EXHIBIT 4.C
AMENDED AND RESTATED
CREDIT AGREEMENT
Among
UNITED GROCERS, INC.,
as Borrower,
UNITED STATES NATIONAL BANK OF OREGON,
and
SEATTLE-FIRST NATIONAL BANK,
as Banks,
and
SEATTLE-FIRST NATIONAL BANK
as Agent
__________________________
$85,000,000
__________________________
May 31, 1995
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . .11
Section 2 REPRESENTATIONS & WARRANTIES . . . . . . . . . . . . . . . . .11
2.01 Incorporation, etc . . . . . . . . . . . . . . . . . . . . . .11
2.02 Qualification. . . . . . . . . . . . . . . . . . . . . . . . .11
2.03 Authorization. . . . . . . . . . . . . . . . . . . . . . . . .11
2.04 Delivery of Documents. . . . . . . . . . . . . . . . . . . . .11
2.05 Valid and Binding Obligations. . . . . . . . . . . . . . . . .11
2.06 Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.07 No Violation of Agreement or Law . . . . . . . . . . . . . . .12
2.08 Insolvency, etc. . . . . . . . . . . . . . . . . . . . . . . .12
2.09 Financial Information. . . . . . . . . . . . . . . . . . . . .12
2.10 Litigation; Adverse Facts. . . . . . . . . . . . . . . . . . .12
2.11 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . .13
2.12 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
2.13 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
2.14 Law Compliance . . . . . . . . . . . . . . . . . . . . . . . .14
2.15 Federal Reserve Regulations. . . . . . . . . . . . . . . . . .14
2.16 Title to Properties; Liens . . . . . . . . . . . . . . . . . .14
2.17 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . .14
2.18 Environmental and Safety Health Matters. . . . . . . . . . . .14
2.19 Continued Effectiveness: Reaffirmation. . . . . . . . . . . .15
Section 3 CONDITIONS PRECEDENT TO ADVANCES . . . . . . . . . . . . . . .15
3.01 Conditions Precedent to the Effective Date . . . . . . . . . .15
Section 4 REVOLVING AND OPERATING LINES OF CREDIT. . . . . . . . . . . .16
4.01 The Revolving Line Commitments . . . . . . . . . . . . . . . .16
4.02 The Operating Line Commitments . . . . . . . . . . . . . . . .17
4.03 Requesting Revolving and Operating Advances. . . . . . . . . .18
4.04 Funding Revolving and Operating Advances . . . . . . . . . . .18
4.05 Interest Options . . . . . . . . . . . . . . . . . . . . . . .19
4.06 Repayment Promise. . . . . . . . . . . . . . . . . . . . . . .19
4.07 Special BA Loan Provisions . . . . . . . . . . . . . . . . . .19
4.08 Agent's Fee. . . . . . . . . . . . . . . . . . . . . . . . . .20
4.09 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . .20
Section 5 U. S. BANK OVERNIGHT LINE OF CREDIT. . . . . . . . . . . . . .21
5.01 The Loans. . . . . . . . . . . . . . . . . . . . . . . . . . .21
5.02 Requesting Overnight Advances. . . . . . . . . . . . . . . . .21
5.03 Funding Overnight Advances; Reporting Requirements.21
5.04 Interest Options . . . . . . . . . . . . . . . . . . . . . . .22
5.05 Repayment Promise. . . . . . . . . . . . . . . . . . . . . . .22
5.06 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . .22
Section 6 PAYMENT PROVISIONS APPLICABLE TO ALL BANKS . . . . . . . . . .22
6.01 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . .22
6.02 Additional Payment in the Event of Prepayment or Failure to
Borrow or Prepay . . . . . . . . . . . . . . . . . . . . . . .23
6.03 Change in Circumstances. . . . . . . . . . . . . . . . . . . .23
6.04 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . .24
6.05 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . .25
6.06 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . .25
6.07 Authorized Officers. . . . . . . . . . . . . . . . . . . . . .25
6.08 Binding Requests . . . . . . . . . . . . . . . . . . . . . . .26
6.09 The Notes. . . . . . . . . . . . . . . . . . . . . . . . . . .26
6.10 Manner of Payments . . . . . . . . . . . . . . . . . . . . . .27
6.11 Application of Proceeds. . . . . . . . . . . . . . . . . . . .27
Section 7 BORROWER'S COVENANTS . . . . . . . . . . . . . . . . . . . . .31
7.01 Preservation of Corporate Existence, Etc.. . . . . . . . . . .31
7.02 Compliance with Laws . . . . . . . . . . . . . . . . . . . . .31
7.03 Other Obligations. . . . . . . . . . . . . . . . . . . . . . .31
7.04 Visitation; Records. . . . . . . . . . . . . . . . . . . . . .31
7.05 Financial Information. . . . . . . . . . . . . . . . . . . . .32
7.06 Notification . . . . . . . . . . . . . . . . . . . . . . . . .32
7.07 Additional Payments; Additional Acts . . . . . . . . . . . . .33
7.08 Working Capital. . . . . . . . . . . . . . . . . . . . . . . .33
7.09 Funded Debt. . . . . . . . . . . . . . . . . . . . . . . . . .33
7.10 Fixed Charge Coverage. . . . . . . . . . . . . . . . . . . . .34
7.11 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
7.12 Minimum Capital and Subordinated Debt. . . . . . . . . . . . .35
7.14 Liquidation, Merger, Sale of Assets, Etc.. . . . . . . . . . .35
7.15 Contingent Indebtedness. . . . . . . . . . . . . . . . . . . .36
7.16 Transactions with or by Affiliates . . . . . . . . . . . . . .36
7.17 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . .37
7.18 No Name Change, Etc. . . . . . . . . . . . . . . . . . . . . .37
7.19 Relocation of Offices. . . . . . . . . . . . . . . . . . . . .37
7.20 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . .37
7.21 Amendments to Private Placement; Prepayments of Private
Placement. . . . . . . . . . . . . . . . . . . . . . . . . . .37
7.22 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . .37
7.23 Maintenance of Property. . . . . . . . . . . . . . . . . . . .38
7.24 Insurance Company. . . . . . . . . . . . . . . . . . . . . . .38
Section 8 DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
8.01 Payment Failure. . . . . . . . . . . . . . . . . . . . . . . .38
8.02 Performance Failure. . . . . . . . . . . . . . . . . . . . . .38
8.03 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . .38
8.04 Judgments; Attachment. . . . . . . . . . . . . . . . . . . . .39
8.05 Government Action. . . . . . . . . . . . . . . . . . . . . . .39
8.06 Voluntary Bankruptcy . . . . . . . . . . . . . . . . . . . . .39
8.07 Involuntary Bankruptcy . . . . . . . . . . . . . . . . . . . .39
8.08 Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . .40
8.09 Change in Control. . . . . . . . . . . . . . . . . . . . . . .40
8.10 Validity Contest . . . . . . . . . . . . . . . . . . . . . . .40
8.11 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
8.12 Cross-Default. . . . . . . . . . . . . . . . . . . . . . . . .40
8.13 Insurance Claim. . . . . . . . . . . . . . . . . . . . . . . .40
Section 9 REMEDIES ON DEFAULT. . . . . . . . . . . . . . . . . . . . . .41
9.01 Termination. . . . . . . . . . . . . . . . . . . . . . . . . .41
9.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . .41
9.03 Specific Remedies. . . . . . . . . . . . . . . . . . . . . . .41
Section 10 AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
10.01 Appointment; Successor Agent . . . . . . . . . . . . . . . . .42
10.02 Immunities . . . . . . . . . . . . . . . . . . . . . . . . . .42
10.03 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . . .43
10.04 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . .43
10.05 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . .44
10.06 Indemnification. . . . . . . . . . . . . . . . . . . . . . . .44
10.07 Non-Reliance on Agent. . . . . . . . . . . . . . . . . . . . .44
10.08 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . .45
10.09 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . .45
10.10 Satisfaction of Loans. . . . . . . . . . . . . . . . . . . . .45
10.11 Information. . . . . . . . . . . . . . . . . . . . . . . . . .45
Section 11 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . .45
11.01 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . .45
11.02 Successors and Assigns . . . . . . . . . . . . . . . . . . . .46
11.03 Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.04 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.05 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.06 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.07 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.08 Complete and Final Agreement . . . . . . . . . . . . . . . . .46
11.09 Modifications, Consents and Waivers. . . . . . . . . . . . . .46
11.10 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . .47
11.11 Governing Law; Jurisdiction; Attorney Fees . . . . . . . . . .47
11.12 Consent to Jurisdiction; Waiver of Immunities. . . . . . . . .47
11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . .48
11.14 Other Debt . . . . . . . . . . . . . . . . . . . . . . . . . .48
11.15 Computation of Time Periods. . . . . . . . . . . . . . . . . .48
11.16 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .48
11.17 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
Exhibit A Banker's Acceptance Agreement
Schedule 1 Confirmation
Exhibit B Officers Authorized to Request Advances
Exhibit C-1 Revolving Line Note (Seafirst)
C-2 Revolving Line Note (U. S. Bank)
Exhibit D-1 Operating Line Note (Seafirst)
D-2 Operating Line Note (U. S. Bank)
Exhibit E Overnight Line Note (U. S. Bank)
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated: As of May 31, 1995.
Among: UNITED GROCERS, INC., an Oregon corporation ("Borrower"), whose
address is 6433 S.E. Lake Road, P.O. Box 22187, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ NATIONAL BANK OF OREGON, a national banking
association ("U.S. Bank"), whose address is ▇▇▇ ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
SEATTLE-FIRST NATIONAL BANK, a national banking association
("Seafirst"), whose address is 12th Floor, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
SEATTLE-FIRST NATIONAL BANK, a national banking association, in
its capacity as agent for U.S. Bank and Seafirst ("Agent")
whose address is 16th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
RECITALS
A. Borrower is primarily in the business of selling food
products and other miscellaneous items to its shareholder members who operate
retail grocery stores. Borrower requires various credit facilities for its
day to day business affairs and operations.
B. On July 31, 1991, Borrower, Banks, Security Pacific Bank
Oregon, and Agent entered into a Credit Agreement providing for a combined
Total Commitment of $80,000,000. From time to time thereafter, the parties
thereto amended the Credit Agreement with the last such amendment being
Amendment No. 10 to Credit agreement and Amendment to Revolving Line Notes and
Operating Line Notes executed by and between the parties hereto and dated as
of April 28, 1995. Such Credit Agreement as amended is hereinafter referred
to as the "Prior Credit Agreement."
C. As of April 20, 1993, the parties hereto and Bank of America
Oregon executed Amendment No. 4 to Credit Agreement. At that time, Bank of
America Oregon was the successor in interest to Security Pacific Bank Oregon.
As of May 28, 1993, all of the rights and obligations of Bank of America
Oregon were assigned to and assumed by Bank of America NT&SA, a national
banking association. As of January 28, 1994, the loans and other advances
made by Bank of America NT&SA were repaid in full and Bank of America NT&SA
was released from all further obligations under the Prior Credit Agreement.
D. The parties hereto now desire to amend and restate the Prior
Credit Agreement to extend the applicable Maturity Dates by one additional
year and to make certain other changes all as set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby amend
and restate the Prior Credit Agreement in its entirety as of the date hereof.
Section 1
DEFINITIONS
1.01 Defined Terms. For purposes of this Agreement, the
following terms have the following meanings:
Acceptance Commission means an amount equal to the face amount
of a Banker's Acceptance multiplied by the Acceptance Commission Rate
multiplied by a fraction of which the numerator is the actual number of days
from creation of such Banker's Acceptance to its maturity and the denominator
is 360 (to reflect a computation on the basis of a 360-day year).
Acceptance Commission Rate means with respect to a Banker's
Acceptance, a rate per annum of seventy-five (75) basis points (three-fourths
of one percent).
Advance means any advance of funds by the Banks, or any of them
individually, to, or for the account of, Borrower pursuant to this Agreement,
and refers to any Revolving Advance (which may be a Seafirst Prime Loan or a
LIBOR Loan), any Operating Advance (which may be a Seafirst Prime Loan, a
LIBOR Loan or a BA Loan) and any Overnight Advance (which may be a U.S. Bank
Prime Loan or an Interim Loan).
Affiliate has the meaning set forth in Section 7.16.
Agent means Seattle-First National Bank and any successor Agent
selected in accordance with Section 10.01(b).
BA Loan means an Advance to which the BA Rate of interest is
applicable.
BA Rate means a rate of interest per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to
the higher of (a) the rate per annum quoted by U.S. Bank on the date of the BA
Loan for discounting a Banker's Acceptance, or (b) the rate per annum quoted
by Seafirst on the date of the BA Loan for discounting a Banker's Acceptance.
Banker's Acceptance means an Eligible Draft (as defined in the
Banker's Acceptance Agreement), with a term not to exceed 92 days' sight,
drawn by Borrower and accepted by U.S. Bank or Seafirst pursuant to this
Agreement and the related Banker's Acceptance Agreement.
Banker's Acceptance Agreement means that certain Amended and
Restated Banker's Acceptance Agreement executed as of the date hereof
substantially in the form of Exhibit A attached hereto.
Banking Day means a day on which banks are not required or
authorized to close in Seattle, Washington or Portland, Oregon, and, if the
applicable Banking Day relates to any LIBOR Loans, in which dealings are
carried on in the London interbank market.
Banks means Seafirst and U.S. Bank and their respective
successors and assigns.
Code means the United States Internal Revenue Code of 1986.
Consolidated Net Tangible Assets has the meaning set forth in
Section 7.11.
Contingent Indebtedness has the meaning set forth in
Section 7.15.
Controlled Group means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
co=on control which, together with Borrower are treated as a single employer
under Section 414(b) or Section 414(c) of the Code.
Default means any of the events of default specified in
Section 8 of this Agreement.
Default Rate means the Interest Rate applicable to each
outstanding Advance from the time of a Default and which equals the Interest
Rate applicable to each outstanding Advance plus 200 basis points (2 percent).
ERISA means the Employee Retirement Income Security Act of
1974, as amended.
Fixed Charge Coverage has the meaning set forth in
Section 7.10.
Fixed Charges has the meaning set forth in Section 7.10.
Funded Debt has the meaning set forth in Section 7.09.
Government Approval means an approval, permit, license,
franchise, right, privilege, authorization, certificate, exemption or consent
of, or granted by, any Government Authority.
Government Authority means the government of the United States
of America, any state or any foreign country, or any political subdivision
thereof or any branch, department, agency,, instrumentality, court, tribunal,
or regulatory authority which constitutes a part or exercises any sovereign
power of any of the foregoing entities.
Incipient Default means an event or act which would, with the
passage of time and/or the giving of notice, constitute a Default.
Indebtedness means for any Person (including Borrower)
(a) all items which in accordance with generally accepted
accounting principles and practices would be included in determining
total liabilities, other than partners' equity, capital stock, surplus
or general contingency or deferred tax reserves, as shown on the
liability side of a consolidated balance sheet of such Person as of the
date the liabilities are determined,
(b) indebtedness secured by any Lien against the assets of the
Person or of any other Person directly or indirectly controlling,
controlled by, or under common control with the Person, whether or not
the indebtedness is assumed,
(c) any other indebtedness or liability for borrowed money or
for the deferred purchase price of property or services for which the
Person, or any other Person directly or indirectly controlling,
controlled by, or under common control with the Person, is directly
liable as obligor, guarantor, or otherwise, or with respect to which the
Person or such other Person otherwise assures a creditor against loss,
and
(d) any other indebtedness or liability of the Person or of
any other Person directly or indirectly controlling, controlled by, or
under common control with the Person, under leases which have been or
should be recorded as capital leases.
Interest Period means
(a) for a BA Loan, a period commencing on the date of the
Advance and expiring no more than 92 days thereafter as selected by
Borrower,
(b) for a LIBOR Loan which is a Revolving Advance, a period
commencing on the date of the Advance and expiring one (1), two (2),
three (3) or six (6) months later as selected by Borrower,
(c) for a LIBOR Loan which is an Operating Advance or an
Overnight Advance, a period commencing on the date of the Advance and
expiring one (1), two (2) or three (3) months later as selected by
Borrower,
(d) for a Prime Loan, a period commencing on the date of the
Advance and expiring on repayment thereof, and
(e) for an Interim Loan, a period commencing on the date of
the Advance and expiring one Banking Day later.
