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Exhibit 10.9
REVOLVING CREDIT AGREEMENT
dated as of September 24, 1997
among
YELLOW CORPORATION
NATIONSBANK, N.A.,
Individually and as Documentation Agent
THE FIRST NATIONAL BANK OF CHICAGO,
Individually, as Issuer and as Agent
and
THE LENDERS LISTED HEREIN
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS................................................................ 1
ARTICLE II. THE FACILITY............................................................... 19
2.1. The Facility.......................................................... 19
2.1.1. Description of Facility....................................... 19
2.1.2. Facility Amount............................................... 19
2.1.3. Availability of Facility...................................... 19
2.2. Ratable Advances...................................................... 19
2.2.1. Ratable Advances.............................................. 19
2.2.2. Ratable Advance Rate Options.................................. 20
2.2.3. Method of Selecting Rate Options and Interest Periods for
Ratable Advances.............................................. 20
2.3. Competitive Bid Advances.............................................. 20
2.3.1. Competitive Bid Option........................................ 20
2.3.2. Competitive Bid Quote Request................................. 21
2.3.3. Invitation for Competitive Bid Quotes......................... 21
2.3.4. Submission and Contents of Competitive Bid Quotes............. 21
2.3.5. Notice to Borrower............................................ 23
2.3.6. Acceptance and Notice by Borrower............................. 23
2.3.7. Allocation by Agent........................................... 23
2.3.8. Competitive Bid Auction Fees.................................. 24
2.4. Facility Letters of Credit............................................ 24
2.4.1. Obligation to Issue........................................... 24
2.4.2. Conditions for Issuance....................................... 24
2.4.3. Procedure for Issuance of Facility Letters of Credit.......... 25
2.4.4. Reimbursement Obligations..................................... 26
2.4.5. Participation................................................. 27
2.4.6. Compensation for Facility Letters of Credit................... 28
2.4.7. Letter of Credit Collateral Account........................... 28
2.4.8. Nature of Obligations......................................... 29
2.5. Fees.................................................................. 29
2.5.1. Agent's Fees.................................................. 29
2.5.2. Facility Fee.................................................. 29
2.5.3. Utilization Fee............................................... 30
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2.6. General Facility Terms................................................ 30
2.6.1. Method of Borrowing........................................... 30
2.6.2. Minimum Amount of Each Advance................................ 30
2.6.3. Payment on Last Day of Interest Period........................ 30
2.6.4. Optional Principal Payments................................... 30
2.6.5. Interest Periods.............................................. 31
2.6.6. Default Rate.................................................. 31
2.6.7. Interest Payment Dates; Interest Basis........................ 31
2.6.8. Method of Payment............................................. 31
2.6.9. Notes; Telephonic Notices..................................... 32
2.6.10. Notification of Advances, Interest Rates and Prepayments..... 32
2.6.11. Non-Receipt of Funds by the Agent............................ 32
2.6.12. Cancellation................................................. 33
2.6.13. Lending Installations........................................ 33
2.6.14. Withholding Tax Exemption.................................... 33
2.6.15. Application of Payments with Respect to Defaulting Lenders... 34
ARTICLE III. CHANGE IN CIRCUMSTANCES............................................... 35
3.1. Yield Protection...................................................... 35
3.2. Changes in Capital Adequacy Regulations............................... 36
3.3. Availability of Rate Options.......................................... 36
3.4. Funding Indemnification............................................... 37
3.5. Lender Statements; Survival of Indemnity.............................. 37
3.6. References to Lender to Include Issuer................................ 37
ARTICLE IV. CONDITIONS PRECEDENT.................................................. 38
4.1. Initial Credit Extension.............................................. 38
4.2. Refinancing Credit Extension.......................................... 39
4.3. Each Credit Extension (other than a Refinancing Credit Extension)..... 40
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................ 40
5.1. Corporate Existence and Standing...................................... 40
5.2. Authorization and Validity............................................ 41
5.3. No Conflict; Government Consent....................................... 41
5.4. Financial Statements.................................................. 41
5.5. Material Adverse Change............................................... 41
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5.6. Taxes................................................................ 41
5.7. Litigation and Contingent Obligations................................ 42
5.8. Subsidiaries......................................................... 42
5.9. ERISA................................................................ 42
5.10. Accuracy of Information.............................................. 42
5.11. Regulation U......................................................... 42
5.12. Material Agreements.................................................. 43
5.13. Compliance With Laws................................................. 43
5.14. Investment Company Act............................................... 43
5.15. Public Utility Holding Company Act................................... 43
5.16. Ownership of Property................................................ 43
ARTICLE VI. COVENANTS............................................................ 44
6.1. Financial Reporting.................................................. 44
6.2. Use of Proceeds; Regulation U........................................ 45
6.3. Notice of Default.................................................... 46
6.4. Conduct of Business.................................................. 46
6.5. Taxes................................................................ 46
6.6. Insurance............................................................ 46
6.7. Compliance with Laws................................................. 46
6.8. Environmental Covenant............................................... 46
6.9. Maintenance of Property.............................................. 47
6.10. Inspection........................................................... 47
6.11. Merger............................................................... 47
6.12. Sale of Assets....................................................... 47
6.13. Liens................................................................ 48
6.14. Guaranties, Loans, Advances and Investments.......................... 49
6.15. Affiliates........................................................... 51
6.16. Consolidated Tangible Net Worth...................................... 51
6.17. Cash Flow to Total Indebtedness Ratio................................ 51
6.18. Employee Benefit Plans............................................... 51
6.19. Other Agreements..................................................... 51
6.20. Subsidiary Dividends and Indebtedness................................ 51
6.21. Ownership of Yellow Freight.......................................... 52
6.22. Additional Material Subsidiaries..................................... 52
ARTICLE VII. DEFAULTS............................................................. 53
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ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES............................................................. 55
8.1. Acceleration; Collateral Shortfall..................................... 55
8.2. Amendments............................................................. 56
8.3. Preservation of Rights................................................. 57
ARTICLE IX. GENERAL PROVISIONS.................................................... 58
9.1. Survival of Representations............................................ 58
9.2. Governmental Regulation................................................ 58
9.3. Taxes.................................................................. 58
9.4. Headings............................................................... 58
9.5. Entire Agreement....................................................... 58
9.6. Several Obligations; Benefits of this Agreement........................ 58
9.7. Expenses; Indemnification.............................................. 59
9.8. Numbers of Documents................................................... 59
9.9. Accounting............................................................. 59
9.10. Severability of Provisions............................................. 59
9.11. Nonliability of Lenders................................................ 60
9.12. CHOICE OF LAW.......................................................... 60
9.13. CONSENT TO JURISDICTION................................................ 60
9.14. WAIVER OF JURY TRIAL................................................... 60
9.15. Confidentiality........................................................ 60
ARTICLE X. THE AGENT............................................................. 61
10.1. Appointment............................................................ 61
10.2. Powers................................................................. 61
10.3. General Immunity....................................................... 61
10.4. No Responsibility for Loans, Recitals, etc.; Delivery of Documents..... 61
10.5. Action on Instructions of Lenders...................................... 62
10.6. Employment of Agents and Counsel....................................... 62
10.7. Reliance on Documents; Counsel......................................... 62
10.8. Agent's Reimbursement and Indemnification.............................. 62
10.9. Rights as a Lender..................................................... 63
10.10. Lender Credit Decision................................................. 63
10.11. Successor Agent........................................................ 63
10.12. Notice of Default...................................................... 64
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ARTICLE XI. SETOFF; RATABLE PAYMENTS................................................... 64
11.1. Setoff................................................................. 64
11.2. Ratable Payments....................................................... 64
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS........................................................... 65
12.1. Successors and Assigns................................................. 65
12.2. Participations......................................................... 65
12.2.1. Permitted Participants; Effect................................ 65
12.2.2. Voting Rights................................................. 66
12.2.3. Benefit of Setoff............................................. 66
12.3. Assignments............................................................ 66
12.3.1. Permitted Assignments......................................... 66
12.3.2. Effect; Effective Date........................................ 67
12.4. Dissemination of Information........................................... 67
12.5. Tax Treatment.......................................................... 68
ARTICLE XIII. NOTICES.................................................................... 68
13.1. Giving Notice.......................................................... 68
13.2. Change of Address...................................................... 68
ARTICLE XIV. COUNTERPARTS............................................................... 69
EXHIBITS
Exhibit "A" - Note (Ratable Loans).................................................... 76
Exhibit "B" - Note (Competitive Bid Loans)............................................ 78
Exhibit "C" - Competitive Bid Quote Request........................................... 81
Exhibit "D" - Invitation for Competitive Bid Quotes................................... 82
Exhibit "E" - Competitive Bid Quote................................................... 83
Exhibit "F" - Form of Opinion of Counsel to Yellow Corporation........................ 85
Exhibit "G" - Loan/Credit Related Money Transfer Instructions......................... 88
Exhibit "H" - Compliance Certificate.................................................. 89
Exhibit "I" - Form of Assignment Agreement............................................ 92
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SCHEDULES
Schedule "1" - Potential Liabilities not Provided For in Financial Statements................... 102
Schedule "2" - Yellow Corporation Subsidiaries.................................................. 103
Schedule "3" - Notices of Legal or Regulatory Violations........................................ 104
Schedule "4" - Specified Liens in Existence on the Closing Date................................. 105
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YELLOW CORPORATION
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement, dated as of September 24, 1997, is among
Yellow Corporation, a Delaware corporation, the Lenders (as defined below),
NationsBank, N.A., as Documentation Agent, and The First National Bank of
Chicago, as Issuer and as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Borrower.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Borrower at the same time and for the same Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance, a period of not less than 30 days and not more than six months,
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. If such Absolute Rate Interest Period would end on a day which is
not a Business Day, such Absolute Rate Interest Period shall end on the next
succeeding Business Day, unless such next succeeding Business Day is after the
Termination Date, in which case such Absolute Rate Interest Period shall end on
the next preceding Business Day. No Absolute Rate Interest Period may end
after the Termination Date.
"Absolute Rate Loan" means a Loan which bears interest at the Absolute
Rate.
"Adjusted Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated EBITDA plus (ii) Special Subsidiary Discontinuation/Restructuring
Charges incurred or taken by the Borrower during such period, provided that the
cumulative amount of Special Subsidiary Discontinuation/Restructuring Charges
included in Adjusted Consolidated EBITDA
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pursuant to this clause (ii) during the term of this Agreement shall not exceed
$115,000,000 (which is a pre-tax amount).
"Adjusted Consolidated Tangible Net Worth" means the sum of (i)
Consolidated Tangible Net Worth, plus (ii) the cumulative amount of Special
Subsidiary Discontinuation/Restructuring Charges incurred or taken by the
Borrower for fiscal quarters ending on September 30, 1997 or thereafter (such
amount to be adjusted quarterly upon delivery by the Borrower of its financial
statements described in Section 6.1(ii)), provided that the cumulative amount
of Special Subsidiary Discontinuation/Restructuring Charges included in
Adjusted Consolidated Tangible Net Worth pursuant to this clause (ii) during
the term of this Agreement shall not exceed $75,000,000 (which is an after-tax
amount).
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by some or all of the Lenders to the Borrower on the
same Borrowing Date, at the same Rate Option (or on the same interest basis in
the case of Competitive Bid Advances) and for the same Interest Period and
includes a Competitive Bid Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as agent
for the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Agent's Fee Letter" is defined in Section 2.3.8.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this revolving credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4,
provided that, to the extent that generally accepted accounting principles as
in effect at any time permit alternative methods of accounting for particular
events or transactions, the Borrower may, with the concurrence of its
independent certified public accountants, vary its selection of such methods
during different
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accounting periods so long as any inconsistency in the application of generally
accepted accounting principles resulting therefrom is disclosed and explained
to the Lenders.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate or (ii) the Federal Funds
Effective Rate most recently determined by the Agent plus 1/2% per annum.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate.
"Applicable Facility Fee Rate" means (i) during any ▇▇▇▇▇ ▇ Rating Period,
0.08% per annum, (ii) during any Level 2 Rating Period, 0.10% per annum, (iii)
during any Level 3 Rating Period, 0.125% per annum, (iv) during any Level 4
Rating Period, 0.15% per annum, (v) during any Level 5 Rating Period, 0.175%
per annum and (vi) during any Level 6 Rating Period, 0.20% per annum.
"Applicable Margin" means (i) during any ▇▇▇▇▇ ▇ Rating Period, 0.17% per
annum, (ii) during any Level 2 Rating Period, 0.20% per annum, (iii) during any
Level 3 Rating Period, 0.225% per annum, (iv) during any Level 4 Rating Period,
0.25% per annum, (v) during any Level 5 Rating Period, 0.325% per annum and
(vi) during any Level 6 Rating Period, 0.40% per annum.
"Applicable Utilization Fee Rate" means (i) during any Level 1, 2 or 3
Rating Period, 0.05% per annum, (ii) during any Level 4 or 5 Rating Period,
0.10% per annum and (iii) during any Level 6 Rating Period, 0.15% per annum.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means either of the Treasurer or Assistant Treasurer
of the Borrower, acting singly.
"Board of Directors" means the board of directors of a Person or any duly
authorized committee of such board of directors to the extent that such
committee is authorized to perform the functions of such board of directors.
Unless otherwise expressly provided or unless the context otherwise requires,
all references herein to the "Board of Directors" shall mean the Board of
Directors of the Borrower.
"Borrower" means Yellow Corporation, a Delaware corporation, and its
permitted successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
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"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Ratable Advances or Eurodollar Bid Rate Advances, a day
other than Saturday or Sunday on which banks generally are open in Chicago and
New York for the conduct of substantially all of their commercial lending
activities and on which dealings in United States dollars are carried on in the
London interbank market and (ii) for all other purposes, a day other than
Saturday or Sunday on which banks generally are open in Chicago and New York
for the conduct of substantially all of their commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of the
Borrower.
"Closing Date" means September 24, 1997, or such other Business Day
thereafter agreed upon by the parties hereto on which the Agent shall have
determined that the conditions set forth in Section 4.1 have been fulfilled or
waived.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to make
Ratable Loans and participate in Facility Letters of Credit in an amount not
exceeding in the aggregate at any one time the amount set forth opposite its
signature below, as such amount may be modified from time to time pursuant to
the terms of this Agreement.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of
the Lenders to the Borrower at the same time and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
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"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
Rate Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form
of Exhibit "B" hereto, with appropriate insertions, duly executed and delivered
to the Agent by the Borrower for the account of a Lender and payable to the
order of such Lender, including any amendment, modification, renewal or
replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit "E" hereto completed and delivered by a Lender to the Agent in
accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "C" hereto completed and delivered by the
Borrower to the Agent in accordance with Section 2.3.2.
"Condemnation" is defined in Section 7.8.
"Consolidated Assets" means, at any date, all amounts which, in conformity
with Agreement Accounting Principles, would be included as assets on a
consolidated balance sheet of the Borrower and its Subsidiaries as at such
date.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Net Interest
Expense, (ii) income taxes, (iii) depreciation, and (iv) amortization, all
calculated for the Borrower and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles.
"Consolidated Indebtedness" means, at any date, all Indebtedness of the
Borrower and its Subsidiaries at such date, determined on a consolidated basis
in accordance with Agreement Accounting Principles.
"Consolidated Net Income" means, for any period, the net income or loss of
the Borrower and its Subsidiaries for such period, determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Consolidated Tangible Net Worth" means, at any date, the consolidated net
worth of the Borrower and its Subsidiaries at such date after subtracting
therefrom the aggregate amount of any intangible assets of the Borrower and its
Subsidiaries, including, without limitation,
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goodwill, franchises, licenses, patents, trademarks, trade names, copyrights,
service marks, brand names and operating rights, all determined in accordance
with Agreement Accounting Principles.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as said corporate base rate changes.
"Credit Extension" means the making of any Advance or the issuance of any
Facility Letter of Credit pursuant to this Agreement.
"Credit Extension Date" means the date on which any Credit Extension is
made hereunder.
"Current Payment Obligations" means (when used in Sections 5.9 and 7.11
only), as of any date of determination, payment obligations which are past due,
are due on or will become due within 12 months after such date.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that, in breach of this Agreement,
(i) on any Borrowing Date fails to make available to the Agent such Lender's
Loans required to be made to the Borrower on such Borrowing Date or (ii) shall
not have made a payment to the Issuer pursuant to Section 2.4.5(b). Once a
Lender becomes a Defaulting Lender, such Lender shall continue as a Defaulting
Lender until such time as such Defaulting Lender makes available to the Agent
the amount of such Defaulting Lender's Loans and/or to the Issuer such payments
requested by the Issuer, together with all other amounts then due and payable
to the Agent and/or the Issuer by such Defaulting Lender pursuant to this
Agreement.
"Dollars" and "$" mean lawful money of the United States of America.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"Equipment" means all equipment, machinery, furniture and goods used or
usable by the Borrower in its business and all other tangible personal property
(other than inventory),
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and all accessions and additions thereto, excluding such of the foregoing as
have been attached to real property in such a manner that their removal would
cause damage to the realty and which have therefore taken on the character of
real property.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower or any Subsidiary of the Borrower,
or is under common control (within the meaning of Section 414(c) of the Code)
with the Borrower or any Subsidiary of the Borrower.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.3.
