[Conformed Copy]
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
AMONG
XTRA, INC.,
BANK OF AMERICA, N.A.
and
EACH OF THE OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
as Banks
with
BANK OF AMERICA, N.A.,
as Administrative Agent
FLEET NATIONAL BANK,
as Syndication Agent
and
BANK ONE, NA (Main Office Chicago),
as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger
and Sole Book Manager
TABLE OF CONTENTS
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Page
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1. DEFINITIONS........................................................... 1
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1.1 Defined Terms.................................................... 1
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1.2 Other Interpretive Provisions.................................... 14
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1.3 Accounting Principles............................................ 15
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2. THE CREDIT FACILITIES................................................. 15
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2.1 Amounts and Terms of Commitments................................. 15
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(a) The Revolving Credit........................................ 15
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(b) The Term Out Credit......................................... 15
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2.2 Notes............................................................ 15
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2.3 Procedure for Borrowing.......................................... 16
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2.4 Conversion and Continuation Elections............................ 16
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2.5 Voluntary Termination or Reduction of Commitment................. 18
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2.6 Prepayments...................................................... 18
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(a) Optional Prepayments........................................ 18
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(b) Mandatory Prepayment Upon Change of Control................. 18
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2.7 Repayment........................................................ 19
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(a) The Revolving Credit........................................ 19
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(b) The Term Out Credit......................................... 19
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2.8 Interest......................................................... 19
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2.9 Fees............................................................. 20
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(a) Arrangement, Agency Fees.................................... 20
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(b) Utilization Fee and Non-Use Fee............................. 20
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2.10 Computation of Interest.......................................... 21
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2.11 Payments by the Company.......................................... 21
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2.12 Payments by the Banks to the Administrative Agent................ 21
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3. TAXES, YIELD PROTECTION AND ILLEGALITY................................ 22
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3.1 Taxes............................................................ 22
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3.2 Illegality....................................................... 23
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3.3 Increased Costs and Reduction of Return.......................... 24
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3.4 Funding Losses................................................... 25
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3.5 Inability to Determine Rates..................................... 25
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3.6 Certificates of Banks............................................ 26
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3.7 Substitution of Banks............................................ 26
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3.8 Survival......................................................... 26
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4. CONDITIONS PRECEDENT.................................................. 26
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4.1 Conditions of Initial Loans...................................... 26
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4.2 Conditions to All Borrowings..................................... 27
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(a) Notice...................................................... 27
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(b) Continuation of Representations and Warranties............. 27
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(c) No Existing Default........................................ 27
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5. REPRESENTATIONS AND WARRANTIES....................................... 27
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5.1 Corporate Existence and Good Standing........................... 27
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5.2 Corporate Power; Consent; Absence of Conflict with Other
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Agreements...................................................... 28
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5.3 Title to Properties............................................. 28
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5.4 Financial Statements............................................ 29
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5.5 Holding Company and Investment Company Acts..................... 29
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5.6 Litigation...................................................... 29
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5.7 No Materially Adverse Contracts................................. 29
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5.8 Compliance with Other Instruments; Laws......................... 29
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5.9 Taxes........................................................... 30
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5.10 No Default...................................................... 30
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5.11 Use of Proceeds................................................. 30
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5.12 ERISA........................................................... 30
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5.13 Licenses and Approval........................................... 30
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5.14 Condition of Assets............................................. 30
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5.15 Subsidiaries.................................................... 31
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5.16 Full Disclosure................................................. 31
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6. AFFIRMATIVE COVENANTS................................................ 31
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6.1 Punctual Payment................................................ 31
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6.2 Financial Statements............................................ 31
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6.3 Notification of Defaults and Event of Default................... 32
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6.4 Conduct of Business............................................. 33
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6.5 Taxes........................................................... 33
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6.6 Maintenance of Properties....................................... 33
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6.7 Maintenance of Insurance........................................ 33