Notwithstanding the foregoing, Borrower may not select an Interest Period for
any Advance extending beyond the applicable Maturity Date.
Interest Rate means the interest rate (i.e., the BA Rate, the
LIBOR Rate, the Seafirst Prime Rate, the U.S. Bank Prime Rate, or the Interim
Rate) selected by Borrower to be applicable to an Advance for the Interest
Period selected by Borrower, and, in the case of amounts not paid when due,
the Default Rate. The Interest Rate shall be fixed for the entire Interest
Period for BA Loans, LIBOR Loans, and Interim Loans. In the event Borrower
does not select an Interest Rate and Interest Period prior to a Revolving
Advance or an Operating Advance, the Seafirst Prime Rate automatically shall
be the applicable Interest Rate. In the event Borrower does not select an
Interest Rate and Interest Period prior to an Overnight Advance, the U.S. Bank
Prime Rate automatically shall be the applicable Interest Rate.
Interim Loan means an Advance to which the Interim Rate is
applicable.
Interim Rate means, for the first day of any Interest Period,
an interest rate expressed as an interest rate per annum which is equal to the
rate of interest established from time to time by U.S. Bank as its "overnight
money market rate" effective as of 10:00 A.M. as of the first day of any
Interest Period for loans of a maturity and an amount similar to the indicated
Interim Loan, plus seventy-five (75) basis points (three-fourths of
one percent).
LIBOR Loan means an Advance to which the LIBOR Rate of interest
is applicable.
LIBOR Rate means a rate of interest per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) which is
seventy-five (75) basis points (three-fourths of one percent) in excess of the
Euro-dollar Rate in effect for the applicable Interest Period, as adjusted to
take into account from time to time the cost to maintain any reserves, special
deposit insurance or similar expenses if incurred as described in Section 6.04
of this Agreement.
The "Euro-dollar Rate" will be determined on the basis of the
offered rate for deposits in U.S. Dollars for the applicable Interest Period
commencing on the first day of such applicable Interest Period (the "Reset
Date") which appears on the display designated as the "LIBO" page on the
▇▇▇▇▇▇ Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks) as of 11:00 o'clock a.m., London time, for deposits in
amounts equal to the applicable Loan for the applicable Interest Period, on
the day that is two Banking Days preceding the Reset Date. If at least two
such offered rates appear on such ▇▇▇▇▇▇'▇ screen LIBO page, the Euro-dollar
Rate in respect of that Reset Date will be the arithmetic mean of such offered
rates. If fewer than two offered rates appear, the Euro-dollar Rate will be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by four major banks (selected by the Agent) in the London interbank
market at approximately 11:00 o'clock a.m., London time, on the day that is
two Banking Days preceding the Reset Date to prime banks in the London
interbank market for deposits in amounts equal to the applicable Loan for the
applicable Interest Period. The Agent will request the principal London
office of each of the four banks to provide a quotation of its rate. If at
least two such quotations are provided, the Euro-dollar Rate will be the
arithmetic mean of the quotations. If fewer than two quotations are provided
as requested, the Euro-dollar Rate in respect of that Reset Date will be the
arithmetic mean of the rates quoted by major banks in New York City (selected
by the Agent) at approximately 11:00 o'clock a.m., New York City time, on that
Reset Date for loans in U.S. Dollars in an amount equal to the applicable Loan
to leading banks in Europe for the applicable Interest Period.
Lien means, for any Person, any security interest, pledge,
mortgage, trust deed, charge, assignment, hypothecation, encumbrance,
attachment, garnishment, execution, or other voluntary or involuntary lien
upon or affecting the revenues of that Person or any real or personal property
in which that Person has, or hereafter acquires, an interest.
Loan Documents means this Agreement, the Notes, the Banker's
Acceptance Agreement and the drafts provided for therein, the corporate
certificates and resolutions of Borrower required hereunder, and any other
documents that the Banks may reasonably require to evidence the credit
facilities herein provided for.
Loans means all BA Loans, Interim Loans, LIBOR Loans, and Prime
Loans made under this Agreement.
Margin Stock has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
Maturity Date means the following:
(i) with respect to the Overnight Loans, April 30, 1996,
(ii) with respect to the Operating Loans, April 30, 1996, and
(iii) with respect to the Revolving Loans, April 30,
1997.
Members' Equity has the meaning set forth in Subsection 7.09.
Notes means the Revolving Line Notes, the Operating Line Notes
and the Overnight Line Note, together with all amendments, modifications and
renewals thereof.
Occupational Safety and Health Law means the Occupational
Safety and Health Act of 1970 and any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating
to or imposing liability or standards of conduct concerning employee health
and/or safety.
Operating Advance has the meaning set forth in Section 4.02.
Operating Line Commitment has the meaning set forth in Section 4.02.
Operating Line Notes has the meaning set forth in Section 6.09.
Operating Line of Credit means the operating line of credit
provided pursuant to Section 4.02.
Operating Loan means a Loan made pursuant to Section 4.02.
Overnight Advance has the meaning set forth in Section 5.01.
Overnight Line Commitment has the meaning set forth in
Section 5.01.
Overnight Line Note has the meaning set forth in Section 6.09.
Overnight Line of Credit means the overnight line of credit
provided pursuant to Section 5.01.
Overnight Loan means a Loan made pursuant to Section 5.01.
PBGC means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
Person means an individual, corporation, partnership, trust,
unincorporated association, or a Government Authority.
Plan shall mean, at any time, an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by
Borrower or any member of a Controlled Group for employees of Borrower or any
member of such Controlled Group or (ii) maintained pursuant to a collective
bargaining agreement or other arrangement under which more than one employer
makes contributions and to which Borrower or any member of a Controlled Group
is then making or accruing an obligation to make contributions or has within
the preceding five plan years made contributions.
Portfolio Loss Factor has the meaning set forth in
Section 7.15.
Prime Loan means a Seafirst Prime Loan or a U.S. Bank Prime
Loan.
Private Placement Agreement means any agreement currently
existing or hereafter entered into by Borrower for the private placement of
debt securities issued by Borrower.
Requirement of Law means, with respect to any Person, the
articles or certificate of incorporation and bylaws or other organizational or
governing documents of such Person, and any law, treaty, rule, order,
restriction, directive, judgment, decree, injunction, writ, regulation, or a
final and binding determination of an arbitrator or a determination of any
Government Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
Requisite Banks means Banks having at least 66 2/3% of the
Total Commitment.
Revolving Advance has the meaning set forth in Section 4.01.
Revolving Line Commitment has the meaning set forth in
Section 4.01.
Revolving Line Notes has the meaning set forth in Section 6.09.
Revolving Line of Credit means the revolving line of credit
provided pursuant to Section 4.01.
Revolving Loan means a Loan made pursuant to Section 4.01.
Risk Based Capital Rules means any rules or regulations adopted
pursuant to the report entitled "International Convergence of Capital
Measurement and Capital Standards" issued by the Basle Committee on Banking
Regulations and Supervisory Practices, including without limitation, changes
to Regulation H and Regulation Y of the Board of Governors of the Federal
Reserve System issued by such Board on January 19, 1989, and regulations of
the Office of the Comptroller of the Currency, 12 CFR Part 3, Appendix A,
issued by such Office on February 3, 1989, and any succeeding rule or
regulation.
Seafirst Prime Loan means a Prime Loan bearing interest at the
Seafirst Prime Rate.
Seafirst Prime Rate means a rate of interest per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) which is equal to the rate of interest advertised and published from
time to time by Seafirst as its "prime rate of interest." This published rate
of interest is not necessarily the lowest or best rate of interest made
available by Seafirst to its most creditworthy customers and no
representation, express or implied, is made with respect thereto. The
Seafirst Prime Rate will fluctuate contemporaneously with, and to the full
extent of, any change in Seafirst's published prime rate of interest.
Subordinated Debt has the meaning set forth in Subsection 7.09.
Taxes means any taxes, assessments, duties, levies or other
charges or impositions of any Government Authority on a Person or its assets,
income or franchises, and any interest or penalty related thereto.
Total Capitalization has the meaning set forth in Section 7.09.
Total Commitments means the sum of the Total Operating Line
Commitment, the Overnight Line Commitment and the Total Revolving Line
Commitment and is equal to Eighty-five Million Dollars ($85,000,000).
Total Operating Line Commitment means the sum of the Operating
Line Commitments of both Banks and is equal to Thirtyseven Million Five
Hundred Thousand Dollars ($37,500,000).
Total Revolving Line Commitment means the sum of the Revolving
Line Commitment of both Banks and is equal to Thirtyseven Million Five Hundred
Thousand Dollars ($37,500,000).
UCC means the Uniform Commercial Code as adopted and in effect
in Washington.
Unfunded Vested Liability shall mean, with respect to any Plan,
at any time, the amount (if any) by which (a) the present value of all vested
non-forfeitable benefits under such Plan exceeds (b) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent evaluation date for such Plan, but only to the extent that such excess
represents a potential liability of Borrower or any member of the Controlled
Group to the PBGC of the Plan under Title IV of ERISA.
U.S. Bank Prime Loan means a Prime Loan bearing interest at
the U.S. Bank Prime Rate.
U.S. Bank Prime Rate means a rate of interest per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) which is equal to the rate of interest advertised and published from
time to time by U.S. Bank as its "prime rate of interest." This published
rate of interest is not necessarily the lowest or best rate of interest made
available by U.S. Bank to its most creditworthy customers and no
representation, express or implied, is made with respect thereto. The U.S.
Bank prime rate will fluctuate contemporaneously with, and to the full extent
of, any change in U.S. Bank's published prime rate of interest.
1.02 Accounting Terms. Accounting terms not specifically
defined shall be construed, and all accounting procedures performed, in
accordance with generally accepted accounting principles and practices
consistently applied.
SECTION 2
REPRESENTATIONS & WARRANTIES
Borrower makes the following representations and warranties to
induce the Banks to enter into this Agreement and to provide the credit
facilities herein provided:
2.01 Incorporation, etc. Borrower is a duly incorporated
and organized Oregon corporation in good standing. Borrower has the lawful
power and authority to own and lease its assets, to engage in the business and
affairs it now conducts and to execute, deliver and perform its obligations in
accordance with this Agreement.
2.02 Qualification. Borrower is duly qualified and in good
standing as a foreign corporation in any and all jurisdictions, domestic or
foreign, where the ownership or leasing of assets or the nature of its
business and affairs makes such qualification necessary, except where the
failure to be so qualified will not have a material adverse impact on the
business, affairs or assets of Borrower.
2.03 Authorization. Borrower has been duly authorized by
its board of directors, and, if necessary under its bylaws or applicable law,
by its shareholders to enter into this Agreement, to execute and deliver the
Notes and the other Loan Documents, to make these representations and
warranties and to pay and perform its debts and obligations to the Banks in
accordance with the terms and conditions of this Agreement, the Notes, and the
other Loan Documents.
2.04 Delivery of Documents. Borrower will execute and
deliver the Notes and the other Loan Documents herein required promptly when
required to do so by this Agreement.
2.05 Valid and Binding Obligations. This Agreement is, and
the Notes and all other Loan Documents, when executed and delivered to the
Banks, will be the valid and binding obligations of Borrower enforceable in
accordance with their respective terms except as the same may be limited by
bankruptcy, insolvency, reorganization or similar laws or general principles
of equity affecting creditors' rights generally.
2.06 Consent. No consent or approval of any trustee or
holder of any Indebtedness or obligation of Borrower and no Government
Approval will be necessary in connection with the execution, delivery or
performance by Borrower of this Agreement, the Notes, and the other Loan
Documents or its obligations thereunder.
2.07 No Violation of Agreement or Law. Neither the
execution, delivery or performance of this Agreement, the Notes, and the other
Loan Documents nor the repayment of Advances pursuant to this Agreement, the
Notes, and the other Loan Documents will be a default or an act which but for
the passage of time or the giving of notice, or both would be a default under
any other agreement to which Borrower is a party or may be bound, or will
constitute a violation of any Requirement of Law that may materially affect
Borrower or its business and affairs.
2.08 Insolvency, etc. Borrower is not insolvent or the
subject of any receivership, reorganization or liquidation under any federal
or state law.
2.09 Financial Information. The financial statements and
other information previously provided by Borrower to the Banks (or any one of
them) with respect to Borrower are true, complete and correct in all material
respects, accurately state the financial condition of Borrower as of the dates
thereof and no material adverse change has occurred in the financial condition
or business prospects of Borrower since preparation of Borrower's December 30,
1994, financial statement that could or may adversely affect the ability of
Borrower to repay its debts to the Banks, or that could or may adversely
affect Borrower's ability to perform its other obligations as stated in this
Agreement, the Notes, and the other Loan Documents.
2.10 Litigation; Adverse Facts. There is no action, suit,
proceeding or arbitration (whether or not purportedly on behalf of Borrower)
at law or in equity or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, pending or, to the knowledge of Borrower, threatened
against or affecting Borrower or its properties which would materially
adversely affect Borrower's ability to perform its obligations under this
Agreement, the Notes, and other Loan Documents, and there is no basis known to
Borrower for any action, suit or proceeding. To its knowledge and belief
Borrower is not (i) in violation of any applicable Requirement of Law which
materially adversely affects or may materially adversely affect the ability of
Borrower to perform its obligations hereunder, or (ii) subject to or in
default with respect to any final judgment, writ, injunction, decree, rule or
regulation of any Government Authority, which would materially and adversely
affect the ability of Borrower to perform its obligations hereunder. There is
no action, suit, proceeding or investigation pending or, to the knowledge of
Borrower, threatened against or affecting Borrower which would affect the
validity or the enforceability of this Agreement, the Notes or the other Loan
Documents.
2.11 Indebtedness. Borrower is not now in default in the
payment of principal or interest of any Indebtedness of Borrower the aggregate
amount of which exceeds $1,000,000.
2.12 Taxes. Borrower has filed all tax returns required by
law to be filed and has paid all Taxes due from Borrower except those not yet
due and those being or about to be contested in good faith by appropriate
means and with adequate reserves for payment having been established.
2.13 ERISA.
(a) Vested Benefits. The present value of all benefits
vested under all Plans did not, as of the most recent valuation date of such
Plans, exceed the value of the assets of the Plans allocable to such vested
benefits by an amount which would represent a potential material liability of
Borrower and its consolidated subsidiaries or affect materially the ability of
Borrower to perform this Agreement, the Notes and the other Loan Documents.
(b) Prohibited Transactions. To the best of Borrower's
knowledge, no plan or trust created thereunder, or any trustee or
administrator thereof, has engaged in a "prohibited transaction" (as such term
is defined in Section406 or Section2003(a) of ERISA) which could subject such
Plan or any other Plan, any trust created thereunder, or any trustee or
administrator thereof, or any party dealing with any Plan or any such trust to
the tax or penalty on prohibited transactions imposed by Section502 or
Section2003(a) of ERISA.
(c) Reportable Events. There have been no "reportable
events" (as that term is defined in Section4043 of ERISA) whether or not
waived, since the effective date of ERISA.
(d) Funding Deficiency. No Plan or trust created
thereunder has incurred any "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA) whether or not waived, since the effective
date of ERISA.
(e) Violation of Code. The required allocations and
contributions of all Plans will not violate Section 415 of the Code.
2.14 Law Compliance. Borrower is in compliance with all
applicable federal and state laws (including federal and state anti-trust laws
and laws relating to the environment and to the safety of the workplace) the
noncompliance with which could singly or in the aggregate have a material
adverse impact on the business, affairs, assets, financial condition or
business prospects of Borrower.
2.15 Federal Reserve Regulations. Borrower is not engaged
principally or as one of its important activities in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock (within the
meaning of Federal Reserve Regulation U), and no part of the proceeds of any
Advance will be used to purchase or carry any Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock.