"Eurodollar Base Rate" means, with respect to a Eurodollar Ratable Advance
or a Eurodollar Bid Rate Advance for the relevant Eurodollar Interest Period,
the rate determined by the Agent to be the arithmetic average of the rates
reported to the Agent by each Reference Bank as the rate at which deposits in
U.S. dollars are offered by such Reference Bank to first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Eurodollar Interest Period, in the
approximate amount of such Reference Bank's relevant Eurodollar Ratable Loan
or, in the case of a Eurodollar Bid Rate Advance, the amount of the Eurodollar
Bid Rate Advance requested by the Borrower, and having a maturity approximately
equal to such Eurodollar Interest Period. If any Reference Bank fails to
provide such quotation to the Agent, then the Agent shall determine the
Eurodollar Base Rate on the basis of the quotations of the remaining Reference
Bank(s).
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
made by a given Lender for the relevant Eurodollar Interest Period, the sum of
(i) the Eurodollar Base Rate, rounded, if necessary, to the next higher 1/16 of
1%, and (ii) the Competitive Bid Margin offered by such Lender and accepted by
the Borrower.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at the
Eurodollar Bid Rate.
"Eurodollar Interest Period" means, with respect to a Eurodollar Ratable
Advance or a Eurodollar Bid Rate Advance, a period of one, two, three or six
months commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such Eurodollar Interest
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Period shall end on (but exclude) the day which corresponds numerically to such
date one, two, three or six months (as applicable) thereafter, provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Eurodollar Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding
month. If a Eurodollar Interest Period would otherwise end on a day which is
not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new month, such Eurodollar Interest Period shall end on
the Business Day immediately preceding the day (which was not a Business Day)
upon which such Eurodollar Interest Period would otherwise have ended. No
Eurodollar Interest Period may end after the Termination Date.
"Eurodollar Ratable Advance" means an Advance which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Ratable Loan" means a Loan which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Rate" means, with respect to a Eurodollar Ratable Advance for
the relevant Eurodollar Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to that Eurodollar Interest Period, divided by
(b) one minus the Reserve Requirement (expressed as a decimal) applicable to
that Eurodollar Interest Period, plus (ii) the Applicable Margin. The
Eurodollar Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.
"Existing Credit Agreement" is defined in Section 4.1.
"Facility Letter of Credit" means a standby Letter of Credit issued by the
Issuer pursuant to Section 2.4. Upon the satisfaction of the conditions to the
initial Credit Extension set forth in Sections 4.1 and 4.3, each Letter of
Credit issued under the Existing Credit Agreement shall be deemed for all
purposes to be a Facility Letter of Credit issued hereunder and each Lender
shall be deemed to hold a participation equal to its Pro Rata Share in such
Facility Letter of Credit.
"Facility Letter of Credit Obligations" means, as at the time of any
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and (b) the aggregate undrawn face amount of the
outstanding Facility Letters of Credit.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the
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Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations at approximately
10:00 a.m. (Chicago time) on such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by the
Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate, in each case changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Floating Rate Interest Period" means, with respect to a Floating Rate
Advance, a period of 30 days commencing on a Business Day selected by the
Borrower pursuant to this Agreement. If such Floating Rate Interest Period
would end on a day which is not a Business Day, such Floating Rate Interest
Period shall end on the next succeeding Business Day. No Floating Rate
Interest Period may end after the Termination Date.
"Guarantors" means, collectively, the Original Guarantors, any other
Person which becomes a party to the Guaranty after the date hereof, and any
successor or assign of any of the foregoing Persons (except to the extent such
successor or assign is relieved from its obligations under the Guaranty
pursuant to the provisions of this Agreement), and "Guarantor" means any one of
such Persons, provided that any Person released from the Guaranty pursuant to
the provisions of Section 6.22 shall no longer be a "Guarantor" unless and
until such Person re-executes the Guaranty pursuant to the provisions of
Section 6.22.
"Guaranty" means that certain Guaranty dated as of September 24, 1997
executed by the Guarantors in favor of the Agent, for the ratable benefit of
the Lenders, as it may be amended or modified and in effect from time to time.
"Hazardous Material" means (i) any Hazardous Substance; (ii) any Hazardous
Waste; (iii) any petroleum product; or (iv) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material or substance within the
meaning of any other federal, state or local
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law, regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended or hereafter amended.
"Hazardous Substance" means any "hazardous substance," as defined by
CERCLA.
"Hazardous Waste" means any "hazardous waste," as defined by the Resource
Conservation and Recovery Act, as amended.
"Indebtedness" of a Person means, without duplication, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens on or
payable out of the proceeds or production from Property now or hereafter owned
or acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi)
outstanding principal balances (representing securitized but unliquidated
assets) under asset securitization agreements (including, without limitation,
the outstanding principal balance of accounts receivable under Receivables
Transactions), and (vii) all guaranties of or other contingent obligations with
respect to indebtedness of Persons other than the Borrower or any Subsidiary,
including without limitation contingent obligations with respect to Letters of
Credit.
"Interest Period" means a Eurodollar Interest Period, an Absolute Rate
Interest Period or a Floating Rate Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit "D" hereto,
completed and delivered by the Agent to the Lenders in accordance with Section
2.3.3.
"Issuer" means The First National Bank of Chicago, in its capacity as
issuer of Facility Letters of Credit under Section 2.4.
"LC Application" is defined in Section 2.4.3.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement, including, without limitation, First Chicago in its capacity as
a lender, and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender, the Issuer or the
Agent, any office, branch, subsidiary or affiliate of such Lender, the Issuer
or the Agent.
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"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.4.7.
"Level 1 Rating Period" means any period during which the Borrower's
senior unsecured long-term debt is rated A- or higher by S&P (or a comparable
rating from any generally recognized successor to S&P) or A3 or higher by
Moody's (or a comparable rating from any generally recognized successor to
Moody's), provided, however, that notwithstanding the foregoing provisions of
this definition, if the rating by Moody's or its successor and the rating by
S&P or its successor differ by two or more of the rating grades used by such
agencies, the Rating Period which would exist if the Borrower's senior
unsecured long-term debt were rated by both such agencies at one rating grade
above the lower of such rating grades shall be deemed to exist.
"Level 2 Rating Period" means any period which does not qualify as a Level
1 Rating Period during which the Borrower's senior unsecured long-term debt is
rated BBB+ or higher by S&P (or a comparable rating from any generally
recognized successor to S&P) and Baa1 or higher by Moody's (or a comparable
rating from any generally recognized successor to Moody's).
"Level 3 Rating Period" means any period which does not qualify as a Level
1 or Level 2 Rating Period during which the Borrower's senior unsecured
long-term debt is rated BBB+ or higher by S&P (or a comparable rating from any
generally recognized successor to S&P) or Baa1 or higher by Moody's (or a
comparable rating from any generally recognized successor to Moody's),
provided, however, that notwithstanding the foregoing provisions of this
definition, if the rating by Moody's or its successor and the rating by S&P or
its successor differ by two or more of the rating grades used by such agencies,
the Rating Period which would exist if the Borrower's senior unsecured
long-term debt were rated by both such agencies at one rating grade above the
lower of such rating grades shall be deemed to exist.
"Level 4 Rating Period" means any period which does not qualify as a ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇ or Level 3 Rating Period during which the Borrower's senior
unsecured long-term debt is rated BBB or higher by S&P (or a comparable rating
from any generally recognized successor to S&P) or Baa2 or higher by Moody's
(or a comparable rating from any generally recognized successor to Moody's),
provided, however, that notwithstanding the foregoing provisions of this
definition, if the rating by Moody's or its successor and the rating by S&P or
its successor differ by two or more of the rating grades used by such agencies,
the Rating Period which would exist if the Borrower's senior unsecured
long-term debt were rated by both such agencies at one rating grade above the
lower of such rating grades shall be deemed to exist.
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"Level 5 Rating Period" means any period which does not qualify as a ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 4 Rating Period during which the Borrower's senior
unsecured long-term debt is rated BBB- or higher by S&P (or a comparable rating
from any generally recognized successor to S&P) and Baa3 or higher by Moody's
(or a comparable rating from any generally recognized successor to Moody's).
"Level 6 Rating Period" means any period which does not qualify as a ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4 or Level 5 Rating Period.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion, if any, of
any Advance.
"Loan Documents" means this Agreement, the Notes, the Guaranty and the LC
Applications.
"Margin Stock" means "margin stock" as defined in Regulation U.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or other), results of operations, or
prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent, the Issuer or the Lenders thereunder.
"Material Subsidiary" means, as of any time of determination, any
Subsidiary of the Borrower (i) the assets of which comprise more than 10% of
the Consolidated Assets of the Borrower and its Subsidiaries as of the end of
the Borrower's most recent fiscal year, or (ii) revenue attributable to which
comprises more than 10% of the consolidated revenue of the Borrower and its
Subsidiaries for the Borrower's most recent fiscal year.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
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"Net Interest Expense" means, for any period, the difference of (i)
interest expense (including interest, yield, discount, or similar amounts paid
in connection with any receivables securitization, however characterized),
minus (ii) interest income.
"Notes" means, collectively, the Competitive Bid Notes and the Ratable
Notes; and "Note" means any one of the Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees, all Facility Letter of
Credit Obligations and all expenses, reimbursements, indemnities and other
obligations of the Borrower or any Subsidiary Co-Applicant to the Lenders or to
any Lender, the Issuer, the Agent or any indemnified party hereunder arising
under the Loan Documents.
"Officer's Certificate" shall mean a certificate signed in the name of the
Borrower by an Authorized Officer.
"Original Guarantors" means, collectively, Yellow Freight, Preston
Trucking Company, Inc., ▇▇▇▇ Motor Freight Line, Inc. and WestEx, Inc.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means 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 as to which the Borrower or any member of the Controlled Group may have
any liability.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased
or operated by such Person.
"Pro Rata Share" means, for each Lender, the ratio of such Lender's
Commitment to the Aggregate Commitment.
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"Purchasers" is defined in Section 12.3.1.
"Ratable Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Ratable Loans made by the Lenders to the Borrower at the
same time, at the same Rate Option and for the same Interest Period.
"Ratable Borrowing Notice" is defined in Section 2.2.3.
"Ratable Loan" means a Loan made by a Lender pursuant to Section 2.2
hereof.
"Ratable Note" means a promissory note in substantially the form of
Exhibit "A" hereto, duly executed and delivered to the Agent by the Borrower
for the account of a Lender and payable to the order of such Lender in the
amount of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Rate Option" means the Eurodollar Rate or the Floating Rate.
"Rating Period" means a Level 1 Rating Period, a Level 2 Rating Period, a
Level 3 Rating Period, a Level 4 Rating Period, a Level 5 Rating Period or a
Level 6 Rating Period.
"Receivables Corp." means Yellow Receivables Corporation, a
special-purpose Subsidiary of Yellow Freight.
"Receivables Purchaser" means a purchaser of accounts receivable from
Receivables Corp. pursuant to a Receivables Transaction.
"Receivables Transactions" means, collectively, (i) the creation of
Receivables Corp. to purchase accounts receivable generated by and owed to
certain Subsidiaries of the Borrower, (ii) the entry by Receivables Corp. into
one or more receivables purchase agreements with Receivables Purchasers,
pursuant to which each Receivables Purchaser will, from time to time, purchase
from Receivables Corp. undivided interests in the receivables described in
clause (i), and (iii) the entry by Receivables Corp. into such ancillary
agreements, documents and instruments as are necessary or advisable in
connection with such receivables purchase agreements, provided that (x) the
outstanding principal amount of the financing provided by all Receivables
Purchasers pursuant to such receivables purchase agreements shall not exceed
$150,000,000 in the aggregate at any time and (y) the primary structural terms
of each such receivables purchase agreement, including without limitation the
amount of any recourse to the Borrower or any of its Subsidiaries for
uncollectible receivables, shall be reasonably satisfactory to the Agent in
each case.
"Reference Banks" means The First National Bank of Chicago, ▇▇▇▇▇▇
Guaranty Trust Company of New York and NationsBank, N.A.
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"Refinancing Credit Extension" (i) when used to refer to an Advance means
an Advance which, after giving effect to the Advance and the application of the
proceeds thereof, does not increase the aggregate amount of outstanding
Advances; provided, however, that any Ratable Advance the proceeds of which are
used, all or in part, to repay any Competitive Bid Loan shall not be deemed to
be a Refinancing Credit Extension and (ii) when used to refer to the issuance
of a Facility Letter of Credit means a Facility Letter of Credit which, after
giving effect to the issuance thereof, does not increase the aggregate amount
of Facility Letter of Credit Obligations.
"Refinancing Loan" means, with respect to a Lender, such Lender's ratable
share of a Refinancing Credit Extension which is an Advance.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of the
obligations of the Borrower to the Lenders and the Issuer in respect of all
unreimbursed payments or disbursements made by the Issuer and the Lenders under
or in respect of the Facility Letters of Credit (including, without limitation,
the Borrower's obligation to reimburse the Issuer for draws on Facility Letters
of Credit pursuant to Section 2.4.4(b)).
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of
the notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66-2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the
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aggregate holding at least 66-2/3% of the aggregate unpaid principal amount of
the outstanding Advances and participations in Facility Letters of Credit.
"Reserve Requirement" means, with respect to a Eurodollar Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities (in the case of Eurodollar Ratable Advances).
"Revenue Equipment" means that Property of the Borrower or any Subsidiary
which is so designated on the Borrower's consolidated balance sheets provided
to the Lenders under Section 6.1(i) and (ii), exclusive of any real property
which may fall under such designation.
"S&P" means Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Significant Restructuring" means, with respect to a Subsidiary of the
Borrower, a reorganization or discontinuation of all or a significant portion
of the business or operations of such Subsidiary.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Special Subsidiary Discontinuation/Restructuring Charges" means cash or
non-cash adjustments to or charges against income specifically identified in
the Borrower's internal books of account as incurred in connection with the
liquidation and dissolution of or a Significant Restructuring of one of the
Borrower's Subsidiaries, provided that only adjustments or charges with respect
to one particular Subsidiary of the Borrower (which Subsidiary shall be the
same Subsidiary for the term of this Agreement) will be defined as Special
Subsidiary Discontinuation/Restructuring Charges.
"Stock Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Borrower directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in number
of votes) of the securities of a corporation or other Person which have
ordinary voting power for the election of directors or other governing body
(other than securities having such power only by reason of the happening of a
contingency), provided, however, that such term shall not include any such
transaction (or series of transactions) which has been approved as to its terms
by the Board of Directors of the Borrower and (prior to the
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commencement of such transaction or series of transactions) by the Board of
Directors or other governing body of the corporation or other Person whose
securities are to be acquired.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Co-Applicant" is defined in Section 2.4.1.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which represents more than 10% of the
Consolidated Assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made.
"Termination Date" means September 24, 2001.
"Termination Event" means any of the following:
(i) the filing by the Borrower, any of its Subsidiaries, any of its
ERISA Affiliates or any plan administrator under Title IV of ERISA of a
notice of the termination of, or the intent to terminate, any Single
Employer Plan;
(ii) the institution by the PBGC of proceedings for the termination
of any Single Employer Plan; or the receipt by the Borrower, any of its
Subsidiaries, or any of its ERISA Affiliates of a notice from a
Multiemployer Plan that such action has been taken by the PBGC with
respect to such Multiemployer Plan; or
(iii) the complete or partial withdrawal by the Borrower, any of
its Subsidiaries, or any of its ERISA Affiliates from any Multiemployer
Plan, a default, within the meaning of Section 4219(c)(5) of ERISA, by
the Borrower or any member of the Controlled Group with respect to any
Multiemployer Plan, or the receipt by the Borrower, any of its
Subsidiaries, or any of its ERISA Affiliates of notice from a
Multiemployer Plan that it is in reorganization or insolvency or that it
intends to terminate or has been terminated.
Once a Termination Event occurs with respect to a Plan, such Termination Event
shall be deemed to continue in effect for the purposes of this Agreement until
all payment obligations
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and other liabilities of any member of the Controlled Group with respect
thereto have been discharged.
"Transferee" is defined in Section 12.4.
"Transferor Lender" is defined in Section 12.3.1.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance, Eurodollar Ratable Advance, Eurodollar Bid Rate Advance or Absolute
Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which the actuarial
present value of all accumulated vested nonforfeitable benefits under all
Single Employer Plans exceeds the fair market value of all such Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plans and calculated in accordance with Statement of Financial
Accounting Standards No. 35.
"Unmatured Default" means an event or condition which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means any Subsidiary of such Person
all of the outstanding voting stock of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person.
"Yellow Freight" means Yellow Freight System, Inc., an Indiana
corporation.
The foregoing definitions shall be equally applicable to both the singular
and the plural forms of the defined terms.
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall
be made in accordance with Agreement Accounting Principles, applied in a manner
consistent with that used in the preparation of the most recent financial
statements submitted by the Borrower pursuant to Section 6.1 (or, before any
financial statements have been submitted pursuant to Section 6.1, in a manner
consistent with that used in the preparation of the financial statements
referred to in Section 5.4).
