay in full
such Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon and amounts
required under Section 4.04, either on the last day of
the Interest Period thereof, if such Bank may lawfully
continue to maintain such Offshore Rate Loans to such
day, or immediately, if such Bank may not lawfully
continue to maintain such Offshore Rate Loan. If the
Company is required to so prepay any Offshore Rate
Loan, then concurrently with such prepayment, the
Company shall borrow from the affected Bank, in the
amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or
maintain Offshore Rate Loans has been so terminated or
suspended, the Company may elect, by giving notice to
such Bank through the
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Agent that all Loans which would otherwise be made by
such Bank as Offshore Rate Loans shall be instead Base
Rate Loans.
4.03 Increased Costs and Reduction of Return.
(a) (a) If any Bank determines that, due
to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or
(ii) the compliance by that Bank with any guideline or
request from any central bank or other Governmental
Authority (whether or not having the force of law),
there shall be any increase in the cost to such Bank of
agreeing to make or making, funding or maintaining any
Offshore Rate Loans or participating in Letters of
Credit, or, in the case of the Issuing Bank, any
increase in the cost to the Issuing Bank of agreeing to
issue, issuing or maintaining any Letter of Credit or
of agreeing to make or making, funding or maintaining
any unpaid drawing under any Letter of Credit, then the
Company shall be liable for, and shall from time to
time, upon demand (with a copy of such demand to be
sent to the Agent), pay to the Agent for the account of
such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs.
(b) If any Bank shall have determined that
(i) the introduction of any Capital Adequacy
Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by
any central bank or other Governmental Authority
charged with the interpretation or administration
thereof, or (iv) compliance by such Bank (or its
Lending Office) or any corporation controlling such
Bank with any Capital Adequacy Regulation, affects or
would affect the amount of capital required or expected
to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration
such Bank's or such corporation's policies with respect
to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is
increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon
demand of such Bank to the
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Company through the Agent, the Company shall pay to
such Bank, from time to time as specified by such Bank,
additional amounts sufficient to compensate such Bank
for such increase.
4.04 Funding Losses
. The Company shall reimburse each Bank and hold
each Bank harmless from any loss or expense which such
Bank may sustain or incur as a consequence of:
(a) the failure of the Company to make on a
timely basis any payment of principal of any Offshore
Rate Loan;
(b) the failure of the Company to borrow,
continue or convert a Loan after the Company has given
(or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/ Continuation;
(c) the failure of the Company to make any
prepayment in accordance with any notice delivered
under Section 2.07 or 2.08;
(d) the prepayment (including pursuant to
Section 2.07, 2.08 or 4.02(b)) or other payment
(including after acceleration thereof) of an Offshore
Rate Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the conversion under Section 2.04 of any
Offshore Rate Loan to a Base Rate Loan on a day that is
not the last day of the relevant Interest Period;
including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to
maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable
by the Company to the Banks under this Section and
under subsection 4.03(a), each Offshore Rate Loan made
by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to
have been funded at the LIBOR used in determining the
Offshore Rate for such Offshore Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for
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a comparable period, whether or not such Offshore Rate
Loan is in fact so funded.
4.05 Inability to Determine Rates
. If the Agent determines that for any reason
adequate and reasonable means do not exist for
determining the Offshore Rate for any requested
Interest Period with respect to a proposed Borrowing of
Offshore Rate Loans or conversion or continuation of
Offshore Rate Loans, or that the Offshore Rate
applicable pursuant to subsection 2.10(a) for any
requested Interest Period with respect to a proposed
Borrowing of Offshore Rate Loans or a conversion into
or continuation of Offshore Rate Loans does not
adequately and fairly reflect the cost to the Banks of
funding such Loans, the Agent will promptly so notify
the Company and each Bank. Thereafter, the obligation
of the Banks to make or maintain Offshore Rate Loans,
as the case may be, hereunder shall be suspended until
the Agent revokes such notice in writing. Upon receipt
of such notice, the Company may revoke any Notice of
Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such
Notice, the Banks shall make, convert or continue the
Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or
continued as Base Rate Loans instead of Offshore Rate
Loans.
4.06 Reserves on Offshore Rate Loans
. The Company shall pay to each Bank, as long as
such Bank shall be required under regulations of the
FRB to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or
deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid
principal amount of each Offshore Rate Loan equal to
the actual costs of such reserves allocated to such
Loan by such Bank (as determined by such Bank in good
faith, which determination shall be conclusive absent
manifest error), payable on each date on which interest
is payable on such Loan, provided the Company shall
have received at least 15 days' prior written notice
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(with a copy to the Agent) of such additional interest
from the Bank. If a Bank fails to give notice 15 days
prior to the relevant Interest Payment Date, such
additional interest shall be payable 15 days from
receipt of such notice.
4.07 Certificates of Banks
(a) . (a) Any Bank claiming
reimbursement or compensation under this Article IV
shall deliver to the Company (with a copy to the Agent)
a certificate setting forth in reasonable detail the
amount payable to such Bank hereunder and such
certificate shall be conclusive and binding on the
Company in the absence of manifest error.
(b) Failure or delay on the part of any
Bank, the Swingline Bank or the Issuing Bank to demand
compensation, reimbursement or indemnity under this
Article IV for Taxes, Further Taxes, Other Taxes,
increased costs, reduction in amounts received or
receivable, or reduction in return on capital shall not
constitute a waiver of such Bank's or the Issuing
Bank's right to demand such compensation; provided that
neither any Bank nor the Issuing Bank shall be entitled
to compensation under this Article IV for any amounts
with respect to any date unless such Bank, the
Swingline Bank or the Issuing Bank, as the case may be,
shall have notified the Company not more than 90 days
after the later of (i) such date and (ii) the date on
which such Bank, the Swingline Bank or the Issuing
Bank, as applicable, shall have become aware of such
Taxes, Further Taxes, Other Taxes, costs or reductions.
4.08 Substitution of Banks
. Upon the receipt by the Company from any Bank
(an "Affected Bank") of a claim for compensation under
Section 4.03, the Company may: (i) request one or more
of the other Banks to acquire and assume all or part of
such Affected Bank's Loans and Commitment; or
(ii) designate a replacement lending institution (which
shall be an Eligible Assignee) to acquire and assume
all or a ratable part of such Affected Bank's Loans and
Commitment (a "Replacement Bank"); provided, however,
that the Company shall be liable for the payment upon
demand of all costs and other amounts arising under
Section 4.04 that result from the acquisition of any
Affected Bank's Loan and/or Commitment (or
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any portion thereof) by a Bank or Replacement Bank, as
the case may be, on a date other than the last day of
the applicable Interest Period with respect to any
Offshore Rate Loan then outstanding. Any such
designation of a Replacement Bank under clause (i) or
(ii) shall be effected in accordance with, and subject
to the terms and conditions of, the assignment
provisions contained in Section 11.08, and shall in any
event be subject to the prior written consent of the
Agent, the Issuing Bank and the Swingline Bank (which
consent shall not be unreasonably withheld or delayed).
4.09 Survival
. The agreements and obligations of the Company
in this Article IV shall survive the termination of the
Commitments, the termination or expiration of all
Letters of Credit and the payment of all other
Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions
. The obligation of each Bank and the Swingline
Bank to make its initial Credit Extension hereunder and
the obligation of the Issuing Bank to Issue its initial
Letter of Credit shall be subject to the condition that
the Agent shall have received on or before the Closing
Date all of the following, in form and substance
reasonably satisfactory to the Agent and each Bank, and
in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This
Agreement executed on or before July 30, 1999 by each
party hereto and Notes executed by the Company for the
Banks requesting Notes;
(b) Resolutions; Incumbency. Each of the
following:
(i) Copies of the resolutions of the
board of directors of the Company authorizing the
transactions contemplated hereby, certified as of
the Closing Date by
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(ii) the Secretary or an Assistant
Secretary of the Company; and
(iii) certificates of the Secretary or
Assistant Secretary of the Company, dated as of
the Closing Date, certifying the names, titles and
true signatures of the officers of the Company
authorized to execute, deliver and perform this
Agreement and all other Documents to be delivered
by it hereunder;
(c) Organization Documents; Good Standing.
Each of the following:
(i) the articles of incorporation and
the bylaws of the Company as in effect on the
Closing Date, certified by the Secretary or
Assistant Secretary of the Company as of the
Closing Date; and
(ii) a status certificate for the
Company from the Secretary of State (or similar,
applicable Governmental Authority) of its state of
incorporation, as of a recent date;
(d) Legal Opinions. Each of the following:
(i) an opinion of Stoel Rives LLP,
counsel to the Company and addressed to the Agent
and the Banks, dated the Closing Date,
substantially in the form of Exhibit D; and
(ii) a favorable opinion of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the
Agent, dated the Closing Date;
(e) Payment of Fees. Evidence of payment by
the Company of all accrued and unpaid fees, costs and
expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of BofA to
the extent invoiced prior to or on the Closing Date,
plus such additional amounts of Attorney Costs as shall
constitute BofA's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing
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proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between
the Company and BofA); including any such costs, fees
and expenses arising under or referenced in Sections
2.11 and 11.04;
(f) Documents and Actions Relating to the
Transaction. A certificate of a Responsible Officer of
the Company certifying (i) that the Tender Offer Expiry
Date has passed and there has been validly tendered, in
accordance with the terms of the Tender Offer, and for
a share price not in excess of $20.00, sufficient
shares to satisfy the Minimum Condition and evidence
that all material terms and conditions of the Offer,
other than payment for tendered shares, have been
satisfied; and (ii) that all (A) authorizations,
consents or approvals of, notices to or filings with,
any Governmental Authority, including pursuant to the
HSR Act, and (B) approvals and consents of any other
Person, required in connection with the Tender Offer,
the Transaction or the execution, delivery and
performance of the Transaction Documents, shall have
been obtained or made and that all applicable waiting
periods have expired without notice of any action which
seeks to restrain, enjoin or otherwise prohibit or
significantly delay the Transaction having been taken
by any Governmental Authority;
(g) Documents and Actions Relating to the
Bridge Credit Agreement. A certificate of a
Responsible Officer of the Company certifying that all
conditions precedent to the closing of the loans under
the Bridge Credit Agreement shall have been satisfied
in accordance with the terms and conditions thereof
(other than any conditions relating to the closing of
the transactions contemplated by this Agreement);
(h) Certificate. A certificate signed by a
Responsible Officer, dated as of the Closing Date,
stating that:
(i) the representations and warranties
contained in Article VI are true and correct on
and as of such date, as though made on and as of
such date (except to the extent such
representations and warranties expressly refer to
an earlier date, in which case they shall be true
and correct as of such earlier date); and
(ii) no Default or Event of Default
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exists or would result from the Credit Extension.
(i) Existing Credit Facility. Evidence satisfactory
to the Agent that the commitments to extend credit under the
Existing Credit Facility have been terminated and that all
principal, interest, charges and fees due thereunder have been
paid or that arrangements reasonably satisfactory to the Agent
for the payment thereof have been made by the Company (the
Company and each Bank party hereto that is lender under the
Existing Credit Facility acknowledging that such commitments
shall be terminated simultaneously with the closing hereunder);
and
(j) Other Documents.