2.16 Title to Properties; Liens. Borrower has good,
sufficient and legal title to all the properties and assets reflected in its
audited consolidated balance sheet dated as of December 30, 1994, except for
assets acquired or disposed of in the ordinary course of business since the
date of such audited consolidated balance sheet. Except as permitted
hereunder, all such properties and assets are free and clear of Liens.
2.17 Disclosure. No representation or warranty of Borrower
contained in this Agreement or any other document, certificate or written
statement furnished to the Banks by or on behalf of Borrower for use in
connection with the transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a material fact (known
to Borrower in the case of any document not furnished by it) necessary in
order to make the statements contained herein or therein not misleading.
There is no fact known to Borrower (other than matters of a general economic
nature) which materially adversely affects the business, operations, property,
assets or condition (financial or otherwise) of Borrower, taken as a whole,
which has not been disclosed herein or pursuant hereto or in such other
documents, certificates and statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
2.18 Environmental and Safety Health Matters. To the best
knowledge of Borrower, Borrower is in compliance with all environmental laws
and Occupational Safety and Health Laws where failure to comply could have a
material adverse effect on the ability of Borrower to perform its obligations
hereunder. Borrower has not received notice of any claims that it is not in
compliance in all material respects with the environmental laws where failure
to comply could have a material adverse effect on the ability of Borrower to
perform its obligations hereunder.
2.19 Continued Effectiveness: Reaffirmation. The foregoing
representations and warranties are now true in all material respects and,
except as herein provided, will continue to be true in all material respects
until all Indebtedness and obligations of Borrower to the Banks are fully paid
and discharged. Borrower further represents and warrants to Agent and each
Bank that as of the date of this Agreement all representations and warranties
made or deemed made pursuant to the Prior Credit Agreement were true and
correct on and as of each date when made or deemed made thereunder and that as
of the moment immediately prior to this Agreement becoming effective, there
was no Default or Incipient Default (as such words were defined in the Prior
Credit Agreement) which had occurred and was continuing under the Prior Credit
Agreement. Each time Borrower requests an Advance and each time Borrower
accepts an Advance hereunder, Borrower shall be deemed to have reaffirmed the
accuracy and completeness of the foregoing representations and warranties, and
with respect to any BA Loans, the representations and warranties contained in
the Banker's Acceptance Agreement, and Borrower shall be deemed to have
certified that Borrower is in every respect in compliance with this Agreement,
the Notes and the other Loan Documents, and that there then exists no Default
or Incipient Default.
SECTION 3
CONDITIONS PRECEDENT TO ADVANCES
3.01 Conditions Precedent to the Effective Date. The
obligation of any Bank to make any Advance is subject to fulfillment of the
following conditions:
(a) Delivery of Loan Documents. Borrower has executed and
delivered all Loan Documents, including such certificates of good standing and
duly adopted director resolutions as the Banks may reasonably require to
establish to the Banks' reasonable satisfaction the corporate organization,
qualification and authority of Borrower to enter into, and to pay and perform
its Indebtedness and obligations to the Banks as stated in this Agreement.
(b) Legal opinion. Counsel to Borrower reasonably
acceptable to the Banks has rendered a written opinion to the Banks that (i)
Borrower is a duly organized Oregon corporation in good standing in Oregon and
duly qualified and in good standing as a foreign corporation in Washington and
California, (ii) Borrower has been duly authorized to execute and deliver this
Agreement, the Notes, the Banker's Acceptance Agreement, and the other Loan
Documents, and to pay and perform its Indebtedness and obligations as stated
therein, and (iii) this Agreement, the Notes, the Banker's Acceptance
Agreement, and the other Loan Documents, which shall be listed in the opinion,
are the valid and binding obligations of Borrower enforceable in accordance
with their respective terms except as the same may be limited by bankruptcy,
insolvency, reorganization or similar laws or general principles of equity
affecting creditors' rights generally.
(c) Defaults, Etc. At the date of such Advance no Default
or Incipient Default shall have occurred and be continuing or will have
occurred as a result of the making of such Advance and the representations and
warranties set forth in Section 2 shall be true on and as of such date with
the same force and effect as if made on and as of such date. On the request
of Agent, Borrower shall, through a duly authorized officer, provide a
certificate to evidence compliance with this condition.
(d) Prior to Maturity Date. Each Advance is requested
prior to the applicable Maturity Date.
(e) Other Information. Banks shall have received such
other statements, opinions, certificates, documents and information with
respect to the matters contemplated by this Agreement as any Bank may
reasonably request.
SECTION 4
REVOLVING AND OPERATING LINES OF CREDIT
4.01 The Revolving Line Commitments. Subject to the prior
satisfaction of the conditions set forth in Section 3, each Bank severally
agrees on the terms and conditions of this Agreement to make Advances (the
"Revolving Advances") in the principal amount equal to such Bank's
applicable percentage of the Total Revolving Line Commitment set forth below
(such Bank's "Revolving Line Commitment") available to Borrower from time to
time on any Banking Day during the period beginning on the date hereof and
ending on the earlier of the applicable Maturity Date or the termination of
the Commitment pursuant to Section 9.01 (the "Revolving Line Commitment
Period").
Percentage
Lender Interest
Seattle-First
National Bank 50%
U.S. National Bank
of Oregon 50%
As this Commitment is for a revolving line of credit, Borrower may
receive Advances, repay them, and receive additional Advances at all times
until the applicable Maturity Date as long as the aggregate of the Revolving
Advances outstanding at any one time from the Banks does not exceed the Total
Revolving Line Commitment and no Default or Incipient Default shall have
occurred. All Revolving Advances shall be made by the Banks through the
Agent, pro rata, in the same proportion that the Banks' respective Revolving
Line Commitments bear to the Total Revolving Line Commitment, and all
repayments shall be made through the Agent in accordance with Section 6.11. In
no event shall any Bank be required to have aggregate Revolving Advances
outstanding at any one time in excess of its Revolving Line Commitment.
4.02 The Operating Line Commitments. Subject to the prior
satisfaction of the conditions set forth in Section 3, each Bank severally
agrees on the terms and conditions of this Agreement to make Advances (the
"Operating Advances") in the principal amount to such Bank's
applicable percentage of the Total Operating Line Commitment set forth below
(such Bank's "Operating Line Commitment") available to Borrower from time to
time on any Banking Day during the period beginning on the date hereof and
ending on the earlier of the applicable Maturity Date or the termination of
the Commitment pursuant to Section 9.01 (the "Operating Line Commitment
Period").
Percentage
Lender Interest
Seattle-First
National Bank 50%
U.S. National Bank
of Oregon 50%
As this Commitment is for a revolving line of credit, Borrower may
receive Advances, repay them, and receive additional Advances at all times
until the applicable Maturity Date as long as the aggregate of the Operating
Advances outstanding at any one time from the Banks does not exceed the Total
Operating Line Commitment, and no Default or Incipient Default shall have
occurred. All Operating Advances shall be made by the Banks through the
Agent, pro rata, in the same proportion that the Banks' respective Operating
Line Commitments bear to the Total Operating Line Commitment, and all
repayments shall be made through the Agent in accordance with Section 6.11. In
no event shall any Bank be required to have aggregate Operating Advances
outstanding at any one time in excess of its Operating Line Commitment.
4.03 Requesting Revolving and Operating Advances. Borrower shall
request each Revolving and Operating Advance either orally, telephonically, or
in writing. Each request for an Advance must be made by a duly authorized
officer or employee, must specify the date, amount, Interest Rate and Interest
Period selected by Borrower to apply thereto, and must be received by Agent at
Seafirst Agency Services, 16th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ not later than 10:00 a.m., Seattle time, on the Banking Day of a Prime
Loan, not later than 10:00 a.m. three Banking Days before a LIBOR Loan, and
not later than 9:00 a.m. on the Banking Day of a BA Loan. Written
confirmation of all oral and telephonic requests for a BA Loan must be
confirmed in writing no later than 11:00 a.m. on the date of the request.
Each Revolving Advance shall be in the minimum amount of $1,000,000 and
increments of $100,000, and each Operating Advance shall be in the minimum
amount of $1,000,000 and increments of $100,000; provided, however, that Prime
Loans may be in any amount specified by Borrower so long as the applicable
maximum Revolving Line or Operating Line Commitment is not exceeded and
provided further that each Advance under a BA Loan shall be in increments of
$1,000,000. Borrower may request Revolving and Operating Advances to repay
outstanding Revolving and Operating Advances at the end of the applicable
Interest Period of the Advance to be repaid.
4.04 Funding Revolving and Operating Advances. Upon receiving a
request from Borrower for a Revolving or Operating Advance, Agent shall
promptly notify the Banks by telephone that the request has been received and
thereafter confirm the same by telecopy. Except as otherwise provided in
Section 4.07 with respect to BA Loans, the Banks promise to make their pro
rata share of each Advance in the same proportion that their Revolving Line
and Operating Line Commitments bear to the Total Revolving Line Commitment or
Total Operating Line Commitment, as applicable, available to Agent, no later
than noon, Seattle time, on the Advance date proposed by Borrower, and Agent
shall immediately thereafter make the entire Advance available to Borrower by
wiring the Advance to Borrower's general checking account to be maintained at
the Main Branch of U.S. Bank in Portland, Oregon, or at such other place as
may be designated by Borrower in writing.
4.05 Interest Options.
(a) Revolving Advances shall be made to Borrower under one of
the following optional interest rates: Seafirst Prime Rate or the LIBOR Rate.
(b) Operating Advances shall be made to Borrower under one of
the following optional interest rates: Seafirst Prime Rate, LIBOR Rate, or the
BA Rate.
4.06 Repayment Promise. Borrower hereby promises to pay to the
order of each Bank, through the Agent, at the address stated above in the
Recitals, or at such other address as Agent may hereafter designate in writing
to Borrower, (a) an amount equal to the principal amount of all Revolving and
Operating Advances at the end of the applicable Interest Period and in no
event later than the applicable Maturity Date, (b) interest on the outstanding
balance of all Seafirst Prime Loans at the Seafirst Prime Rate monthly in
arrears on the first day of each and every calendar month and in no event
later than the applicable Maturity Date, (c) interest on the outstanding
balances of all LIBOR Loans at the applicable LIBOR Rates on the expiration of
any Interest Period, or in the case of an Interest Period of six (6) months
for LIBOR Loans that are Revolving Advances, each three (3) month anniversary
of the commencement of that Interest Period, or at the applicable Maturity
Date, whichever occurs first, (d) interest on the outstanding balances of any
Loan, Advance or portion of either that shall not be paid when due hereunder
at a rate of interest equal to the Default Rate from the first day following
the date such payment shall have become due until paid, (e) all amounts owing
with respect to BA Loans in accordance with Section 4,07, (f) all fees and
additional amounts payable to the Banks hereunder, and (g) the amount of any
Revolving or Operating Advances to the extent necessary to cause the
outstanding Revolving and Operating Advances to be no greater than the
applicable limitations set forth in Sections 4.01 and 4.02. This promise of
payment will be further evidenced by the Revolving Line Notes and the
Operating Line Notes.
4.07 Special BA Loan Provisions. All BA Loans shall be evidenced
by Banker's Acceptances created by the Banks in equal amounts. With respect
to each Banker's Acceptance, Borrower agrees to pay the accepting Bank an
Acceptance Commission and to reimburse said Bank for expenses incurred by said
Bank including, but not limited, to wire charges, courier charges, and
postage. The Acceptance Commission and expenses shall be collected at the
time the net proceeds of each Banker's Acceptance are made available to
Borrower. The net proceeds of a Banker's Acceptance shall be the face amount
of the Banker's Acceptance minus the applicable Discount and minus the
Acceptance Commission. The Banks shall make the net proceeds of their
respective Banker's Acceptances available to Borrower by transferring or
wiring them to Borrower's general checking account at the Main Branch of U.S.
Bank in Portland or such other account as may be designated in writing by
Borrower. On the last day of the Interest Period of each BA Loan or on the
applicable Maturity Date, whichever first occurs, Borrower shall pay Agent, an
amount equal to the aggregate face amount of the Banker's Acceptances
comprising such BA Loan, to be applied in equal amounts to the applicable
Banker's Acceptances. In the event Borrower does not pay the amount due with
respect to any BA Loan when due, Borrower shall be deemed to have made a
request to Agent for a Seafirst Prime Loan in an amount equal to such amount
due, and subject to the prior satisfaction of the conditions set forth in
Section 3, each of the Banks shall make such Prime Loan pro rata in the same
proportion that its Operating Line Commitment bears to the Total Operating
Line Commitment, the proceeds of which shall be applied by Agent to repay such
BA Loan. All BA Loans shall be further subject to the terms and conditions of
the Banker's Acceptance Agreement.
4.08 Agent's Fee. Borrower promises to pay to Agent an agent's
fee as agreed in writing between Agent and Borrower, in advance, throughout
the term of this Agreement payable upon execution of this Agreement and upon
each anniversary thereof.
4.09 Commitment Fee. Borrower promises to pay Agent, for the
benefit of the Banks, quarterly in arrears on the first Banking Day of each
calendar quarter a commitment fee equal to
(a) 25 basis points (one-quarter of one percent) per annum
times the average daily unused portion of the Total Revolving Line Commitment
during the immediately preceding calendar quarter, and
(b) 25 basis points (one-quarter of one percent per annum
times the average daily unused portion of the Total Operating Line Commitment
during the immediately preceding calendar quarter.
Upon 60 days' advance written notice by Borrower to all of the Banks,
Borrower may reduce the maximum amount of the Total Revolving Line Commitment
and/or the Total Operating Line Commitment, provided, that after giving effect
to such reduction, the aggregate principal amount of the outstanding
applicable Loans does not exceed the applicable Commitment then in effect.
Any such reduction shall be in an amount not less than an amount equal to the
lesser of (a) One Million Dollars ($1,000,000), and (b) the applicable
Commitment then in effect, and shall permanently reduce each Bank's Revolving
Line Commitment or Operating Line Commitment, as applicable, in the same
proportion that such Bank's Revolving Line Commitment or Operating Line
Commitment bears to the Total Revolving Line Commitment or Total Operating
Line Commitment, as applicable.
SECTION 5
U.S. BANK OVERNIGHT LINE OF CREDIT
5.01 The Loans. U.S. Bank agrees on the terms and conditions of
this Agreement to make Advances (the "Overnight Advances") of up to
$10,000,000 (the "Overnight Line Commitment") available to Borrower from time
to time on any Banking Day during the period beginning on the date hereof and
ending on the earlier of the applicable Maturity Date or the termination of
the Commitment pursuant to Section 9.01 (the "Overnight Line Commitment
Period"). As this Commitment is for a revolving line of credit, Borrower may
receive Advances, repay them and receive additional Advances at all times
until the applicable Maturity Date as long as the aggregate of the Overnight
Advances outstanding at any one time from U.S. Bank does not exceed
$10,000,000, and no Default or Incipient Default has occurred. All Overnight
Advances and repayments shall be made by and to U.S. Bank in accordance with
Section 6.11. In no event shall U.S. Bank be required to have aggregate
Overnight Advances outstanding at any one time in excess of the Overnight Line
Commitment.
5.02 Requesting Overnight Advances. Borrower shall request each
Overnight Advance orally, telephonically, or in writing. Each request for an
Advance must be made by a duly authorized officer or employee, must specify
the date, amount, Interest Rate and Interest Period selected by Borrower to
apply thereto, and must be received by U.S. Bank not later than 10:00 a.m.
Portland time on the Banking Day of the requested loan. Each Advance under
Section 5 shall be in the minimum amount of $100,000 provided, however, that
Prime Advances may be in any amount specified by Borrower so long as the
Overnight Line Commitment is not thereby exceeded. Borrower may request
Overnight Advances to repay outstanding Overnight Advances at the end of the
applicable Interest Period of the Advance to be repaid.
5.03 Funding Overnight Advances; Reporting
Requirements. Upon receiving a request from Borrower for an Overnight
Advance, U.S. Bank shall make the Advance available to Borrower by wiring the
Advance to Borrower's general checking account at the Main Branch of U.S. Bank
in Portland, Oregon, or at such other place as may be designated by Borrower
in writing. U.S. Bank shall provide Seafirst promptly upon request information
with respect to Overnight Advances made to Borrower, including without
limitation information regarding date, amount, Interest Rate, Interest Period,
and payments made by Borrower with respect to such Advances.