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6.8 Records and Accounts............................................ 33
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6.9 Inspection...................................................... 33
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6.10 Notice of Litigation............................................ 34
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6.11 Pension Plan.................................................... 34
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6.12 Depreciation Schedule........................................... 35
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6.13 Perform Obligations............................................. 35
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6.14 Comply with ERISA............................................... 35
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6.15 Environmental Compliance........................................ 35
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6.16 Debt Rating..................................................... 36
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7. CERTAIN NEGATIVE COVENANTS........................................... 36
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7.1 Liens........................................................... 36
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7.2 Maximum Secured Equipment Indebtedness of Company............... 37
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7.3 Maximum Equipment Indebtedness.................................. 37
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7.4 Consolidated Leverage Ratio..................................... 37
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7.5 Consolidated Cash Flow Coverage Ratio........................... 37
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7.6 Investments in the Parent...................................... 37
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7.7 Mergers, Acquisitions, etc..................................... 37
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7.8 Changes in Business............................................ 39
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7.9 ERISA.......................................................... 39
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8. EVENTS OF DEFAULT; ACCELERATION...................................... 39
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9. NOTICE AND WAIVERS OF DEFAULT........................................ 41
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9.1 Notice of Default.............................................. 41
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9.2 Waivers of Default............................................. 41
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10. REMEDIES ON DEFAULT.................................................. 41
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10.1 Rights of Banks................................................ 41
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10.2 Set-off; Sharing............................................... 42
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(a) Set-off................................................... 42
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(b) Sharing................................................... 42
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11. THE ADMINISTRATIVE AGENT............................................. 42
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11.1 Appointment and Authorization.................................. 42
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11.2 Delegation of Duties........................................... 43
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11.3 Liability of Administrative Agent.............................. 43
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11.4 Reliance by Administrative Agent............................... 43
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11.5 Notice of Default.............................................. 44
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11.6 Credit Decision................................................ 44
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11.7 Indemnification of Administrative Agent........................ 45
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11.8 Agents in Individual Capacity.................................. 45
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11.9 Successor Administrative Agent................................. 45
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11.10 Withholding Tax................................................ 46
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11.11 Syndication Agent and Documentation Agent...................... 47
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12. ASSIGNMENT; PARTICIPATION............................................ 47
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12.1 Assignments.................................................... 47
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12.2 Participations................................................. 48
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13. CONSENT TO JURISDICTION; WAIVER OF TRIAL BY JURY..................... 49
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14. BINDING ACT.......................................................... 49
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15. FEES AND EXPENSES; INDEMNITY......................................... 50
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15.1 Costs and Expenses............................................. 50
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15.2 Company Indemnification........................................ 50
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16. REMEDIES CUMULATIVE.................................................. 51
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17. FURTHER ASSURANCES................................................... 51
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18. SURVIVAL OF COVENANTS................................................ 51
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19. SEVERABILITY......................................................... 51
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20. NOTICE............................................................... 52
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21. GOVERNING LAW........................................................ 52
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22. MISCELLANEOUS........................................................ 53
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23. ENTIRE AGREEMENT..................................................... 53
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24. CONSENTS, AMENDMENTS AND WAIVERS..................................... 53
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25. OPTIONAL INCREASE IN COMMITMENTS..................................... 54
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JOINDER BY XTRA CORPORATION
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EXHIBITS
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EXHIBIT A Form of Promissory Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Notice of Conversion/Continuation
EXHIBIT D List of Closing Documents
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Assignment and Acceptance Agreement
EXHIBIT G Form of Request for Increase in Aggregate Commitment
EXHIBIT H Form of Guaranty
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SCHEDULES
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Schedule 1.1(A) Applicable Margin; Non-Use Fee; Utilization Fee
Schedule 1.1(B) Commitments and Pro Rata Shares
Schedule 5.12 Plans
Schedule 5.15 Subsidiaries
Schedule 6.12 Depreciation Schedule
Schedule 20 Eurodollar and Domestic Lending Offices; Addresses for Notices
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CREDIT AGREEMENT
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This CREDIT AGREEMENT ("Agreement") is entered into as of September 28,
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2000, among XTRA, INC., a Maine corporation (the "Company"), each lender from
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time to time party hereto (collectively, the "Banks" and individually, a
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"Bank"), and BANK OF AMERICA, N.A., as Administrative Agent.