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ARTICLE II
THE FACILITY
2.1. The Facility.
2.1.1. Description of Facility. The Lenders grant to the Borrower a
revolving credit facility pursuant to which, and upon the terms and subject to
the conditions herein set forth:
(i) each Lender severally agrees to make Ratable Loans to the
Borrower in accordance with Section 2.2;
(ii) each Lender severally agrees to participate in Facility
Letters of Credit issued by the Issuer in accordance with Section 2.4;
and
(iii) each Lender may, in its sole discretion, make bids to make
Competitive Bid Loans to the Borrower in accordance with Section 2.3.
2.1.2. Facility Amount. In no event may the sum of (i) the aggregate
principal amount of all outstanding Advances (including both the Ratable
Advances and the Competitive Bid Advances) plus (ii) the Facility Letter of
Credit Obligations exceed the Aggregate Commitment. The Borrower agrees that
if at any time any such excess shall arise, it shall immediately pay to the
Agent (or deposit into the Letter of Credit Collateral Account, to the extent
that all Loans have been fully repaid) the amount necessary to eliminate such
excess, without presentment, demand, protest or notice of any kind from the
Agent, the Issuer or any Lender, all of which the Borrower hereby expressly
waives.
2.1.3. Availability of Facility. Subject to the terms hereof, the
facility is available from the date hereof to the Termination Date. Subject to
the terms of this Agreement, the Borrower may borrow, repay and reborrow and
the Borrower may request the issuance of Facility Letters of Credit at any time
prior to the Termination Date. The Commitments to lend and participate in
Facility Letters of Credit hereunder shall expire on the Termination Date.
2.2. Ratable Advances.
2.2.1. Ratable Advances. Each Ratable Advance hereunder shall consist of
borrowings made from the several Lenders ratably in proportion to the amounts
of their respective Commitments. The aggregate outstanding amount of
Competitive Bid Advances shall reduce the amount available for borrowing under
each Lender's Commitment ratably in the proportion such Lender's Commitment
bears to the Aggregate Commitment regardless of
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which Lender or Lenders make such Competitive Bid Advances. Ratable Advances
shall be evidenced by the Ratable Notes. No Ratable Advance may mature after
the Termination Date.
2.2.2. Ratable Advance Rate Options. The Ratable Advances may be Floating
Rate Advances or Eurodollar Ratable Advances, or a combination thereof,
selected by the Borrower in accordance with Section 2.2.3.
2.2.3. Method of Selecting Rate Options and Interest Periods for Ratable
Advances. The Borrower shall select the Rate Option and Interest Period
applicable to each Ratable Advance from time to time. The Borrower shall give
the Agent irrevocable notice (a "Ratable Borrowing Notice") not later than
11:00 a.m. (Chicago time) on the Borrowing Date of each Floating Rate Advance
and 10:00 a.m. (Chicago time) three Business Days before the Borrowing Date of
each Eurodollar Ratable Advance. Notwithstanding the foregoing, a Ratable
Borrowing Notice for a Floating Rate Advance may be given not later than 30
minutes after the time at which the Borrower is required to reject one or more
bids offered in connection with an Absolute Rate Auction pursuant to Section
2.3.6 and a Ratable Borrowing Notice for a Eurodollar Ratable Advance may be
given not later than 30 minutes after the time the Borrower is required to
reject one or more bids offered in connection with a Eurodollar Auction
pursuant to Section 2.3.6. A Ratable Borrowing Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of such
Ratable Advance;
(ii) the aggregate amount of such Ratable Advance;
(iii) the Rate Option selected for such Ratable Advance; and
(iv) in the case of each Eurodollar Ratable Advance, the Interest
Period applicable thereto (which may not end after the Termination Date).
2.3. Competitive Bid Advances.
2.3.1. Competitive Bid Option. In addition to Ratable Advances pursuant
to Section 2.2, but subject to the terms and conditions of this Agreement
(including, without limitation, the limitation set forth in Section 2.1.2 as to
the maximum aggregate principal amount of all outstanding Advances and Facility
Letter of Credit Obligations hereunder), the Borrower may, as set forth in this
Section 2.3, request the Lenders, prior to the Termination Date, to make offers
to make Competitive Bid Advances to the Borrower. Each Lender may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.3. Competitive Bid Advances shall be evidenced by the Competitive Bid Notes.
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2.3.2. Competitive Bid Quote Request. When the Borrower wishes to request
offers to make Competitive Bid Loans under this Section 2.3, it shall transmit
to the Agent by telecopy a Competitive Bid Quote Request substantially in the
form of Exhibit "C" hereto so as to be received no later than (x) 10:00 a.m.
(Chicago time) at least four Business Days prior to the Borrowing Date proposed
therein, in the case of a Eurodollar Auction, or (y) 9:00 a.m. (Chicago time)
at least one Business Day prior to the Borrowing Date proposed therein, in the
case of an Absolute Rate Auction, specifying:
(i) the proposed Borrowing Date, which shall be a Business Day, for
the proposed Competitive Bid Advance;
(ii) the aggregate principal amount of such Competitive Bid
Advance;
(iii) whether the Competitive Bid Quotes requested are to set forth
a Competitive Bid Margin or an Absolute Rate, or both; and
(iv) the Interest Period applicable thereto (which may not end
after the Termination Date).
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within five Business Days (or such other number of
days as the Borrower and the Agent may agree) of any other Competitive Bid
Quote Request. To the extent that a Competitive Bid Quote Request does not
conform substantially to the format of Exhibit "C" hereto, it shall be
rejected.
2.3.3. Invitation for Competitive Bid Quotes. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.3.2,
the Agent shall send to each of the Lenders by telecopy an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit "D" hereto, which
shall constitute an invitation by the Borrower to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Section 2.3.
2.3.4. Submission and Contents of Competitive Bid Quotes. (a) Each
Lender may, in its sole discretion, submit a Competitive Bid Quote containing
an offer or offers to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.3.4 and must be submitted to the Agent by
telecopy at its offices specified in or pursuant to Article XIII not later than
(x) 9:00 a.m. (Chicago time) at least three Business Days prior to the proposed
Borrowing Date, in the case of a Eurodollar Auction or (y) 9:00 a.m. (Chicago
time) on the proposed Borrowing Date, in the case of an Absolute Rate Auction;
provided that Competitive
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Bid Quotes submitted by First Chicago may only be submitted if the Agent or
First Chicago notifies the Borrower of the terms of the offer or offers
contained therein not later than 15 minutes prior to the latest time at which
the relevant Competitive Bid Quotes must be submitted by the other Lenders.
Subject to Articles IV and VIII, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the form of
Exhibit "E" hereto and shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid Quotes;
(ii) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be greater
than, less than or equal to the Commitment of the quoting Lender, (2)
must be at least $2,000,000 and an integral multiple of $500,000, and (3)
may not exceed the principal amount of Competitive Bid Loans for which
offers were requested;
(iii) in the case of a Eurodollar Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(iv) the minimum amount, if any, of the Competitive Bid Loan which
may be accepted by the Borrower;
(v) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan; and
(vi) the identity of the quoting Lender.
(c) The Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit "E" hereto or does
not specify all of the information required by Section 2.3.4(b);
(ii) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit "E";
(iii) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 2.3.4(a).
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If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.4(c), then the Agent shall notify the relevant Lender of such rejection as
soon as practical.
2.3.5. Notice to Borrower. The Agent shall promptly notify the Borrower
of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in
accordance with Section 2.3.4 and (ii) of any Competitive Bid Quote that
amends, modifies or is otherwise inconsistent with a previous Competitive Bid
Quote submitted by such Lender with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by the
Agent unless such subsequent Competitive Bid Quote specifically states that it
is submitted solely to correct a manifest error in such former Competitive Bid
Quote. The Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Competitive Bid Margins (and resulting
Eurodollar Bid Rates) or Absolute Rates, as the case may be, so offered.
2.3.6. Acceptance and Notice by Borrower. Not later than (x) 10:00 a.m.
(Chicago time) at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (y) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction, the
Borrower shall notify the Agent of its acceptance or rejection of the offers of
which it received notification pursuant to Section 2.3.5. The failure by the
Borrower to give such notice to the Agent shall be deemed to be a rejection of
all such offers. In the case of acceptance, such notice (a "Competitive Bid
Borrowing Notice") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the terms of Section
2.3.4(b)(iv) and Section 2.6.2); provided that:
(i) the aggregate principal amount of each Competitive Bid Advance
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins (and resulting Eurodollar Bid Rates) or
Absolute Rates, as the case may be; and
(iii) the Borrower may not accept any offer that is described in
Section 2.3.4(c) (and is not subsequently corrected by the relevant
Lender) or that otherwise fails to comply with the requirements of this
Agreement.
2.3.7. Allocation by Agent. If offers are made by two or more Lenders
with the same Competitive Bid Margins (and resulting Eurodollar Bid Rates) or
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which
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offers are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers; provided, however,
that no Lender shall be allocated a portion of any Competitive Bid Advance
which is less than the minimum amount which such Lender has indicated that it
is willing to accept. Allocations by the Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. The Agent
shall promptly, but in any event on the same Business Day, notify each Lender
of its receipt of a Competitive Bid Borrowing Notice and the aggregate
principal amount of such Competitive Bid Advance allocated to each
participating Lender. Upon request by any Lender at the completion of the
bidding process in response to any Competitive Bid Quote Request, the Agent
will disclose to such Lender the range of the pricing of all offers accepted by
the Borrower and allocated to Lenders.
2.3.8. Competitive Bid Auction Fees. The Borrower hereby agrees to pay to
the Agent, for its own account, competitive bid auction fees in the amounts set
forth in that certain Agent's Fee Letter dated July 15, 1997 from the Agent to
the Borrower (the "Agent's Fee Letter"), such fees to be due and payable on the
date any offer to make a Competitive Bid Loan is accepted by the Borrower.
2.4. Facility Letters of Credit.
2.4.1. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, The First National Bank of Chicago, in its capacity
as the Issuer hereunder, hereby agrees to issue upon the request of the
Borrower and for the account of the Borrower or for the account of the Borrower
and any Subsidiary of the Borrower which is a co-applicant with the Borrower
for such Facility Letter of Credit on the form of application described in
Section 2.4.3(a) (each such Subsidiary a "Subsidiary Co-Applicant"), through
such of the Issuer's Lending Installations or Affiliates as the Issuer, the
Borrower and the Subsidiary Applicant (if any) may mutually agree, one or more
Facility Letters of Credit in accordance with this Section 2.4, from time to
time during the period, commencing on the Closing Date and ending on the
Business Day prior to the Termination Date. All Facility Letters of Credit
shall be denominated and drawable in U.S. Dollars.
2.4.2. Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Section 4.2, the obligation of the
Issuer to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuer, after giving effect to
the Facility Letter of Credit
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requested hereunder, shall not exceed any limit imposed by law or
regulation upon the Issuer;
(ii) after giving effect to the requested issuance of any Facility
Letter of Credit, the sum of (x) the Facility Letter of Credit
Obligations plus (y) the total aggregate unpaid principal balance of the
Advances does not exceed the Aggregate Commitment;
(iii) the requested Facility Letter of Credit has an expiration
date not later than the earlier of (x) the Business Day prior to the
Termination Date and (y) one year after its date of issuance;
(iv) the Borrower shall have delivered to the Issuer at such times
and in such manner as the Issuer may reasonably prescribe such documents
and materials as may be required pursuant to the terms of the proposed
Facility Letter of Credit and the proposed Facility Letter of Credit
shall be satisfactory to the Issuer as to form and content; and
(v) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain the Issuer from issuing the Facility Letter of Credit
and no law, rule or regulation applicable to the Issuer and no request or
directive (whether or not having the force of law) from any governmental
authority with jurisdiction over the Issuer shall prohibit or request
that the Issuer refrain from the issuance of Letters of Credit generally
or the issuance of that Facility Letter of Credit.
2.4.3. Procedure for Issuance of Facility Letters of Credit. (a) The
Borrower shall give the Issuer five Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement. Such
notice (the "LC Application") shall be on such standard application form as may
be prescribed by the Issuer, shall be irrevocable and shall specify the stated
amount of the Facility Letter of Credit requested, the effective date (which
day shall be a Business Day) of issuance of such requested Facility Letter of
Credit, the date on which such requested Facility Letter of Credit is to expire
(which date shall be a Business Day and shall in no event be later than the
Business Day prior to the Termination Date), the purpose for which such
Facility Letter of Credit is to be issued, and the Person for whose benefit the
requested Facility Letter of Credit is to be issued. At the time such LC
Application is delivered, the Borrower shall also provide the Issuer with a
copy of the form of the Facility Letter of Credit it is requesting be issued.
The Issuer shall promptly forward to the Lenders a copy of the LC Application.
(b) IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND
THE TERMS OF THE LC APPLICATION, THE TERMS OF THIS AGREEMENT SHALL CONTROL,
PROVIDED THAT ANY
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SUBSIDIARY CO-APPLICANT SHALL, AS AND TO THE EXTENT SET FORTH IN THE RELEVANT
LC APPLICATION, BE JOINTLY AND SEVERALLY LIABLE WITH THE BORROWER FOR THE
REIMBURSEMENT OBLIGATIONS WITH RESPECT TO THE FACILITY LETTER(S) OF CREDIT
ISSUED IN RESPONSE TO SUCH LC APPLICATION, NOTWITHSTANDING THE FACT THAT SUCH
SUBSIDIARY CO-APPLICANT IS NOT A SIGNATORY TO THIS AGREEMENT.
(c) Subject to the terms and conditions of this Section 2.4.3 and
provided that the applicable conditions set forth in Article IV and Section
2.4.2 hereof have been satisfied, the Issuer shall, on the requested date,
issue a Facility Letter of Credit in accordance with the Issuer's usual and
customary business practices.
(d) The Issuer shall not extend or amend any Facility Letter of Credit
unless the requirements of this Section 2.4.3 are met as though a new Facility
Letter of Credit was being requested and issued.
2.4.4. Reimbursement Obligations. (a) The Borrower agrees to pay to the
Agent for the account of the Issuer the amount of all Reimbursement
Obligations, interest and other amounts payable to the Issuer under or in
connection with any Facility Letter of Credit immediately when due,
irrespective of any claim, set-off, defense or other right which the Borrower
or any Subsidiary or Affiliate of the Borrower may have at any time against the
Issuer or any other Person, under all circumstances, including without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may
have at any time against a beneficiary named in a Facility Letter of
Credit or any transferee of any Facility Letter of Credit (or any Person
for whom any such transferee may be acting), the Issuer, any Lender, or
any other Person, whether in connection with this Agreement, any Facility
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the Borrower
or any Subsidiary or Affiliate of the Borrower and the beneficiary named
in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Facility Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
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(v) the occurrence of any Default or Unmatured Default;
(vi) with respect to any Facility Letter of Credit for which there
is a Subsidiary Co-Applicant, any defense to payment of such
Reimbursement Obligations based on the status of the Borrower as a
co-applicant for such Facility Letter of Credit, including without
limitation any defense to payment which might be available to a guarantor
or surety, all of which are hereby explicitly waived by the Borrower,
which hereby agrees and acknowledges that its undertaking to pay all
Reimbursement Obligations, including without limitation Reimbursement
Obligations arising with respect to Facility Letters of Credit for which
there is a Subsidiary Co-Applicant, is a primary obligation and not one
of surety.
(b) The Issuer shall promptly notify the Borrower of any draw under a
Facility Letter of Credit. The Borrower shall reimburse the Issuer for the
amount of each drawing under a Facility Letter of Credit no later than the
Business Day after the payment by the Issuer. Any Reimbursement Obligation
with respect to any Facility Letter of Credit shall bear interest from the date
of the relevant drawing under the pertinent Facility Letter of Credit at the
interest rate for past due Floating Rate Loans calculated in accordance with
Section 2.6.6.
2.4.5. Participation. (a) Immediately upon issuance by the Issuer of any
Facility Letter of Credit in accordance with the procedures set forth in
Section 2.4.3 each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuer, without recourse or
warranty, an undivided interest and participation equal to its Pro Rata Share
in such Facility Letter of Credit.
(b) In the event that the Issuer makes any payment under any Facility
Letter of Credit and neither the Borrower nor any Subsidiary shall have repaid
such amount to the Issuer pursuant to Section 2.4.4, the Issuer shall promptly
notify each Lender of such failure, and each Lender shall promptly and
unconditionally pay to the Agent for the account of the Issuer the amount of
such Lender's Pro Rata Share of the unreimbursed amount of any such payment.
If any Lender fails to make available to the Agent for the account of the
Issuer any amounts due to the Issuer pursuant to this Section 2.4.5(b), the
Issuer shall be entitled to recover such amount, together with interest thereon
at the Federal Funds Effective Rate, for the first three Business Days after
such Lender receives such notice and thereafter, at the Floating Rate, payable
(i) on demand, (ii) by setoff against any payments made to the Issuer for the
account of such Lender or (iii) by payment to the Issuer by the Agent of
amounts otherwise payable to such Lender under this Agreement. The failure of
any Lender to make available to the Agent its Pro Rata Share of the
unreimbursed amount of any such payment shall not relieve any other Lender of
its obligation hereunder to make available to the Agent its Pro Rata Share of
the unreimbursed amount of any payment on the date such payment is to be made,
but no Lender shall be responsible for the failure of any other Lender to make
available to the Agent its Pro
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Rata Share of the unreimbursed amount of any payment on the date such payment
is to be made.