(i) The audited balance sheet of the
Company and its Subsidiaries as at March 29, 1998,
and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal
year then ended, and the unaudited consolidated
balance sheet of the Company and its Subsidiaries
as at March 28, 1999, and the related consolidated
statements of income, shareholders' equity and
cash flows, for the fiscal quarter then ended,
certified by a Responsible Officer of the Company;
(ii) the pro forma balance sheet of and
five-year financial statement projections for the
Company and its Subsidiaries and the Acquired
Company and its Subsidiaries as of and commencing
at the Closing Date, and a completed Compliance
Certificate as of the Closing Date based on such
pro forma balance sheet and projections, each
giving effect to the Transaction and the
transactions contemplated in connection therewith
and reflecting good faith estimated purchase price
accounting adjustments, certified by a Responsible
Officer of the Company;
(iii) a true and complete copy of the
Merger Agreement and such other Transaction
Documents as any Bank or the Agent may reasonably
specify, certified by a Responsible Officer of the
Company; and
(iv) such other approvals, opinions,
documents or materials as the Agent or any Bank
may reasonably request;
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(k) Notice, Application. The Agent shall
have received a Notice of Borrowing or in the case of
any Issuance of any Letter of Credit, the Issuing Bank
and the Agent shall have received an L/C Application or
L/C Amendment Application, as required under Section
3.02;
(l) Representations and Warranties. The
representations and warranties in Article VI shall be
true and correct on and as of the Closing Date with the
same effect as if made on and as of the Closing Date
(except to the extent such representations and
warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier
date); and
(m) No Existing Default. No Default or
Event of Default shall exist or shall result from the
Credit Extension.
5.02 Conditions to Subsequent Credit Extensions
. The obligation of each Bank and the Swingline
Bank to make any subsequent Credit Extension after the
Closing Date and the obligation of the Issuing Bank to
Issue any Letter of Credit after the Closing Date shall
be subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or
Issuance Date:
(a) Notice, Application. The Agent shall
have received a Notice of Borrowing or in the case of
any Issuance of any Letter of Credit, the Issuing Bank
and the Agent shall have received an L/C Application or
L/C Amendment Application, as required under Section
3.02;
(b) Representations and Warranties. The
representations and warranties in Article VI shall be
true and correct on and as of such Borrowing Date or
Issuance Date with the same effect as if made on and as
of such Borrowing Date or Issuance Date (except to the
extent such representations and warranties expressly
refer to an earlier date, in which case they shall be
true and correct as of such earlier date) and except
that this subsection (b) shall be deemed instead to
refer to the last day of the most recent quarter and
year for which financial statements have then been
delivered in respect of the representation and warranty
made in subsection 6.11(a));
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(c) No Existing Default. No Default or
Event of Default shall exist or shall result from such
Borrowing or Issuance; and
(d) No Material Adverse Effect. There has
occurred since December 31, 1998 (as to the Company and
its Subsidiaries) and February 28, 1999 (as to the
Acquired Company and its Subsidiaries), no event or
circumstances that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
Each Notice of Borrowing, and L/C Application or L/C
Amendment Application submitted by the Company
hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of
each such notice and as of each Borrowing Date or
Issuance Date, as applicable, that the conditions in
this Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent
and each Bank that:
6.01 Corporate Existence and Power.
The Company and each of its Subsidiaries:
(a) (i) (in the case of the Company) is a
corporation duly organized and validly existing under
the laws of the State of Oregon, and (ii) (in the case
of any Subsidiary) is a corporation, limited liability
company or partnership duly organized or formed, as the
case may be, validly existing and in good standing (if
applicable) under the laws of the jurisdiction of its
incorporation or formation;
(b) (i) has the organizational power and
authority and all material governmental licenses,
authorizations, consents and approvals to own its
assets and carry on its business and (ii) has the
organizational power and authority and all governmental
licenses, authorizations, consents and approvals to
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execute, deliver, and perform its obligations under the
Documents to which it is a party;
(c) is duly qualified, licensed and in good
standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the
conduct of its business requires such qualification,
license or good standing; and
(d) is in compliance with all material
Requirements of Law; except, in each case referred to
in clause (a)(ii), (b)(i), (c) or (d) where failure to
do so could not reasonably be expected to have a
Material Adverse Effect.
6.02 Corporate Authorization; No Contravention
. The execution, delivery and performance by the
Company and its Subsidiaries of this Agreement and each
other Document to which such Person is party, have been
duly authorized by all necessary corporate action, and
do not and will not:
(a) contravene the terms of any of that
Person's Organization Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien (other
than Permitted Liens) under, any document evidencing
any Contractual Obligation to which such Person is a
party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its
property is subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization
. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in
connection with (i) the execution, delivery or
performance by, or enforcement against, the Company or
any of its Subsidiaries of this Agreement or any other
Document or (ii) the consummation of the Tender Offer
or the Transaction, except, in the case of this clause
(ii),
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(A) such as will be obtained before the Tender
Offer Expiry Date or (B) where failure to obtain or
effect any of the foregoing could not reasonably be
expected to have a Material Adverse Effect.
6.04 Binding Effect
(a) (a) This Agreement and each other
Document to which the Company or any of its
Subsidiaries is a party constitute the legal, valid and
binding obligations of the Company or the Subsidiary
party thereto, enforceable against such Person in
accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable
principles relating to enforceability.
(b) The Merger Agreement is in full force
and effect, enforceable against the parties thereto in
accordance with its terms, and has not been amended or
modified in any material respect since its date of
execution. The Offer has not been amended or modified
in any material respect.
6.05 Litigation
. Except as specifically disclosed in Schedule
6.05, there are no actions, suits, proceedings, claims
or disputes pending, or to the best knowledge of the
Company, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority,
against the Company, the Acquired Company, or its
Subsidiaries or any of their respective properties
which:
(a) purport to affect or pertain to this
Agreement or any other Document, or any of the
transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company
or its Subsidiaries, would reasonably be expected to
have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature
has been issued by any court or other Governmental
Authority purporting to enjoin or restrain
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the execution, delivery or performance of this
Agreement or any other Document, or directing that the
transactions provided for herein or therein not be
consummated as herein or therein provided.
6.06 No Defaults
. No Default or Event of Default exists or would
result from the incurring of any Obligations by the
Company. Neither the Company nor any Subsidiary is in
default under or with respect to any Contractual
Obligation in any respect which, individually or
together with all such defaults, could reasonably be
expected to have a Material Adverse Effect, or that
would create an Event of Default under subsection
9.01(e).
6.07 ERISA Compliance
. Except as specifically disclosed in Schedule
6.07:
(a) Each Plan is in compliance in all
material respects with the applicable provisions of
ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a)
of the Code has received a favorable determination
letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the
loss of such qualification where the failure to be so
qualified could reasonably be expected to have a
Material Adverse Effect. The Company and each ERISA
Affiliate has made all required contributions to any
Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.
(b) There are no pending or, to the best
knowledge of Company, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with
respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse
Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse
Effect.
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(c) (i) No ERISA Event has occurred or is
reasonably expected to occur; (ii) no Pension Plan has
any Unfunded Pension Liability; (iii) neither the
Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title
IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with
the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and
(v) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
6.08 Use of Proceeds; Margin Regulations
. The proceeds of the Loans are to be used solely
for the purposes set forth in and permitted by Section
7.12 and Section 8.07. Neither the Company nor any
Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit
for the purpose of purchasing or carrying Margin Stock.
6.09 Title to Properties; Liens.
The Company and each Subsidiary have good record
and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or
used in the ordinary conduct of their respective
businesses, except for such properties and defects in
title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect. The property of the Company and its
Subsidiaries is subject to no Liens, other than
Permitted Liens.
6.10 Taxes.
The Company and its Significant Subsidiaries
have filed all Federal and other material tax returns
and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and
payable, except those which are being contested in good
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faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP.
There is no proposed tax assessment against the Company
or any Subsidiary that would, if made, have a Material
Adverse Effect.
6.11 Financial Condition.
(a) (a) The audited consolidated balance
sheet of the Company and its Subsidiaries dated
March 29, 1998, the unaudited balance sheet of the
Company and its Subsidiaries dated March 28, 1999 and,
in each case, the related consolidated statements of
income or operations, shareholders' equity and cash
flows for the fiscal period ended on that date:
(i) were prepared in accordance with
GAAP consistently applied throughout the periods
covered thereby, except as otherwise expressly
noted therein, subject to the absence of footnotes
and ordinary, good faith year end audit
adjustments in the case of quarterly financial
statements;
(ii) fairly present in all material
respects the financial condition of the Company
and its Subsidiaries as of the date thereof and
the results of operations and cash flows for the
periods covered thereby; and
(iii) except as specifically disclosed
in Schedule 6.11, reflect, by footnote disclosure
or otherwise, all material Indebtedness and other
liabilities, direct or contingent, of the Company
and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material
commitments and Contingent Obligations.
(b) The pro forma financial statements of
the Company and its Subsidiaries referred to in
subsection 5.01(k)(ii) were prepared on a basis
consistent with GAAP as applied to the Company's
financial statements, have been prepared in good faith
by the Company based on reasonable assumptions, are
based on the best information available to the Company
as of the date of delivery thereof, accurately reflect
all material adjustments required to be made to give
effect to the Transaction, and present fairly on a pro
forma basis the estimated consolidated financial
Page 80
position of the Company as of the date thereof,
assuming consummation of the Transaction.
(c) Since December 31, 1998 (as to the
Company and its Subsidiaries) and February 28, 1999 (as
to the Acquired Company and its Subsidiaries) there has
not been any Material Adverse Effect.
6.12 Environmental Matters
. The Company conducts in the ordinary course of
business a review of the effect of existing
Environmental Laws and existing Environmental Claims on
its business, operations and properties, and as a
result thereof the Company has reasonably concluded
that, except as specifically disclosed in Schedule
6.12, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.13 Regulated Entities
. None of the Company, any Person controlling the
Company, or any Subsidiary is an "Investment Company"
within the meaning of the Investment Company Act of
1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any
state public utilities code, or any other Federal or
state statute or regulation limiting its ability to
incur Indebtedness.
6.14 No Burdensome Restrictions; No Restrictions
on Subsidiary Dividends
. Neither the Company nor any Subsidiary is a party to
or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document or any
Requirement of Law, which could reasonably be expected
to have a Material Adverse Effect. Except as permitted
by Section 8.16, neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation
which expressly restricts, limits or prohibits the
payment of dividends by any Subsidiary or the making of
any other distribution in respect of such Subsidiary's
capital stock.
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6.15 Copyrights, Patents, Trademarks and Licenses,
Etc.