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WHEREAS, the Company has requested that the Banks provide a revolving
credit facility, and the Banks are willing to do so on the terms and conditions
set forth herein;
WHEREAS, XTRA Corporation, a Delaware corporation, has agreed to execute
and deliver a guaranty of payment relating to the revolving credit facility as
more fully set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
1. DEFINITIONS.
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1.1 Defined Terms. The following terms have the following meanings:
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"Acquired Equipment Indebtedness" means, with respect to any specified
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Person, all Secured Equipment Indebtedness of such specified Person that was
incurred by another Person either (a) prior to the acquisition by such specified
Person of the Transportation Equipment, or leases thereof, securing such Secured
Equipment Indebtedness, or (b) prior to the acquisition by such specified Person
of the obligor with respect to such Secured Equipment Indebtedness (but, in each
case, only to the extent that at the time of such acquisition, such Secured
Equipment Indebtedness does not exceed the fair value of the Transportation
Equipment, or leases thereof, securing such Indebtedness). "Acquired Equipment
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Indebtedness" shall also include all extensions, renewals and refinancings of
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such Secured Equipment Indebtedness, but, in each case, only to the extent that
the principal amount thereof does not exceed the outstanding principal amount of
such Secured Equipment Indebtedness immediately prior to such extension, renewal
or refinancing.
"Adjusted Base Rate" means, for any day, an interest rate per annum equal
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to the sum of (a) the Base Rate and (b) the Applicable Margin, in each case for
such day.
"Adjusted Eurodollar Rate" means, for any day during any Interest Period,
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with respect to Eurodollar Loans comprising part of the same Borrowing, a rate
of interest per annum equal to the sum of (a) the Eurodollar Rate in effect for
such Interest Period, (b) the Reserve Charge in effect for such day, and (c) the
Applicable Margin in effect for such day.
1
"Administrative Agent" means Bank of America, in its capacity as
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administrative agent for the Banks hereunder, and any successor administrative
agent appointed pursuant to Section 11.9.
"Administrative Agent-Related Persons" means Bank of America and any
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successor agent appointed pursuant to Section 11.9, together with their
respective affiliates (including, in the case of Bank of America, the Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and affiliates.
"Administrative Agent's Payment Office" means the address for payments set
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forth on Schedule 20 in relation to the Administrative Agent, or such other
address as the Administrative Agent may from time to time specify hereunder.
"Affected Bank" has the meaning specified in Section 3.7.
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"Agents" means, collectively, the Administrative Agent, the Syndication
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Agent and the Documentation Agent.
"Agreement" means this Credit Agreement.
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"Applicable Margin" means, for any day with respect to any Revolving Loan
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or Term Out Loan, as the case may be, the respective percentages set forth on
Schedule 1.1(A) corresponding to the Type of such Loan and the higher on such
day of the Company's Debt Ratings; provided, that if, at any time, neither of
the Rating Agencies rates the Company's long-term senior unsecured debt, then
the respective percentages set forth in Column V of Schedule 1.1(A) shall be
used to determine the Applicable Margin. Notwithstanding the foregoing, at any
time that the Company's Debt Ratings differ by more than one level, then the
rating level that is one level higher than the lower Debt Rating shall apply.
Initially, the Applicable Margin shall be determined based upon the respective
percentages set forth in Column II of Schedule 1.1(A). Thereafter, any change
in the Applicable Margin resulting from a change in a rating of the Company's
Debt Rating shall become effective one Business Day after the effective date of
such change.
"Arranger" means Banc of America Securities LLC, a Delaware limited
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liability company.
"Assignee" has the meaning specified in subsection 12.1(a).
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"Assignment and Acceptance" has the meaning specified in subsection
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12.1(a).
"Attorney Costs" means and includes all reasonable fees and disbursements
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of any law firm or other external counsel, the reasonable allocated cost of
internal legal services and all reasonable disbursements of internal counsel.
"Bank of America" means Bank of America, N.A., a national banking
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association.
2
"Balance Sheet Date" means September 30, 1999.
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"Bank" means each of the financial institutions listed on the signature
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pages hereto and each other financial institution which from time to time
becomes a party hereto pursuant to subsection 12.1(a).
"Base Rate" means, for any day, a fluctuating rate per annum equal to the
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higher of: (a) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its "prime rate"; and (b)
0.50% above the Federal Funds Rate for such day. The "prime rate" is a rate set
by Bank of America based upon various factors including Bank of America's costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the prime rate announced by Bank of
America shall take effect at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Adjusted
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Base Rate.