(c) Whenever the Issuer receives a payment on account of a Reimbursement
Obligation, including any interest thereon, it shall promptly pay to each
Lender which has funded its participating interest therein, in immediately
available funds, an amount equal to such Lender's Pro Rata Share thereof.
(d) The obligations of a Lender to make payments to the Agent with
respect to a Facility Letter of Credit shall be absolute, unconditional and
irrevocable, not subject to any counterclaim, set-off, qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances.
(e) In the event any payment by the Borrower or any Subsidiary or
Affiliate of the Borrower received by the Issuer or the Agent with respect to a
Facility Letter of Credit and distributed to the Lenders on account of their
participations is thereafter set aside, avoided or recovered from the Issuer or
the Agent in connection with any receivership, liquidation, reorganization or
bankruptcy proceeding, each Lender which received such distribution shall, upon
demand by the Agent, contribute such Lender's Pro Rata Share of the amount set
aside, avoided or recovered together with interest at the rate required to be
paid by the Issuer upon the amount required to be repaid by it.
2.4.6. Compensation for Facility Letters of Credit. (a) The Borrower
shall pay to the Issuer, for the ratable benefit of the Lenders, a Facility
Letter of Credit fee at a per annum rate equal to the Applicable Margin on the
average daily undrawn amount of all Facility Letters of Credit outstanding,
such fee to be paid in arrears on each Payment Date and on the Termination
Date.
(b) In addition, the Borrower shall pay to the Issuer, for its own
account, a Letter of Credit fronting fee in the amount set forth in the Agent's
Fee Letter as well as the Issuer's reasonable and customary costs of issuing
and servicing the Facility Letters of Credit.
2.4.7. Letter of Credit Collateral Account. The Borrower agrees that it
will, upon the request of the Agent or the Required Lenders and until the final
expiration date of any Facility Letter of Credit and thereafter as long as any
amount is payable to the Issuer or the Lenders in respect of any Facility
Letter of Credit, maintain a special collateral account (the "Letter of Credit
Collateral Account") at the Agent's office at the address specified pursuant to
Article XIII, in the name of such Borrower but under the sole dominion and
control of the Agent, for the benefit of the Lenders and in which such Borrower
shall have no interest other than as set forth in Section 8.1. The Agent will
invest any funds on deposit from time to time in the Letter of Credit
Collateral Account in certificates of deposit of First Chicago having a
maturity not exceeding 30 days. Nothing in this Section 2.4.7 shall either
obligate the Agent
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to require the Borrower to deposit any funds in the Letter of Credit
Collateral Account or limit the right of the Agent to release any funds held in
the Letter of Credit Collateral Account in each case other than as required by
Section 8.1.
2.4.8. Nature of Obligations. (a) As among the Borrower, the Issuer and
the Lenders, the Borrower assumes all risks of the acts and omissions of, or
misuse of the Facility Letters of Credit by, the respective beneficiaries of
the Facility Letters of Credit. In furtherance and not in limitation of the
foregoing, neither the Issuer nor the Lenders shall be responsible for (i) the
forms, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Facility Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Facility Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) failure of
the beneficiary of a Facility Letter of Credit to comply fully with conditions
required in order to draw upon such Facility Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of
technical terms; (vi) misapplication by the beneficiary of a Facility Letter of
Credit of the proceeds of any drawing under such Facility Letter of Credit; nor
(viii) any consequences arising from causes beyond the control of the Issuer or
the Lenders.
(b) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuer or
any Lender under or in connection with the Facility Letters of Credit or any
related certificates, if taken or omitted in good faith, shall not put the
Issuer or such Lender under any resulting liability to the Borrower or any
Subsidiary Co-Applicant or relieve the Borrower or any Subsidiary Co-Applicant
of any of its obligations hereunder or under any LC Application to the Issuer,
the Agent or any Lender.
2.5. Fees.
2.5.1. Agent's Fees. The Borrower hereby agrees to pay to the Agent fees
in such amounts and at such times as are set forth in the Agent's Fee Letter.
2.5.2. Facility Fee. The Borrower hereby agrees to pay to the Agent for
the account of each Lender a facility fee at the Applicable Facility Fee Rate
on the average daily amount of such Lender's Commitment (without regard to
usage) for the period from the Closing Date to and including the Termination
Date (or such earlier date on which the Aggregate Commitment shall terminate or
be cancelled, all of the Loans shall be repaid and all of the Facility Letters
of Credit shall be terminated or fully cash collateralized pursuant to the
terms hereof), payable in arrears on each Payment Date hereafter and on the
Termination Date (or such earlier date
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on which the Aggregate Commitment shall terminate or be cancelled and all of
the Loans shall be repaid and Facility Letters of Credit shall have terminated
or fully cash collateralized pursuant to the terms hereof) for any period then
ending for which such fee shall not have been theretofore paid.
2.5.3. Utilization Fee. In addition to the facility fee set forth in the
preceding Section 2.5.2, the Borrower hereby agrees to pay to the Agent for the
account of the Lenders a utilization fee for all periods during which the
aggregate principal amount of Loans (including Competitive Bid Loans) and
Facility Letter of Credit Obligations outstanding exceeds 50% of the
then-current Aggregate Commitment. Such utilization fee shall be at a rate
equal to the Applicable Utilization Fee Rate on the aggregate principal amount
of Loans (including Competitive Bid Loans) and Facility Letter of Credit
Obligations outstanding, shall be distributed to each Lender pro rata according
to such Lender's proportion of such Loans (including Competitive Bid Loans) and
participations in Facility Letters of Credit outstanding, and shall be payable
in arrears on each Payment Date hereafter and on the Termination Date (or such
earlier date on which the Aggregate Commitment shall terminate or be cancelled,
all of the Loans shall be repaid and all of the Facility Letters of Credit
shall be terminated or fully cash collateralized pursuant to the terms hereof)
for any period then ending for which such fee shall not have been theretofore
paid.
2.6. General Facility Terms.
2.6.1. Method of Borrowing. Not later than 12:00 noon (Chicago time) on
each Borrowing Date (1:00 p.m., Chicago time, on each Borrowing Date in the
case of Floating Rate Loans), each Lender shall make available its Loan or
Loans in funds immediately available in Chicago, to the Agent at its address
specified pursuant to Article XIII. The Agent shall deposit the funds so
received from the Lenders in the Borrower's account at the Agent's main office
in Chicago. Notwithstanding the foregoing provisions of this Section 2.6.1, to
the extent that a Loan made by a Lender matures on the Borrowing Date of a
requested Loan, such Lender shall apply the proceeds of the Loan it is then
making to the repayment of principal of the maturing Loan.
2.6.2. Minimum Amount of Each Advance. Each Advance shall be in the
minimum amount of $10,000,000 (and in integral multiples of $5,000,000 if in
excess thereof); provided, however, that any Floating Rate Advance may be in
the aggregate amount of the unused Aggregate Commitment.
2.6.3. Payment on Last Day of Interest Period. Each Advance shall be paid
in full by the Borrower on the last day of the Interest Period applicable
thereto.
2.6.4. Optional Principal Payments. The Borrower may from time to time
pay, without penalty, all outstanding Floating Rate Advances, or, in a minimum
aggregate amount
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of $5,000,000 (and in multiples of $1,000,000 if in excess thereof), any
portion of the outstanding Floating Rate Advances upon one Business Day's prior
notice to the Agent. The Borrower may not voluntarily repay a Fixed Rate
Advance prior to the last day of the applicable Interest Period.
2.6.5. Interest Periods. Subject to the provisions of Section 2.6.6, each
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined, pursuant to the terms of this
Agreement, as applicable to such Advance. The Borrower shall not request a
Fixed Rate Advance if, after giving effect to the requested Fixed Rate Advance,
more than 10 separate Fixed Rate Advances would be outstanding.
2.6.6. Default Rate. Notwithstanding any other provision in this
Agreement to the contrary, after the occurrence and during the continuance of a
Default, each Advance shall bear interest until paid in full at a rate per
annum equal to the greater of (i) the Alternate Base Rate plus 2% per annum, or
(ii) the interest rate otherwise applicable to such Advance pursuant to the
provisions of this Agreement other than this Section 2.6.6.
2.6.7. Interest Payment Dates; Interest Basis. Interest accrued on each
Fixed Rate Advance shall be payable on the last day of its applicable Interest
Period and on any date on which such Fixed Rate Advance is prepaid, whether due
to acceleration or otherwise. Interest accrued on each Fixed Rate Advance
having an Interest Period longer than three months shall also be payable on the
last day of each three-month interval during such Interest Period. Interest
accrued on each Floating Rate Advance shall be payable on each Payment Date, on
any date on which such Floating Rate Advance is repaid, whether due to
acceleration or otherwise, and on the Termination Date. Interest on Fixed Rate
Advances and all fees under Sections 2.5.2 and 2.5.3 shall be calculated for
the actual number of days elapsed on the basis of a year consisting of 360
days. Interest on Floating Rate Advances shall be calculated for the actual
number of days elapsed on the basis of a year consisting of 365, or, when
appropriate, 366 days. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (Chicago time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.6.8. Method of Payment. Except as specifically provided in this
Agreement and in the following sentence, all payments of principal, interest,
Reimbursement Obligations and fees hereunder shall be made in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII or at any other Lending Installation of the Agent within the
United States specified in writing by the Agent to the Borrower (at least one
Business Day prior to the applicable due date) by noon (Chicago time) on the
date when due
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and shall be applied (i) first, ratably among the relevant Lenders with
respect to any principal and interest due in connection with Advances, (ii)
second, to the Issuer with respect to any Reimbursement Obligations then due
and payable and (iii) third, after all amounts described in clauses (i) and
(ii) have been satisfied, ratably to any other Obligations then due. Each
payment delivered to the Agent for the account of any Lender or the Issuer
shall be delivered promptly by the Agent to such Lender or the Issuer, as the
case may be, in the same type of funds which the Agent received, at such
Lender's or the Issuer's address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender or the Issuer. Any payments not delivered by the Agent to any Lender
within one Business Day of receipt thereof by the Agent shall bear interest at
the Federal Funds Effective Rate until paid. The Agent is hereby authorized to
charge the account of the Borrower for each payment of principal, interest,
Reimbursement Obligations and fees as it becomes due hereunder.
2.6.9. Notes; Telephonic Notices. Each Lender is hereby authorized to
record on the schedule attached to each of its Notes, or otherwise record in
accordance with its usual practice, the date and amount of each of its Loans of
the type evidenced by such Note; provided, however, that any failure to so
record or any mistake in so recording shall not affect the Borrower's
obligations under any Note. The Borrower hereby authorizes the Lenders and the
Agent to extend Advances, effect Rate Option selections and submit Competitive
Bid Quotes based on telephonic notices made by any person or persons the Agent
or any Lender in good faith believes to be an Authorized Officer or an officer,
employee or agent of the Borrower designated in writing by an Authorized
Officer. The Borrower agrees to deliver promptly to the Agent a written
confirmation of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.6.10. Notification of Advances, Interest Rates and Prepayments. The
Agent will notify each Lender of the contents of each borrowing notice, LC
Application and payment notice received by it hereunder promptly after receipt
thereof. The Agent will notify each Lender of the interest rate applicable to
each Fixed Rate Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Corporate Base Rate.
2.6.11. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or a payment under Section 2.4.5.(b) or (ii) in the case of
the Borrower, a payment of principal, interest, fees or Reimbursement
Obligations to the Agent or the Issuer for the account of the Lenders or the
Issuer, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make
the amount of such
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payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date such amount was so made available by the Agent until the date the
Agent recovers such amount at a rate per annum equal to (x) in the case of
repayment by a Lender of funds advanced to such Lender by the Agent, the
Federal Funds Effective Rate for such day or (y) in the case of repayment by
the Borrower of funds advanced to the Borrower by the Agent, the interest rate
applicable to the relevant Loan or Reimbursement Obligation.
2.6.12. Cancellation. The Borrower may at any time after the date hereof
cancel the Aggregate Commitment in whole, or in a minimum aggregate amount of
$5,000,000 and in integral multiples of $1,000,000 in excess thereof ratably
among the Lenders upon at least three Business Days' prior written notice to
the Agent, which notice shall specify the amount of such reduction; provided,
however, no such notice of cancellation shall be effective to the extent that
it would reduce the Aggregate Commitment to an amount which would be less than
the aggregate outstanding principal amount of Loans and Facility Letter of
Credit Obligations at the time such cancellation is to take effect. Any notice
of cancellation given pursuant to this Section shall be irrevocable and shall
specify the date upon which such cancellation is to take effect.
2.6.13. Lending Installations. Each Lender may book its Loans and
participations in Facility Letters of Credit at any Lending Installation
selected by such Lender and may change its Lending Installation from time to
time. Each Lender will notify the Agent and the Borrower on or prior to the
date of this Agreement of the initial Lending Installation which it intends to
utilize for each Type of Loan and each participation in Facility Letters of
Credit hereunder. Each Lender may, by written notice to the Agent and the
Borrower, change the Lending Installation through which Loans will be made by
it and participations in Facility Letters of Credit booked by it and for whose
account Loan and Reimbursement Obligation payments are to be made.
2.6.14. Withholding Tax Exemption. (a) Not later than ten Business Days
after the Closing Date, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver
to each of the Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Agent two additional copies of such
form (or a successor form) on or before the date that such form expires
(currently, three successive calendar years for Form 1001 and one calendar year
for Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments
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thereto or extensions or renewals thereof as may be reasonably requested by
the Borrower or the Agent, in each case certifying that such Lender is entitled
to receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Agent that it is not capable of
receiving payments without any deduction or withholding of United States
federal income tax.
(b) Except as otherwise required by law and subject to Section 2.6.14(a),
each payment by the Borrower under this Agreement or any Loan Document shall be
made without withholding for or on account of any present or future taxes
(other than overall net income taxes on the recipient not required to be
deducted or withheld) imposed by or within the jurisdiction in which the
Borrower is domiciled, any jurisdiction from which the Borrower makes any
payment, or (in each case) any political subdivision or taxing authority
thereof or therein. If any such withholding is so required, the Borrower shall
make the withholding, pay the amount withheld to the appropriate governmental
authority before penalties attach thereto or interest accrues thereon and
forthwith pay such additional amount as may be necessary to ensure that the net
amount actually received by each Lender, the Issuer and the Agent free and
clear of such taxes (including taxes on such additional amount) is equal to the
amount which that Lender, the Issuer or the Agent (as the case may be) would
have received had such withholding not been made. If the Agent, the Issuer or
any Lender pays any amount in respect of such taxes, penalties or interest the
Borrower shall reimburse the Agent, the Issuer or that Lender for that payment
on demand in the currency in which such payment was made. If the Borrower pays
any such taxes, penalties or interest, it shall deliver official tax receipts
evidencing that payment or certified copies thereof to the Lender, the Issuer
or the Agent on whose account such withholding was made (with a copy to the
Agent if not the recipient of the original) on or before the thirtieth day
after payment. To the extent that the Agent, the Issuer or any Lender actually
receives a credit against or a reduction in its tax liability as a result of
payments made by the Borrower pursuant to this Section 2.6.14(b), the Agent,
the Issuer or such Lender, as the case may be, shall reimburse the Borrower for
such credit or reduction at the time when such credit or reduction is no longer
subject to challenge by the applicable taxing authority.
2.6.15. Application of Payments with Respect to Defaulting Lenders. No
payments of principal, interest, Reimbursement Obligations or fees delivered to
the Agent for the account of any Defaulting Lender shall be delivered by the
Agent to such Defaulting Lender. Instead, such payments shall, for so long as
such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and
the Agent is hereby authorized and directed by all parties hereto to hold such
funds in escrow and apply such funds as follows:
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(i) First, if applicable to any payments due to the Issuer pursuant
to Section 2.4.5(b); and
(ii) Second, to Loans required to be made by such Defaulting Lender on
any Borrowing Date to the extent such Defaulting Lender fails to make such
Loans.