The Company or its Subsidiaries own or are
licensed or otherwise have the right to use all of the
material patents, trademarks, service marks, trade
names, copyrights, contractual franchises,
authorizations and other rights that are reasonably
necessary for the operation of their respective
businesses, without conflict with the rights of any
other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process,
method, substance, part or other material now employed,
or now contemplated to be employed, by the Company or
any Subsidiary infringes upon any rights held by any
other Person. Except as specifically disclosed in
Schedule 6.05, no claim or litigation regarding any of
the foregoing is pending or, to the best knowledge of
the Company, threatened, and no patent, invention,
device, application, principle or any statute, law,
rule, regulation, standard or code is pending or, to
the best knowledge of the Company, proposed, which, in
either case, could reasonably be expected to have a
Material Adverse Effect.
6.16 Subsidiaries
. As of the Closing Date (after giving effect to
the Transaction), the Company has no Subsidiaries other
than those specifically disclosed in Schedule 6.16.
6.17 Insurance.
Except as specifically disclosed in Schedule 6.17,
the properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance
companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in
similar businesses and owning similar properties in
localities where the Company or such Subsidiary
operates except to the extent the Company and its
Subsidiaries maintain a plan or plans of self-insurance
to such extent and covering such risks as is usual for
companies of similar size engaged in similar businesses
and owning similar properties.
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6.18 Solvency
. The Company and its Significant Subsidiaries
(taken as a whole) are Solvent.
6.19 Swap Obligations
. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap
Contracts, other than Permitted Swap Obligations. The
Company has undertaken its own independent assessment
of its consolidated assets, liabilities and commitments
and has considered appropriate means of mitigating and
managing risks associated with such matters and has not
relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into
any Swap Contract.
6.20 Year 2000.
On the basis of a comprehensive review and
assessment of the Company's and its Subsidiaries'
systems and equipment and inquiry made of the Company's
and its Subsidiaries' material suppliers, vendors and
customers, the Company's management is of the view that
the "Year 2000 problem" (that is, the inability of
computers, as well as embedded microchips in non-
computing devices, to perform properly date-sensitive
functions with respect to certain dates prior to and
after December 31, 1999), including costs of
remediation, will not result in a Material Adverse
Effect. The Company and its Subsidiaries have developed
feasible contingency plans adequately to ensure
uninterrupted and unimpaired business operation in the
event of failure of their own or a third party's
systems or equipment due to the Year 2000 problem,
including those of vendors, customers, and suppliers,
as well as a general failure of or interruption in its
communications and delivery infrastructure.
6.21 Merger Representations
. All representations and warranties of the
Purchaser or the Company in the Merger Agreement are
true and correct in all material respects as of each
date made or deemed made. To the Company's knowledge,
all representations and warranties of the Acquired
Company in the Merger Agreement are true and correct in
all material respects as of each date made or deemed
made.
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6.22 Full Disclosure.
None of the representations or warranties made
by the Company or any Subsidiary in the Documents as of
the date such representations and warranties are made
or deemed made, and none of the statements contained in
the Offer or in any other exhibit, report, statement or
certificate furnished by or on behalf of the Company or
any Subsidiary in connection with the Documents
(including the offering and disclosure materials
delivered by or on behalf of the Company to the Banks
prior to the Closing Date), contains any untrue
statement of a material fact or omits any material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances
under which they are made, not misleading as of the
time when made or delivered; provided that to the
extent any such information, report, financial
statement, exhibit or schedule was based upon or
constitutes a forecast or projection, the Company
represents only that it acted in good faith and
utilized reasonable assumptions and due care in the
preparation of such information, report, financial
statement, exhibit or schedule (it being understood
that forecasts and projections by their nature involve
approximations and uncertainties).
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment
hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, unless the Majority Banks waive
compliance in writing:
Page 84
7.01 Financial Statements
. The Company shall deliver to each Bank, with a
copy to the Agent, in form and detail reasonably
satisfactory to the Agent and the Majority Banks:
(a) as soon as available, but not later than
100 days after the end of each fiscal year, a copy of
the audited consolidated balance sheet of the Company
and its Subsidiaries as at the end of such year and the
related consolidated statements of income or
operations, shareholders' equity and cash flows for
such year, setting forth in each case in comparative
form the figures for the previous fiscal year, and
accompanied by the opinion of
PricewaterhouseCoopers LLP or another
nationally-recognized independent public accounting
firm (the "Independent Auditor") which report shall
state that such consolidated financial statements
present fairly the financial position and the results
of operations and cash flows as of the end of and for
the periods indicated in conformity with GAAP applied
on a basis consistent with prior years. Such opinion
shall not be qualified as to (i) going concern,
(ii) any limitation in the scope of the audit, or
(iii) possible errors generated by financial reporting
and related systems due to the Year 2000 problem; and
(b) as soon as available, but not later than
55 days after the end of each fiscal quarter of each
fiscal year, a copy of the unaudited consolidated
balance sheet of the Company and its Subsidiaries as of
the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash
flows for the period commencing on the first day and
ending on the last day of such quarter, and certified
by a Responsible Officer as presenting fairly, in
accordance with GAAP (subject to the absence of
footnotes and ordinary, good faith year-end audit
adjustments), the financial position and results of
operations and cash flows of the Company and the
Subsidiaries as of the end of and for such period.
As to any information contained in materials furnished
pursuant to subsection 7.02(b), the Company shall not
be separately required to furnish such information
under subsection (a) or (b) above, but the foregoing
Page 85
shall not be in derogation of the obligation of the
Company to furnish the information and materials
described in subsection (a) and (b) above at the times
specified therein.
7.02 Certificates; Other Information
. The Company shall furnish to each Bank, with a
copy to the Agent:
(a) as soon as available, and in any event
within 55 days after the end of each fiscal quarter, a
Compliance Certificate executed by a Responsible
Officer;
(b) promptly, copies of all financial
statements and reports that the Company sends to its
shareholders, and copies of all financial statements
and regular, periodical or special reports (including
Forms 10K, 10Q and 8K) that the Company or any
Subsidiary may make to, or file with, the SEC; and
(c) promptly, such additional information
regarding the business, financial or corporate affairs
of the Company or any Subsidiary as the Agent, at the
request of any Bank, or any Bank, may from time to time
reasonably request.
7.03 Notices
. The Company shall promptly notify the Agent and
each Bank:
(a) but in no event more than 10 days after
a Responsible Officer becomes aware of the occurrence
or existence thereof, of the occurrence of any Default
or Event of Default,
(b) but in not event more than 10 days after
a Responsible Officer becomes aware of the occurrence
thereof, of any matter that has resulted or could
reasonably be expected to result in a Material Adverse
Effect, including (i) any breach or non-performance of,
or any default under, any Contractual Obligation of the
Company or any of its Subsidiaries which has resulted
or could reasonably be expected to result in a Material
Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist
at any time between the Company or any of its
Page 86
Subsidiaries and any Governmental Authority (including
under or pursuant to any Environmental Laws) which has
resulted or could reasonably be expected to result in a
Material Adverse Effect;
(c) of the commencement of, or any material
development in, any litigation or proceeding affecting
the Company or any Subsidiary (i) which, if adversely
determined, would reasonably be expected to have a
Material Adverse Effect, or (ii) in which the relief
sought is an injunction or other stay of the
performance of this Agreement or any Document;
(d) of any other litigation or proceeding
affecting the Company or any of its Subsidiaries which
the Company would be required to report to the SEC
pursuant to the Exchange Act, within four Business Days
after reporting the same to the SEC;
(e) of the occurrence of any of the
following events affecting the Company or any ERISA
Affiliate (but in no event more than 10 days after a
Responsible Officer becomes aware of such event), and
deliver to the Agent and each Bank a copy of any notice
with respect to such event that is filed with a
Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA
Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the
Unfunded Pension Liability of any Pension Plan;
(iii) the adoption of, or the
commencement of contributions to, any Plan subject
to Section 412 of the Code by the Company or any
ERISA Affiliate; or
(iv) the adoption of any amendment to a
Plan subject to Section 412 of the Code, if such
amendment results in a material increase in
contributions or Unfunded Pension Liability; and
(f) of any material change in accounting
policies or financial reporting practices by the
Company or any of its consolidated Subsidiaries,
including any change in GAAP that will have an effect
Page 87
on Consolidated Net Worth.
Each notice under this Section shall be accompanied by
a written statement by a Responsible Officer setting
forth details of the occurrence referred to therein,
and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at
what time. Each notice under subsection 7.03(a) shall
describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document
that have been (or foreseeably will be) breached or
violated, but the failure to correctly list all such
sections shall not, of itself, constitute a failure to
comply with this Section.
7.04 Preservation of Corporate Existence, Etc.
The Company shall, and shall cause each
Significant Subsidiary to, except in connection with
transactions permitted by Section 8.02 or 8.03:
(a) (i) (in the case of the Company)
preserve and maintain in full force and effect its
legal existence under the laws of the State of Oregon,
and (ii) (in the case of any Significant Subsidiaries)
preserve and maintain in full force and effect its
(A) legal existence and (B) good standing (if
applicable) under the laws of its state or jurisdiction
of incorporation or formation;
(b) preserve and maintain in full force and
effect all governmental rights, privileges,
qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its
business;
(c) use reasonable efforts, in the ordinary
course of business, to preserve its business
organization and goodwill; and
(d) preserve or renew all of its registered
patents, trademarks, trade names and service marks;
except, in the case of clause (a)(ii), (b), (c) or (d),
where failure to do so could not reasonably be expected
to have a Material Adverse Effect.
Page 88
7.05 Maintenance of Property
. Except as permitted by Section 8.02, the
Company shall, and shall cause each Subsidiary to,
maintain, and preserve all its property which is used
or useful in its business in good working order and
condition, ordinary wear and tear excepted and make all
necessary repairs thereto and renewals and replacements
thereof, except where the failure to do so could not
reasonably be expected to have a Material Adverse
Effect. The Company and each Subsidiary shall use the
standard of care typical in the industry in the
operation and maintenance of its facilities.
7.06 Insurance
. The Company shall, and shall cause each
Significant Subsidiary to, maintain with financially
sound and reputable independent insurers, insurance
with respect to its properties and business against
loss or damage of the kinds customarily insured against
by Persons engaged in the same or similar business, of
such types and in such amounts as are customarily
carried under similar circumstances by such other
Persons except to the extent the Company and its
Subsidiaries maintain a plan or plans of self-insurance
to such extent and covering such risks as is usual for
companies of similar size engaged in similar businesses
and owning similar properties.
7.07 Payment of Obligations
. The Company shall, and shall cause each of its
Significant Subsidiaries to, pay and discharge as the
same shall become due and payable, all their respective
obligations and liabilities, including:
(a) all tax liabilities, assessments and
governmental charges or levies upon it or its
properties or assets, unless the same are being
contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary; and
(b) all Indebtedness, as and when due and
payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing
Page 89
such Indebtedness (except where failure to do so would
not otherwise constitute a Default or Event of Default
hereunder).
7.08 Compliance with Laws
. The Company shall comply, and shall cause each
Subsidiary to comply, in all material respects with all
Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including
the Federal Fair Labor Standards Act), except (i) such
as may be contested in good faith or as to which a bona
fide dispute may exist (ii) or where the failure to
comply could not reasonably be expected to have a
Material Adverse Effect.