"Borrowing" means (i) a borrowing under Section 2 consisting of Loans of
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the same Type (and in the case of Eurodollar Loans, having the same Interest
Period) made to the Company on the same day by the Banks, or (ii) one or more
Borrowings converted or continued by the Company under Section 2 on the same day
into a Borrowing of Loans of the same Type (and in the case of Eurodollar Loans,
having the same Interest Period).
"Borrowing Date" means, with respect to a Borrowing, the day on which such
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Borrowing occurs.
"Business Day" means any day on which commercial banking institutions in
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Boston, Massachusetts; Dallas, Texas; Chicago, Illinois; and New York, New York,
are each open for the transaction of banking business; and, if the applicable
Business Day relates to any Eurodollar Loan, means such a day on which dealings
in Dollar deposits are conducted by and between banks in the applicable offshore
Dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive of
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any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capitalized Lease" means any lease with respect to which the obligations
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of the lessee thereunder are required to be capitalized and included in
determining total liabilities of such lessee, in accordance with Financial
Accounting Standard No. 13 of the Financial Accounting Standards Board as in
effect on the Balance Sheet Date.
"Cash" means, with respect to any Person, cash and cash equivalents of such
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Person, in each case as determined in accordance with GAAP.
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"Cash Flow" means, for any period, the sum of (a) Cash Flow From Continuing
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Operations for such period, (b) Interest Charges for such period, and (c)
payments in respect of Lease Obligations (other than any such payments in
respect of obligations under Capitalized Leases) for such period, all as
determined in accordance with GAAP.
"Cash Flow From Continuing Operations" means, for any period (a) cash flow
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from continuing operations for such period minus (b) the aggregate amount of the
cash portion of all charges as extraordinary items of expense (if any) made
during such period, all determined in accordance with GAAP.
"Cash Requirements" means, for any period, the sum of (a) Interest Charges
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(excluding imputed interest, accrued original issue discount and interest
payable in kind) for such period, (b) payments (excluding optional prepayments)
due and payable in respect of Lease Obligations (other than such Obligations
under Capitalized Leases) for such period, and (c) scheduled payments of
principal on long-term Indebtedness (including current maturities of long-term
Indebtedness) due and payable pursuant to any document relating to the borrowing
of money or the obtaining of credit (including any such principal payments in
respect of Lease Obligations under Capitalized Leases) for such period, all as
determined in accordance with GAAP.
"Change of Control" means (a) the acquisition by any Person of beneficial
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ownership (within the meaning of the Securities Exchange Act of 1934 and the
rules thereunder as in effect on the date hereof of the Securities and Exchange
Commission) of 50% or more of the outstanding common stock of the Parent
entitled to vote generally in the election of directors; or (b) individuals who,
as of the date hereof, constitute the Board of Directors of the Parent (the
"Incumbent Board") cease for any reason to constitute at least a majority of
such board; provided, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Parent's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board.
"Change of Control Prepayment Date" has the meaning specified in subsection
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2.6(b).
"Closing Date" means the date on which all conditions precedent set forth
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in Section 4.1 are satisfied or waived by all Banks (or, in the case of
subsection 4.1(c), by the Person entitled to receive such payment) and the
initial Loans are made hereunder.
"Code" means the Internal Revenue Code of 1986.
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"Collateral Trustee" has the meaning specified in Section 7.1.
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"Commitment" means an amount equal to ONE HUNDRED EIGHT MILLION AND
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NO/100THS DOLLARS ($108,000,000), as such amount may be reduced from time to
time pursuant to Section 2.5 and increased pursuant to Section 25.
"Company" means XTRA, Inc., a Maine corporation.
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"Compliance Certificate" has the meaning specified in subsection 6.2(a).
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"Consolidated" or "consolidated" means, with reference to each such term,
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that term as applied to the accounts of the Person in question and its
Subsidiaries consolidated in accordance with GAAP, after eliminating all
intercompany items.
"Controlled Group" means, collectively, all members of a controlled group
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of corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414(b), 414(c) or 414(m) of the Code and Section
4001(a)(2) of ERISA.