5.04 Interest Options. Overnight Advances shall be made to
Borrower under one of the following optional interest rates: U.S. Bank Prime
Rate or Interim Rate.
5.05 Repayment Promise. Borrower hereby promises to pay to U.S.
Bank's order, at the address stated above, or such other address as U.S. Bank
may hereafter designate in writing to Borrower, (a) an amount equal to the
principal amount of all Overnight Advances at the end of the applicable
Interest Period and in no event later than the applicable Maturity Date, (b)
interest on the outstanding balance of all U.S. Bank Prime Loans at the U.S.
Bank Prime Rate monthly on the first day of each and every calendar month and
in no event later than the applicable Maturity Date, (c) interest on the
outstanding balances of all Interim Loans at the Interim Rate at the end of
the applicable Interest Period and in no event later than the applicable
Maturity Date, (d) interest on the outstanding balances of any Loan, Advance
or portion of either that shall not be paid when due hereunder at a rate of
interest equal to the Default Rate from the first day following the date such
payment shall have become due until paid, (e) all fees and additional amounts
payable to U.S. Bank hereunder, and (f) the amount of any Overnight Advances
to the extent necessary to cause the outstanding Overnight Advances to be no
greater than the applicable limitations set forth in Section 5.01. This
promise of payment will be further evidenced by the Overnight Line Note.
5.06 Commitment Fee. Borrower promises to pay U.S. Bank
quarterly in arrears on the first Banking Day of each calendar quarter a
commitment fee equal to 25 basis points (one-quarter of one percent) per annum
times the average daily unused portion of the Overnight Line Commitment during
the immediately preceding calendar quarter. Upon 60 days advance written
notice by Borrower to Agent and the Banks, Borrower may permanently reduce the
amount of the Overnight Line of Credit.
SECTION 6
PAYMENT PROVISIONS APPLICABLE TO ALL BANKS
6.01 Prepayments. Any Prime Loan may be prepaid in whole or in
part at any time. Borrower may not prepay a BA Loan or an Interim Loan. Any
LIBOR Loan may be prepaid in full at any time on the number of Banking Days
notice provided in Section 4.03 and 5.02 for requesting Advances with respect
to such Loan, provided, that prepayment on a date other than the final day of
the Interest Period shall be subject to payment of compensation as set out in
Section 6.02. The notice of such prepayment shall specify the Loan to be
prepaid, the date and amount of prepayment, and the applicable Interest Rate
and Interest Period relating to such Loan. Any prepayment shall be
accompanied by all interest accrued thereon to the date of such prepayment.
6.02 Additional Payment in the Event of Prepayment or Failure to
Borrow or Prepay. Borrower agrees, upon demand by any Bank (which demand
shall be accompanied by a statement setting forth the basis for the
calculations of the amount being claimed) to pay such Bank such additional
amount as may be necessary to compensate the Bank for any loss or additional
expense which such Bank may sustain or incur (including, without limitation,
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund or maintain, LIBOR Loans
or Interim Loans and any loss of the Bank's margin) as reasonably determined
by the Bank, as a result of:
(a) any payment or prepayment of any LIBOR Loan or Interim
Loan on a date other than the last day of the Interest Period for such Loan;
or
(b) any failure of Borrower to borrow any LIBOR Loan or
Interim Loan on a date specified in a request made therefor pursuant to
Sections 4.03 or 5.02.
For purposes of the foregoing clause (a), the payment required hereunder
shall apply in all circumstances where a Loan is paid prior to the end of the
Interest Period, regardless of whether such payment is voluntary, required in
order to cause outstanding Advances to be no greater than the applicable
Commitments, or the result of the Agent's or either Bank's collection efforts
or the acceleration of such Loans.
6.03 Change in Circumstances. The Banks have provided Borrower
the prerogative of choosing Interest Rates other than the Seafirst Prime Rate
or the U.S. Bank Prime Rate based on current legal and economic circumstances.
However, if there is a future change in circumstances beyond the control of
the Banks, either by reason of market conditions or applicable law, rule,
regulation or interpretation by Government Authority or central bank, whether
or not it has the force of law, which makes unlawful, impossible or
impractical for any Bank to continue to offer to its customers one or more of
such Interest Rates and any Bank in fact no longer offers such Interest Rates
to its customers, then the Interest Rate so affected shall immediately become
unavailable hereunder, the Loan or Loans to which such Interest Rate is
applicable will be considered prepaid as of the date of such illegality,
impossibility or impracticality, and Borrower shall select a new Interest Rate
and Interest Period to be applicable. If no selection is made within three
Banking Days following notice by any Bank to Borrower of such illegality,
impossibility or impracticality and the unavailability of the affected
Interest Rate, the Seafirst Prime Rate shall be applicable.
6.04 Increased Costs. If any Bank determines that either (i) any
Requirement of Law or the introduction of or any change in any Requirement of
Law or in the interpretation or administration thereof by any Government
Authority charged with the interpretation or administration thereof from the
date hereof or (ii) compliance with any guideline or request from any such
Government Authority (whether or not having the force of law) has or would
have the effect of reducing the rate of return on the capital of such Bank or
any corporation controlling such Bank as a consequence of or with reference to
this Agreement or the making of Loans or the advance by such Bank of any other
sums hereunder, below the rate which the Bank or such other corporation could
have achieved but for the introduction, change or compliance (taking into
account the policies of the Bank or corporation with regard to capital), then
Borrower shall from time to time, upon demand by such Bank, pay to the Bank
within five (5) Banking Days after the date specified in such notice and
demand, additional amounts sufficient to compensate the Bank or other
corporation for such reduction, together with interest on each such amount
from the date said amount is due until payment in full thereof at the Seafirst
Prime Rate. A certificate as to such amounts, submitted to Borrower by the
Bank, shall be conclusive and binding for all purposes, absent manifest error.
The Banks agree to notify Borrower of any circumstances that would cause
Borrower to pay additional amounts pursuant to this Section 6.04, provided
that failure to give such notice shall not affect Borrower's obligation to pay
such additional amounts hereunder.
Without in any way limiting the foregoing, if any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal
Reserve System), special deposit, or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank's
applicable lending office shall be imposed or deemed applicable or any other
condition affecting its LIBOR Loans or its obligation to make LIBOR Loans
shall be imposed on any Bank or its applicable lending office or the London
interbank LIBOR market; and as a result thereof there shall be any increase in
the cost to such Bank of agreeing to make or making, funding, or maintaining
LIBOR Loans (except to the extent already included in the determination of the
applicable LIBOR Rate), or there shall be a reduction in the amount received
or receivable by that Bank or its applicable lending office, then Borrower
shall from time to time, upon written notice from and demand by that Bank in
accordance with the foregoing paragraph, pay to that Bank, within five Banking
Days after the date specified in such notice and demand, additional amounts
sufficient to compensate the Bank or other corporation for such reduction,
together with interest on each such amount from the date such amount is due
until payment in full thereof at the Seafirst Prime Rate.
6.05 Capital Adequacy. If any Bank shall reasonably determine
that adoption, or application in the instance of the Risk Based Capital Rules,
of any law, rule, regulation, directive, interpretation, treaty or guideline
regarding capital adequacy, or any change in the interpretation or
administration thereof, whether or not having the force of law, increases the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and such increase is based upon the
existence of the Bank's obligations hereunder and as a result thereof the rate
of return on the Bank's capital or assets is reduced below that which the Bank
would have achieved but for such adoption or change, then from time to time,
upon demand from the Bank, Borrower shall pay to such Bank such amount or
amounts as will compensate the Bank for such reduction (which amount shall not
include any amounts with respect to penalties imposed on the Bank). The
determination of any amount to be paid by Borrower under this section shall
take into consideration the policies of the Bank making demand, or any
corporation controlling the Bank, with respect to capital adequacy and shall
be based upon any reasonable averaging, attribution and allocation methods. A
certificate of the Bank setting forth the amount or amounts as shall be
necessary to compensate the Bank as specified in this subsection shall be
delivered to Borrower and shall be conclusive absent manifest error.
6.06 Costs and Expenses. Borrower promises to pay all reasonable
out-of-pocket costs and expenses incurred by the Banks and Agent in connection
with the closing, administration and collection of the credit facilities
herein provided. Such costs and expenses specifically include the Banks' and
Agent's reasonable attorneys' fees and disbursements incurred in connection
with preparation of the Loan Documents, collection of Advances, interest, fees
and costs, and enforcement of this Agreement and the Loan Documents, whether
or not litigation is involved.
6.07 Authorized Officers. The list of officers and employees
initially authorized to request Advances, is attached hereto as Exhibit B.
Borrower may amend that list from time to time by supplements executed by the
president and the chief financial officer. The Agent and Banks may act in
reliance upon any oral, telephonic, or written, request believed in good faith
to have been authorized by any of the persons identified on Exhibit B.
6.08 Binding Requests. Each request for each Advance shall be
irrevocable and binding on Borrower and, in respect of any Advance comprised
of Interim Loans, LIBOR Loans or BA Loans specified in such request, if such
Advances are not made as a result of any failure to fulfill on or before the
date specified for such Advance the applicable conditions set forth in
Sections 3, 4, or 5, Borrower shall indemnify the Banks against any loss or
expense incurred by the Banks as a result of such failure, including, without
limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by the Banks to fund the
Advance to be made by it.
6.09 The Notes.
(a) The Revolving Advances shall be evidenced by and
repayable with interest in accordance with amended and restated promissory
notes in the form of Exhibits C-1 and C-2 hereto, payable to the order of each
Bank, dated the date of this Agreement and in the principal amount of such
Bank's Revolving Line Commitment (the "Revolving Line Notes").
(b) The Operating Advances shall be evidenced by and
repayable with interest in accordance with amended and restated promissory
notes in the form of Exhibits D-1 and D-2 hereto, payable to the order of each
Bank, dated the date of this Agreement and in the principal amount of such
Bank's Operating Line Commitment (the "Operating Line Notes").
(c) The Overnight Advances shall be evidenced by and
repayable with interest in accordance with an amended and restated promissory
note in the form of Exhibit E hereto, payable to the order of U.S. Bank, dated
the date of this Agreement and in the principal amount of the Overnight Line
Commitment (the "Overnight Line Note").
Each Bank shall record in its records, or at its option on the schedule
attached to its Note, the date and amount of each Advance, the Interest Rate
applicable to such Advance and the Interest Period. The aggregate unpaid
principal amount so recorded shall be presumptive evidence of the principal
amount owing and unpaid on the Notes. The failure to so record any such
amount or error in so recording such amount shall not, however, limit or
otherwise affect the obligations of Borrower hereunder or under the Notes to
repay the principal amount of the Advances together with all interest accruing
thereon.
6.10 Manner of Payments.
(a) All payments of principal and interest on any
Revolving or Operating Advance and the Revolving and Operating Line Notes and
all other amounts payable hereunder by Borrower to the Banks shall be made by
paying the same in U.S. Dollars and in immediately available funds to Agent in
Seattle not later than noon Seattle time on the date on which such payment is
due. Any payment made after noon Seattle time on any Banking Day shall be
deemed to have been received on the next Banking Day and interest shall accrue
on that day.
(b) All payments of principal and interest on any
Overnight Advance and the Overnight Note and all other amounts payable
hereunder by Borrower to U.S. Bank in respect of the Overnight Commitment
shall be made by paying the same in U.S. Dollars and in immediately available
funds to U.S. Bank not later than 3:00 p.m., Portland time, on the date on
which such payment is due. Any payment made after 3:00 p.m., Portland time,
on any Banking Day shall be deemed to have been received on the next Banking
Day and interest shall accrue on that day.
(c) All computations of interest and fees shall be made
on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest or fees are payable.
(d) Whenever any payment hereunder or under any Note
shall be due other than on a Banking Day, such payment shall be made on the
next succeeding Banking Day and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may
be; unless, and notwithstanding anything to the contrary in this Agreement, in
the case of any payment which is due on the last day of an Interest Period,
such extension would cause the payment to be made in the next following
calendar month, in which case such payment shall be made on the next preceding
Banking Day.
6.11 Application of Proceeds.
(a) Before Default. Any payment made by Borrower or
received for Borrower's account shall be applied as follows if after applying
such payment no Default or Incipient Payment Default shall have occurred and
be continuing:
(i) Payments made by Borrower to, or received for
Borrower's account by, U.S. Bank shall be applied to amounts due in respect of
Overnight Advances in accordance with the following priorities:
(A) First, to expenses and indemnities due
to U.S. Bank hereunder or under any other Loan Document;
(B) Second, to fees due to U.S. Bank under
Section 5.06;
(C) Third, to interest due on any Overnight
Advances;
(D) Fourth, to repay principal then due in
respect of Overnight Advances;
(E) Fifth, to prepay principal of such of the
Overnight Advances as may be designated by Borrower if such prepayment is
permitted in a notice provided contemporaneously with any such payment and, in
the absence of any such designation, as U.S. Bank may elect; and
(F) Sixth, if all amounts due to U.S. Bank in
respect of the Overnight Advances have been paid in full and such Advances
have been fully repaid, U.S. Bank shall immediately transfer amounts
remaining, if any, to Agent for application pursuant to Section 6.11(a)(ii).
(ii) Payments made by Borrower to, or received for
Borrower's account by Agent shall be applied to amounts due in respect of
Revolving Advances and Operating Advances in accordance with the following
priorities:
(A) First, to expenses and indemnities due to
Agent, Seafirst and U.S. Bank hereunder or under any other Loan Documents;
(B) Second, to fees due to Agent and Banks
under Sections 4.08 and 4.09;
(C) Third, to interest due on any Operating
Advance or Revolving Advance;
(D) Fourth, to repay principal then due in
respect of the Operating Advances and Revolving Advances;
(E) Fifth, to prepay principal of such of the
Revolving or Operating Advances as may be designated by Borrower in a notice
provided contemporaneously with any such payment and, in the absence of any
such designation, to such of the Revolving Advances as Agent may elect until
all Revolving Advances are paid in full and, thereafter, to such of the
Operating Advances as Agent may elect; and
(F) Sixth, if all amounts due to Banks in
respect of the Revolving Advances and the Operating Advances have been paid in
full and such Advances have been fully repaid, Agent shall immediately
transfer amounts remaining, if any, to U.S. Bank for application pursuant to
Section 6.11(a)(i).
(b) Payments after Default. Any payment made by Borrower
or received or obtained for Borrower's account (whether received by U.S. Bank,
Seafirst, or Agent) shall be applied as follows if after applying such payment
a Default or Incipient Payment Default shall have occurred and be continuing:
(i) On the date of such payment, the Revolving Line
of Credit, the Operating Line of Credit and the Overnight Line of Credit shall
each be assigned a percentage (such Line of Credit's "Default
Payment Percentage") which shall be a fraction (expressed as a decimal) for
which the numerator is the sum of (A) all fees, expenses, indemnities and
interest accrued under or in respect of such Line of Credit through such date
(whether or not then due) and (B) the outstanding principal balance for all
Advances made under such Line of Credit, and the denominator is the sum of (A)
all fees, expenses, indemnities and interest accrued under the Loan Documents
through such date (whether or not then due) and (B) the outstanding principal
balance for all Advances. For purposes of Section 6.11(b), fees, expenses and
indemnities which are not incurred in respect of any one Line of Credit or
which are incurred in respect of more than one Line of Credit, shall be deemed
to have been accrued in respect of the Revolving Line of Credit.
(ii) A portion of each payment equal to the product
of the Line of Credit's Default Payment percentage and the total amount of the
payment made shall be applied to the Indebtedness incurred in respect of such
Line of Credit in the following order of priority:
(A) First, to expenses and indemnities accrued
thereunder;
(B) Second, to fees due in respect thereof;
(C) Third, to interest due on any Advances
made thereunder;
(D) Fourth, to repay the principal then due in
respect of any Advances made thereunder; and
(E) Fifth, to prepay principal of such of the
Advances as are made thereunder and as are selected by the Requisite Banks for
payment or, in the case of Advances made under the Overnight Line of Credit,
as are selected by U.S. Bank for payment.