7.09 Compliance with ERISA
. The Company shall, and shall cause each of its
ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such
qualification; and (c) make all required contributions
to any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records
. The Company shall, and shall cause each
Subsidiary to, maintain proper books of record and
account, in which full, true and correct entries in
conformity with local statutory reporting requirements
or GAAP consistently applied, as applicable, shall be
made of all financial transactions and matters
involving the assets and business of the Company and
such Subsidiary. The Company shall permit, and shall
cause each Subsidiary to permit, representatives and
independent contractors of the Agent or any Bank to
visit and inspect any of their respective properties,
to examine their respective corporate, financial,
operating and other records, and make copies thereof or
abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective
directors, officers, and independent public
accountants, all at such reasonable times during normal
business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company;
Page 90
provided, however, when an Event of Default exists the
Agent or any Bank may do any of the foregoing at the
expense of the Company at any time during normal
business hours and without advance notice.
7.11 Environmental Laws
. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and
maintain its property in material compliance with all
Environmental Laws, except (i) such as may be contested
in good faith or as to which a bona fide dispute may
exist and adequate reserves are being maintained with
respect thereto in accordance with GAAP or (ii) where
the failure to comply could not reasonably be expected
to have a Material Adverse Effect.
7.12 Use of Proceeds
. The Company shall use the proceeds of the Loans
and the Letters of Credit: (i) to fund the purchase of
shares tendered pursuant to the Tender Offer, the
consummation of the Merger and the payment of fees,
costs and expenses arising out of the Transaction;
(ii) to refinance Indebtedness of the Acquired Company;
(iii) to refinance the Indebtedness of the Company and
certain of its Subsidiaries under the Existing Credit
Facility; and (iv) for working capital and other
general corporate purposes not in contravention of any
Requirement of Law or of any Document (including for
purposes of undertaking Acquisitions; provided that
such Acquisitions do not contravene any provision of
this Agreement or of any other Document or any
applicable Requirement of Law).
7.13 Merger
. The Company shall ensure that the Merger is
consummated within 120 days after the Purchaser first
purchases shares of the Acquired Company pursuant to
the Tender Offer.
7.14 Further Assurances.
(a) (a) The Company shall ensure that all
written information, exhibits and reports furnished to
the Agent or the Banks do not and will not contain any
untrue statement of a material fact and do not and ▇▇▇▇
▇▇▇▇ 91
not omit to state any material fact or any fact
necessary to make the statements contained therein not
misleading in light of the circumstances in which made,
and will promptly disclose to the Agent and the Banks
and correct any defect or error that may be discovered
therein or in any Document or in the execution,
acknowledgement or recordation thereof.
(b) Promptly upon request by the Agent or
the Majority Banks, the Company shall do, execute,
acknowledge, and deliver, any and all such further
acts, certificates, assurances and other instruments
the Agent or such Banks, as the case may be, may
reasonably require from time to time in order to carry
out more effectively the purposes of this Agreement or
any other Loan Document.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment
hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, unless the Majority Banks waive
compliance in writing:
8.01 Negative Pledges; Liens
. The Company shall not: (i) enter into or suffer
to exist any agreement (other than this Agreement, any
other Loan Document, the indenture for the Existing
Securities, the Bridge Credit Agreement, the indenture
for the Senior Notes, and the documents for any
purchase money obligations or capital leases (solely
with respect to the property securing such obligation
or subject to such lease) prohibiting or conditioning
the creation or assumption of any Lien upon any of its
properties, revenues or assets, whether now owned or
hereafter acquired, or (ii) permit any of its
Subsidiaries to enter into or suffer to exist any
agreement (other than agreements existing on the
Closing Date, the documents for any purchase money
obligations or capital leases (solely with respect to
the property securing such obligation or subject to
such lease) and any Permitted Receivables Purchase
Facility (solely with respect to the Permitted
Receivables and related assets which are the subject
Page 92
thereof)) prohibiting or conditioning the creation or
assumption of any Lien upon any of their properties,
revenues or assets, whether now owned or hereafter
acquired. Additionally, the Company shall not, and
shall not suffer or permit any Subsidiary to, directly
or indirectly, make, create, incur, assume or suffer to
exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired,
other than the following ("Permitted Liens"):
(a) any Lien existing on the Closing Date
and set forth in Schedule 8.01 securing Indebtedness
outstanding on such date;
(b) any Lien in favor of the Agent and the
Banks created under any Loan Document to Cash
Collateralize the L/C Obligations;
(c) Liens for taxes, fees, assessments or
other governmental charges which are not delinquent or
remain payable without penalty, or to the extent that
non-payment thereof is permitted by subsection 7.07(a),
provided that no notice of lien has been filed or
recorded under the Code;
(d) carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar
Liens arising in the ordinary course of business which
are not delinquent or remain payable without penalty or
which are being contested in good faith and by
appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the
property subject thereto;
(e) Liens (other than any Lien imposed by
ERISA) consisting of pledges or deposits required in
the ordinary course of business in connection with
workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens securing (i) the non-delinquent
performance of bids, trade contracts (other than for
borrowed money), leases (other than capital leases),
statutory obligations, (ii) contingent obligations on
surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in
the ordinary course of business, provided all such
Page 93
Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial
attachment liens, provided that (i) the enforcement of
such Liens is effectively stayed within 60 days after
the entry thereof or (ii) all such unstayed Liens at
any time outstanding for the Company and its
Subsidiaries do not exceed $35,000,000 in the aggregate
;
(h) easements, rights-of-way, restrictions
and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not
substantial in amount, and which do not in any case
materially detract from the value of the property
subject thereto or interfere with the ordinary conduct
of the businesses of the Company and its Subsidiaries;
(i) Liens on specific tangible assets of
Persons which become Subsidiaries after the date of
this Agreement; provided, however, that (A) such Liens
existed at the time the respective Persons became
Subsidiaries and were not created in anticipation
thereof, (B) any such Lien does not by its terms cover
any assets after the time such Person becomes a
Subsidiary which were not covered immediately prior
thereto (other than proceeds of the asset), and (C) any
such Lien does not by its terms secure any Indebtedness
other than Indebtedness existing immediately prior to
the time such Person becomes a Subsidiary;
(j) purchase money Liens on any property
acquired or held by the Company or any of its
Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of
acquiring, constructing, developing or improving such
property; provided that (i) any such Lien attaches to
such property concurrently with or within 20 days after
the acquisition thereof, (ii) such Lien attaches solely
to the property (including the proceeds thereof) so
acquired in such transaction, and (iii) the principal
amount of the Indebtedness secured thereby does not
exceed 100% of the cost of acquisition, construction,
development or improvement of such property;
(k) Liens securing obligations in respect of
capital leases on assets subject to such leases;
Page 94
(l) Liens arising solely by virtue of any
statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such
deposit account is not a dedicated cash collateral
account and is not subject to restrictions against
access by the Company in excess of those set forth by
regulations promulgated by the FRB, and (ii) such
deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository
institution;
(m) Liens consisting of pledges of cash
collateral or government securities to secure on a
▇▇▇▇-to-market basis Permitted Swap Obligations only,
provided that (i) the counterparty to any Swap Contract
relating to such Permitted Swap Obligation is under a
similar requirement to deliver similar collateral from
time to time to the Company or the Subsidiary party
thereto on a ▇▇▇▇-to-market basis; and (ii) the
aggregate value of such collateral so pledged by the
Company and the Subsidiaries together in favor of any
counterparty does not at any time exceed $35,000,000;
(n) Liens in connection with any Permitted
Receivables Purchase Facility; and
(o) any other Liens if the aggregate amount
of Indebtedness of the Company or any of its
Subsidiaries that is secured by such Liens does not
exceed $75,000,000 in the aggregate at any time;
provided that in the case of any Subsidiary such
Indebtedness is permitted to be incurred under Section
8.05.
8.02 Disposition of Assets
. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of transactions) any
property (including accounts and notes receivable, with
or without recourse) or enter into any agreement to do
any of the foregoing, except:
(a) dispositions of inventory, used,
worn-out, obsolete or surplus equipment, or defaulted
receivables, all in the ordinary course of business;
Page 95
(b) the sale of equipment to the extent that
such equipment is exchanged for credit against the
purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied
to the purchase price of such replacement equipment;
and
(c) dispositions by the Company of divisions
or Subsidiaries, dispositions by Subsidiaries of
divisions, and dispositions of the assets of divisions
of the Company or any Subsidiary, in aggregate amount
not to exceed $75,000,000 in any one year (the "Annual
Limit"); provided that if in any year the aggregate
amount of such dispositions is an amount less than the
Annual Limit (the "Unused Amount"), the Annual Limit
for subsequent years may be increased by such Unused
Amount; and provided further that on a cumulative basis
from and after the Closing Date, all such dispositions
shall not in the aggregate exceed 10% of Consolidated
Total Assets as of the end of the fiscal quarter
immediately preceding the date of determination;
(d) dispositions of Permitted Receivables
pursuant to Permitted Receivables Purchase Facilities
in an aggregate amount not to exceed $150,000,000;
(e) the lease or sublease of property by the
Company or any Subsidiary to other Persons in the
ordinary course of business;
(f) as permitted by Section 8.03;
(g) the sale of cash equivalents and other
short term money market investments in the ordinary
course of business pursuant to the Company's usual and
customary cash management policies and procedures;
(h) in the case of a Subsidiary,
dispositions to the Company or a Wholly-Owned
Subsidiary; and
(i) dispositions of assets by the Company or
any Subsidiary as required to ensure compliance with
the HSR Act in connection with (and in order to
consummate) the Acquisition; provided that immediately
after giving effect to such disposition: (A) no Default
Page 96
or Event of Default shall have occurred and be
continuing or would result therefrom, and (B) the
Company shall be in compliance, on a pro forma basis
after giving effect to such disposition, with the
covenants contained in Sections 8.13 through 8.15
recomputed as of the last day of the most recently
ended fiscal quarter of the Company as if such
disposition had occurred on the first day of each
relevant period for testing such compliance, and the
Company shall have delivered to the Agent a certificate
of a Responsible Officer of the Company to such effect,
together with all relevant financial computations
evidencing such compliance.
8.03 Consolidations and Mergers
. The Company shall not, and shall not suffer or
permit any Subsidiary to, merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose
of (whether in one transaction or in a series of
transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to or in
favor of any Person, except:
(a) any Subsidiary may merge with the
Company, provided that the Company shall be the
continuing or surviving Person, or with any one or more
Subsidiaries, provided that if any transaction shall
be between a Subsidiary and a Wholly-Owned Subsidiary,
the Wholly-Owned Subsidiary shall be the continuing or
surviving Person;
(b) as permitted by Section 8.02;
(c) any Subsidiary may sell all or
substantially all of its assets (upon voluntary
liquidation or otherwise), to the Company or to a
Wholly-Owned Subsidiary; and
(d) the Company or any Subsidiary may merge
with any Person so long as (i) (A) the Company or such
Subsidiary shall be the continuing or surviving
corporation or (B) in the case of a merger with a
Subsidiary, the acquired Person is, as a result of the
merger transaction, a Wholly-Owned Subsidiary of the
Company and (ii) immediately prior to and after giving
effect to such merger, there shall be no Default or
Event or Default.