Notwithstanding the foregoing, upon the termination of the Aggregate Commitment
and the payment and performance of all of the Obligations (other than those
owing to a Defaulting Lender), any funds then held in escrow by the Agent
pursuant to the preceding sentence shall be distributed to each Defaulting
Lender, pro rata in proportion to amounts that would be due to each Defaulting
Lender but for the fact that it is a Defaulting Lender.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If, after the date of this Agreement, the adoption
of any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
therein, or any change in the interpretation or administration thereof, or the
compliance of any Lender therewith,
(i) subjects the Agent, any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from payments
due from the Borrower (excluding, (x) in the case of the Agent and of each
Lender, (1) United States federal taxation of its overall net income, and
(2) taxes imposed on its overall net income, and franchise taxes imposed
on it, by any jurisdiction outside of the United States of America or by
the jurisdiction under the laws of which the Agent or such Lender (as the
case may be) is organized or any political subdivision thereof or the
jurisdiction in which the principal office of the Agent or such Lender (as
the case may be) is located or any political subdivision thereof, and, (y)
in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction in which its applicable
Lending Installation is located or any political subdivision thereof), or
changes the basis of taxation of payments to any Lender in respect of its
Loans or Facility Letters of Credit (or participations therein) or other
amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets
of, deposits with
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or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken
into account in determining the interest rate applicable to Fixed Rate
Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining Loans or Facility Letters of Credit (or
participations therein) or reduces any amount receivable by any Lender or
any applicable Lending Installation in connection with Loans or Facility
Letters of Credit (or participations therein), or requires any Lender or
any applicable Lending Installation to make any payment calculated by
reference to the amount of Loans or Facility Letters of Credit (or
participations therein) held or interest received by it, by an amount
deemed material by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is directly attributable to
making, funding and maintaining its Loans and Facility Letters of Credit (or
participations therein) and its Commitment.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines that
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change (as hereinafter defined), then, within 15
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Loans and Facility Letters of Credit (or participations therein)
or its obligation to make Loans and issue or participate in Facility Letters of
Credit hereunder (after taking into account such Lender's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines (as hereinafter defined) or (ii)
any adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in
the United States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
3.3. Availability of Rate Options. If any Lender determines that
maintenance of any of its Fixed Rate Loans at a suitable Lending Installation
would violate any applicable law,
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rule, regulation or directive, whether or not having the force of law, or if
the Required Lenders determine that (i) deposits of a type and maturity
appropriate to match fund Fixed Rate Advances are not available or (ii) the
interest rate applicable to a Type of Advance does not accurately reflect the
cost of making or maintaining such Advance, then the Agent shall (x) suspend
the availability of the affected Type of Advance and, to the extent that any
Lender has so determined that maintenance of any Type of Fixed Rate Advance at
a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, require the
Fixed Rate Loans of the affected Type made by such Lender to be repaid.
3.4. Funding Indemnification. If any payment of a Fixed Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment (whether mandatory or voluntary) or
otherwise, or a Fixed Rate Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Fixed Rate Loans or Facility Letters of Credit (or
participations therein) to reduce any liability of the Borrower to such Lender
under Section 3.1 or 3.2 or to avoid the unavailability of a Type of Advance
under Section 3.3, so long as such designation is not disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender as to the
amount due, if any, under Section 3.1, 3.2 or 3.4. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Fixed Rate Loan shall be calculated as
though each Lender funded its Fixed Rate Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Fixed Rate applicable to such Loan, whether in fact that is the
case or not. Except as otherwise specifically provided herein, the amount
specified in the written statement shall be payable on demand after receipt by
the Borrower of the written statement. The obligations of the Borrower under
Sections 3.1, 3.2 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
3.6 References to Lender to Include Issuer. All references to "Lender" or
"Lenders" in this Article III shall be deemed to include The First National
Bank of Chicago in its capacity as Issuer.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. Neither the Lenders nor the Issuer shall
be required to make the initial Credit Extension hereunder unless (a) the
Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the certificate of incorporation of the Borrower and
of each Guarantor, together with all amendments, and a
certificate of good standing of each such entity, both
certified as of a date reasonably close to the Closing Date by
the appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified as of the Closing Date by the Secretary or
Assistant Secretary of the Borrower and of each Guarantor, of
its by-laws and of its Board of Directors' resolutions
authorizing the execution and delivery of the Loan Documents to
which it is a party and the performance by each such entity of
its obligations thereunder.
(iii) An incumbency certificate dated as of the Closing Date,
executed by the Secretary or Assistant Secretary of the
Borrower and of each Guarantor, which shall identify by name
and title and bear the signature of the officers of such entity
authorized to sign the Loan Documents to which it is a party
and, in the case of the Borrower, to request Credit Extensions
hereunder, upon which certificate the Lenders, the Issuer and
the Agent shall be entitled to rely until informed of any
change in writing by the Borrower.
(iv) Counterparts of this Agreement executed by the Agent, the
Issuer and the Borrower, and telecopy or telephone confirmation
pursuant to Article XIII that this Agreement has been executed
by the Lenders.
(v) The Guaranty.
(vi) A certificate, signed by the Treasurer of the Borrower or his
designee, stating that on and as of the Closing Date (x) no
Default or Unmatured Default has occurred and is continuing and
(y) the representations and warranties contained in Article V
are true and correct in all material respects.
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(vii) A written opinion of the Borrower's counsel dated the Closing
Date addressed to the Agent, the Lenders and the Issuer and
in form and substance substantially similar to that set forth
in Exhibit "F" hereto.
(viii) Ratable Notes and Competitive Bid Notes payable to the order
of each of the Lenders.
(ix) Written money transfer instructions, in substantially the
form of Exhibit "G" hereto, addressed to the Agent and signed
by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have reasonably
requested.
(x) Such other documents as any Lender or its counsel may have
reasonably requested.
and (b) the following events shall have occurred or conditions shall have been
fulfilled:
(i) The Agent shall have received from the Borrower all fees, if
any, required to be paid to the Agent on or prior to the
Closing Date.
(ii) All loans under that certain Credit Agreement dated as of June
23, 1995 (the "Existing Credit Agreement") among the Borrower,
the banks party thereto and First Chicago, as agent, shall
have been (or shall, concurrently with the initial Credit
Extension, be) repaid and all commitments of the banks party
to the Existing Credit Agreement to make loans thereunder
shall have been (or shall, concurrently with the initial
Credit Extension, be) cancelled.
4.2. Refinancing Credit Extension. Neither the Lenders nor the Issuer
shall be required to make any Refinancing Credit Extension, unless on the
Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
(except the representations and warranties contained in
Sections 5.5 and 5.7) are true and correct in all material
respects as of such Credit Extension Date, except for changes
in the Schedules hereto reflecting transactions permitted by
this Agreement.
(iii) All legal requirements arising under or in connection with the
Loan Documents or applicable laws, rules or regulations and
incident to
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the making of such Credit Extension shall be satisfactory to
the Agent and its counsel.
Each Ratable Borrowing Notice, Competitive Bid Quote Request or LC
Application with respect to such Refinancing Credit Extension shall constitute
a representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
4.3. Each Credit Extension (other than a Refinancing Credit Extension).
Neither the Lenders nor the Issuer shall be required to make any Credit
Extension (other than a Refinancing Credit Extension), unless on the applicable
Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
(except the representations and warranties contained in
Section 5.5) are true and correct in all material respects as
of such Credit Extension Date, except for changes in the
Schedules hereto reflecting transactions permitted by this
Agreement.
(iii) All legal requirements arising under or in connection with the
Loan Documents or applicable laws, rules or regulations and
incident to the making of such Credit Extension shall be
satisfactory to the Agent and its counsel.
Each Ratable Borrowing Notice, Competitive Bid Quote Request or LC
Application with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.3(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders and to the Issuer
that:
5.1. Corporate Existence and Standing. Each of the Borrower and its
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
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5.2. Authorization and Validity. Each of the Borrower and each Subsidiary
Co-Applicant has the corporate power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by each of the Borrower and
each Subsidiary Co-Applicant of the Loan Documents to which it is a party and
its performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents constitute (or, in the
case of the LC Applications delivered after the date hereof, will, when
executed and delivered, constitute) legal, valid and binding obligations of the
Borrower or such Subsidiary Co-Applicant, as the case may be, enforceable
against the Borrower or such Subsidiary Co-Applicant in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery
by the Borrower and each Subsidiary Co-Applicant of the Loan Documents to which
it is a party, nor the consummation of the transactions therein contemplated,
nor compliance with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the
Borrower or any of its Subsidiaries or the Borrower's or any such Subsidiary's
articles or certificate of incorporation or by-laws or the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of the Borrower or
any of its Subsidiaries pursuant to the terms of any such indenture, instrument
or agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4. Financial Statements. The June 30, 1997 consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition of the Borrower and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended.
5.5. Material Adverse Change. Since June 30, 1997, there has been no
change in the business, Property, condition (financial or other) or results of
operations of the Borrower and its Subsidiaries which could have a Material
Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due
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pursuant to said returns or pursuant to any assessment received by the
Borrower or any of its Subsidiaries, except such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided.
The United States income tax returns of the Borrower and its Subsidiaries have
been audited by the Internal Revenue Service through the fiscal year ended
December 31, 1992. The charges, accruals and reserves on the books of the
Borrower or of such Subsidiary, as the case may be, in respect of any taxes or
other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries the probable outcome of which would have a
Material Adverse Effect. Other than any potential liability incident to
matters disclosed on Schedule "1" hereto, the Borrower has no material
contingent obligations not provided for or disclosed in its financial
statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule "2" hereto contains an accurate list of all
of the presently existing Subsidiaries of the Borrower, setting forth their
respective jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Borrower or other Subsidiaries. All of
the issued and outstanding shares of capital stock of such Subsidiaries have
been duly authorized and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $15,000,000. Each Single Employer Plan complies in all
material respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Single Employer Plan, neither
the Borrower nor any other member of the Controlled Group has withdrawn from
any Single Employer Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Single Employer Plan. No Termination
Event has occurred and is continuing with respect to any Plan which would cause
the Borrower and the other members of the Controlled Group to incur aggregate
Current Payment Obligations in excess of $25,000,000.
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or any Lender
in connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of those assets of the Borrower and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder.
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5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which might have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary of the Borrower is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a party, which default might have
a Material Adverse Effect, or (ii) any agreement or instrument evidencing or
governing Indebtedness in an aggregate amount exceeding $1,000,000.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government, or any instrumentality or
agency thereof, having jurisdiction over the conduct of their business or the
ownership of their Property, the non-compliance with which might have a
Material Adverse Effect. Other than as set forth on Schedule "3" hereto,
neither the Borrower nor any of its Subsidiaries has received any notice to the
effect that its operations are not in material compliance with any of the
requirements of applicable federal, state or local environmental, health or
safety statutes or regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment,
which non-compliance or remedial action might have a Material Adverse Effect.
5.14. Investment Company Act. Neither the Borrower nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.15. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
5.16. Ownership of Property. On the date of this Agreement, each of the
Borrower and its Subsidiaries will have good title, free of all Liens other
than those permitted by Section 6.13, to all of the Property and assets
reflected in the financial statements referred to in Section 5.4 as owned by
it.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will cause to be maintained, for
itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with Agreement Accounting Principles, and furnish to
the Lenders:
(i) Within 90 days after the close of each of its fiscal
years, annual audited financial statements for itself
and its consolidated Subsidiaries, including a balance sheet
as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash
flows, which financial statements shall be included within an
unqualified audit report certified by independent certified
public accountants (the identity of such accountants to be
acceptable to the Lenders), which statements shall be prepared
in accordance with Agreement Accounting Principles on a
consolidated basis (consolidating statements, which need not
be certified by such accountants, will be provided upon
request by any Lender), and which statements and audit report
shall be accompanied by a certificate of said accountants
that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
(ii) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for itself and
its consolidated Subsidiaries, a consolidated unaudited
balance sheet as at the close of each such period and
consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter,
all certified by its Treasurer or his designee.
(iii) Together with the financial statements required
hereunder, a compliance certificate in substantially the form
of Exhibit "H" hereto signed by its Treasurer, or his
designee, showing the calculations necessary to determine
compliance with this Agreement and stating
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that no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status
thereof.
(iv) If there are Unfunded Liabilities relating to any Single
Employer Plan of the Borrower at the close of any fiscal year,
a statement of the Unfunded Liabilities of such Single
Employer Plan, certified as correct by an actuary enrolled
under ERISA, within 270 days after the close of such fiscal
year,
(v) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Single Employer Plan, a statement, signed by
the Treasurer of the Borrower, or his designee, describing
said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after
receipt by the Borrower or any of its Subsidiaries, a copy of
(a) any notice or claim to the effect that the Borrower or
such Subsidiary is or may be liable to any Person as a result
of the release by the Borrower or such Subsidiary or any other
Person of any toxic or hazardous waste or substance into the
environment, and (b) any notice alleging any violation of any
federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries which,
in any case, could have a Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports or financial statements which the Borrower or any
Subsidiary files with the Securities and Exchange Commission
or the Interstate Commerce Commission or any agency succeeding
to substantially all of the functions of either of such
agencies.
(ix) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds; Regulation U. The Borrower will, and will cause
each Subsidiary to, use the proceeds of the Advances only in one or more of the
following ways: as liquidity support for the issuance of commercial paper by
the Borrower, for acquisitions
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permitted by the following sentence and for general corporate purposes
of the Borrower. The Borrower will not, nor will it permit any Subsidiary to,
use any of the proceeds of the Advances to purchase or carry any "margin stock"
(as defined in Regulation U) or to make any Stock Acquisition. Facility
Letters of Credit will be used for general corporate purposes of the Borrower.
6.3. Notice of Default. The Borrower will, and will cause each Subsidiary
to, give notice in writing to the Lenders within five Business Days of the
occurrence of any Default or Unmatured Default and of any other development,
financial or other (including, without limitation, the commencement of or
significant developments in litigation, arbitration or other governmental
proceedings), which might have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, pay
when due all taxes, assessments and governmental charges and levies upon it or
its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all of its Property in such amounts and covering such risks as is customarily
maintained by companies similarly situated, and the Borrower will furnish to
any Lender upon request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
6.8. Environmental Covenant. (a) The Borrower will, and will cause each
of its Subsidiaries to use and operate all of its facilities and Property in
material compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates and licenses in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws, and provide such information and
certifications as the Agent or any Lender may reasonably request from time to
time to insure compliance with this Section 6.8.
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(b) The Borrower will not, and will not permit any Subsidiary to, store,
transport or arrange for the transportation of any (i) Hazardous Wastes, or
(ii) other Hazardous Materials except to the extent allowed under applicable
permits held by the Borrower or such Subsidiary.
(c) The Borrower will not, and will not permit any Subsidiary to, engage
in the storage, transportation or arrangement for transportation of Hazardous
Materials as one of its primary businesses.
6.9. Maintenance of Property. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and the Borrower
will, and will cause each Subsidiary to, make all necessary and proper repairs,
renewals and replacements so that such entity's business carried on in
connection therewith may be properly conducted at all times.
6.10. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Lenders, by their respective representatives and agents and (except
during the continuance of a Default or Unmatured Default) with reasonable
notice to the Borrower and during normal business hours, to inspect any of the
Property, corporate books and financial records of the Borrower and of each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and of each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, the Borrower's or such Subsidiary's officers at
such reasonable times and intervals as the Lenders may designate.
6.11. Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that a
Subsidiary may merge with the Borrower or a Wholly-Owned Subsidiary, provided
that the Borrower or a Wholly-Owned Subsidiary is the surviving corporation in
any such merger or consolidation.
6.12. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person except for (i) sales of Revenue Equipment for fair value in the ordinary
course of business, (ii) sales by the Borrower or any Subsidiary of accounts
receivable pursuant to the Receivables Transactions (subject to the limitation
on the amount of the financing which may be provided in all such transactions
as set forth in the definition of the term "Receivables Transactions" herein),
(iii) sales or other dispositions of Property for fair value by a Subsidiary to
a Guarantor, (iv) sales or other dispositions of Property as part of a
Significant Restructuring, and (v) other leases, sales or other dispositions of
Property for fair value that, together with all other Property of the Borrower
and its Subsidiaries previously leased, sold or disposed of as permitted by
this clause (v) during the twelve-month period ending with the month in which
any such lease, sale or other disposition occurs, has a value not exceeding
$75,000,000.
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6.13. Liens. The Borrower will not, and will not permit any Subsidiary
to, create, incur or permit to exist any Lien in, of or on any Property of the
Borrower or any Subsidiary (including, without limitation, the capital stock of
any direct or indirect Subsidiary of the Borrower) except:
(i) Liens for taxes, assessments or governmental charges or levies
thereon if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested
in good faith and by appropriate proceedings and for which
adequate reserves in accordance with Agreement Accounting
Principles shall have been set aside on its books.
(ii) Liens imposed by law (other than ERISA), such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation (other than ERISA).
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or of its
Subsidiaries.
(v) Purchase money Liens granted to secure the purchase price of
Equipment or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such Equipment,
provided that such Liens do not extend to any other assets of
the Borrower or of any Subsidiary.
(vi) Liens existing on assets at the time of their acquisition
(whether such acquisition is by purchase of assets or stock or
by merger), provided that such Liens are limited to the assets
so acquired and do not extend to any other assets of the
Borrower or any Subsidiary.
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(vii) Liens on real property granted to secure Indebtedness incurred
in connection with the acquisition thereof, provided that such
Liens do not extend to any other assets of the Borrower or of
any Subsidiary.
(viii) Liens in existence on the Closing Date on real or personal
property securing Indebtedness or other obligations of the
Borrower or any Subsidiary in an aggregate principal amount
for the Borrower and all Subsidiaries not in excess of
$30,000,000 at any one time outstanding incurred in connection
with the issuance of obligations, the interest on which is
exempt from federal income taxation under Section 103 of the
Code, to finance the acquisition by the Borrower or such
Subsidiary of real or personal property, provided that such
Liens shall extend only to the assets being financed with the
proceeds of such Indebtedness.