(iii) Banks each agree to immediately advise Agent as
to any payment received from Borrower or for Borrower's account and, if after
applying such payment a Default or Incipient Payment Default shall have
occurred and be continuing, to immediately disburse such payment (or portions
thereof) to the other Banks in accordance with instructions received from
Agent, which instructions shall be drawn to result in an application of
proceeds as herein provided for.
(c) Setoffs. If any Bank shall obtain any payment for
Borrower's account through the exercise of any right of counterclaim, setoff,
banker's lien or similar rights, in excess of that portion of the payment to
which it would otherwise be entitled to receive pursuant to the terms of
Sections 6.11(a), 6.11(b), and 6.11(d), such Bank shall forthwith purchase
from the other Banks such participations in the Advances made by them as shall
be necessary to cause such purchasing Bank to share the excess payment with
them in the same proportion as such payment would have been shared had it been
received as a voluntary payment from Borrower pursuant to the terms of
Section 6.11(a) or (b) as the case may be. If any of such excess payment is
afterwards recovered from such purchasing Bank, the purchase of the
participations shall be rescinded and the purchase price restored, without
interest, to the extent of such recovery. Borrower authorizes the purchase of
such participations and agrees that any Bank so purchasing a participation
from another Bank may exercise all of its rights to payment (including the
right of setoff) with respect to such participation as fully as if such Bank
were the direct creditor of Borrower in the amount of such participation.
(d) General Provisions. Where, pursuant to the foregoing
Sections 6.11(a) and 6.11(b), amounts are to be applied to Borrower's
obligations to pay commitment fees, interest or principal in respect of any
particular Revolving Advance or Operating Advance, the amount to be so applied
shall be applied to Borrower's obligations and disbursed to the Banks pro rata
in the same proportion that their respective Commitments bear to the sum of
all Commitments for the applicable Line of Credit, and Agent will remit such
amounts to the other Banks promptly upon the receipt thereof. Whenever
pursuant to the terms of Section 6.11(a) or (b) above, the Agent or any Bank
is authorized to elect particular loans for prepayment, it shall, to the
extent consistent with the foregoing order of priority elect to cause Prime
Loans to be prepaid prior to the prepayment of any other Loans. As used in
this Section 6.11 "Incipient Payment Default" shall mean an event which but
for the passage of time would constitute a Default described in Section 8.01.
SECTION 7
BORROWER'S COVENANTS
At all times prior to the later of (a) the latest Maturity Date or
(b) the date on which all obligations of Borrower under this Agreement and the
Loan Documents have been performed in full, Borrower agrees to do all of the
following unless the Requisite Banks or all Banks, as applicable pursuant to
Section 11.09 hereof, shall otherwise give their prior consent in writing:
7.01 Preservation of Corporate Existence, Etc. Borrower will
preserve and maintain its corporate existence, rights, and privileges in
Oregon and will qualify and remain qualified as a foreign corporation in
Washington and California and in each other jurisdiction where such
qualification is necessary or advisable in view of the business and operations
of Borrower or the ownership of its properties.
7.02 Compliance With Laws. Borrower will comply in all material
respects with all laws, regulations, rules, and orders of any Government
Authority applicable to Borrower or to its operations or property, except any
thereof whose validity is being contested in good faith by appropriate
proceedings upon stay of execution of the enforcement thereof.
7.03 Other Obligations. Borrower will pay and discharge before
the same shall become delinquent (after giving effect to all applicable grace
periods) all Indebtedness, Taxes, and other obligations for which Borrower is
liable or to which its income or property is subject and all claims for labor
and materials or supplies which, if unpaid, might become by law a lien upon
the assets of Borrower, except any thereof whose validity or amount is being
contested in good faith by Borrower in appropriate proceedings, and except
other Indebtedness, Taxes, and other obligations which, in the aggregate do
not exceed $1,000,000; provided, however, that the foregoing exceptions to
this covenant shall not extend to any obligation of Borrower identified in
Sections 7,17 or 8.11.
7.04 Visitation; Records. Borrower will keep adequate records
and books in which complete entries will be made, in accordance with generally
accepted accounting principles consistently applied, reflecting all financial
transactions of Borrower. At any reasonable time and from time to time
Borrower will permit the Agent and Banks to examine and make copies of and
abstracts from Borrower's records and books and to visit the properties of
Borrower and to discuss the affairs, finances, and accounts of Borrower with
any of its officers.
7.05 Financial Information. Borrower will deliver to the Banks
and the Agent (a) as soon as available and in any event within 120 days after
the end of each fiscal year of Borrower, the consolidated balance sheet of
Borrower as of the end of such fiscal year and the related consolidated
statements of income and retained earnings and statement of changes in the
financial position of Borrower for such year, accompanied by the audit report
thereon by independent, certified public accountants acceptable to the Banks
(which report shall be prepared in accordance with generally accepted
accounting principles consistently applied and shall not be qualified by
reason of restricted or limited examination of any material portion of
Borrower's records and shall contain no disclaimer of opinion or adverse
opinion); (b) as soon as available and in any event within 60 days after the
end of each of the first three fiscal quarters of Borrower, the unaudited
consolidated and consolidating balance sheet and statement of income and
retained earnings of Borrower as of the end of such fiscal quarter (including
the fiscal year to the end of such fiscal quarter), accompanied by a
certificate of the chief financial officer of Borrower that such unaudited
consolidated and consolidating balance sheet and statement of income and
retained earnings have been prepared in accordance with generally accepted
accounting principles consistently applied and present fairly the financial
position and the results of operations of Borrower as of the end of and for
such fiscal quarter and setting forth calculations demonstrating that at the
end of such quarter Borrower was in compliance with Sections 7.08 through
7.13, inclusive, and Sections 7.15, and further stating that as of the close
of such fiscal quarter no Default or Incipient Default had occurred and was
continuing; and (c) such other statements, reports, and other information as
the Banks may reasonably request concerning the financial condition of
Borrower.
7.06 Notification. Promptly after learning thereof Borrower will
provide the Banks and the Agent with (a) the details of any action,
proceeding, investigation, or claim against or affecting Borrower instituted
before any court, arbitrator, or Government Authority or, to Borrower's
knowledge threatened to be instituted, which, after taking into account the
likelihood of success, might reasonably result in a judgment or order against
Borrower (in excess of insurance coverage and when combined with all other
pending or threatened claims) of more than $1,000,000; (b) if Borrower or any
member of the Controlled Group gives or is required to give notice to the PBGC
of any "reportable event" (as defined in subsections (b)(1)(2)(5)(6) of
Section 403 of ERISA) with respect to any Plan (or the Internal Revenue
Service gives notice to the PBGC of any "Reportable Event" as defined in
subsection (c)(2) of Section 4043 of ERISA and Borrower attains knowledge
thereof) which might constitute grounds for termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has given
or is required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the PBGC; (c)
notice thereof if any representation or warranty set forth in this Agreement
proves to have been incorrect in any material respect when made; and (d)
notice thereof if any Default or Incipient Default occurs, together with a
statement of the action Borrower is taking or proposes to take with respect
thereto.
7.07 Additional Payments; Additional Acts. From time to time,
Borrower will (a) pay or reimburse the Agent and Banks on request for all
Taxes imposed on this Agreement (other than taxes based on the Agent's or any
Bank's net income, items of tax preference, or gross receipts) and for all
expenses, including legal fees, actually incurred by the Agent or any Bank in
connection with the preparation or modification of this Agreement, the Notes,
the Banker's Acceptance Agreement, or the other Loan Documents hereunder or
the enforcement by judicial proceedings or otherwise of any rights of the
Agent or any Bank hereunder or under the Notes, the Banker's Acceptance
Agreement, or the other Loan Documents; and (b) obtain and promptly furnish to
each of the Banks and the Agent evidence of all such Government Approvals as
may be required to enable Borrower to comply with its obligations under this
Agreement, the Notes, the Banker's Acceptance Agreement, or the other Loan
Documents.
7.08 Working Capital. Borrower shall maintain, on a consolidated
basis, a ratio of current assets to current liabilities of at least 1.3 to
1.0. For purposes of this Section 7.08 current assets shall not include (i)
any deferred assets other than prepaid items such as insurance, Taxes, or
other similar items; (ii) any amounts due from corporations which are
subsidiaries of Borrower or of any other Person directly or indirectly
controlling, controlled by, or under common control with Borrower; and (iii)
an amount equal to the appropriate deduction for depreciation, depletions,
obsolescence, amortization, valuation, contingency, or other reserves
determined in accordance with generally accepted accounting principles. For
purposes of this Section 7.08, current liabilities shall not include Funded
Debt maturing within one year from the date of determination whether or not
extendable at the option of Borrower.
7.09 Funded Debt. Borrower shall maintain on a consolidated
basis a ratio of Funded Debt to Total Capitalization of not more than 0.8 to 1
and a ratio of Funded Debt minus Subordinated Debt to Total Capitalization of
not more than .55 to 1. "Funded Debt" means Indebtedness which matures by its
terms more than one year from the date it was originally incurred, or is
unconditionally renewable or extendable at the option of the debtor to a date
more than one year from such date, or which arises under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of more than one year from such date including the current portion of
such Indebtedness. "Total Capitalization" means the sum of Members' Equity
and Funded Debt. "Members' Equity" means, as of any date of determination,
the consolidated balance sheet "members equity" of Borrower determined in
accordance with generally accepted accounting principles consistently applied.
"Subordinated Debt" means Indebtedness of Borrower which by its terms provides
that no payments or distributions may be made thereon or in respect thereto at
any time when a default has occurred and is continuing under a document
providing for repayment of Indebtedness of Borrower for borrowed money (other
than such Subordinated Debt) or for the payment by Borrower of the purchase
price of tangible property.
7.10 Fixed Charge Coverage. Borrower shall maintain on a
consolidated basis a ratio of Fixed Charge Coverage (for the four most recent
fiscal quarters) of at least 1.4 to 1.0. "Fixed Charge Coverage" means for any
period the ratio derived from dividing (a) the sum of net income for such
period (before income taxes, patronage dividends, and extraordinary items)
plus Fixed Charges by (b) Fixed Charges. "Fixed Charges" means the sum of (a)
interest expense on all Indebtedness, (b) the amortization of any discount
applied in advancing Funded Debt to Borrower, and (c) gross rental expense net
of pass-through rental income from Borrower's members.
7.11 Liens. Borrower shall not create, assume, or suffer to
exist any Lien upon its assets except (i) Liens on Borrower's Milwaukee,
Oregon, and Medford, Oregon, properties securing mortgage indebtedness
relating to such properties and any extensions, refinancing, or renewals
thereof in an amount not exceeding the amount of such indebtedness prior to
such extension, refinancing, or renewal; (ii) capital lease obligations; (iii)
Liens to secure indebtedness for the deferred price of property acquired after
the date hereof, but only if such Liens are limited to such property and its
proceeds; (iv) Liens imposed by law (such as mechanic's liens) incurred in
good faith in the ordinary course of business which are not delinquent or
which remain payable without penalty or the validity or amount of which are
being contested in good faith by appropriate proceeding upon stay of execution
of the enforcement thereof; or (v) deposits or pledges under worker's
compensation, unemployment insurance, social security, or similar laws or made
to secure the performance of bids, tenders, contracts (except for the
repayment of borrowed money) or leases, or to secure statutory obligations or
surety or appeal bonds or to secure indemnity, performance, or other similar
bonds given in the ordinary course of business. Without limiting the
generality of the foregoing, Borrower shall not pledge, grant a security
interest in, or otherwise permit a Lien to encumber all or any portion of its
accounts receivables, chattel paper, documents, instruments, general
intangibles, or inventories. Notwithstanding any of the foregoing, the total
amount secured by all Liens (excluding the Liens described in clause (iii)
above) shall not at any time exceed 15 percent of Borrower's Consolidated Net
Tangible Assets as of such time. "Consolidated Net Tangible Assets" shall be,
on a consolidated basis, the difference between total assets and current
liabilities, excluding, however, from the determination of total assets (i)
all assets which should be classified as intangible assets (such as good will,
patents, trademarks, copyrights, and franchises) and (ii) to the extent not
already deducted from total assets, all reserves including those for deferred
income taxes, depreciation, obsolescence, or amortization of properties, and
(iii) all capital stock or other investments by Borrower in any direct or
indirect subsidiary of Borrower other than in (x) UGIC, Ltd., Borrower's
Bermuda investment subsidiary, or (y) a subsidiary having all or substantially
all of its operations in the United States.
7.12 Minimum Capital and Subordinated Debt. Borrower shall
maintain the sum of Subordinated Debt and Members' Equity at a total of not
less than $75,000,000.
7.13 Member Notes Receivable Ratio. Borrower shall maintain, on
a consolidated basis, a Member Portfolio at not more than 150% of Consolidated
Net Tangible Assets. "Member Portfolio" means the sum of (i) all Indebtedness
of members to Borrower or any of its subsidiaries which have not been sold;
plus (ii) all investments by Borrower or any of its subsidiaries in Borrower's
members; plus (iii) all Indebtedness of members of Borrower or any of its
subsidiaries which have been sold with recourse to Borrower or any of its
subsidiaries at 50% or greater. As used herein, "Consolidated Net Tangible
Assets" shall have the meaning given in Section 7.11.
7.14 Liquidation, Merger, Sale of Assets, Etc.
Borrower shall not liquidate, dissolve, or enter into any merger,
consolidation, joint venture, partnership, or other combination nor sell,
lease, dispose of such portion of its business or assets (excepting sales of
goods in the ordinary course of business and excepting sales of notes pursuant
to note purchase agreements) as constitutes a substantial portion thereof
provided, however, so long as no Default or Incipient Default shall have
occurred and be continuing or will occur as a result of such merger or
consolidation, Borrower may merge or consolidate with any Person provided that
the surviving Person be a corporation duly incorporated and validly existing
under the laws of any state in the United States and provided further that
such surviving corporation expressly assume Borrower's obligations under this
Agreement in a writing delivered to the Banks. Without limitation on the
foregoing, Borrower, and its consolidated subsidiaries, shall not in any
fiscal year sell in excess of 10 percent of their Consolidated Net Tangible
Assets; unless the proceeds of such sale or sales are reinvested within 12
months in assets to be owned and utilized by Borrower in the ordinary course
of its business; provided, however, in determining compliance with the
foregoing requirement, sales of the following assets will be disregarded: (a)
individual assets having a book value of less than $250,000, not to exceed in
the aggregate One Million Five Hundred Thousand Dollars ($1,500,000) in any
fiscal year, and (b) Indebtedness of Borrower's members to Borrower incurred
in Borrower's equipment, store and inventory financing for such members.
7.15 Contingent Indebtedness. Borrower shall not, at any time,
have outstanding Contingent Indebtedness in an amount exceeding the sum of (a)
$6,000,000 and (b) 50 percent of Borrower's consolidated cumulative net income
between September 29, 1990, and the date of determination. "Contingent
Indebtedness" shall, as of any date of determination, mean the sum of (i)
guaranties of the obligations of others (excluding the guaranty of lease
obligations of Borrower's members to the extent such lease obligations are
insured) and (ii) the product of (x) the Portfolio Loss Factor and (y) the
total principal amount of indebtedness owed by Borrower's members to Borrower
in respect of store and equipment financing which has been sold by Borrower on
a recourse basis. The term "Portfolio Loss Factor" shall mean the greater of
(i) five times the average for the three most recently ended fiscal years of
Borrower of the actual losses incurred during each such fiscal year on the
portfolio of indebtedness owed to Borrower (or to a buyer of such indebtedness
from Borrower) by members for equipment and store financing divided by the
average principal amount of such portfolio during such fiscal year or (ii)
3 percent.