Page 97
8.04 Loans and Investments
. The Company shall not purchase or acquire, or
suffer or permit any Subsidiary to purchase or acquire,
or make any commitment therefor, any capital stock,
equity interest, or any obligations or other securities
of, or any interest in, any Person, or make or commit
to make any Acquisitions, or make or commit to make any
advance, loan, extension of credit or capital
contribution to or any other investment in, any Person
including any Affiliate of the Company ("Investments"),
except for:
(a) Investments held by the Company or
Subsidiary in the form of cash equivalents and short
term money market investments in the ordinary course of
business pursuant to the Company's usual and customary
cash management policies and procedures;
(b) extensions of credit in the nature of
accounts receivable or notes receivable arising from
the sale or lease of goods or services in the ordinary
course of business and Investments resulting from the
collection or disposition of defaulted receivables in
the ordinary course of business;
(c) Investments in the capital stock of
Subsidiaries, and extensions of credit by the Company
to any of its Subsidiaries or by any of its
Subsidiaries to the Company or to any other
Subsidiaries, in the ordinary course of business;
(d) the Transaction;
(e) Investments incurred in order to
consummate other Acquisitions otherwise permitted
herein, provided that (i) such Acquisitions are
undertaken in accordance with all applicable
Requirements of Law; and (ii) immediately prior to and
after giving effect thereto, no Default or Event of
Default would exist;
(f) Investments constituting Permitted Swap
Obligations or payments or advances under Swap
Contracts relating to Permitted Swap Obligations;
Page 98
(g) employee loans and guarantees in
accordance with the Company's usual and customary
practices with respect thereto;
(h) Investments existing on the Closing
Date;
(i) Investments constituting noncash
consideration received in connection with a disposition
permitted by Section 8.02;
(j) Investments resulting from the transfer
of Permitted Receivables and related assets to a
Subsidiary, and the sale thereof by such Subsidiary, in
each case pursuant to a Permitted Receivables Purchase
Facility; and
(k) other Investments not exceeding
$25,000,000 in the aggregate at any time outstanding.
8.05 Limitation on Indebtedness
. The Company shall not suffer or permit any
Subsidiary to, create, incur, assume, suffer to exist,
or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except
(a) Indebtedness existing on the Closing
Date referred to in Schedule 8.05; provided that (i)
the Indebtedness of the Acquired Company in respect of
all validly tendered and not withdrawn 8% Senior Notes
described in such Schedule shall be required to be paid
and satisfied in full within five Business Days
following the Closing Date; and (ii) the Indebtedness
in respect of the other Subsidiary Indebtedness
described in such Schedule shall be required to be paid
and satisfied in full, and any applicable credit
facility terminated, within the time specified in such
Schedule;
(b) Indebtedness (including capital leases)
incurred in the ordinary course of business to finance
the acquisition, construction, development or
improvement of specific property;
(c) Indebtedness permitted by Sections
8.04(c) and 8.08;
Page 99
(d) Indebtedness of any Subsidiary formed
for the purpose of and incurred in connection with any
Permitted Receivables Purchase Facility;
(e) Indebtedness of a Subsidiary acquired
after the Closing Date and Indebtedness of a Person
merged or consolidated with or into a Subsidiary after
the Closing Date, which Indebtedness in each case
existed at the time of such acquisition, merger,
consolidation or conversion into a Subsidiary and was
not created in contemplation of such event and where
such acquisition, merger or consolidation is permitted
by this Agreement, provided that immediately and after
giving effect thereto, no Default or Event of Default
would exist;
(f) Extensions, renewals or refinancings of
Indebtedness permitted under Subsections (a), (b), (d)
and (e) so long as (i) such Indebtedness ("Refinancing
Indebtedness") is in an aggregate principal amount not
greater than the aggregate principal amount of the
Indebtedness being extended, renewed or refinanced plus
the amount of any interest or premiums required to be
paid thereon and fees and expenses associated
therewith, (ii) such Refinancing Indebtedness has a
later or equal final maturity and a longer or equal
weighted average life than the Indebtedness being
extended, renewed or refinanced, (iii) the interest
rate applicable to such Refinancing Indebtedness shall
be at market interest rate as of the time of such
extension, renewal or refinancing and (iv) the
covenants, events of default and other provisions
thereof, taken as a whole, shall be no less favorable
to the Subsidiary than those contained in the
Indebtedness being refinanced; and
(g) Other Indebtedness not to exceed
$75,000,000 in the aggregate at any time outstanding,
minus the aggregate amount of Contingent Obligations
permitted to be outstanding under subsection 8.08(f).
8.06 Transactions with Affiliates
. The Company shall not, and shall not suffer or
permit any Subsidiary to, enter into any transaction
with any Affiliate of the Company, except in the
ordinary course of business upon fair and reasonable
terms no less favorable to the Company or such
Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate
Page 100
of the Company or such Subsidiary; provided that this
Section 8.06 shall not apply to transactions between
the Company and its Subsidiaries or between and among
Subsidiaries.
8.07 Use of Proceeds
. The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan
proceeds or any Letter of Credit, directly or
indirectly, (i) (A) to purchase or carry Margin Stock,
(B) to repay or otherwise refinance indebtedness of the
Company or others incurred to purchase or carry Margin
Stock, or (C) to extend credit for the purpose of
purchasing or carrying any Margin Stock, in each case
in violation of, or for a purpose which violates, or
would be inconsistent with, Regulation T, U or X of the
FRB, or (ii) to finance an Acquisition which is
contested at any time by the board of directors or
equivalent governing body of the acquired Person or the
Person from whom the Acquisition is to be made (an
"Unfriendly Acquisition") or for a bid to make an
Unfriendly Acquisition.
8.08 Contingent Obligations
. The Company shall not, and shall not suffer or
permit any Subsidiary to, create, incur, assume or
suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit
in the ordinary course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company in
respect of Indebtedness and other obligations of any of
its Subsidiaries, or Contingent Obligations of any
Subsidiary in respect of Indebtedness and other
obligations of another Subsidiary or of the Company, in
each case to the extent such Indebtedness and other
obligations are permitted hereunder;
(d) Contingent Obligations of the Company
and its Subsidiaries existing as of the Closing Date
and listed in Schedule 8.08;
Page 101
(e) Contingent Obligations with respect to
Surety Instruments incurred in the ordinary course of
business; and
(f) Contingent Obligations of the Company
and its Subsidiaries in respect of Indebtedness and
other obligations of any Persons (other than
Subsidiaries) in an amount not to exceed $25,000,000 in
the aggregate at any time outstanding.
8.09 ERISA
. The Company shall not, and shall not suffer or
permit any of its ERISA Affiliates to: (a) engage in a
prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has
resulted or could reasonably expected to result in
liability of the Company in an aggregate amount in
excess of $5,000,000; or (b) engage in a transaction
that could be subject to Section 4069 or 4212(c) of
ERISA.
8.10 Change in Business
. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line
of business substantially different from and not
reasonably related or incidental to the Existing Lines
of Business or, in the case of a Subsidiary formed for
the purpose of a Permitted Receivables Purchase
Facility, to engage in any business other than the
purpose for which such Subsidiary was formed and
business activities reasonably incidental or related
thereto.
8.11 Accounting Changes
. The Company shall not, and shall not suffer or
permit any Significant Subsidiary to, make any
significant change in accounting treatment or reporting
practices, except as required by local statutory
reporting requirements or GAAP, or change the fiscal
year of the Company or of any Subsidiary, except to
change the fiscal year of a Significant Subsidiary to
conform its fiscal year to the Company's.
Page 102
8.12 Transaction Documents
. Neither the Company nor any of its Subsidiaries
shall alter, amend or otherwise change or supplement
the Merger Agreement or waive any material term or
provision thereof.
8.13 Minimum Consolidated Net Worth
. The Company shall not permit its Consolidated
Net Worth as of the last day of any fiscal quarter
(commencing with the quarter ending June 27, 1999) to
be less than (a) the greater of (1) 80% of its
Consolidated Net Worth on June 27, 1999 and (2) 80% of
its Consolidated Net Worth as at the end of the fiscal
month immediately preceding the month in which the
Closing Date occurs, plus (b) 50% of Consolidated Net
Income (without giving effect to any net loss for any
period) from and after the end of the fiscal month
immediately preceding the month in which the Closing
Date occurs, plus (c) 50% of all Net Equity Proceeds
from and after the Closing Date.
8.14 Fixed Charge Coverage Ratio
. The Company shall not permit its Fixed Charge
Coverage Ratio as determined as of the last day of any
fiscal quarter (commencing with the quarter ending
June 30, 1999), to be less than 1.40 to 1.00.
8.15 Leverage Ratio
. The Company shall not permit its Leverage Ratio
as determined as of the last day of each fiscal quarter
(commencing with the quarter ending June 27, 1999) to
be greater than (i) 4.25 to 1.00 through the quarter
ending March 31, 2000 and (ii) 3.875 to 1.00 through
the quarter ending March 31, 2001 and (iii) 3.50
thereafter.