(ix) Liens in existence on the Closing Date as set forth on
Schedule "4".
(x) Liens on accounts receivable (together with related
collections and proceeds thereof, collateral insurance
therefor, guaranties thereof, lockbox or other collection
accounts related thereto and all records related thereto) of
any Subsidiary which are transferred to Receivables Corp. as
part of a Receivables Transaction (subject to the limitation
on the amount of the financing which may be provided in all
such transactions as set forth in the definition of the term
"Receivables Transactions" herein).
(xi) In addition to Liens permitted under any of the foregoing
categories, Liens on real or personal property granted to
secure Indebtedness incurred in the ordinary course of
business not exceeding $50,000,000 in the aggregate.
6.14. Guaranties, Loans, Advances and Investments. The Borrower will not,
and will not permit any Subsidiary to, become or be a guarantor or surety of,
or otherwise become or be responsible in any manner (whether by agreement to
purchase any obligations, stock, assets, goods or services, or to supply or
advance any funds, assets, goods or services, or otherwise) with respect to any
undertaking of any other Person, or make or permit to exist any loans or
advances to any other Person or investments in any other Person or instrument,
except for:
(i) the Guaranty;
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(ii) the endorsement, in the ordinary course of collection, of
instruments payable to it or to its order;
(iii) guaranties or other contingent obligations, if after
giving effect to the incurrence of such obligations,
the aggregate of all such obligations of the Borrower and its
Subsidiaries on a consolidated basis does not exceed 10% of
Consolidated Tangible Net Worth, provided that any contingent
obligation shall be excluded from the restriction imposed by
this Section 6.14(iii) if pursuant to the terms thereof, (a)
the Borrower or such Subsidiary is contingently liable solely
with respect to a primary obligation (other than an obligation
for Indebtedness) of the Borrower or any Subsidiary, and (b)
such primary obligation is included among the liabilities
shown on the Borrower's consolidated balance sheets submitted
to the Lenders pursuant to Section 6.1;
(iv) investment grade investments;
(v) loans, advances or other investments in an amount
which, when computed in an aggregate amount for the Borrower
and its Subsidiaries, shall not exceed 10% of Consolidated
Tangible Net Worth at any one time outstanding;
(vi) guaranties by the Borrower or any Subsidiary in an
aggregate principal amount for the Borrower and all
Subsidiaries not in excess of $30,000,000 at any one time
outstanding incurred in connection with the issuance of
obligations which are outstanding on the Closing Date, the
interest on which is exempt from Federal income taxation under
Section 103 of the Code to finance the acquisition by the
Borrower or such Subsidiary of Property;
(vii) guaranties, loans, advances or other investments in connection
with a Receivables Transaction (provided that such
Receivables Transaction complies in all respects with the
provisions set forth in the definition of the term
"Receivables Transactions" herein); and
(viii) loans or advances by the Borrower to any Subsidiary, by
any Subsidiary to the Borrower and by any Subsidiary to any
other Subsidiary, and equity interests of the Borrower or any
Subsidiary in any Subsidiary.
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6.15. Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except (i) pursuant to or in connection with a
Receivables Transaction and (ii) any other transaction conducted in the
ordinary course of business and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arms-length transaction.
6.16. Adjusted Consolidated Tangible Net Worth. The Borrower will
maintain at all times Adjusted Consolidated Tangible Net Worth of not less than
the sum of (i) $310,000,000 plus (ii) 50% of Consolidated Net Income earned in
any fiscal year beginning with the fiscal year ending on December 31, 1997
(without deduction for losses), provided that the adjustment to minimum
Adjusted Consolidated Tangible Net Worth as a result of this clause (ii) shall
occur annually upon delivery by the Borrower of the financial statements
described in Section 6.1(i) for the relevant fiscal year.
6.17. Consolidated Indebtedness to Adjusted Consolidated EBITDA Ratio.
The Borrower will not permit the ratio (measured at the end of each fiscal
quarter for the then-most recently ended four fiscal quarters) of (i)
Consolidated Indebtedness to (ii) Adjusted Consolidated EBITDA to exceed 3.0 to
1.0.
6.18. Employee Benefit Plans. The Borrower will properly conduct, and
cause each Subsidiary to properly conduct, each Single Employer Plan as to
which it may have any liability in compliance with all applicable requirements
of law and regulations.
6.19. Other Agreements. The Borrower will not, and will not permit any
Subsidiary to, enter into any agreement containing any provision which would be
violated or breached by the performance of its obligations hereunder or under
any instrument or document delivered or to be delivered by it hereunder or in
connection with the transactions contemplated hereby.
6.20. Subsidiary Dividends and Indebtedness. (a) The Borrower will not,
and will not permit any Subsidiary to, enter into any agreement which prohibits
or in any manner restricts the right or ability of any Subsidiary to declare
and pay any dividends or to make any loans or advances, whether in cash or in
property, to the Borrower.
(b) At any time when the Borrower's senior unsecured long-term debt is
rated below BBB+ by S&P (or a comparable rating from any generally recognized
successor to S&P) or below Baa1 by ▇▇▇▇▇'▇ (or a comparable rating from any
generally recognized successor to ▇▇▇▇▇'▇), the Borrower will not permit its
Subsidiaries to incur or maintain any Indebtedness except for (i) Indebtedness
owed to the Borrower or to a Wholly-Owned Subsidiary of the
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Borrower, (ii) Indebtedness secured by Liens permitted by the terms of
Section 6.13(viii), (iii) Indebtedness incurred as part of a Receivables
Transaction (subject to the limitation on the amount of the financing which may
be provided in all such transactions as set forth in the definition of the term
`Receivables Transactions' herein) and (iv) other Indebtedness not to exceed
$75,000,000 in aggregate principal amount at any time.
6.21. Ownership of Yellow Freight. The Borrower will not, without the
prior written consent of the Required Lenders, sell, transfer, assign, ▇▇▇▇▇ ▇
▇▇▇▇ on or otherwise encumber or dispose of any capital stock of Yellow
Freight.
6.22. Additional Material Subsidiaries. (a) The Borrower will cause any
Person that becomes a Material Subsidiary after the date hereof (i) to execute
and deliver to the Agent, within ten Business Days of becoming a Material
Subsidiary, a counterpart of the Guaranty or a new guaranty in substantially
the form of the Guaranty, in each case guarantying the obligations of the
Borrower hereunder and (ii) to deliver to the Agent evidence of action of its
board of directors or other governing body authorizing the execution, delivery
and performance thereof.
(b) If (i) as of the end of any fiscal year of the Borrower, the assets
of any Guarantor (other than an Original Guarantor) comprise less than 5% of
the Consolidated Assets of the Borrower and its Subsidiaries, and the revenue
attributable to any such Guarantor (other than an Original Guarantor) comprises
less than 5% of the consolidated revenue of the Borrower and its Subsidiaries
for such fiscal year, or (ii) the Borrower or any Subsidiary sells or otherwise
transfers all of the capital stock of any Guarantor to any Person which is not
the Borrower or a Subsidiary or liquidates or dissolves any Guarantor in a
transaction which, in any case described in this clause (b), is not otherwise
prohibited by the terms of this Agreement, the Agent will, on behalf of the
Lenders, execute and deliver to the Borrower a release of such Guarantor from
its obligations under the Guaranty, provided that to the extent that any
proceeds of any sale, transfer, liquidation or dissolution described in clause
(ii) exceed $1,000,000, such transaction must be structured so that such
proceeds are ultimately retained by the Borrower or by a Guarantor.
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ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders, the Issuer or the Agent
under or in connection with this Agreement, any Credit Extension, any LC
Application or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as
of which made.
7.2. Nonpayment of principal of any Note or of any Reimbursement
Obligation when due, or nonpayment of interest upon any Note or of any facility
or utilization fee or other obligations under any of the Loan Documents within
five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.3, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.20 or 6.21.
7.4. The breach by the Borrower (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement or the breach by the Borrower or any Subsidiary Co-Applicant of
any of the terms or provisions of any LC Application which is not remedied
within thirty days after written notice from the Agent, the Issuer or any
Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay when due
principal, interest or other amounts under any Indebtedness the aggregate
principal amount of which at the time of such failure exceeds $1,000,000; or
the default by the Borrower or any of its Subsidiaries in the performance of
any term, provision or condition contained in any agreement under which any
Indebtedness the aggregate principal amount of which at the time of such
default exceeds $10,000,000 was created or is governed, or any other event
shall occur or condition exist, the effect of which is to cause, or to permit
the holder or holders of such Indebtedness to cause, such Indebtedness to
become due prior to its stated maturity; or any Indebtedness the aggregate
principal amount of which exceeds $10,000,000 of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated maturity
thereof; or the Borrower or any of its Subsidiaries shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
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7.6. The Borrower or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it
or any substantial part of its property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
substantial part of its property, or a proceeding described in Section 7.6(iv)
shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control
of, during the twelve-month period ending with the month in which any such
Condemnation occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge any judgment or order for the payment of money
in excess of $10,000,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10. The Borrower or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the release by the Borrower, any of
its Subsidiaries or any other Person of any Hazardous Material into the
environment, or there shall occur any violation of any Environmental Law which,
in the case of any such proceeding, investigation or violation, would be
reasonably likely to have a Material Adverse Effect.
7.11. (a) The aggregate Unfunded Liabilities under all Single Employer
Plans shall at any time exceed $15,000,000, or any Reportable Event shall occur
with respect to any Single Employer Plan.
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(b) Any Termination Event shall occur with respect to one or more Plans
which, when taken together with any other Termination Events then existing with
respect to Plans, will cause the Borrower and the other members of the
Controlled Group to incur aggregate Current Payment Obligations in excess of
$25,000,000.
7.12. Any Change in Control shall occur.
7.13. The Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or any Guarantor shall fail to comply with
any of the terms or provisions of the Guaranty, or any Guarantor shall deny
that it has any further liability under the Guaranty, or shall give notice to
such effect, provided that this Section 7.13 shall not affect the Agent's power
to release a Guarantor from its obligations under the Guaranty pursuant to
Sections 6.22 and 8.2(v).
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Collateral Shortfall.
(a) If any Default described in Section 7.6 or 7.7 occurs with respect to
the Borrower, (i) the obligations of the Lenders to make Loans hereunder and to
participate in Facility Letters of Credit and the obligations of the Issuer to
issue Facility Letters of Credit shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent, the Issuer or any Lender and (ii) the Borrower
will be and become thereby unconditionally obligated, without the need for
demand or the necessity of any act or evidence, to deliver to the Agent, at its
address specified pursuant to Article XIII for deposit into the Letter of
Credit Collateral Account, an amount (the "Collateral Shortfall Amount") equal
to the excess, if any, of
(A) 100% of the sum of the aggregate maximum amount remaining
available to be drawn under the Facility Letters of Credit (assuming
compliance with all conditions for drawing thereunder) issued by the
Issuer and outstanding as of such time, over
(B) the amount on deposit in the Letter of Credit Collateral
Account at such time that is free and clear of all rights and claims of
third parties and that has not been applied by the Agent against the
Obligations.
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(b) If any Default occurs and is continuing (other than a Default
described in Section 7.6 or 7.7 with respect to the Borrower), (i) the Required
Lenders (or the Agent, acting with the consent of or upon the direction of the
Required Lenders) may terminate or suspend the obligations of the Lenders to
make Loans and to participate in Facility Letters of Credit hereunder and the
obligation of the Issuer to issue Facility Letters of Credit hereunder, or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives and (ii) the Required Lenders (or the Agent, acting with the
consent of or upon the direction of the Required Lenders) may, upon notice
delivered to the Borrower and in addition to the continuing right to demand
payment of all amounts payable under this Agreement, make demand on the
Borrower to deliver, and the Borrower will, forthwith upon such demand and
without necessity of further act or evidence, be and become thereby
unconditionally and jointly and severally obligated to deliver, to the Agent,
at its address specified pursuant to Article XIII, for deposit into the Letter
of Credit Collateral Account an amount equal to the Collateral Shortfall
Amount.
(c) If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than zero, the
Agent may make demand on the Borrower to deliver, and the Borrower will,
forthwith upon demand by the Agent and without necessity of further act or
evidence, be and become thereby unconditionally obligated to deliver, to the
Agent as additional funds to be deposited and held in the Letter of Credit
Collateral Account an amount equal to such Collateral Shortfall Amount at such
time.
(d) The Agent may at any time or from time to time after funds are
deposited in the Letter of Credit Collateral Account, apply such funds to the
payment of the Obligations and any other amounts as shall from time to time
have become due and payable by the Borrower or any Subsidiary Co-Applicant to
the Lenders or the Issuer under the Loan Documents.
(e) At any time while any Default is continuing, neither the Borrower,
any Subsidiary Co-Applicant, nor any Person claiming on behalf of or through
the Borrower or any Subsidiary Co-Applicant shall have any right to withdraw
any of the funds held in the Letter of Credit Collateral Account. After all of
the Obligations have been indefeasibly paid in full, any funds remaining in the
Letter of Credit Collateral Account shall be returned by the Agent to the
Borrower or paid to whomever may be legally entitled thereto at such time.
(f) The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Agent accords its own
property.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders and the Borrower may enter into agreements supplemental hereto
for the purpose of
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adding or modifying any provisions to the Loan Documents or changing in
any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of all of the Lenders:
(i) Extend the maturity of any Loan or Note or reduce the
principal amount thereof, or reduce the rate or extend the time
of payment of interest or fees thereon.
(ii) Reduce the amount of or extend the maturity of the
Reimbursement Obligations, or reduce the rate or change the time
of payment of any fees related to Facility Letters of Credit.
(iii) Reduce the percentage specified in the definition of
Required Lenders.
(iv) Extend the Termination Date or increase the amount
of the Commitment of any Lender hereunder, or permit the
Borrower to assign its rights under this Agreement.
(v) Release any Guarantor from its obligations under
the Guaranty, except in accordance with the provisions of
Section 6.22(b).
(vi) Amend this Section 8.2 or Section 2.4.2(iii).
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive
payment of the fee required under Section 12.3.2 and release any Guarantor in
accordance with the provisions of Section 6.22(b) without obtaining the consent
of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders, the
Issuer or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of
a Default or the inability of the Borrower to satisfy the conditions precedent
to such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the
Issuer and the Lenders until the Obligations have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes
and the making of the Credit Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, neither any Lender nor the Issuer shall be obligated
to extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3. Taxes. Any taxes (excluding, (x) in the case of the Agent, the
Issuer and each Lender, (1) United States federal taxation of its overall net
income, and (2) taxes imposed on its overall net income, and franchise taxes
imposed on it, by any jurisdiction outside of the United States of America or
by the jurisdiction under the laws of which the Agent, the Issuer or such
Lender (as the case may be) is organized or any political subdivision thereof
or the jurisdiction in which the principal office of the Agent, the Issuer or
such Lender (as the case may be) is located or any political subdivision
thereof, and, (y) in the case of the Issuer and each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it, by the jurisdiction
in which its applicable Lending Installation is located or any political
subdivision thereof) or other similar assessments or charges payable or ruled
payable by any governmental authority in respect of the Loan Documents shall be
paid by the Borrower, together with interest and penalties, if any.
9.4. Headings. Section headings in the Loan Documents are for convenience
of reference only and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.5. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Issuer, the Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Issuer, the Agent and the Lenders relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any
of its obligations hereunder shall not relieve any other Lender
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from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
9.7. Expenses; Indemnification. The Borrower shall reimburse the Agent
for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent, which attorneys
may be employees of the Agent) paid or incurred by the Agent in connection with
the preparation, negotiation, execution, administration, syndication and
amendment of the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Issuer and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent, the Issuer and the Lenders, which attorneys may be employees of
the Agent, the Issuer or the Lenders) paid or incurred by the Agent, the Issuer
or any Lender in connection with the collection and enforcement of the Loan
Documents. The Borrower further agrees to (x) indemnify the Agent, the Issuer
and each Lender, and their respective directors, officers and employees, agents
and directors ("Indemnified Persons") against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all reasonable expenses of litigation or preparation therefor whether or not
the Agent or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to the commitment letter dated July 15, 1997
relating to this transaction, this Agreement, the other Loan Documents, or any
other transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder, except
to the extent any of the foregoing arises solely from the gross negligence or
willful misconduct of the party seeking indemnification, and (y) to assert no
claim against the Agent, the Issuer, any Lender or any other Indemnified
Person, on any theory of liability, for special, indirect, consequential or
punitive damages. The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the Aggregate Commitment and the
repayment of the Advances and the termination of the Facility Letters of Credit
hereunder.