"Conversion/Continuation Date" means any date on which, under Section 2.4,
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the Company (a) converts Loans of one Type to another Type, or (b) continues as
Loans of the same Type, but with a new Interest Period, Loans having Interest
Periods expiring on such date.
"Debt Rating" means the respective ratings assigned to the Company's long-
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term senior unsecured debt by the Rating Agencies.
"Default" means any event or circumstance which, with the giving of notice,
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the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
"Documentation Agent" means Bank One, NA (Main Office Chicago) a national
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banking association, in its capacity as documentation agent for the Banks
hereunder.
"Eligible Assignee" means (a) a commercial bank organized under the laws of
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the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the laws
of any other country which (unless the Company shall otherwise consent thereto)
is a member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting through a
branch or agency located in the United States; and (c) a Person that is
primarily engaged in the business of commercial banking and that is (i) a
Subsidiary of a Bank, (ii) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (iii) a Person of which a Bank is a Subsidiary.
"Environmental Matter" means a release of any Hazardous Material into the
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environment or the generation, treatment, storage or disposal of any Hazardous
Material.
"Environmental Laws" means, collectively, all environmental, health and
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safety laws, regulations, resolutions, and ordinances applicable to the Company
or any of its Subsidiaries or any of their respective assets or properties,
including: (a) all regulations, resolutions, ordinances, decrees, and other
similar documents and instruments of all courts and Governmental Authorities,
whether issued by environmental regulatory agencies or otherwise, and (b) all
laws, regulations, resolutions, ordinances and decrees relating to Environmental
Matters.
5
"Environmental Liability" means any liability under any applicable law for
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any release of a Hazardous Material caused by the seeping, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing of Hazardous Material into the environment, and
any liability for the costs of any clean-up or other remedial action, including
costs arising out of security fencing, alternative water supplies, temporary
evacuation and housing and other emergency assistance undertaken by any
environmental regulatory body having jurisdiction over the Company or any of its
Subsidiaries to prevent or minimize any actual or threatened release by the
Company or any of its Subsidiaries of any Hazardous Material into the
environment.
"Environmental Proceeding" means any judgment, action, proceeding or
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investigation pending before any court or Governmental Authority, including, any
environmental regulatory body, with respect to or threatened against or
affecting the Company or any of its Subsidiaries or relating to the assets or
liabilities of any of them, including, in respect of any "facility" owned,
leased or operated by any of them under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or under any
state, local or municipal statute, ordinance or regulation in respect thereof,
in connection with any release of any Hazardous Material into the environment,
or with the generation, storage or disposal of any Hazardous Material.
"Equipment Indebtedness" means, with respect to any Person, (a) all
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Indebtedness of such Person minus (b) Indebtedness of such Person secured by a
lien on all or any part of the real property (including improvements thereon)
owned by such Person; provided, that Indebtedness of such Person described in
clause (b) above shall be excluded only to the extent that the amount of such
Indebtedness does not exceed the greater of the cost or appraised value of the
real property and improvements securing such Indebtedness, at the time such
Indebtedness was incurred.
"ERISA" means the Employee Retirement Income Security Act of 1974.
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"Eurodollar Loan" means a Loan that bears interest based on the Adjusted
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Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period, with respect to
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Eurodollar Loans comprising part of the same Borrowing:
(a) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate screen (or
any successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not appear
on such page or service or such page or service shall cease to be available, the
rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate on such other page or other service
6
that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest (rounded upward to the next 1/100th of 1%) at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the
offshore Dollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Event of Default" has the meaning specified in Section 8.
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"Existing Credit Agreement" means that certain Amended and Restated Credit
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Agreement dated as of June 30, 1999 among the Company, Bank of America, as
administrative agent, and a syndicate of lenders.
"Fee Letter" means the letter agreement dated August 7, 2000, among the
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Company, the Arranger and the Administrative Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
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upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Five-Year Agreement" means that certain Five-Year Credit Agreement dated
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as of the date hereof among the Company, the Administrative Agent and the other
lenders from time to time parties thereto.
"Five-Year Commitment" means the Commitment under (and as defined in) the
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Five-Year Agreement.
"Five-Year Loans" means Loans under (and as defined in) the Five-Year
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Agreement.
"Foreign Lender" has the meaning specified in Section 11.10.