8.16 No Restrictions on Subsidiary Dividends
. The Company shall not, and shall not suffer or
permit any Subsidiary to, enter into or be bound by any
Contractual Obligation which expressly restricts,
limits or prohibits the payment of dividends by any
Subsidiary or the making of any other distribution in
Page 103
respect of such Subsidiary's capital stock; provided,
however, that the foregoing shall not prohibit any
restrictions, limitations or prohibitions:
(a) existing on the Closing Date;
(b) contained in any debt instrument
relating to a Person which becomes a Subsidiary after
the Closing Date, provided that (i) such encumbrances
and restrictions are not applicable to any Person other
than such Subsidiary or the property or assets of such
Subsidiary, and (ii) such instrument was in existence
at the time of such acquisition and not created in
contemplation of or in connection with such
acquisition;
(c) imposed on a Subsidiary formed for the
purpose of implementing a Permitted Receivables
Purchase Facility; or
(d) existing under, or by reason of,
applicable law or as required by or pursuant to
agreements with any Governmental Authorities.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default
. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to make,
(i) when and as required to be made herein, payments of
any amount of principal of any Loan, or (ii) within
five days after the same becomes due, payment of any
interest, fee or any other amount payable hereunder or
under any other Loan Document; or
(b) Representation or Warranty. Any
representation or warranty by the Company or any
Subsidiary made or deemed made herein, in any other
Loan Document, or which is contained in any
certificate, document or financial or other statement
by the Company, any Subsidiary, or any Responsible
Officer, furnished at any time under this Agreement, or
in or under any other Loan Document, is incorrect in
any material respect on or as of the date made; or
Page 104
(c) Specific Defaults. The Company fails to
perform or observe any term, covenant or agreement
contained in any of Section 7.01, 7.02(a), 7.03,
7.04(a)(i), 7.13 or in Article VIII; or
(d) Other Defaults. The Company or any
Subsidiary party thereto fails to perform or observe
any other term or covenant contained in this Agreement
or any other Loan Document, and such default shall
continue unremedied for a period of 30 days after the
earlier of (i) the date upon which a Responsible
Officer knew or reasonably should have known of such
failure or (ii) the date upon which written notice
thereof is given to the Company by the Agent or any
Bank; or
(e) Cross-Default. (i) The Company or any
Subsidiary (A) fails to make any payment in respect of
any Indebtedness or Contingent Obligation (other than
in respect of Swap Contracts), having an aggregate
principal amount (including undrawn committed or
available amounts and including amounts owing to all
creditors under any combined or syndicated credit
arrangement) of more than $35,000,000 when due (whether
by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (B) fails to
perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under
any agreement or instrument relating to any such
Indebtedness or Contingent Obligation, if the effect of
such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior
to its stated maturity, or such Contingent Obligation
to become payable or cash collateral in respect thereof
to be demanded; (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (1) any event of default
under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such
Swap Contract) or (2) any Termination Event (as so
defined) as to which the Company or any Subsidiary is
an Affected Party (as so defined), and, in either
event, the Swap Termination Value owed by the Company
or such
Page 105
Subsidiary as a result thereof is greater than
$35,000,000; or (iii) there occurs any termination,
liquidation, unwind or similar event or circumstance
under any Permitted Receivables Purchase Facility,
which permits any purchaser of receivables thereunder
to cease purchasing such receivables or to apply all
collections on previously purchased receivables
thereunder to the repayment of such purchaser's
interest in such previously purchased receivables other
than any such event or circumstance that arises solely
as a result of a down-grading of the credit rating of
any bank or financial institution not affiliated with
the Company that provides liquidity, credit or other
support in connection with such facility; or
(f) Insolvency; Voluntary Proceedings. The
Company or any Significant Subsidiary (i) ceases or
fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as
they become due, subject to applicable grace periods,
if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing;
or
(g) Involuntary Proceedings. (i) Any
involuntary Insolvency Proceeding is commenced or filed
against the Company or any Significant Subsidiary, or
any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a
substantial part of the Company's or any Significant
Subsidiary's properties, and any such proceeding or
petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy;
(ii) the Company or any Significant Subsidiary admits
the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any
Significant Subsidiary acquiesces in the appointment of
a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a
substantial portion of its property or business; or
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(h) ERISA. (i) An ERISA Event shall occur
with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $35,000,000;
(ii) the aggregate amount of Unfunded Pension Liability
among all Pension Plans at any time exceeds
$50,000,000; or (iii) the Company or any ERISA
Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, any
installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of
$35,000,000 ; or
(i) Monetary Judgments. One or more non-
interlocutory judgments, non-interlocutory orders,
decrees or arbitration awards is entered against the
Company or any Significant Subsidiary involving in the
aggregate a liability (to the extent not covered by
independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or
related or unrelated series of transactions, incidents
or conditions, of $35,000,000 or more, and the same
shall remain unvacated and unstayed pending appeal for
a period of 10 days after the entry thereof; or
(j) Non-Monetary Judgments. Any
non-monetary judgment, order or decree is entered
against the Company or any Significant Subsidiary which
does or would reasonably be expected to have a Material
Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(k) Change of Control. (i) Any Person or
two or more Persons acting in concert acquires
beneficial ownership (within the meaning of Rule 13d-3
of the SEC under the Exchange Act), directly or
indirectly, of securities of the Company (or other
securities convertible into such securities)
representing 25% or more of the combined voting power
of all securities of the Company entitled to vote in
the election of directors; or (ii) during any period of
up to 12 consecutive months, individuals who at the
beginning of such 12-month period were directors of
theCompany ceasing for any reason to constitute a
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majority of the Board of Directors of the Company
unless the persons replacing such individuals were
nominated by the Board of Directors of the Company; or
(iii) any Person or two or more Persons acting in
concert acquiring by contract or otherwise, or entering
into a contract or arrangement which upon consummation
will result in its or their acquisition of, or control
over, securities of the Company (or other securities
convertible into such securities) representing 25% or
more of the combined voting power of all securities of
the Company entitled to vote in the election of
directors; or
(l) Material Adverse Change. There occurs a
material adverse change in, or a material adverse
effect upon, the operations, business, or condition
(financial or otherwise) of the Company, the Acquired
Company and its Subsidiaries taken as a whole.
9.02 Remedies
. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of,
the Majority Banks, do any or all of the following:
(a) declare the obligation of each Bank to
make any Loans hereunder and any obligation of the
Issuing Bank to Issue any Letters of Credit hereunder
to be terminated, whereupon such obligations and each
Bank's Commitment and the L/C Commitment shall be
terminated;
(b) declare an amount equal to the maximum
aggregate amount that is or at any time thereafter may
become available for drawing under any outstanding
Letters of Credit (whether or not any beneficiary shall
have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw
under such Letters of Credit) to be immediately due and
payable, which amount shall be held by the Agent as
security for the Company's reimbursement obligations
for drawings that may subsequently occur under
outstanding Letters of Credit, and declare the unpaid
principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing
or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and
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(c) exercise on behalf of itself and the
Banks all rights and remedies available to it and the
Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any
event specified in subsection (f) or (g) of Section
9.01 (in the case of clause (i) of subsection (g) upon
the expiration of the 60-day period mentioned therein),
the obligation of each Bank to make Loans and any
obligation of the Issuing Bank to Issue Letters of
Credit shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall
automatically become due and payable without further
act of the Agent, the Issuing Bank or any Bank.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent."
(a) (a) Each Bank hereby irrevocably
(subject to Section 10.09) appoints, designates and
authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other
Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have
any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist
against the Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" in
this Agreement with reference to the Agent is not
intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely
as a matter of market custom, and is intended to create
or reflect only an administrative relationship between
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independent contracting parties.
(b) The Issuing Bank shall act on behalf of
the Banks with respect to any Letters of Credit Issued
by it and the documents associated therewith until such
time and except for so long as the Agent may agree at
the request of the Majority Lenders to act for the
Issuing Bank with respect thereto; provided, however,
that the Issuing Bank shall have all of the benefits
and immunities (i) provided to the Agent in this
Article X with respect to any acts taken or omissions
suffered by the Issuing Bank in connection with Letters
of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of
credit pertaining to the Letters of Credit as fully as
if the term "Agent," as used in this Article X,
included the Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this
Agreement with respect to the Issuing Bank.
10.02 Delegation of Duties
. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters
pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects with
reasonable care.
10.03 Liability of Agent
. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement
or any other Loan Document or the transactions
contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by
the Company or any Subsidiary or Affiliate of the
Company, or any officer thereof, contained in this
Agreement or in any other Document, or in any
certificate, report, statement or other document
referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or
any other Document, or the validity,
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effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Document, or
for any failure of the Company or any other party to
any Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any
other Document, or to inspect the properties, books or
records of the Company or any of the Company's
Subsidiaries or Affiliates.
10.04 Reliance by Agent
(a) (a) The Agent shall be entitled
to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or
conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company),
independent accountants and other experts selected by
the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the
Majority Banks as it deems appropriate and, if it so
requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of
taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or
consent of the Majority Banks and such request and any
action taken or failure to act pursuant thereto shall
be binding upon all of the Banks.
(b) For purposes of determining compliance
with the conditions specified in Section 5.01, each
Bank that has executed this Agreement shall be deemed
to have consented to, approved or accepted or to be
satisfied with, each document or other matter either
sent (or made available) by the Agent to such Bank for
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consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by
or acceptable or satisfactory to such Bank.
10.05 Notice of Default
. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to
the Agent for the account of the Banks, unless the
Agent shall have received written notice from a Bank or
the Company referring to this Agreement, describing
such Default or Event of Default and stating that such
notice is a "notice of default." The Agent will notify
the Banks of its receipt of any such notice. The Agent
shall take such action with respect to such Default or
Event of Default as may be requested by the Majority
Banks in accordance with Article IX; provided, however,
that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it
shall deem advisable or in the best interest of the
Banks.
10.06 Credit Decision
. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or
warranty to it, and that no act by the Agent
hereinafter taken, including any review of the affairs
of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-
Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on
such documents and information as it has deemed
appropriate, made its own appraisal of and
investigation into the business, prospects, operations,
property, financial and other condition and
creditworthiness of the Company and its Subsidiaries,
and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Bank also
represents that it will, independently and without
reliance upon any Agent-Related Person and based on
such documents and information as it shall deem
Page 112
appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other
Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business,
prospects, operations, property, financial and other
condition and creditworthiness of the Company. Except
for notices, reports and other documents expressly
herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or
other information concerning the business, prospects,
operations, property, financial and other condition or
creditworthiness of the Company or any Subsidiary which
may come into the possession of any of the
Agent-Related Persons.
10.07 Indemnification of Agent
. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon
demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), in
accordance with the Banks' Pro Rata Shares, from and
against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment
to the Agent-Related Persons of any portion of such
Indemnified Liabilities to the extent they are found by
a final decision of a court of competent jurisdiction
to have resulted solely from such Person's gross
negligence or willful misconduct. Without limitation
of the foregoing, each Bank shall reimburse the Agent
upon demand for its ratable share of any costs or
out-of-pocket expenses (including reasonable Attorney
Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such
expenses by or on behalf of the Company. The
undertaking in this Section shall survive the
termination of the Commitments, the termination or
expiration of all Letters of Credit, the payment of all
other Obligations hereunder and the resignation or
replacement of the Agent.
Page 113
10.08 Agent in Individual Capacity
. BofA and its Affiliates may make loans to,
issue letters of credit for the account of, accept
deposits from, acquire equity interests in and
generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with
the Company and its Subsidiaries and Affiliates as
though BofA were not the Agent or the Issuing Bank
hereunder and without notice to or consent of the
Banks. The Banks acknowledge that, pursuant to such
activities, BofA or its Affiliates may receive
information regarding the Company or its Subsidiaries
or Affiliates (including information that may be
subject to confidentiality obligations in favor of the
Company or such Subsidiary or Affiliate) and
acknowledge that the Agent shall be under no obligation
to provide such information to them. With respect to
its Loans, BofA shall have the same rights and powers
under this Agreement as any other Bank and may exercise
the same as though it were not the Agent or the Issuing
Bank.
10.09 Successor Agent
. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days'
notice to the Banks. If the Agent resigns under this
Agreement, the Majority Banks shall appoint from among
the Banks a successor agent for the Banks. If no
successor agent is appointed prior to the effective
date of the resignation of the Agent, the Agent may
appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon
the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all
the rights, powers and duties of the retiring Agent and
the term "Agent" shall mean such successor agent and
the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this
Article X and Sections 11.04 and 11.05 shall inure to
its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
If no successor agent has accepted appointment as Agent
by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become
Page 114
effective and the Banks shall perform all of the duties
of the Agent hereunder until such time, if any, as the
Majority Banks appoint a successor agent as provided
for above. Notwithstanding the foregoing, however,
BofA may not be removed as the Agent at the request of
the Majority Banks unless BofA shall also
simultaneously be replaced as "Issuing Bank" and
"Swingline Bank" hereunder pursuant to documentation in
form and substance reasonably satisfactory to BofA.