9.8. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.10. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
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9.11. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders, the Issuer and the Agent, on the other hand,
shall be solely that of borrower and lender. Neither the Agent, the Issuer nor
any Lender shall have any fiduciary responsibilities to the Borrower. Neither
the Agent, the Issuer nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENT AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT
OF THE AGENT, THE ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE AGENT, THE ISSUER OR ANY LENDER OR ANY AFFILIATE OF
THE AGENT, THE ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. Confidentiality. Each of the Lenders and the Issuer agrees to hold
any information identified to it as confidential which it may receive from the
Borrower pursuant to
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this Agreement in confidence, except for disclosure (i) to its
Affiliates, to other Lenders or the Issuer and their respective Affiliates,
(ii) to its legal counsel, accountants, and other professional advisors, (iii)
to regulatory officials, (iv) as requested pursuant to or as required by law,
regulation, or legal process, (v) in connection with any legal proceeding to
which it is a party, (vi) permitted by Section 12.4, and (vii) of such portions
of such information which is or becomes generally available to the public other
than as a result of disclosure by it or its representatives.
ARTICLE X
THE AGENT
10.1. Appointment. The First National Bank of Chicago is hereby appointed
Agent hereunder and under each other Loan Document, and each of the Lenders
irrevocably (except to the extent provided in Section 10.11) authorizes the
Agent to act as the agent of such Lender. The Agent agrees to act as such upon
the express conditions contained in this Article X. The Agent shall not have a
fiduciary relationship in respect of the Borrower or any Lender by reason of
this Agreement.
10.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no duties or obligations to the Lenders (including, without
limitation, duties or obligations to take action under the Loan Documents)
other than those specifically set forth in the Loan Documents.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
for its or their own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc.; Delivery of Documents.
Neither the Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into, or verify (i)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii)
the satisfaction of any condition specified in Article IV, except receipt of
items required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Agent will deliver to the
Lenders copies of all documents received from the Borrower
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which are specifically required by the terms of the Loan Documents to
be provided to the Lenders, together with any other documents which the Agent
hereafter agrees in writing to deliver to the Lenders.
10.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders (or, when required hereunder, all of the Lenders), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of Notes. The Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability, cost and expense
that it may incur by reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper Person or Persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
provided that, to the extent the Agent is subsequently reimbursed for such
amounts by the Borrower, the Agent will refund any such amounts paid by the
Lenders, (ii) for any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery,
administration (other than routine administrative duties under the Loan
Documents) and enforcement of the Loan Documents and (iii) for any 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 the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any
of the terms thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the
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extent they arise from the gross negligence or willful misconduct of
the Agent. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Obligations and termination of this Agreement and all
Facility Letters of Credit.
10.9. Rights as a Lender. With respect to its Commitment, Loans made by
it and the Notes issued to it, the Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may exercise the
same as though it were not the Agent, and the term "Lender" or "Lenders" shall,
at any time when the Agent is a Lender, unless the context otherwise indicates,
include the Agent in its individual capacity. The Agent may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person. The Agent, in its individual capacity, is not obligated to
remain a Lender.
10.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Issuer or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent, the Issuer or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
10.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders, the Issuer and the Borrower, and the
Agent may be removed at any time with or without cause by written notice
received by the Agent from the Required Lenders. Upon any such resignation or
removal, the Required Lenders (with the consent of the Borrower at any time
other than during the continuance of a Default) shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty days after the retiring Agent's
giving notice of resignation, then the retiring Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Agent. Such successor Agent shall be
a commercial bank having capital and retained earnings of at least
$250,000,000. 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 or
removed Agent, and the retiring or removed Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents. After any
retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Article X shall continue in effect for its benefit in
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respect of any actions taken or omitted to be taken by it while it was acting
as the Agent hereunder and under the other Loan Documents.
10.12. Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder
unless the Agent has received written notice from a Lender or the Borrower
referring to this Agreement describing such Default or Unmatured Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof to the
Lenders.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders or the Issuer under applicable law, if the Borrower becomes
insolvent, however evidenced, or any Default or Unmatured Default occurs, any
and all deposits (including all account balances, whether provisional or final
and whether or not collected or available) and any other Indebtedness at any
time held or owing by any Lender or the Issuer to or for the credit or account
of the Borrower may be offset and applied toward the payment of the Obligations
owing to such Lender or the Issuer, whether or not the Obligations, or any part
hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans or participations in Facility Letters of
Credit (other than payments received pursuant to Sections 3.1, 3.2 or 3.4) in a
greater proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans or participations in
Facility Letters of Credit held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans and
participations in Facility Letters of Credit. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans and
participations in Facility Letters of Credit. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Agent, the Issuer and the Lenders and their respective successors and assigns,
except that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any Lender must
be made in compliance with Section 12.3. Notwithstanding clause (ii) of this
Section, any Lender may at any time, without the consent of the Borrower, the
Issuer or the Agent and without the payment of any fee to the Agent, assign all
or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
such payee complies with Section 12.3 in the case of an assignment thereof or,
in the case of any other transfer, a written notice of the transfer is filed
with the Agent. Any assignee or transferee of a Note (other than a Federal
Reserve Bank in the case of an assignment for security purposes) agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any
participation in Facility Letters of Credit owned by such Lender, any Note
held by such Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents. Unless a Default has occurred
and is continuing, the consent of the Borrower and the Agent shall be
required prior to such sale becoming effective with respect to a
Participant which is not a Lender or an Affiliate of a Lender or of such
Lender's parent corporation. Such consent shall not be unreasonably
withheld. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the holder of any such Note for all
purposes under the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower, the Issuer and the Agent
shall continue
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to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan, Facility
Letter of Credit or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate or
fees payable with respect to any such Loan, Facility Letter of Credit or
Commitment, postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees on, any such Loan, Reimbursement
Obligations, interest or fees in respect of any such Facility Letter of
Credit or Commitment, releases any guarantor of any such Loan or Facility
Letter of Credit or releases any collateral held in the Letter of Credit
Collateral Account (except in accordance with Section 8.1) or any
substantial portion of any other collateral, if any, securing any such
Loan or Facility Letter of Credit.
12.2.3. Benefit of Setoff. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section
11.1, agrees to share with each Lender, any amount received pursuant to
the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law and the provisions
of this Section 12.3, at any time assign to one or more banks or other
entities ("Purchasers") all or any part of its rights and obligations
under the Loan Documents. Such assignment shall be substantially in the
form of Exhibit "I" hereto or in such other form as may be agreed to by
the parties thereto. The Lender which desires to make such an assignment
(the "Transferor Lender") shall so inform the Borrower and the Agent in
writing. The Borrower shall then have an exclusive period of 30 days
after such notice from the Transferor Lender to locate a Purchaser (which
may or may not be an entity recommended by the Transferor Lender) for that
portion of the Transferor Lender's rights and obligations which are
proposed to be sold and, if the Borrower locates a
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Purchaser within such period, the Transferor Lender will make the
proposed assignment to such Purchaser as long as the terms of such
assignment are no worse than the Transferor Lender could obtain in a sale
to a Purchaser of its choice. If a sale to a Purchaser selected by the
Borrower does not occur within such 30 day period, the Transferor Lender
may, with the consent of the Agent and the Borrower (which shall not be
unreasonably withheld or delayed), make the proposed assignment to a
Purchaser of its choice. Notwithstanding the foregoing provisions, any
Lender may make an assignment of all or any part of its rights and
obligations under the Loan Documents (i) without the consent of the
Borrower or the Agent and without giving the Borrower the 30-day exclusive
period to locate a Purchaser described above if the Purchaser is another
Lender or an Affiliate of a Lender or (ii) without the consent of the
Borrower and without giving the Borrower the 30-day exclusive period to
locate a Purchaser described above if a Default has occurred and is
continuing.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit "I" to
Exhibit "I" hereto (a "Notice of Assignment"), together with any consents
required by Section 12.3.1, and (ii) payment of a $3,500 fee to the Agent
for processing such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the
Commitment, Loans and participations in Facility Letters of Credit under
the applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes
be a Lender party to this Agreement and any other Loan Document executed
by the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower, the
Issuer, the Lenders or the Agent shall be required to release the
Transferor Lender with respect to the percentage of the Aggregate
Commitment, Loans and participation in Facility Letters of Credit assigned
to such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 12.3.2, the Transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that replacement Notes are
issued to such Transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments, as adjusted pursuant to
such assignment.
12.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower
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and its Subsidiaries; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.15 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the Transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to
comply with the provisions of Section 2.6.14.
ARTICLE XIII
NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.6.9 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing and shall be sent by United States mail, telegraph, telex, FAX or
nationally established overnight courier service, and shall be deemed received
(i) when received by the addressee if sent via the United States mail, postage
prepaid, (ii) when delivered to the appropriate office or machine operator for
transmission, charges prepaid, if sent by telegraph or telex (answerback
confirmed in the case of telexes), (iii) when receipt thereof by the addressee
is confirmed by telephone if sent by FAX and (iv) one business day after
delivery to an overnight courier service, if sent by such service, in each case
addressed to such party at its address or facsimile number set forth below its
signature hereto.
13.2. Change of Address. The Borrower, the Agent, the Issuer and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
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ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto
may execute this Agreement by signing any such counterpart. This Agreement
shall be effective when it has been executed by the Borrower, the Agent, the
Issuer and the Lenders and each party has notified the Agent by facsimile or
telephone that it has taken such action.
Page 69
77
IN WITNESS WHEREOF, the Borrower, the Lenders, the Issuer and the Agent
have executed this Agreement as of the date first above written.
YELLOW CORPORATION
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Commitments
$60,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually, as Issuer and as Agent
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Page 70
78
$50,000,000 NATIONSBANK, N.A.
Individually, and as Documentation Agent
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$25,000,000 BANK OF HAWAII
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Page 71
79
$25,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By:
-----------------------------------
Print Name:
---------------------------
Title:
---------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice-President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$25,000,000 ROYAL BANK OF CANADA
By:
-----------------------------------
Print Name:
---------------------------
Title:
---------------------------------
Grand Cayman (North America No. 1)
c/o New York Branch
Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Loans Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Financial Square
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Page 72
80
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$25,000,000 WACHOVIA BANK, N.A.
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
Mail Code GA-370
Atlanta, Georgia 30303
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 BANQUE PARIBAS
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Page 73
81
$15,000,000 THE CHASE MANHATTAN BANK
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 THE MITSUI TRUST AND BANKING
COMPANY, LIMITED, NEW YORK BRANCH
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Page 74
82
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 TOKAI BANK, LTD.
By:
-------------------------------------
Print Name:
-----------------------------
Title:
---------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 UNION BANK OF CALIFORNIA, N.A.
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
__________________
$300,000,000 - Aggregate Commitment
Page 75
83
EXHIBIT "A"
NOTE
(Ratable Loans)
$_____ September 24, 1997
Yellow Corporation, a Delaware corporation (the "Borrower"), promises to
pay, on the Termination Date (as defined in the Agreement referred to below),
to the order of ____________________ (the "Lender") the lesser of the
principal sum of _________________ Dollars or the aggregate unpaid
principal amount of all Ratable Loans made by the Lender to the Borrower
pursuant to Section 2.2 of that certain Revolving Credit Agreement, dated as of
September 24, 1997, among the Borrower, The First National Bank of Chicago,
individually, as Issuer and as Agent, and the financial institutions named
therein, including the Lender (as the same may be amended or modified, the
"Agreement"), in immediately available funds at the main office of The First
National Bank of Chicago, as Agent, in Chicago, Illinois, together with
interest on the unpaid principal amount hereof at the rates and on the dates
set forth in the Agreement. The Borrower shall pay each Ratable Loan in full
on the last day of such Ratable Loan's applicable Interest Period.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Ratable Loan and the date and amount of each
principal payment hereunder, provided that the failure by the Lender to so
record or any mistake in so recording shall not affect the obligations of the
Borrower hereunder.
This Note (Ratable Loans) is one of the Notes issued pursuant to, and is
subject to the terms of and entitled to the benefits of, the Agreement, to
which Agreement reference is hereby made for a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
THIS NOTE (RATABLE LOANS) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
YELLOW CORPORATION
By:
------------------------------
Print Name:
-----------------------
Title:
----------------------------
Page 76
84
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE (RATABLE LOANS) OF YELLOW CORPORATION
DATED SEPTEMBER 24, 1997
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
----- --------- ------------ --------- --------
Page 77
85
EXHIBIT "B"
NOTE
(Competitive Bid Loans)
$300,000,000 September 24, 1997
Yellow Corporation, a Delaware corporation (the "Borrower"), promises to
pay, on the Termination Date, to the order of (the
"Lender") the aggregate unpaid principal amount of all Competitive Bid Loans
made by the Lender to the Borrower pursuant to Section 2.3 of that certain
Revolving Credit Agreement, dated as of September 24, 1997, among the Borrower,
The First National Bank of Chicago, individually, as Issuer and as Agent, and
the financial institutions named therein, including the Lender (as the same may
be amended or modified, the "Agreement"), in immediately available funds at the
main office of The First National Bank of Chicago, as Agent, in Chicago,
Illinois, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay each
Competitive Bid Loan in full on the last day of such Competitive Bid Loan's
applicable Interest Period.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or otherwise record in accordance with its usual practice, the
date and amount of each Competitive Bid Loan and the date and amount of each
principal payment hereunder, provided that the failure by the Lender to so
record or any mistake in so recording shall not affect the obligations of the
Borrower hereunder.
This Note (Competitive Bid Loans) is one of the Notes issued pursuant to,
and is subject to the terms of and entitled to the benefits of, the Agreement,
to which Agreement reference is hereby made for a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
Each Note (Competitive Bid Loans) issued pursuant to the Agreement is in
the amount of $300,000,000, provided, however, that the aggregate principal
amount of all Loans outstanding from all Lenders under the Agreement shall not
exceed $300,000,000 at any time.
Page 78
86
THIS NOTE (COMPETITIVE BID LOANS) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
YELLOW CORPORATION
By:
---------------------------------
Print Name:
------------------------
Title:
-----------------------------
Page 79
87
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE (COMPETITIVE BID LOANS)
OF YELLOW CORPORATION
DATED SEPTEMBER 24, 1997
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
------------ ------------ ------------ ------------ ------------
Page 80
88
EXHIBIT C"
COMPETITIVE BID QUOTE REQUEST
(Section 2.3.2)
_____, 19__
To: The First National Bank of Chicago,
as agent (the "Agent")
From: Yellow Corporation ("Borrower")
Re: Revolving Credit Agreement dated as of September 24, 1997, among the
Borrower, The First National Bank of Chicago, individually, as Issuer
and as Agent, and the Lenders parties thereto
We hereby give notice pursuant to Section 2.3.2 of the Agreement that we
request Competitive Bid Quotes for the following proposed Competitive Bid
Advance(s):
Borrowing Date: _____________, 19__
Principal Amount (1) Interest Period (2)
________________ _______________
$
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive Bid
Loans offered by Lenders in response to this request, the undersigned shall be
deemed to affirm as of such date that the representations and warranties made
in the Agreement are true and correct in all material respects to the extent
specified in Article IV thereof. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
YELLOW CORPORATION
By:
______________________________
Print Name:
______________________
Title:
___________________________
(1) Amount must be at least $10,000,000 and an integral multiple of
$5,000,000.
(2) One, two, three or six months (Eurodollar Auction) or at least 30 days
and up to six months (Absolute Rate Auction), subject to the provisions of
the definitions of Eurodollar Interest Period and Absolute Rate Interest
Period.
Page 81
89
EXHIBIT "D"
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.3.3)
_____, 19__
To: [Name of Lender]
Re: Invitation for Competitive Bid Quotes to
Yellow Corporation (the "Borrower")
Pursuant to Section 2.3.3 of the Revolving Credit Agreement dated as of
September 24, 1997 among the Borrower, the Lenders parties thereto, and the
undersigned, as Issuer and as Agent, we are pleased on behalf of the Borrower
to invite you to submit Competitive Bid Quotes to the Borrower for the
following proposed Competitive Bid Advance(s):
__Borrowing Date: _____, 19)
Principal Amount Interest Period
________________ _______________
$
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an
Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.3.4 of
the Agreement and the foregoing terms in which the Competitive Bid Quote
Request was made. Capitalized terms used herein have the meanings assigned to
them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. Chicago time
on ________________________, 19__.
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:
_________________________________
Authorized Officer
Page 82
90
EXHIBIT "E"
COMPETITIVE BID QUOTE
(Section 2.3.4)
_____, 19
To: The First National Bank of Chicago, as Agent
Attn:
______________________________________________________
Re: Competitive Bid Quote to Yellow Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated , 19 , we
hereby make the following Competitive Bid Quote pursuant to Section 2.3.4
of the Revolving Credit Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:_____________________
2. Person to contact at Quoting Lender:_________________
3. Borrowing Date:______________, 19__ (1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the following
rates:
Principal Interest [Competitive [Absolute Minimum
Amount(2) Period(3) Bid Margin(4)] Rate(5)] Amount(6)
--------- --------- -------------- ----------- ---------
$
--------------------
1 As specified in the related Invitation.
2 Principal amount bid for each Interest Period may not exceed principal
amount requested. Bids must be made for $2,000,000 and an integral
multiple of $500,000.
3 One, two, three or six months or at least 30 days and up to six months,
as specified in the related Invitation.
4 Competitive Bid Margin over or under the Eurodollar Base Rate, rounded,
if necessary, to the next higher 1/16 of 1%, determined for the applicable
Interest Period. Specify percentage (rounded to the nearest 1/100 of 1%)
and specify whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
6 Specify minimum amount which the Borrower may accept (see Section
2.3.4(b)(iv).