7.16 Transactions With or by Affiliates. Borrower will not
directly or indirectly enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease, or exchange of any
property) with any of Borrower's Affiliates on terms that are less favorable
to Borrower than those which might be obtained at the time from Persons who
are not Affiliates. Borrower will not permit or suffer by any Affiliate it
directly or indirectly controls the sale or other disposition of substantially
all the assets of such Affiliate, except in the ordinary course of such
Affiliate's business; and Borrower will not permit or suffer the sale or
issuance by any such Affiliate of any of its stock of any class, except to
Borrower. An "Affiliate" is any Person (or group of related Persons) that (a)
directly or indirectly controls or is controlled by or under common control
with Borrower, or (b) owns more than 5 percent of Borrower's voting stock, or
(c) is a director or officer of Borrower.
7.17 ERISA Compliance. Neither Borrower nor any member of the
Controlled Group nor any Plan of any of them will: (a) engage in any
"prohibited transaction" as such term is defined in Section406 or
Section2003(a) of ERISA; (b) incur any "accumulated funding deficiencies" (as
such term is defined in Section302 of ERISA) whether or not waived; (c)
terminate any "employee pension benefit plan," as such term is used in ERISA,
in a manner which could result in the imposition of a Lien on any property of
Borrower or any member of the Controlled Group pursuant to Section4068 of
ERISA; or (d) violate state or federal securities laws applicable to any Plan.
7.18 No Name Change, Etc. Borrower will not change its name,
identity, or corporate structure in any manner.
7.19 Relocation of Offices. Borrower will give Agent at least 60
days' prior written notice of any relocation of its chief executive offices or
the offices where Borrower's books and records are kept.
7.20 Use of Proceeds. Borrower will use Advances only for
working capital needs.
7.21 Amendments to Private Placement; Prepayments of Private
Placement. Borrower will promptly provide to Banks a copy of each Private
Placement Agreement and shall notify the Banks at least five (5) days in
advance of the execution thereof. Borrower will not agree to or permit to be
made any amendments to nor request any waivers of the terms of any Private
Placement Agreement if such a waiver or waivers pertains to an increase in the
commitment amounts thereunder or to the terms of repayment thereof or of any
promissory notes issued thereunder. Borrower shall give to Agent, for
distribution to each of the Banks prompt written notice and a copy of any
anticipated amendment to or requested waiver of any financial covenants
contained in or reduction in the commitment amounts under each Private
Placement Agreement, and shall give to Agent for distribution to the Banks a
substantially contemporaneous confirming notice and a copy of any amendment or
waiver actually made or granted. Borrower shall not make any prepayments in
respect of any Private Placement Agreement or any of the promissory notes
issued pursuant thereto.
7.22 Insurance. Borrower will keep in force upon all of its
properties and operations policies of insurance carried with responsible
companies in such amounts and covering all such risks as shall be customary in
the industry.
7.23 Maintenance of Property. Borrower will maintain and
preserve all of its properties in good working order and condition, ordinary
wear and tear excepted, and will from time to time make all needed repairs,
renewals or replacements so that the efficiency of such properties shall be
fully maintained and preserved.
7.24 Insurance Company. Borrower shall cause Grocers Insurance
Company, an Oregon corporation or any successor thereto ("GIC"), a
wholly-owned subsidiary of Grocers Insurance Group, which in turn is a
wholly-owned subsidiary of Borrower, to (a) comply in all material respects
with all laws, regulations, rules and orders of any Government Authority
applicable to GIC, except any thereof whose validity is being contested in
good faith by appropriate proceedings upon stay of execution of the
enforcement thereof, and (b) keep in force upon all of its operations policies
of reinsurance carried with responsible companies in such amounts and covering
all such risks as shall be customary in the industry.
SECTION 8
DEFAULT
TIME IS OF THE ESSENCE. The occurrence of any one or more of the
following shall be an event of default under this Agreement, the Notes, and
the other Loan Documents:
8.01 Payment Failure. Borrower fails to make any payment of
principal owing under this Agreement, the Notes, or the other Loan Documents
when due or any payment of interest, cost or expense owing under this
Agreement, the Notes, or the other Loan Documents within five banking days
following the due date thereof.
8.02 Performance Failure. Borrower fails to observe or perform
any other covenant, obligation or condition to be performed or satisfied under
this Agreement, the Notes, or the other Loan Documents and, except in the case
of a breach of Section 7.03 (for which there shall be no cure period), (a)
such failure shall remain unremedied for 30 days after written notice from
Agent, to perform or satisfy the covenant, obligation or condition and (b)
Borrower shall not have substantially commenced to observe or perform and
thereafter diligently completed observance or performance if complete
observance or performance is not possible within 30 days.
8.03 Misrepresentation. Any representation, warranty, statement,
report or certificate made by Borrower in this Agreement or otherwise provided
to the Agent or the Banks is not true and correct in all material respects
when made.
8.04 Judgments; Attachment. A final judgment or judgments is/are
entered against Borrower for the payment of more than $1,000,000 which is/are
not covered by insurance and not satisfied or appealed within 30 days
following entry, or all or a substantial part of the assets of Borrower are
attached, seized, subject to writ or warrant or are levied on or come into the
possession or control of a receiver, trustee, custodian or assignee for the
benefit of creditors.
8.05 Government Action. Borrower is enjoined or restrained or in
any way prevented by order of a court or other Government Authority having
jurisdiction from conducting all or a substantial part of its business affairs
and/or operations.
8.06 Voluntary Bankruptcy. Borrower shall (i) file a petition
seeking relief for itself under Title 11 of the United States Code, as now
constituted or hereafter amended, or file an answer consenting to, admitting
the material allegations of or otherwise not contesting, or fail timely to
contest a petition filed against it seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended; or (ii) file a
petition or answer with respect to relief under the provisions of any other
now existing or future applicable bankruptcy, insolvency, or other similar law
of the United States of America or any state thereof or of any other
jurisdiction providing for the reorganization, winding-up or liquidation of
corporations or any arrangement, composition, extension or adjustment with
creditors.
8.07 Involuntary Bankruptcy. An order for relief shall be
entered against Borrower under Title 11 of the United States Code, as now
constituted or hereafter amended, which order is not dismissed within sixty
(60) days of the entry thereof; or an order, judgment or decree shall be
entered against Borrower by operation of law or by a court having jurisdiction
in the premises adjudging it a bankrupt or insolvent under, or ordering relief
against it under, or approving as properly filed a petition seeking relief
against it under, the provisions of any other now existing or future
applicable bankruptcy, insolvency or other similar law of the United States of
America or any state thereof or of any other jurisdiction providing for the
reorganization, winding-up or liquidation of corporations or any arrangement,
composition, extension or adjustment with creditors, or appointing a receiver,
liquidator, assignee, sequestrator, trustee or custodian of Borrower or of any
substantial part of its property, or ordering the reorganization, winding-up
or liquidation of its affairs, which order is not dismissed within sixty (60)
days of the entry thereof.
8.08 Insolvency. Borrower shall be insolvent or shall (i) make a
general assignment for the benefit of its creditors or (ii) consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, or custodian of all or a substantial part of its property, or (iii)
admit its insolvency or inability to pay its debts generally as they become
due, or (iv) fail generally to pay its debts as they become due, or (v) take
any action (or suffer any action to be taken by its directors or shareholders)
looking to the dissolution or liquidation of Borrower.
8.09 Change in Control. Any Person, or group of Persons directly
or indirectly under common control, shall obtain in excess of 50 percent of
the outstanding voting stock of Borrower.
8.10 Validity Contest. The validity or enforceability of this
Agreement, the Notes, or any other Loan Document is contested by Borrower or
there is a denial of liability by Borrower.
8.11 ERISA. Borrower or any member of the Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of $1,000,000
which it shall have become liable to pay to the PBGC or to a Plan under
Section 515 of ERISA or Title IV of ERISA; or notice of intent to terminate a
Plan or Plans (other than a multi-employer plan, as defined in Section 4001(3)
or ERISA), having aggregate Unfunded Vested Liabilities in excess of
$5,000,000 shall be filed under Title IV of ERISA by Borrower, any member of
the Controlled Group, any plan administrator, or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate any such Plan or Plans.
8.12 Cross-Default. The occurrence of an Event of Default under
the Banker's Acceptance Agreement (as defined therein) or an event of default
under any other Loan Document; the occurrence of a "Termination Event" as such
term is defined in any note purchase agreement or the occurrence of any other
event which would entitle any party committed to purchase notes under a note
purchase agreement to terminate such commitment prior to its scheduled
expiration; or the failure of Borrower to pay when due $1,000,000 or more of
indebtedness for borrowed money now or hereafter owing to any Person or
Persons.
8.13 Insurance Claim. A claim or claims that would normally be
covered by insurance according to industry practices is/are made against GIC
for the payment of more than $1,000,000 individually or in the aggregate which
is/are not covered by reinsurance; or all or a material part of GIC's
reinsurance policies shall be terminated for any reason.
SECTION 9
REMEDIES ON DEFAULT
Upon any Default hereunder, the Agent and the Banks shall have the right
to exercise any one or more of the following remedies in addition to such
other remedies as may be available under law:
9.01 Termination. Agent, may, and shall upon the request of the
Requisite Banks, immediately terminate the Commitments; provided, however,
that in the case of any event described in Sections 8.06, 8.07 or 8.08, the
Commitments shall automatically terminate.
9.02 Acceleration. Agent, may, and shall upon the request of the
Requisite Banks, declare the principal of and the interest on any Loan and the
Notes and all other sums payable by Borrower under the Loan Documents to be
immediately due and payable, whereupon the same shall become immediately due
and payable without protest, presentment or demand, all of which are hereby
expressly waived, provided, however, that in the case of any event described
in Sections 8.06, 8.07 and 8.08, the principal of, and accrued interest on,
the Notes shall become immediately due and payable, both as to principal and
interest, without presentment, demand, protest, all of which are hereby
expressly waived, anything contained herein or in the Notes to the contrary
notwithstanding. Agent shall use its best efforts to provide same day notice
of acceleration to Borrower, provided, however, that failure to give such
notice shall not affect the rights of the Agent and Banks hereunder.
9.03 Specific Remedies. The Agent and Banks may exercise or
pursue any remedy or cause of action permitted by this Agreement, the Notes,
the Banker's Acceptance Agreement, any Loan Document or applicable law. The
rights and remedies provided by law, this Agreement, the Notes, and the other
Loan Documents are cumulative and not exclusive, and the exercise or partial
exercise of any right, power or remedy shall not preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
SECTION 10
AGENCY
10.01 Appointment; Successor Agent.
(a) The Banks hereby appoint Agent to act as
administrative agent in connection with the Loans provided for in this
Agreement. Agent shall have such powers as are reasonably necessary or
appropriate to carry out its rights and responsibilities as agent as expressly
set forth in this Agreement, together with such powers as are reasonably
incidental thereto.
(b) Agent may give written notice of resignation at any
time to the Banks and Borrower and may be removed at any time with cause by
the Requisite Banks. Upon such resignation or removal, the Requisite Banks
shall have the right to appoint a successor agent. If no successor agent
shall have been so appointed by the Requisite Banks and shall have accepted
such appointment within thirty (30) days after the retiring Agents giving of
notice of resignation or the Requisite Banks' removal of the retiring Agent,
then the retiring Agent may on behalf of the Banks, appoint a successor agent,
which shall be (i) a Bank, or (ii) a bank organized under the laws of the
United States or of any state thereof, or any affiliate of such bank, and
having a combined capital and surplus of at least Five Hundred Million Dollars
($500,000,000). Upon the acceptance of any appointment as Agent hereunder by
a successor agent, such successor agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. Until the acceptance by such a successor
agent, the retiring Agent shall continue as "Agent" hereunder. After any
retiring Agent's resignation or removal hereunder as Agent shall become
effective, the provisions of this Section 10 shall bind it and inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
10.02 Immunities. Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement, nor by reason of this
Agreement be a trustee or fiduciary for the Banks (except that the foregoing
disclaimer pertaining to Agent not being a trustee or fiduciary shall not
apply with respect to money actually received by Agent from Borrower which
under the terms of the Loan Documents is to be remitted to Banks). Agent
shall not be responsible to the Banks for any recitals, statements,
representations, or warranties contained in this Agreement, the Notes, or the
other Loan Documents, or in any certificate or other document referred to or
provided for in, or received by the Banks under the Loan Documents, or for the
value, validity, effectiveness, genuineness, enforceability, or sufficiency of
this Agreement, the Notes, or the other Loan Documents or any other document
referred to or provided for therein, or for any failure by Borrower to perform
any of its obligations thereunder. Agent may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or
securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither Agent nor any of its directors, officers, employees,
or agents shall be liable or responsible for any action taken or omitted to be
taken by it or them hereunder or in connection herewith, except for its or
their own gross negligence or willful misconduct.
10.03 Reliance by Agent. Agent shall be entitled to rely upon any
certification, notice, or other communication (including any thereof by
telephone, telex, facsimile, telegram, or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper
person or persons, and upon advice and statements of legal counsel,
independent accountants, and other experts selected by Agent. As to any
matters not expressly provided for by this Agreement, including enforcement or
collection of the Loans and the Advances, Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
refrain from acting (and shall be fully protected in so acting or refraining)
upon the instructions of the Requisite Banks, and such instruction shall be
binding upon all Banks, provided that Agent shall not be required to take any
action which exposes it to personal liability or which is contrary to the Loan
Documents or applicable law, and provided further, that this Section 10 shall
not be amended without the prior written consent of Agent (acting for its own
account).
10.04 Rights as a Lender. With respect to the Loans made by it,
Seafirst in its capacity as a lender shall have the same rights and powers
hereunder as the Banks. Whenever this Agreement calls for a unanimous
decision by the Banks or for a decision by the Requisite Banks, Seafirst, as
lender, shall be entitled to vote its proportionate share. Seafirst, as
lender, and its affiliates may (without having to account therefor to the
Banks) accept deposits from, lend money to, and generally engage in any kind
of banking, trust, or other business with Borrower and any of its affiliates
as if it were not acting as Agent, and Seafirst, as lender, may accept fees
and other consideration from Borrower for services in connection with the Loan
Documents or otherwise without having to account for the same to the Banks
except that the Banks shall be entitled to their share of the commitment fees
specified in Section 4.09 of this Agreement, pro rata, in the same proportion
that their respective Revolving Line and Operating Line Commitments bear to
the Total Revolving Line Commitment or all Total Operating Line Commitment, as
applicable, for which such items are received. U. S. Bank shall be entitled
to its fees specified in Section 5.06. The agent's fee specified in
Section 4.08 of this Agreement shall be exclusively the property of Agent.
10.05 Defaults. Agent shall not be deemed to have knowledge of
the occurrence of a Default (other than the nonpayment of principal, interest,
or fees on the Revolving or Operating Loans) unless Agent has received notice
from Borrower or any Bank specifying such Default or officers of Seafirst
acting in their capacity as officers of Agent with respect to Borrower's
account have actual knowledge of the occurrence of a Default. Agent shall
(subject to Section 10.08) take such action with respect to any Default or
Incipient Default as shall be decided by the Requisite Banks. Without
limiting the foregoing, Agent shall comply with Sections 9.01, 9.02, and
11.09.
10.06 Indemnification. The Banks agree to indemnify Agent (to the
extent not reimbursed by Borrower pursuant to the Loan Documents, but without
limiting the obligations of Borrower under the Loan Documents), pro rata, in
the same proportion that their respective Commitments bear to the sum of all
Commitments of all Banks, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by, or asserted against Agent, in any way relating to or arising out
of the Loan Documents or any other documents contemplated hereby or the
transactions contemplated hereby (excluding, unless a Default has occurred and
is continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or of any such other documents, provided that the Banks shall not
be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of Agent.
10.07 Non-Reliance on Agent. The Banks agree that they have,
independently and without reliance on Agent, and based on such documents and
information as they have deemed appropriate, made their own credit analysis of
Borrower and decision to enter into this Agreement and that they will,
independently and without reliance upon Agent, and based on such documents and
information as they shall deem appropriate at the time, continue to make their
own analysis and decisions in taking or not taking action under this
Agreement. Agent shall not be required to keep itself informed as to the
performance or observance by Borrower of the Loan Documents or any other
document referred to or provided for therein or to inspect the properties or
books of Borrower. Except for notices, reports, and other documents and
information expressly required to be furnished to the Banks by Agent
hereunder, Agent shall not have any duty or responsibility to provide the
Banks with any (credit or other information concerning the affairs, financial
condition, or business of Borrower which may come into the possession of Agent
or any of its affiliates.