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7
"FRB" means the Board of Governors of the Federal Reserve System, and any
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Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles which (a) are the
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principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors, in effect on the Balance Sheet Date; (b) are such that a
certified public accountant would, insofar as the use of accounting principles
is pertinent, be in a position to deliver an unqualified opinion as to financial
statements in which such principles as in effect on the Balance Sheet Date have
been properly applied; and (c) are applied on a basis consistent with prior
periods; provided that for purposes of the financial statements required to be
delivered pursuant to Section 6.2, and for purposes of Section 6.8, GAAP shall
mean generally accepted accounting principles, as in effect from time to time.
"Governmental Authority" means any nation or government, any state or other
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political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty" means the Guaranty dated as of the date hereof, executed and
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delivered by the Parent for the benefit of the Agents and the Banks
substantially in the form of Exhibit H.
"Hazardous Material" means any substance (i) the presence of which requires
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or may hereafter require notification, investigation or remediation under any
federal, state or local statute, regulation, or rule, ordinance, order, action
or policy; (ii) which is or becomes defined as a "hazardous waste", "hazardous
material" or "hazardous substance" or "controlled industrial waste" or
pollutant" or "contaminant" under any present or future federal, state or local
statute, regulation, rule or ordinance or amendments thereto, including the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
section 9601 et seq.) and any applicable local statutes and the regulations
promulgated thereunder; (iii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is
or becomes regulated by any Governmental Authority; (iv) the presence of which
would endanger the public health or the environment; (v) without limitation,
which contains gasoline, diesel fuel or other petroleum hydrocarbons or volatile
organic compounds; (vi) without limitation, which contains polychlorinated
biphenyls (PCBs) or asbestos or urea formaldehyde foam insulation; or (vii)
without limitation, which contains or emits radioactive particles, waves or
material, including radon gas.
"Indebtedness" means, with respect to any Person, (a) the principal amount
------------
of all indebtedness of such Person (i) for borrowed money, (ii) for the deferred
purchase price of property, unless the price thereof was payable in full within
twelve months from the date on which the obligation was created, or (iii)
evidenced by notes, bonds or other instruments; (b) all Lease Obligations of
such Person; and (c) all guaranties and other contingent obligations of such
Person in respect of all indebtedness referred to in the foregoing clauses (a)
and (b) of any other Person.
8
"Indemnified Liabilities" has the meaning specified in Section 15.2.
-----------------------
"Indemnified Person" has the meaning specified in Section 15.2.
------------------
"Independent Accountant" means a firm of independent public accountants of
----------------------
national reputation selected by the Company or the Parent, as the case may be,
which is "independent" as that term is defined in Rule 2-01 of Regulation S-X
promulgated by the Securities and Exchange Commission.
"Interest Charges" means, for any period, all expenses (net of any interest
----------------
income earned during such period) accrued for interest (including imputed
interest, accrued original issue discount and interest payable in kind) on all
Indebtedness for such period (including Indebtedness consisting of Lease
Obligations in respect of Capitalized Leases, but excluding Indebtedness
consisting of Lease Obligations other than Capitalized Leases), all as
determined in accordance with GAAP.
"Interest Payment Date" means, as to any Loan other than a Base Rate Loan,
---------------------
the last day of each Interest Period applicable to such Loan and, as to any Base
Rate Loan, the last Business Day of each calendar quarter; provided, that if any
Interest Period for a Eurodollar Loan exceeds three months, the date that falls
three months after the beginning of such Interest Period and after each Interest
Payment Date thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Eurodollar Loan, the period commencing
---------------
on the Borrowing Date of such Loan or on the Conversion/Continuation Date on
which the Loan is converted into or continued as a Eurodollar Loan, and ending
on the date one, two, three or six months thereafter, as selected by the Company
in its Notice of Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month in which such Interest Period would end) shall
end on the last Business Day of the calendar month in question; and
(iii) no Interest Period for any Revolving Loan shall extend beyond
the Term Out Date; and no Interest Period for any Term Out Loan shall
extend beyond the Termination Date.
"Investment" means any loans, capital contributions, advances, transfers of
----------
assets (other than transfers for fair value as determined by the transferring
Person in good faith) and any purchases and other acquisitions for consideration
of evidences of Indebtedness, capital stock or
9
other securities. With respect to a parent corporation's investment in a
consolidated Subsidiary, "Investment" shall also include any retained earnings
of such Subsidiary reflected on the consolidated balance sheet of such parent
and its Subsidiaries.