Page 83
91
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Revolving Credit
Agreement dated as of September 24, 1997, as amended or modified, among the
Borrower, the Issuer, the Lenders parties thereto and yourselves, as Agent,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated:__________, 19__ By:
_____________________
Authorized Officer
Page 84
92
EXHIBIT "F"
FORM OF OPINION OF COUNSEL TO YELLOW CORPORATION
September 24, 1997
The Agent, the Issuer and the Lenders who are parties to the
Revolving Credit Agreement described below
Ladies and Gentlemen:
I am counsel for Yellow Corporation, a Delaware corporation (the
"Borrower"), and have represented the Borrower in connection with its execution
and delivery of that certain Revolving Credit Agreement dated as of September
24, 1997 among the Borrower, The First National Bank of Chicago, as Agent and
as Issuer, and the financial institutions party thereto (each, including The
First National Bank of Chicago in its individual capacity, a "Lender" and
collectively, the "Lenders"), providing for Advances and issuances of Facility
Letters of Credit in an aggregate principal amount not exceeding $300,000,000
at any one time outstanding (the "Agreement"). All capitalized terms used in
this opinion and not otherwise defined shall have the meanings attributed to
them in the Agreement.
I have examined the Borrower's, each Original Guarantor's and each
Subsidiary Co-Applicant's (the Borrower, the Original Guarantors and the
Subsidiary Co-Applicants are hereinafter collectively referred to as the
"Credit Parties") certificate or articles of incorporation, by-laws,
resolutions of each Credit Party's Board of Directors, the Loan Documents and
such other matters of fact and law which I deem necessary in order to render
this opinion. Based upon the foregoing, it is my opinion that:
1. Each of the Borrower and its Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
2. Each Credit Party has the corporate power and authority and legal
right to execute and deliver the Loan Documents to which it is a party and to
perform its obligations thereunder. The execution and delivery by each Credit
Party of the Loan Documents to which it is a party and the payment and
performance by each Credit Party of its respective
Page 85
93
obligations thereunder have been duly authorized by all necessary
corporate action and proceedings on the part of each Credit Party and will not:
(a) require any consent of any Credit Party's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's certificate or
articles of incorporation or by-laws or any indenture, instrument or
agreement binding upon the Borrower or any of its Subsidiaries; or
(c) result in, or require, the creation or imposition of any Lien
in, of or on the Property of the Borrower or any of its Subsidiaries
pursuant to the provisions of any indenture, instrument or agreement
binding upon the Borrower or any of its Subsidiaries.
3. Each Loan Document (other than any LC Application which has not been
executed and delivered on or prior to the Closing Date) has been duly executed
and delivered by each Credit Party which is a party thereto and constitutes a
legal, valid, and binding obligation of each such Credit Party enforceable in
accordance with its terms except to the extent the enforcement thereof may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought. Without limiting the foregoing, a
Kansas court (or a federal court applying Kansas choice of law principles)
would uphold the choice of the internal law of the State of Illinois as the law
governing the interpretation of the Loan Documents.
4. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of my knowledge, threatened
against or affecting the Borrower or any of its Subsidiaries the probable
outcome of which would have a Material Adverse Effect.
5. No order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with the execution, delivery and performance of,
or the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6. Neither the Borrower nor any Subsidiary is an "investment company" or
a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
7. Neither the Borrower nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a
Page 86
94
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
I am licensed to practice in the State of Kansas and the opinions
expressed above are limited to the laws of the State of Kansas, the corporate
laws of the State of Delaware, and the Federal law of the United States of
America. As the Loan Documents explicitly state that they are governed by the
internal law of the State of Illinois, I have assumed (with your consent) for
the purpose of rendering my opinions set forth herein that the substantive laws
of the State of Illinois relating to the matters discussed herein are
substantially similar to those of the State of Kansas.
This opinion may be relied upon by the Agent, the Issuer, the Lenders and
their participants, assignees and other transferees.
Very truly yours,
Page 87
95
EXHIBIT "G"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Revolving Credit Agreement, dated as of September 24, 1997 (as the same
may be amended or modified, the "Credit Agreement"), among Yellow
Corporation (the "Borrower"), the Agent, the Issuer and the Lenders named
therein
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.6.9 of the Credit Agreement.
Facility Identification Number(s)____________________________________
Customer/Account Name________________________________________________
Transfer Funds To____________________________________________________
_______________________________________________
For Account No.______________________________________________________
Reference/Attention To_______________________________________________
Authorized Officer (Customer Representative) Date________________________
____________________________________________ ____________________________
(Please Print) Signature
Bank Officer Name Date______________________________
____________________________________________ ____________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
Page 88
96
EXHIBIT "H"
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Revolving Credit Agreement dated as of September 24, 1997 (as amended or
modified from time to time, the "Agreement") among the Borrower, the Lenders
party thereto and The First National Bank of Chicago, as Agent for the Lenders
and as Issuer. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected Treasurer of the Borrower or his designee;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a review of the transactions and
conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements to determine whether the Borrower
has fulfilled all of its obligations under the Agreement and the Notes;
3. To the best of my knowledge after due inquiry, during such fiscal
period and as at the date hereof, the Borrower has not been and is not in
default in the fulfillment of any of the terms, covenants, provisions or
conditions of the Agreement and no Default or Unmatured Default existed or
exists, except as set forth below;
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with Sections 6.12, 6.13, 6.14, 6.16 and
6.17 [and 6.20] of the Agreement, all of which data and computations are true,
complete and correct;
5. If the Borrower or any of its Subsidiaries has formed or acquired one
or more Subsidiaries since the date of the preceding certificate delivered
pursuant to Section 6.1(iii) of the Agreement, the name of each such
Subsidiary, its jurisdiction of incorporation and a brief description of its
business is described in a schedule attached hereto; and
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6. Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
___________________________________________
___________________________________________
___________________________________________
___________________________________________
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ___ day of___________, 19__.
_________________
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[SAMPLE]
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of with
Provisions of _____ and ____ of
the Agreement
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99
EXHIBIT "I"
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and _____________ (the "Assignee") is dated
as of ______, 19 . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Revolving Credit
Agreement (which, as it may be amended or modified from time to time is herein
called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1 and the other Loan Documents. The
aggregate Commitment (or Loans and participations in Facility Letters of
Credit, if the applicable Commitment has been terminated) purchased by the
Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the Agent)
after a Notice of Assignment substantially in the form of Exhibit "I" attached
hereto has been delivered to the Agent. Such Notice of Assignment must include
any consents required to be delivered to the Agent by Section 12.3.1 of the
Credit Agreement. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective Date under
Sections 4 and 5 hereof are not made on the proposed Effective Date. The
Assignor will notify the Assignee of the proposed Effective Date no later than
the Business Day prior to the proposed Effective Date. As of the Effective
Date, (i) the Assignee shall have the rights and obligations of a Lender under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal,
Reimbursement Obligations, interest and fees with respect to the interest
assigned hereby. The Assignee shall advance
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funds directly to the Agent with respect to all Loans made and participations
in Facility Letters of Credit funded on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans and participations in Facility Letters of Credit hereunder,
(i) the Assignee shall pay the Assignor, on the Effective Date, an amount equal
to the principal amount of the portion of all Floating Rate Loans assigned to
the Assignee hereunder and (ii) with respect to each Fixed Rate Loan made by
the Assignor and assigned to the Assignee hereunder which is outstanding on the
Effective Date, (a) on the last day of the Interest Period therefor or (b) on
such earlier date agreed to by the Assignor and the Assignee or (c) on the date
on which any such Fixed Rate Loan either becomes due (by acceleration or
otherwise) or is prepaid (the date as described in the foregoing clauses (a),
(b) or (c) being hereinafter referred to as the "Payment Date"), the Assignee
shall pay the Assignor an amount equal to the principal amount of the portion
of such Fixed Rate Loan assigned to the Assignee which is outstanding on the
Payment Date. If the Assignor and the Assignee agree that the Payment Date for
such Fixed Rate Loan shall be the Effective Date, they shall agree to the
interest rate applicable to the portion of such Loan assigned hereunder for the
period from the Effective Date to the end of the existing Interest Period
applicable to such Fixed Rate Loan (the "Agreed Interest Rate") and any
interest received by the Assignee in excess of the Agreed Interest Rate shall
be remitted to the Assignor. In the event interest for the period from the
Effective Date to but not including the Payment Date is not paid by the
Borrower with respect to any Fixed Rate Loan sold by the Assignor to the
Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Fixed Rate Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement. In
the event a prepayment of any Fixed Rate Loan which is existing on the Payment
Date and assigned by the Assignor to the Assignee hereunder occurs after the
Payment Date but before the end of the Interest Period applicable to such Fixed
Rate Loan, the Assignee shall remit to the Assignor the excess of the
prepayment penalty paid with respect to the portion of such Fixed Rate Loan
assigned to the Assignee hereunder over the amount which would have been paid
if such prepayment penalty was calculated based on the Agreed Interest Rate.
The Assignee will also promptly remit to the Assignor (i) any principal
payments received from the Agent with respect to Fixed Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and Reimbursement
Obligations and fees received from the Agent which relate to the portion of the
Loans and participations in Facility Letters of Credit assigned to the Assignee
hereunder for periods prior to the Effective Date, in the case of Floating Rate
Loans or participations in Facility Letters of Credit, or the Payment Date, in
the case of Fixed Rate Loans, and not previously paid by the Assignee to the
Assignor.]* In the event that either party hereto receives any payment to
which the other party hereto is entitled under this Assignment Agreement, then
the party receiving such amount shall promptly remit it to the other party
hereto.
*Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
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5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or [facility or letter of
credit] fees is made under the Credit Agreement with respect to the amounts
assigned to the Assignee hereunder (other than a payment of interest or
facility fees for the period prior to the Effective Date or, in the case of
Fixed Rate Loans, the Payment Date, which the Assignee is obligated to deliver
to the Assignor pursuant to Section 4 hereof). The amount of such fee shall be
the difference between (i) the interest or fee, as applicable, paid with
respect to the amounts assigned to the Assignee hereunder and (ii) the interest
or fee, as applicable, which would have been paid with respect to the amounts
assigned to the Assignee hereunder if each interest rate was ____ of 1% less
than the interest rate paid by the Borrower or if the facility fee was ____ of
1% less than the facility fee paid by the Borrower, as applicable. In
addition, the Assignee agrees to pay % of the processing fee required to be
paid to the Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim. It is understood and agreed
that the assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of any
kind to the Assignee. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of any Loan Document, including without limitation, documents granting the
Agent, the Issuer, the Assignor and the other Lenders a security interest in
assets of the Borrower, any Subsidiary Co-Applicant or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower, any Subsidiary Co-Applicant or any guarantor, (iv) the performance of
or compliance with any of the terms or provisions of any of the Loan Documents,
(v) inspecting any of the Property, books or records of the Borrower, (vi) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Credit Extensions or
(vii) any mistake, error of judgment, or action taken or omitted to be taken in
connection with the Credit Extensions or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement, (ii) agrees that it will, independently
and without reliance upon the Agent, the Issuer, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are
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delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under
ERISA[, and (vii) attaches the forms prescribed by the Internal Revenue Service
of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any
United States federal income taxes].
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 12.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any Person, provided
that (i) any such subsequent assignment does not violate any of the terms and
conditions of the Loan Documents or any law, rule, regulation, order, writ,
judgment, injunction or decree and that any consent required under the terms of
the Loan Documents has been obtained and (ii) unless the prior written consent
of the Assignor is obtained, the Assignee is not thereby released from its
obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
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13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall
be the addresses set forth in the attachment to Schedule 1.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:_____________________________
Print Name:_____________________
Title:___________________________
_______________________
_______________________
[NAME OF ASSIGNEE]
By:_______________________________
Print Name:______________________
Title: __________________________
__________________________
__________________________
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SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Revolving Credit Agreement dated
as of September 24, 1997 among Yellow Corporation, the Lenders parties thereto
and The First National Bank of Chicago, as Agent and as Issuer
2. Date of Assignment Agreement: -------, 19---
3. Amounts (As of Date of Item 2 above):
a. Total of
Commitment (Loans and Facility
Letter of Credit Participations)*
under Credit
Agreement $
------
b. Assignee's
Percentage
of Facility
purchased under
the Assignment
Agreement** %
------
c. Amount of
Assigned Share
in Facility
purchased under
the Assignment
Agreement $
------
4. Assignee's Aggregate
(Loan Amount and Amount of
Participations in Facility Letters
of Credit)** Commitment
Amount Purchased Hereunder: $
-----
5. Proposed Effective Date: -------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------ ------------------
Title: Title:
------------------ ------------------
* If a Commitment has been terminated, insert outstanding Loans and
participations in Facility Letters of Credit in place of Commitment
** Percentage taken to 10 decimal places
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignee's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
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EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
_____, 19__
To: Yellow Corporation
_________
_________
The First National Bank of Chicago, as Agent
_________
_________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Revolving Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to the
Borrower and the Agent pursuant to Section 12.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ________, 19___ (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement, including,
without limitation, such interest in the Assignor's Commitment (if applicable)
and the Loans owing to the Assignor relating to such facilities. The Effective
Date of the Assignment shall be the later of the date specified in Item 5 of
Schedule 1 to the Assignment ("Schedule 1") or two Business Days (or such
shorter period as agreed to by the Agent) after this Notice of Assignment and
any fee required by Section 12.3.2 of the Credit Agreement have been delivered
to the Agent, provided that the Effective Date shall not occur if any condition
precedent agreed to by the Assignor and the Assignee has not been satisfied.
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4. The Assignor and the Assignee hereby give to the Borrower and the Agent
notice of the assignment and delegation referred to herein. The Assignor will
confer with the Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Agent to determine the
Effective Date pursuant to Section 3 hereof if it occurs thereafter. The
Assignor shall notify the Agent if the Assignment Agreement does not become
effective on any proposed Effective Date as a result of the failure to satisfy
the conditions precedent agreed to by the Assignor and the Assignee. At the
request of the Agent, the Assignor will give the Agent written confirmation of
the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before the
Effective Date the processing fee of $3,500 required by Section 12.3.2 of the
Credit Agreement.
6. The Assignor and the Assignee request and direct that the Agent prepare
and cause the Borrower to execute and deliver new Notes or, as appropriate,
replacement notes, to the Assignor and the Assignee. The Assignor and, if
applicable, the Assignee each agree to deliver to the Agent the original Notes
received by it from the Borrower upon its receipt of new Notes in the
appropriate amount.
7. The Assignee advises the Agent that notice and payment instructions are
set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. Each party consenting to the Assignment in the space indicated below
hereby releases the Assignor from any obligations to it which have been
assigned to the Assignee.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
------------------------------- -----------------------------
Print Name: Print Name:
------------------------------- -----------------------------
Title: Title:
------------------------------- -----------------------------
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED AND CONSENTED TO
BY [NAME OF AGENT] BY YELLOW CORPORATION
By: By:
------------------------------- -----------------------------
Print Name: Print Name:
------------------------------- -----------------------------
Title: Title:
------------------------------- -----------------------------
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SCHEDULE "1"
POTENTIAL LIABILITIES NOT PROVIDED FOR IN FINANCIAL STATEMENTS
None.
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SCHEDULE "2"
YELLOW CORPORATION SUBSIDIARIES
Jurisdiction of
Name Incorporation/Date
---- ------------------
I. Direct Subsidiaries of Yellow Corporation (incorporated 1/28/83 in Delaware)
Yellow Consolidation Services, Inc. Delaware (7/30/92)
Yellow Logistics Services, Inc. Delaware (7/29/91)
Yellow Services, Inc. Delaware (5/12/92)
OPK Insurance Co., Ltd. Bermuda (8/11/92)
WestEx, Inc. Arizona (9/24/80)
Yellow Freight System, Inc. Indiana (12/22/50)
Preston Corporation Maryland (3/02/83)
II. Direct Subsidiaries of Yellow Freight System, Inc.
Yellow Freight Mexicana S.A. de C.V. Mexico (12/21/90)
Yellow Freight System of British Columbia, Inc. Brit. Col., Canada (4/18/73)
Yellow Freight System of Ontario, Inc. Ontario, Canada (5/20/41)
Yellow Redevelopment Corporation Missouri (12/22/63)
Yellow Relocation Services Kansas (3/20/89)
Mission Supply Co. Kansas (11/03/80)
Yellow Receivables Corporation Delaware (7/23/96)
III. Direct Subsidiaries of Preston Corporation
Preston Trucking Company, Inc. Maryland (8/27/32)
▇▇▇▇ Motor Freight Line, Inc. Louisiana (6/08/59)
151 Tire, Inc. Maryland (12/1/95)
All subsidiaries are 100% owned by the respective owners shown above except for
Yellow Freight Mexicana S.A. de C.V., which is 99.9% owned by Yellow Freight
System, Inc.
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SCHEDULE "3"
NOTICES OF LEGAL OR REGULATORY VIOLATIONS
None.
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SCHEDULE "4"
SPECIFIED LIENS IN EXISTENCE ON THE CLOSING DATE
(Section 6.13(ix) Liens)
None.
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