10.08 Failure to Act. Except for action expressly required of
Agent hereunder, Agent shall in all cases be fully justified in failing or
refusing to act under the Loan Documents unless it shall be indemnified to its
satisfaction by the Banks, pro rata, in the same proportion that their
respective Commitments bear to the sum of all Commitments of all Banks,
against any and all liability and expense which may be incurred by Agent by
reason of taking or continuing to take any such action.
10.09 Records. Agent agrees to keep at all times proper books of
account and records reflecting the interest of the Banks in the Revolving and
Operating Loans, which records shall be accessible for inspection by Banks at
all times during normal business hours.
10.10 Satisfaction of Loans. Agent may accept payment in full of
the Loans according to their terms and shall be entitled to satisfy or assign
the Notes upon such payment in full, but any such assignment shall be without
recourse and without representation or warranty, either express or implied.
10.11 Information. Agent agrees to provide the Banks promptly
upon request with the following credit information during the term of the
Loans: (a) accrual status; and (b) status of payments of principal, interest,
and fees for the Revolving and Operating Loans. Agent also agrees to provide
the Banks promptly after receipt thereof with financial statements and other
documents received by Agent from Borrower or Banks under the Loan Documents
except where Borrower is obligated to deliver such statements and other
documents directly to the Banks under the terms of the Loan Documents.
SECTION 11
MISCELLANEOUS
11.01 Assignment. Borrower may not assign, pledge, transfer,
hypothecate or otherwise dispose of its rights or obligations under this
Agreement without all of the Banks' prior written consent. A breach of this
provision, directly or indirectly, also shall be a Default and shall not vest
any rights in the purported transferee. The Banks each agree that they will
not sell, transfer, encumber, or assign all or any part of their interest in
the Loans without the prior written approval of the Agent, which approval
shall not be unreasonably withheld. However, the Banks each may assign their
interest in the Loans or sell participation or syndication interests in the
Loans without the consent or approval of Borrower.
11.02 Successors and Assigns. This Agreement and the Notes shall
benefit and be binding upon the respective successors and assigns of the Banks
and Borrower.
11.03 Conflict. The terms and conditions of this Agreement, the
Notes, the Banker's Acceptance Agreement, and the other Loan Documents are
intended to complement and supplement each other and are to be construed so as
to be consistent and complementary but in the event of direct conflict, the
terms and conditions of this Agreement shall prevail.
11.04 Notices. Except for requests for Advances under
Section 4.03 and 5.02 hereof, any notice required or allowed hereunder shall
be effective only if given in writing by certified mail, return receipt
requested, or by courier delivery where a receipt is obtained, at the address
stated above or at such other address as a party hereafter may state by
written notice.
11.05 Captions. The captions are merely for convenience and are
not a substantive part of this Agreement.
11.06 Recitals. The recitals are incorporated into this Agreement
by this reference.
11.07 Exhibits. The exhibits are incorporated into this Agreement
by this reference.
11.08 Complete and Final Agreement. This Agreement is the
complete and final agreement of the parties superseding all previous oral and
written agreements and understandings and no provision can or will be waived
or modified by conduct or oral agreement either before or after execution of
this Agreement. There is no ambiguity in this Agreement which would justify
the use of parol evidence.
11.09 Modifications, Consents and Waivers. No failure or delay
on the part of the Agent or any Bank in exercising any power or right under
any Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power under any Loan Document preclude
any other or future exercise thereof or the exercise of any other right or
power. The remedies provided in the Loan Documents are cumulative and are not
exclusive of any remedies provided by law. No amendment, modification or
waiver of any provision of any Loan Document, nor consent to any departure by
Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed or consented to by the Requisite Banks, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment,
modification, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (i) waive any of the conditions specified in
Section 3; (ii) increase the Commitment of any Bank or subject the Banks to
any additional obligation; (iii) reduce the principal of, or interest on, the
Notes or any fees hereunder; (iv) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees hereunder; (v) take any
action which requires the signing of all the Banks pursuant to the terms of
any Loan Document; (vi) change the percentage of the Commitments, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under any Loan Document; or (vii) amend, modify or waive
Sections 7.05, 7.08 through 7.15, or this Section 11.09; and, provided,
further, that no amendment, modification, waiver or consent shall, unless in
writing and signed by Agent, in addition to the Banks required hereinabove to
take such action, affect the rights and duties of Agent under any Loan
Document. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
11.10 Right of Setoff. Upon the occurrence of a Default, the
Banks shall have the right, but not the obligation, to setoff and apply all
deposits of every kind held by the Banks and their affiliates or obligations
owed by the Banks and their affiliates to Borrower against the Indebtedness
and obligations of Borrower under this Agreement, the Notes and the other Loan
Documents.
11.11 Governing Law; Jurisdiction; Attorney's Fees. Washington
law shall govern construction and enforcement of this Agreement, the Notes and
the other Loan Documents. If suit or action should be instituted to enforce
the terms of this Agreement, the Notes, the Loan Documents or any of them, the
prevailing party shall be entitled to such sum from the other party as the
court shall adjudge reasonable attorney's fees at trial, on appeal or on any
review thereof.
11.12 Consent to Jurisdiction; Waiver of Immunities. Borrower
hereby irrevocably submits to the jurisdiction of any state or federal court
sitting in Seattle, King County, Washington, in any action or proceeding
brought to enforce or otherwise arising out of or relating to any Loan
Document and irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue in any
such action or proceeding in any such forum, and hereby further irrevocably
waives any claim that any such forum is an inconvenient forum.
11.13 Severability. If any provision of this Agreement is
hereafter determined to be illegal or unenforceable, that provision shall be
deemed deleted without invalidating the remaining provisions and, to the
extent permitted by law, Borrower waives any provision of law which renders
any provision illegal or unenforceable.
11.14 Other Debt. Borrower expressly agrees that the payment and
performance of the Indebtedness evidenced by this Agreement, the Notes and the
other Loan Documents shall not be inferior or subordinate to, but rather shall
rank no less than pari passu with, all other Indebtedness of Borrower, except
to the extent such other Indebtedness shall be secured by a Lien described in
Section 7.11 hereof.
11.15 Computation of Time Periods. In the computation of periods
of time from a date to a later date, "from" means "from and including" and
"to" and "until" each means "to but excluding."
11.16 Counterparts. This Agreement may be executed in any number
of counterparts, all of which when taken together shall be deemed a single
original.
11.17 Notice. Borrower is hereby given the following notice:
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
IN WITNESS WHEREOF the parties have executed and delivered this Amended
and Restated Credit Agreement on the date first written above.
BANKS:
SEATTLE-FIRST NATIONAL BANK,
in its capacity as Bank
By
Its
UNITED STATES NATIONAL BANK OF
OREGON
By
Its
AGENT:
SEATTLE-FIRST NATIONAL BANK,
in its capacity as Agent
By
Its
BORROWER:
UNITED GROCERS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
Exhibit A
AMENDED AND RESTATED
BANKER'S ACCEPTANCE AGREEMENT
This Amended and Restated Banker's Acceptance Agreement (this
"Agreement") is entered into as of this 31st day of May, 1995, by the
undersigned pursuant to the Amended and Restated Credit Agreement of even date
herewith (the "Credit Agreement") among United Grocers, Inc. ("Customer"),
United States National Bank of Oregon ("U.S. Bank") and Seattle-First National
Bank ("Seafirst") (collectively, the "Banks") and Seafirst as "Agent" for the
Banks. This Agreement amends and restates that certain prior Banker's
Acceptance Agreement made by and among the parties hereto as of July 31, 1991.
In consideration of the Banks accepting in accordance with the
Credit Agreement drafts drawn on the Banks by Customer, Customer hereby agrees
as follows:
1. Credit Agreement. All of the terms of the Credit Agreement
are incorporated herein by this reference. All terms capitalized in this
Agreement shall have the meaning ascribed to such terms in the Credit
Agreement.
2. Warranties. With respect to each draft presented for
acceptance, Customer warrants and agrees that:
(a) Each draft presented for acceptance and discounting
will be an Eligible Draft. "Eligible Draft" means a draft that is eligible
for discount under the Federal Reserve Act (12 U.S.C. Section 372) and is
eligible for purchase under rules and regulations established from time to
time by the Federal Reserve Bank of New York.
(b) The draft will grow out of one or more transactions
involving the importation or exportation of goods or will grow out of one or
more transactions involving the domestic shipment of goods, or the draft will
be secured throughout the life of the draft by warehouse receipts or similar
documents conveying or securing title and covering readily marketable staples.
(c) Completion of each transaction related to a draft is
anticipated to occur on or before the maturity date of such draft.
(d) The maturity of each draft will be consistent with the
period usually and reasonably necessary to finance transactions of such kind.
(e) Customer holds a sales contract, purchase order or
letter of credit for each transaction underlying the acceptance, and holds
shipping documents conveying or securing title to the goods shipped.
(f) No drafts other than the presented draft have been or
shall be outstanding with respect to goods covered by any presented draft.
(g) The draft is payable in United States dollars and its
amount does not exceed the lesser of the sales price or fair market value of
the goods and the tenor of the draft does not exceed 92 days' sight to run.
(h) If a draft is accepted by the Banks and discounted,
the proceeds will be used solely to finance and consummate the shipping or
storage of the goods.
(i) The information furnished the Banks by Customer upon
request for financing is true and complete.
(j) No security interest in the goods pertaining to the
drafts shall be granted by Customer to any party except the Banks and there
will be no other financing of such goods outstanding during the life of the
accepted draft related thereto.
(k) The minimum amount of any draft issued by either Bank
shall be $500,000 and all drafts shall be in even multiples of $500,000. All
drafts issued by a Bank in response to a request from Customer shall be in
equal amounts to the other Bank.
3. Requests for Financing. Each request for a draft should be
made to:
Seattle-First National Bank
Seafirst Agency Services
Columbia Seafirst Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Agency Officer
or to such other place as Agent may designate. Such requests may be oral,
telephonic, telegraphic, electronic, or in writing in the format described in
Schedule 1 attached hereto. If a request is made orally or by telephonic
communication, written confirmation must be received by Agent at the above
address before 11:00 a.m. of the day on which the oral or telephonic
communication request was made. All requests must be by persons authorized to
make such requests by Customer as shown on Exhibit B to the Credit Agreement
or any substitute or additional personnel hereafter specified in writing by
Customer. The Banks may act in reliance upon any oral, telephonic, or written
request believed in good faith to have been authorized by any of the persons
identified on Exhibit B to the Credit Agreement. The Banks shall not be
responsible for (a) any loss, costs, or expenses incurred by Borrower in
connection with any drafts, documents, or instruments delivered by Borrower to
either Bank in connection herewith; (b) any default, negligence, misfeasance,
suspension, insolvency, or bankruptcy, of any correspondent or agent of either
Bank to whom any such drafts, documents, or instruments may be entrusted; (c)
any loss or delay, in transmission or otherwise, on any such drafts;
documents, or instruments or the proceeds thereof; or (d) any delay,
interruption, omission, or error in transmission or delivery of any message.
4. Completion of Drafts. At Customer's option, by providing
the Banks with presigned, prenumbered but otherwise blank drafts, Customer
authorizes Banks to complete such drafts from time to time on Customer's
behalf in accordance with Customer's instructions. Banks each will
acknowledge receipt of all such incomplete drafts received by it and hold them
in safekeeping prior to completion.
5. Disbursement. Banks will deposit the net proceeds of each
draft accepted and discounted by it to Customer's account Number ▇▇▇-▇▇▇▇-▇▇▇
with U.S. Bank's Main branch in Portland, or such other account as Customer
may designate in writing. The net proceeds of a draft shall be the face
amount of the draft less the applicable Discount and less the Acceptance
Commission.
6. Payment. Customer agrees to pay Agent at its head office in
Seattle, or such other place as Agent may instruct in United States currency
the following:
(a) the face amount of each draft accepted by either Bank
payable on maturity of the draft in immediately available funds;
(b) the Banks' applicable fees or commissions in effect at
the time of the service for which they are charged, payable on demand;
(c) all costs and expenses, including wire charges,
courier charges, postage, and reasonable attorney fees and legal costs,
incurred by either Bank in connection with any draft accepted by, either Bank
or in connection with this Agreement, payable on demand; and
(d) interest on any of the above amounts not paid when due
from the date due until paid at the highest rate permitted by law not
exceeding the Seafirst Prime Rate (changing as the Seafirst Prime Rate
changes) plus 2 percent per annum, payable on demand.
7. Covenants. Customer agrees as follows:
(a) To maintain complete and accurate records and books of
account concerning the transactions giving rise to any drafts accepted by
either Bank.
(b) To permit the Agent, the Banks or their respective
agents to examine or inspect Customer's books and records of account at such
reasonable times as they may request.
(c) To provide the Banks with such information as Banks may
reasonably request with respect to the Customer's financial condition, the
transaction giving rise to any draft, or any of the matters provided for
herein.
(d) To procure promptly any necessary licenses for the
shipment of, or for the payment for, the goods constituting the subject matter
of the draft and to comply with all domestic laws, regulations, and orders
relating to the transactions out of which the drafts arise.
(e) To maintain in good condition and repair all goods
constituting the subject matter of the draft and to insure the same, and
Customer's records and writings evidencing or relating to such goods, against
all risks normally insured against in Customer's business or in the particular
transaction or as Banks may reasonably require, and to assign to or make the
loss payable to the Agent or Banks if the Banks so request.
(f) Upon request, to furnish the Banks with such trade
documents and other evidence deemed necessary by the Banks to establish that
the presented draft is an Eligible Draft.
(g) To indemnify the Banks from: (i) all loss or damage to
either Bank arising out of their acceptance of, or any other action taken by
either Bank in connection with, the drafts other than loss or damage resulting
from such Bank's gross negligence or willful misconduct, and (ii) all costs
and expenses (including reasonable legal expenses and attorneys' fees whether
on trial or appeal) arising out of either Bank's acceptance of the drafts or
incident to the collection of amounts owed by Customer on the drafts or the
enforcement of the Banks' rights.
(h) To indemnify the Banks from any penalties and/or
reserve assessments, both current and retroactive, which the Banks or either
of them may from time to time be required to pay by any branch, agency, or
department of the federal government in connection with any draft if the draft
is accepted and it is later determined that such draft is not an Eligible
Draft.
8. Events of Default. The occurrence of any of the following
shall constitute an Event of Default:
(a) Customer fails to pay when due any obligation
hereunder or otherwise owing to Seafirst or U.S. Bank;
(b) Customer breaches any other covenant herein;
(c) Any oral or written representation, warranty, or other
statement made by Customer to the Banks shall prove false or materially
misleading; or
(d) A Default occurs under the Credit Agreement.
Upon any Event of Default, at the Banks' option, the Banks may declare any and
all indebtedness owing by Borrower with respect to a draft to be immediately
due and payable without notice or demand and/or exercise any right or remedy
available at law and shall have all rights specified under the Credit
Agreement.
9. Authority. The termination of authority granted to any of
the Banks' employees or Customer's employees at any time designated to act for
any purpose on any Bank's behalf or Customer's behalf hereunder, shall not
affect any action taken by such employee prior to receipt by the Banks or by
Customer, as the case may be, of written notice terminating such employee's
authority.
10. Modifications. Customer agrees that in the event of any
mutually agreed modification of the terms of any draft, this Agreement shall
be effective with respect to such draft as modified.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BANKS:
UNITED STATES NATIONAL BANK
OF OREGON
By
Title
SEATTLE-FIRST NATIONAL BANK
By
Title
CUSTOMER:
UNITED GROCERS, INC.