10.10 Withholding Tax
(a) . (a) If any Bank is a "foreign
corporation, partnership or trust" within the meaning
of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441
or 1442 of the Code, such Bank agrees with and in favor
of the Agent, to deliver to the Agent (which will
deliver a copy to the Company):
(i) if such Bank claims an exemption
from, or a reduction of, withholding tax under a
United States tax treaty, two properly completed
and executed copies of IRS Form W-8BEN before the
payment of any interest or fees in the first
calendar year and before the payment of any
interest or fees in each third succeeding calendar
year during which interest or fees may be paid
under this Agreement;
(ii) if such Bank claims that interest
or fees paid under this Agreement is exempt from
United States withholding tax because it is
effectively connected with a United States trade
or business of such Bank, two properly completed
and executed copies of IRS Form W-8ECI before the
payment of any interest or fees is due in the
first taxable year of such Bank and in each
succeeding taxable year of such Bank during which
interest or fees may be paid under this Agreement;
and
(iii) such other form or forms as may be
required under the Code or other laws of the
United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent (which
will notify the Company) of any change in circumstances
which would modify or render invalid any claimed
Page 115
exemption or reduction.
(b) If any Bank claims exemption from, or
reduction of, withholding tax under a United States tax
treaty by providing IRS Form W-8BEN and such Bank
sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company
owing to such Bank, such Bank agrees to notify the
Agent (which will notify the Company) of the percentage
amount in which it is no longer the beneficial owner of
Obligations of the Company owing to such Bank. To the
extent of such percentage amount, the Agent will treat
such Bank's IRS Form W-8BEN as no longer valid.
(c) If any Bank claiming exemption from
United States withholding tax by filing IRS Form W-8ECI
with the Agent sells, assigns, grants a participation
in, or otherwise transfers all or part of the
Obligations of the Company owing to such Bank, such
Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction
in the applicable withholding tax, the Agent may
withhold from any interest payment to such Bank an
amount equivalent to the applicable withholding tax
after taking into account such reduction. However, if
the forms or other documentation required by subsection
(a) of this Section are not delivered to the Agent,
then the Agent may withhold from any interest payment
to such Bank not providing such forms or other
documentation an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of
the Code, without reduction.
(e) If the IRS or any other Governmental
Authority of the United States or other jurisdiction
asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not
delivered or was not properly executed, or because such
Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any
other reason) such Bank shall indemnify the Agent fully
for all amounts paid, directly or indirectly, by the
Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any
Page 116
jurisdiction on the amounts payable to the Agent under
this Section, together with all costs and expenses
Banks under this subsection shall survive the or
expiration of all Letters of Credit, the payment of all
other Obligations hereunder and the resignation or
replacement of the Agent.
10.11 Co-Agents; Lead Managers
. None of the Banks identified on the facing page
or signature pages of this Agreement as a
"co-syndication agent" shall have any right, power,
obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks
as such. Without limiting the foregoing, none of the
Banks so identified as a "co-syndication agent" shall
have or be deemed to have any fiduciary relationship
with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so
identified in deciding to enter into this Agreement or
in taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers
. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent
with respect to any departure by the Company or any
applicable Subsidiary therefrom, shall be effective
unless the same shall be in writing and signed by the
Majority Banks (or by the Agent at the written request
of the Majority Banks) and the Company and acknowledged
by the Agent, and then any such waiver or consent shall
be effective only in the specific instance and for the
specific purpose for which given; provided, however,
that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and the
Company and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any
Bank, the L/C Commitment of the Issuing Bank or the
Swingline Commitment of the Swingline Bank (or
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reinstate any Commitment terminated pursuant to Section
9.02);
(b) postpone or delay any date fixed by this
Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the
Banks (or any of them) hereunder or under any other
Loan Document (including the date of any mandatory
prepayment hereunder);
(c) reduce the principal of, or the rate of
interest specified herein on any Loan, or (subject to
clause (iii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the
Loans which is required for the Banks or any of them to
take any action hereunder; or
(e) amend this Section 11.01, Section 2.14,
the definition of "Majority Banks" herein, or any
provision herein providing for consent or other action
by all Banks or some specified amount of Banks;
and, provided further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the
Issuing Bank in addition to the Majority Banks or all
the Banks, as the case may be, increase the L/C
Commitment of the Issuing Bank or otherwise affect the
rights or duties of the Issuing Bank under this
Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no
amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Majority
Banks or all the Banks, as the case may be, affect the
rights or duties of the Agent under this Agreement or
any other Loan Document, (iii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in
a writing executed by the parties thereto, and (iv) no
amendment, waiver or consent shall, unless in writing
and signed by the Swingline Bank in addition to the
Majority Banks or all the Banks, as the case may be,
increase the Swingline Commitment or otherwise affect
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the rights or duties of the Swingline Bank under this
Agreement.
11.02 Notices
(a) . (a) All notices, requests,
consents, approvals, waivers and other communications
shall be in writing (including, unless the context
expressly otherwise provides, by facsimile
transmission), and mailed, faxed or delivered, to the
address or facsimile number specified for notices on
Schedule 11.02; or, as directed to the Company or the
Agent, to such other address as shall be designated by
such party in a written notice to the other parties,
and as directed to any other party, at such other
address as shall be designated by such party in a
written notice to the Company and the Agent.
(b) All such notices, requests and
communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if
mailed, upon the fifth Business Day after the date
deposited into the mails, or if delivered, upon
delivery (provided that all notices of a Default or an
Event of Default shall be given by overnight delivery
or facsimile transmission, and provided further that
any failure to do so shall not impair or limit the
rights and remedies of the Agent and the Banks
resulting from the existence of such Default or Event
of Default); except that notices pursuant to
Article II, III or X to the Agent shall not be
effective until actually received by the Agent at the
address specified for the Agent on Schedule 11.02;
notices pursuant to Article III to the Issuing Bank
shall not be effective until actually received by the
Issuing Bank at the address specified for such Person
on Schedule 11.02; and notices pursuant to Article II
to the Swingline Bank shall not be effective until
actually received by the Swingline Bank, at the address
specified for such Person on Schedule 11.02.
(c) Any agreement of the Agent and the Banks
herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall
be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall
Page 119
not have any liability to the Company or other Person
on account of any action taken or not taken by the
Agent or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to
repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by
the Agent and the Banks to receive written confirmation
of any telephonic or facsimile notice or the receipt by
the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the
Banks to be contained in the telephonic or facsimile
notice.
11.03 No Waiver; Cumulative Remedies
. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any
right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights provided for in
this Agreement and the other Loan Documents are
cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or
agreement now existing or hereafter arising.
11.04 Costs and Expenses
. The Company shall:
(a) whether or not the transactions
contemplated hereby are consummated, pay or reimburse
BofA (including in its capacity as Agent and Issuing
Bank) within five Business Days after demand (subject
to subsection 5.01(e)) for all costs and expenses
reasonably incurred by BofA (including in its capacity
as Agent and Issuing Bank) in connection with (i) the
development, preparation, delivery, closing,
administration and execution of, and any amendment,
supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection
herewith or therewith, (ii) the consummation of the
transactions contemplated hereby and thereby, and
(iii) the syndication and assignment following the
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Closing Date of all or any part of BofA's interest as
Bank hereunder, in each case, including reasonable
Attorney Costs incurred by BofA (including in its
capacity as Agent and Issuing Bank) with respect
thereto; and
(b) pay or reimburse the Agent, the Lead
Arranger and each Bank within five Business Days after
demand (subject to subsection 5.01(e)) for all costs
and expenses (including Attorney Costs) incurred by
them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document during
the existence of an Event of Default or after
acceleration of the Loans (including in connection with
any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate
proceeding).
11.05 Company Indemnification
. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify,
defend and hold the Agent-Related Persons, and each
Bank and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each
an "Indemnified Person") harmless from and against any
and all liabilities, claims, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including
reasonable Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time
following repayment of the Loans and the termination of
the Letters of Credit and the termination, resignation
or replacement of the Agent or replacement of any Bank)
be imposed on, incurred by or asserted against any such
Person arising out of any demand made on or claim
asserted against an Indemnified Person in any way
relating to or arising out of this Agreement, the
Transaction, the other Documents or any document
contemplated by or referred to therein, or the
transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection
with any of the foregoing, including with respect to
any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding)
related to or arising out of this Agreement or the
Transaction or the Loans or Letters of Credit or the
use of the proceeds thereof, whether or
Page 121
not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified
Liabilities"); provided that the Company shall have no
obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities to the extent they
are found by a final decision of a court of competent
jurisdiction or in binding arbitration to have resulted
primarily from the gross negligence or willful
misconduct of or from materially misleading information
relating to and provided in writing by such Indemnified
Person. The agreements in this Section and in Section
11.04 shall survive the termination of the Commitments,
the termination or expiration of all Letters of Credit
and the payment of all other Obligations.
11.06 Marshalling; Payments Set Aside
. Neither the Agent nor the Banks shall be under
any obligation to marshal any assets in favor of the
Company or any other Person or against or in payment of
any or all of the Obligations. To the extent that the
Company makes a payment to the Agent or the Banks, or
the Agent or the Banks exercise their right of set-off,
and such payment or the proceeds of such set-off or any
part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by
the Agent or such Bank in its discretion) to be repaid
to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise,
then (a) to the extent of such recovery the obligation
or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect
as if such payment had not been made or such set-off
had not occurred, and (b) each Bank severally agrees to
pay to the Agent upon demand its Pro Rata Share of any
amount so recovered from or repaid by the Agent.
11.07 Successors and Assigns
. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted
assigns, except that the Company may not assign or
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transfer any of its rights or obligations under this
Agreement without the prior written consent of the
Agent and each Bank.