By
Title
Schedule 1
Date:
Seattle-First National Bank
Seafirst Agency Services
Columbia Seafirst Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Agency Officer
Subject: AMENDED AND RESTATED BANKER'S ACCEPTANCE AGREEMENT
DATED AS OF May 31, 1995
Ladies and Gentlemen:
This confirms our conversation with on
, 19____, in which we requested that you execute draft(s) in your
possession in the face amount described below for Seafirst which will be
utilized for the creation of banker's acceptance(s) and that you likewise
instruct United States National Bank of Oregon to execute drafts, in an
identical face amount, in its possession for the same purpose. Said banker's
acceptance are to be discounted with the net proceeds credited to our account
no. ▇▇▇-▇▇▇▇-▇▇▇ with United States National Bank of Oregon.
These banker's acceptances cover the financing of the [CHOOSE ONE:
imported shipments/exported shipments/domestic shipments] of goods described
below. We certify that no other financing is outstanding on these
transactions. At your request we shall provide you with copies of invoices,
bills of lading, and other pertinent shipping information to evidence the
shipments listed. All shipments are invoiced from our Milwaukie, Oregon,
headquarters.
Amounts: Seafirst $US
U.S. Bank $US
Total Amount: $
Date:
Maturity:
Tenor: days
All In Rate: ____ percent per annum
US$ Amount Shipped To (State)* Commodity
* If shipped within Oregon, city must be specified.
UNITED GROCERS, INC.
By
Authorized Signature
Exhibit B
Officers Authorized to Request Advances
NAME OFFICE
▇▇▇▇ ▇. ▇▇▇▇▇ President, Secretary
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Assistant Secretary
▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
EXHIBIT C-1
[REVOLVING LINE NOTE (SEAFIRST)]
AMENDED AND RESTATED
PROMISSORY NOTE
$18,750,000 Seattle, Washington
May 31, 1995
For value received, UNITED GROCERS, INC., an Oregon corporation
("Borrower"), promises to pay to the order of SEATTLE-FIRST NATIONAL BANK, a
national banking association ("Seafirst) at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the holder of this Note
may designate in writing, the principal amount of each Advance made to
Borrower by Seafirst, as agent for itself, under Section 4.01 of the Amended
and Restated Credit Agreement of even date herewith between Borrower,
Seafirst, and United States National Bank of Oregon (the "Credit Agreement"),
payable on the last day of the Interest Period for such Advance, together with
interest from the date hereof as follows: (a) interest on the outstanding
balances of all Seafirst Prime Loans at the Seafirst Prime Rate monthly in
arrears on the first day of each and every calendar month and in no event
later than the applicable Maturity Date, and (b) interest on the outstanding
balances of all LIBOR Loans at the LIBOR Rates applicable thereto on the
expiration of the applicable Interest Period or in the case of an Interest
Period of six (6) months, each three- (3-) month anniversary of the
commencement of that Interest Period, or at the applicable Maturity Date,
whichever first occurs.
Notwithstanding the foregoing, all Advances and all interest shall
be due and payable no later than the applicable Maturity Date. All payments
shall be applied in accordance with Section 6.11 of the Credit Agreement.
Upon the occurrence of a Default, as defined in the Credit
Agreement, the holder of this Note may declare the entire amount owing under
this Note immediately due and payable. All amounts not paid when due shall
bear interest at the "Default Rate" specified in the Credit Agreement. The
failure of the holder of this Note promptly to exercise the holder's rights
hereunder in the event any default shall not constitute a waiver of such
rights while such default continues nor a waiver of such rights in connection
with any future default. Borrower hereby waives presentment, demand, notice,
and protest.
In the event the holder of this Note retains an attorney(s) for
the purpose of collecting the indebtedness evidenced by this Note, Borrower
shall pay holder's reasonable attorney fees and collection costs, even though
no civil action is filed on this Note. If an action is filed, Borrower shall
pay such additional sum as the trial judge and any appellate court may adjudge
reasonable as attorney fees in the action, including any appeal, along with
statutory costs and disbursements and together with interest on said sums at
the Default Rate from the date the fees, costs, and disbursements are
incurred.
This Note is governed in all respects by the terms of the Credit
Agreement, as amended from time to time. The combined outstanding principal
balances owed on this Note drawn by Borrower pursuant to the Credit Agreement
may not exceed at any one time $18,750,000. All terms capitalized herein
shall have the meaning ascribed to such terms in the Credit Agreement. This
Note continues, amends and restates that prior Promissory Note made by
Borrower in favor of Seafirst as of March 13, 1992, as the same was amended
from time to time thereafter.
UNITED GROCERS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
EXHIBIT C-2
[REVOLVING LINE NOTE (U.S. BANK)]
AMENDED AND RESTATE
PROMISSORY NOTE
$18,750,000 Seattle, Washington
May 31, 1995
For value received, UNITED GROCERS, INC., an Oregon corporation
("Borrower"), promises to pay to the order of UNITED STATES NATIONAL BANK OF
OREGON, a national banking association ("U.S. Bank"), through SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Seafirst"), as agent for U.S.
Bank, at the offices of Seafirst at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other address as the holder of this Note may designate in
writing, the principal amount of each Advance made to Borrower by U.S. Bank
through Seafirst, as agent for U.S. Bank, under Section 4.01 of the Amended
and Restated Credit Agreement of even date herewith between Borrower,
Seafirst, and U.S. Bank ("Credit Agreement"), payable on the last day of the
Interest Period for such Advance, together with interest from the date hereof
as follows: (a) interest on the outstanding balances of all Seafirst Prime
Loans at the Seafirst Prime Rate monthly in arrears on the first day of each
and every calendar month and in no event later than the applicable Maturity
Date, and (b) interest on the outstanding balances of all LIBOR Loans at the
LIBOR Rates applicable thereto on the expiration of the applicable Interest
Period, or in the case of an Interest Period of six (6) months, each three-
(3-) month anniversary of the commencement of that Interest Period, or at the
applicable Maturity Date, whichever first occurs.
Notwithstanding the foregoing, all Advances and all interest shall
be due and payable no later than the applicable Maturity Date. All payments
shall be applied in accordance with Section 6.11 of the Credit Agreement.
Upon the occurrence of a Default, as defined in the Credit
Agreement, the holder of this Note may declare the entire amount owing under
this Note immediately due and payable. All amounts not paid when due shall
bear interest at the "Default" Rate" specified in the Credit Agreement. The
failure of the holder of this Note promptly to exercise the holder's rights
hereunder in the event of any default shall not constitute a waiver of such
rights while such default continues nor a waiver of such rights in connection
with any future default. Borrower hereby waives presentment, demand, notice,
and protest. In the event the holder of this Note retains an attorney(s) for
the purpose of collecting the indebtedness evidenced by this Note, Borrower
shall pay holder's reasonable attorney fees and collection costs, even though
no civil action is filed on this Note. If an action is filed, Borrower shall
pay such additional sum as the trial judge and any appellate court may adjudge
reasonable as attorney fees in the action, including any appeal, along with
statutory costs and disbursements and together with interest on said sums at
the Default Rate from the date the fees, costs, and disbursements are
incurred.
This Note is governed in all respects by the terms of the Credit
Agreement, as amended from time to time. The combined outstanding principal
balances owed on this Note drawn by Borrower pursuant to the Credit Agreement
may not exceed at any one time $18,750,000. All terms capitalized herein
shall have the meaning ascribed to such terms in the Credit Agreement. This
Note continues, amends and restates that prior Promissory Note made by
Borrower in favor of U.S. Bank as of March 13, 1992, as the same was amended
from time to time thereafter.
UNITED GROCERS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
EXHIBIT D-1
[OPERATING LINE NOTE (SEAFIRST)]
AMENDED AND RESTATED
PROMISSORY NOTE
$18,750,000 Seattle, Washington
May 31, 1995
For value received, UNITED GROCERS, INC., an Oregon corporation
("Borrower"), promises to pay to the order of SEATTLE-FIRST NATIONAL BANK, a
national banking association ("Seafirst"), at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the holder of this Note
may designate in writing, the principal amount of each Advance made to
Borrower by Seafirst as agent for itself, under Section 4.02 of the Amended
and Restated Credit Agreement of even date herewith between Borrower,
Seafirst, and United States National Bank of Oregon (the "Credit Agreement"),
payable on the last day of the Interest Period for such Advance, together with
interest from the date hereof as follows: (a) interest on the outstanding
balances of all Seafirst Prime Loans at the Seafirst Prime Rate monthly in
arrears on the first day of each and every calendar month and in no event
later than the applicable Maturity Date, (b) interest on the outstanding
balances of all LIBOR Loans at the LIBOR Rates applicable thereto on the
expiration of the applicable Interest Period or at the applicable Maturity
Date, whichever first occurs, and (c) all amounts owing with respect to BA
Loans in accordance with Section 4.07 of the Credit Agreement.
Notwithstanding the foregoing, all Advances and all interest shall
be payable no later than the applicable Maturity Date. All payments shall be
applied in accordance with Section 6.11 of the Credit Agreement.
Upon the occurrence of a Default, as defined in the Credit
Agreement, the holder of this Note may declare the entire amount owing under
this Note immediately due and payable. All amounts not paid when due shall
bear interest at the "Default Rate" specified in the Credit Agreement. The
failure of the holder of this Note promptly to exercise the holder's rights
hereunder in the event of any default shall not constitute a waiver of such
rights while such default continues nor a waiver of such rights in connection
with any future default. Borrower hereby waives presentment, demand, notice,
and protest.
In the event the holder of this Note retains an attorney(s) for
the purpose of collecting the indebtedness evidenced by this Note, Borrower
shall pay holder's reasonable attorney fees and collection costs, even though
no civil action is filed on this Note. If an action is filed, Borrower shall
pay such additional sum as the trial judge and any appellate court may adjudge
reasonable as attorney fees in the action, including any appeal, along with
statutory costs and disbursements and together with interest on said sums at
the Default Rate from the date the fees, costs, and disbursements are
incurred.
This Note is governed in all respects by the terms of the Credit
Agreement, as amended from time to time. The combined outstanding principal
balances owed on this Note drawn by Borrower pursuant to the Credit Agreement
may not exceed at any one time $18,750,000. All terms capitalized herein
shall have the meaning ascribed to such terms in the Credit Agreement. This
Note continues, amends and restates that prior Promissory Note made by
Borrower in favor of Seafirst as of March 13, 1992, as the same was amended
from time to time thereafter.
UNITED GROCERS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
EXHIBIT D-2
[OPERATING LINE NOTE (U.S. BANK)]
AMENDED AND RESTATED
PROMISSORY NOTE
$18,750,000 Seattle, Washington
May 31, 1995
For value received, UNITED GROCERS, INC., an Oregon corporation
(Borrower"), promises to pay to the order of UNITED STATES NATIONAL BANK OF
OREGON, a national banking association ("U.S. Bank"), through SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Seafirst"), as agent for U.S.
Bank, at the offices of Seafirst at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other address as the holder of this Note may designate in
writing, the principal amount of each Advance made to Borrower by U.S. Bank
through Seafirst, as agent for U.S. Bank, under Section 4.02 of the Amended
and Restated Credit Agreement of even date herewith between Borrower,
Seafirst, and U.S. Bank (the "Credit Agreement"), payable on the last day of
the Interest Period as for such Advance, together with interest from the date
hereof as follows: (a) interest on the outstanding balances of all Seafirst
Prime Loans at the Seafirst Prime Rate monthly in arrears on the first day of
each and every calendar month and in no event later than the applicable
Maturity Date, (b) interest on the outstanding balances of all LIBOR Loans at
the LIBOR Rates applicable thereto on the expiration of the applicable
Interest Period or at the applicable Maturity Date, whichever first occurs,
and (c) all amounts owing with respect to BA Loans in accordance with Section
4.07 of the Credit Agreement.
Notwithstanding the foregoing, all Advances and all interest shall
be due and payable no later than the applicable Maturity Date. All payments
shall be applied in accordance with Section 6.11 of the Credit Agreement.
Upon the occurrence of a Default, as defined in the Credit
Agreement, the holder of this Note may declare the entire amount owing under
this Note immediately due and payable. All amounts not paid when due shall
bear interest at the "Default Rate" specified in the Credit Agreement. The
failure of the holder of this Note promptly to exercise the holder's rights
hereunder in the event of any default shall not constitute a waiver of such
rights while such default continues nor a waiver of such rights in connection
with any future default. Borrower hereby waives presentment, demand, notice
and protest.
In the event the holder of this Note retains an attorney(s) for
the purpose of collecting the indebtedness evidenced by this Note, Borrower
shall pay holder's reasonable attorney fees and collection costs, even though
no civil action is filed on this Note. If an action is filed, Borrower shall
pay such additional sum as the trial judge and any appellate court may adjudge
reasonable as attorney fees in the action, including any appeal, along with
statutory costs and disbursements and together with interest on said sums at
the Default Rate from the date the fees, costs, and disbursements are
incurred.
This Note is governed in all respects by the terms of the Credit
Agreement, as amended from time to time. The combined outstanding principal
balances owed on this Note drawn by Borrower pursuant to the Credit Agreement
may not exceed at any one time $18,750,000. All terms capitalized herein
shall have the meaning ascribed to such terms in the Credit Agreement. This
Note continues, amends and restates that prior Promissory Note made by
Borrower in favor of U.S. Bank as of March 13, 1992, as the same was amended
from time to time thereafter.
UNITED GROCERS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
EXHIBIT E
[OVERNIGHT LINE NOTE (U.S. BANK)]
AMENDED AND RESTATED
PROMISSORY NOTE
$10,000,000 Seattle, Washington
May 31, 1995
For value received, UNITED GROCERS, INC., an Oregon corporation
("Borrower"), promises to pay to the order of U.S. BANK NATIONAL BANK OF
OREGON, a national banking association ("U.S. Bank"), at its offices at
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the
holder of this Note may designate in writing, the principal amount of each
Advance made to Borrower by U.S. Bank under Section 5.01 of the Amended and
Restated Credit Agreement of even date herewith between Borrower, Seattle-
First National Bank, and U.S. Bank (the "Credit Agreement") payable on the
last day of the Interest Period for such Advance, together with interest from
the date hereof as follows: (a) interest on the outstanding balances of
all U.S. Bank Prime Loans at the U.S. Bank Prime Rate monthly in arrears on
the first day of each and every calendar month and in no event later than the
applicable Maturity Date, and (b) interest on the outstanding balances of all
Interim Loans at the Interim Rates at the end of the applicable Interest
Period and in no event later than the applicable Maturity Date.
Notwithstanding the foregoing, all Advances and all interest shall
be due and payable no later than the applicable Maturity Date. All payments
shall be applied in accordance with Section 6.11 of the Credit Agreement.
Upon the occurrence of a Default, as defined in the Credit
Agreement, the holder of this Note may declare this entire amount owing under
this Note immediately due and payable. All amounts not paid when due shall
bear interest at the "Default Rate" specified in the Credit Agreement. The
failure of the holder of this Note promptly to exercise the holder's rights
hereunder in the event of any default shall not constitute a waiver of such
rights while such default continues nor a waiver of such rights in connection
with any future default. Borrower hereby waives presentment, demand, notice,
and protest.
In the event the holder of this Note retains an attorney(s) for
the purpose of collecting the indebtedness evidenced by this Note, Borrower
shall pay holder's reasonable attorney fees and collection costs, even though
no civil action is filed on this Note. If an action is filed, Borrower shall
pay such additional sum as the trial judge and any appellate court may adjudge
reasonable as attorney fees in the action, including any appeal, along with
statutory costs and disbursements and together with interest on said sums at
the Default Rate from the date the fees, costs, and disbursements are
incurred.
This Note is governed in all respects by the terms of the Credit
Agreement, as amended from time to time. The combined outstanding principal
balances owed on this Note drawn by Borrower pursuant to the Credit Agreement
may not exceed at any one time $10,000,000. All terms capitalized herein
shall have the meaning ascribed to such terms in the Credit Agreement. This
Note continues, amends and restates that prior Promissory Note made by
Borrower in favor of Security Pacific Bank Oregon as of March 13, 1992, as the
same was assigned and amended from time to time thereafter.
UNITED GROCERS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President