11.08 Assignments, Participations, Etc.
(a) (a) Any Bank may, with the
written consent of the Company and the Agent, the
Issuing Bank and the Swingline Bank (which in each case
shall not be unreasonably withheld), at any time assign
and delegate to one or more Eligible Assignees (each an
"Assignee") all, or any ratable part of all, of the
Loans, the Commitment, the L/C Obligations and the
other rights and obligations of such Bank hereunder;
provided, however, that (i) no written consent of the
Company shall be required during the existence of a
Default or an Event of Default; (ii) no written consent
of the Company or the Agent, the Issuing Bank or the
Swingline Bank shall be required in connection with any
assignment and delegation by a Bank to an Eligible
Assignee that is another Bank or an Affiliate of such
Bank; and (iii) except in connection with an assignment
of all of a Bank's rights and obligations with respect
to its Commitment, Loans and L/C Obligations, any such
assignment to an Eligible Assignee that is not a Bank
hereunder shall be equal to or greater than $5,000,000;
and (iv) no such partial assignment need be of a
ratable part of the Loans, the Commitment and the other
interests, rights and obligations hereunder of such
assigning Bank; and provided further, however, that the
Company and the Agent may continue to deal solely and
directly with such Bank in connection with the interest
so assigned to an Assignee until (A) such Bank and its
Assignee shall have delivered to the Company and the
Agent an Assignment and Acceptance Agreement
substantially in the form of Exhibit E ("Assignment and
Acceptance"), together with any Note or Notes subject
to such assignment; (B) a written notice of such
assignment, together with payment instructions,
addresses and related information with respect to the
Assignee, in substantially the form of the Notice of
Assignment and Acceptance attached as Schedule 1 to the
Assignment and Acceptance, shall have been given to the
Company and the Agent by such Bank and the Assignee;
(C) the assignor Bank or Assignee shall have paid to
the Agent a processing fee in the amount of $3,500 and
(D) the Agent, the Company the Issuing Bank and the
Swingline Bank each shall have provided any required
Page 123
consent to such assignment in accordance with this
Section. In connection with any assignment by BofA,
its Swingline Commitment may be assigned in whole (and
not part) and only in connection with an assignment
transaction involving an assignment of all of its
Commitment and Loans, and the Assignment and Acceptance
may be appropriately modified to include an assignment
and delegation of its Swingline Commitment and any
outstanding Swingline Loans.
(b) From and after the date that the Agent
notifies the assignor Bank that the Agent has received
(and, if required, provided its consent with respect
thereto and received any other consents required under
this Section 11.08) an executed Assignment and
Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the
rights and obligations of a Bank under the Loan
Documents, (ii) this Agreement shall be deemed to be
amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and
the resulting adjustment of the Commitments arising
therefrom, and (iii) the assignor Bank shall, to the
extent that rights and obligations hereunder and under
the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under
the Loan Documents; provided, however, that the
assignor Bank shall not relinquish its rights under
Article IV or under Sections 11.04 and 11.05 to the
extent such rights relate to the time prior to the
effective date of the Assignment and Acceptance. The
Commitment allocated to each Assignee shall reduce the
Commitment of the assigning Bank pro tanto.
(c) Within five Business Days after the
Company's receipt of notice by the Agent that it has
received (and, if necessary, consented to) an executed
Assignment and Acceptance and payment of the processing
fee (and provided that the Issuing Bank, the Swingline
Bank and the Company each consent to such assignment in
accordance with subsection 11.08(a)), the Company shall
execute and deliver to the Agent any new Notes
requested by such Assignee evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Bank
has retained a portion of its Loans and its Commitment,
Page 124
replacement Notes as requested by the assignor Bank
evidencing the Loans and Commitment retained by the
assignor Bank (such Notes to be in exchange for, but
not in payment of, the Notes held by such Bank, if
any).
(d) Any Bank may at any time sell to one or
more commercial banks or other Persons not Affiliates
of the Company (a "Participant") participating
interests in any Loans, the Commitment of that Bank and
the other interests of that Bank (the "Originating
Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Bank's
obligations under this Agreement shall remain
unchanged, (ii) the originating Bank shall remain
solely responsible for the performance of such
obligations, (iii) the Company, the Issuing Bank and
the Agent shall continue to deal solely and directly
with the originating Bank in connection with the
originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no
Bank shall transfer or grant any participating interest
under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document, except to
the extent such amendment, consent or waiver would
require unanimous consent of the Banks as described in
the first proviso to Section 11.01. In the case of any
such participation, the Participant shall be entitled
to the benefit of Sections 4.01, 4.03 and 11.05 as
though it were also a Bank hereunder (but, in the case
of Sections 4.01 and 4.03, solely to the extent that
the amounts claimed thereunder by such Participant do
not exceed the amounts that could be claimed thereunder
by the Bank which sold a participation interest to such
Participant had such Bank not sold such participation
interest), and, if amounts outstanding under this
Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect
of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of
its participating interest were owing directly to it as
a Bank under this Agreement.
(e) Notwithstanding any other provision in
this Agreement, any Bank may at any time create a
security interest in, or pledge, all or any portion of
Page 125
its rights under and interest in this Agreement and any
Note held by it (other than in respect of Swingline
Loans) in favor of any Federal Reserve Bank in
accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 C.F.R. 203.14, and such Federal
Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
11.09 Confidentiality
. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions
and exercise due care to maintain the confidentiality
of all information identified as "confidential" or
"secret" by the Company and provided to it by the
Company or any Subsidiary, or by the Agent on the
Company's or such Subsidiary's behalf, under this
Agreement or any other Loan Document, and neither it
nor any of its Affiliates shall use any such
information other than in connection with or in
enforcement of this Agreement and the other Loan
Documents or in connection with other business now or
hereafter existing or contemplated with the Company or
any Subsidiary; except to the extent such information
(i) was or becomes generally available to the public
other than as a result of disclosure by such Bank, or
(ii) was or becomes available on a non-confidential
basis from a source other than the Company, provided
that such source is not bound by a confidentiality
agreement with the Company known to such Bank;
provided, however, that any Bank may disclose such
information (A) at the request or pursuant to any
requirement of any Governmental Authority to which such
Bank is subject or in connection with an examination of
such Bank by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to
do so in accordance with the provisions of any
applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation
or proceeding to which the Agent, any Bank or their
respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document;
(F) to such Bank's independent auditors, legal counsel
and other professional advisors; (G) to any Participant
or Assignee, actual or potential, provided that such
Person agrees in writing to keep such information
confidential to the same extent required of the Banks
hereunder; (H) as to any Bank or its Affiliate, as
Page 126
expressly permitted under the terms of any other
document or agreement regarding confidentiality to
which the Company or any Subsidiary is party or is
deemed party with such Bank or such Affiliate; and
(I) to its Affiliates; provided, that with respect to
disclosures under clauses (B) and (D), such Bank shall
use commercially reasonable efforts to notify the
Company (unless such notification is prohibited by any
applicable Requirement of Law) of the proposed
disclosure before such disclosure is made to reasonably
afford the Company the opportunity to seek to prevent
such disclosure.
11.10 Set-off
. In addition to any rights and remedies of the
Banks provided by law, if an Event of Default exists or
the Loans have been accelerated, each Bank is
authorized at any time and from time to time, without
prior notice to the Company, any such notice being
waived by the Company 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 by, and other indebtedness at
any time owing by, such Bank to or for the credit or
the account of the Company against any and all
Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or
such Bank shall have made demand under this Agreement
or any Loan Document and although such Obligations may
be contingent or unmatured. Each Bank agrees promptly
to notify the Company and the Agent after any such
set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not
affect the validity of such set-off and application.
11.11 Automatic Debits of Fees
. With respect to any principal, interest,
commitment fee, arrangement fee, letter of credit fee
or other fee, or any other cost or expense (including
Attorney Costs) due and payable to the Agent, the
Issuing Bank, BofA or the Lead Arranger under the Loan
Documents, the Company hereby irrevocably authorizes
BofA to debit any deposit account of the Company with
BofA in an amount such that the aggregate amount
debited from all such deposit accounts does not exceed
such principal, interest, fee or other cost or expense.
If there are insufficient funds in such deposit
accounts to cover the amount of the payment then
Page 127
due, such debits will be reversed (in whole or in part,
in BofA's sole discretion) and such amount not debited
shall be deemed to be unpaid. No such debit under this
Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending
Offices, Etc.
Each Bank shall notify the Agent in writing of
any changes in the address to which notices to such
Bank should be directed, of addresses of any Lending
Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other
administrative information as the Agent shall
reasonably request.
11.13 Counterparts
. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said
counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.14 Severability
. The illegality or unenforceability of any
provision of this Agreement or any instrument or
agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any
instrument or agreement required hereunder.
11.15 No Third Parties Benefited
. This Agreement is made and entered into for the
sole protection and legal benefit of the Company, the
Banks, the Agent and the Agent-Related Persons, the
Indemnified Persons and their permitted successors and
assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with,
this Agreement or any of the other Loan Documents.
Page 128
11.16 Governing Law and Jurisdiction
(a) . (a) THIS AGREEMENT AND ANY NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
OF THE COMPANY, THE AGENT AND THE BANKS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO.
11.17 Waiver of Jury Trial
. THE COMPANY, THE BANKS AND THE AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY
OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE COMPANY, THE BANKS AND THE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL
BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
Page 129
11.18 Entire Agreement
. This Agreement, together with the other Loan
Documents, embodies the entire agreement and
understanding among the Company, the Issuing Bank, the
Swingline Bank, the Banks and the Agent, and supersedes
all prior or contemporaneous agreements and
understandings of such Persons, verbal or written,
relating to the subject matter hereof and thereof.
(remainder of page intentionally left blank)
Page 130
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered in San
Francisco, California, by their proper and duly
authorized officers as of the day and year first above
written.
PRECISION CASTPARTS CORP.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
_________________________
Title: Vice President and Chief
Financial Officer
_________________________
BANK OF AMERICA, N.A.,
as Agent, Issuing Bank, Swingline Bank
and Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
________________________________
THE BANK OF NOVA SCOTIA, as Co-Syndication
Agent and Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Vice President
________________________________
WACHOVIA BANK, N.A., as Co-Syndication
Agent and Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________________
Title: Vice President
________________________________
Page 131
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________
Title: Vice.President
By: /s/ ▇▇▇▇ Fault
________________________________
Title: Vice President
________________________________
ALLSTATE LIFE INSURANCE COMPANY
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Title: Senior Portfolio Manager
________________________________
ARAB BANK PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________
Title: VP-Operations
________________________________
BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Vice President
________________________________
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Title: Assistant Vice President
________________________________
Page ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.▇.-
▇▇▇ ▇▇▇▇ BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Title: Senior Loan Officer
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________
Title: First Vice President
_______________________________
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇ Briedbart
________________________________
Title: Vice President
________________________________
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________________
Title: First Vice President
________________________________
BANK POLSKA KASA OPIEKI S.A.
PEKAO S.A. GROUP
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
Title: Vice President
Senior Lending Officer
________________________________
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
_______________________________
Title: Vice President
_______________________________
Page 133
THE DAI-ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________
Title: Assistant Vice President
_______________________________
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Title: Assistant Vice President
_______________________________
FIRST SECURITY BANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Title: Senior Vice President
_______________________________
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Title: Vice President
______________________________
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Title: Senior Vice President
_______________________________
Page 134
THE FUJI BANK, LIMITED
By: /s/Hiromitsu Ugawa
_______________________________
Title: Senior Vice President
_______________________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________
Title: General Manager
_______________________________
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Title: Assistant Vice President
_______________________________
THE MITSUBISHI TRUST & BANKING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________
Title: Chief Manager
_______________________________
THE SANWA BANK, LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________
Title: Vice President
_______________________________
Page 135
THE SUMITOMO BANK, LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________
Title: Vice President and Manager
_______________________________
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Brennan K. Church
_______________________________
Title: Assistant Vice President
_______________________________
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________
Title: Senior Vice President
_______________________________
(continued.)