"IRS" means the Internal Revenue Service, and any Governmental Authority
---
succeeding to any of its principal functions.
"Joinder" means, the Joinder attached hereto and made a part hereof made by
-------
the Parent for the benefit of the Administrative Agent and the Banks.
"Lease Obligation" means, with respect to any Person, all rental
----------------
obligations of such Person under leases of property (other than electronic data
processing, computer and similar equipment and leases of real property) either
(a) which are Capitalized Leases, or (b) if not Capitalized Leases, which are
leases of equipment which had an initial term of more than three (3) years
(including any renewal terms at the option of the lessor thereof). The amount of
Lease Obligations shall be equal to the aggregate value of rentals payable
(other than rentals consisting of taxes, indemnities, maintenance items,
replacements and other similar charges which are in addition to the basic
financial rent for the use of the property) by the lessee thereof during the
remaining term thereof, including periods of renewal at the option of the
lessor, discounted to present value using the lessee's "incremental borrowing
rate at the inception of the lease" in accordance with Financial Accounting
Standard No. 13 of the Financial Accounting Standards Board in effect on the
Balance Sheet Date.
"Lending Office" means, as to any Bank, the office or offices of such Bank
--------------
specified as its "Lending Office" or "Domestic Lending Office" or "Eurodollar
Lending Office", as the case may be, on Schedule 20, or such other office or
offices as such Bank may from time to time notify the Company and the
Administrative Agent.
"Liabilities" means, with respect to any Person at any date as of which the
-----------
amount thereof shall be determined, an amount equal (without duplication) to (a)
all liabilities of such Person determined in accordance with GAAP plus (b) all
Indebtedness of such Person plus (c) the aggregate amount of such Person's
reimbursement obligations in respect of letters of credit minus (d) the
aggregate deferred income tax liability of such Person.
"Liens" has the meaning assigned to such term in Section 7.1.
-----
"Loan" means an extension of credit by a Bank to the Company under Section
----
2, including each Revolving Loan and Term Out Loan, and may be a Base Rate Loan
or Eurodollar Loan (each, a "Type" of Loan).
"Loan Documents" means, collectively, this Agreement, the Notes, the Fee
--------------
Letter, the Guaranty and such other documents as the parties thereto designate
in writing to be Loan Documents.
10
"Majority Banks" means, at any time, Banks holding at such time at least
--------------
51% of the then aggregate unpaid principal amount of the Loans, or, if no such
principal amount is then outstanding, Banks then having at least 51% of the
Commitments.
"Material Adverse Effect" means, with respect to any Person, a material
-----------------------
adverse change in, or a material adverse effect upon, the operations, business,
properties or condition (financial or otherwise) of such Person and its
Subsidiaries taken as a whole.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc. or any successor thereto
-------
performing the same function.
"Multi-employer Plan" means a "Multi-employer Plan" as defined in Section
-------------------
4001(a)(3) of ERISA with respect to which the Company or any other member of a
Controlled Group is making, or is obligated to make, contributions or has made,
or been obligated to make, contributions.
"Net Book Value" means, with respect to Transportation Equipment of any
--------------
Person, (a) in the case of Transportation Equipment owned by such Person and
leased by such Person as lessor under leases the rentals from which are carried
as a finance lease receivable on the balance sheet of such Person in accordance
with GAAP, the sum of (i) the net amounts carried as receivables on the balance
sheet of such Person in respect of such leases, and (ii) the residual value of
all Transportation Equipment subject to such leases, all computed in accordance
with GAAP; (b) in the case of other Transportation Equipment owned by such
Person, the initial cost of the Transportation Equipment to such Person as
carried on the balance sheet of such Person depreciated by such Person in
accordance with GAAP and in accordance with the depreciation schedule for such
Transportation Equipment set forth on Schedule 6.12; (c) in the case of
Transportation Equipment leased by such Person as lessee under a Capitalized
Lease, the amount shown on the asset side of the balance sheet of such Person in
accordance with Financial Accounting Standard No. 13 adopted by the Financial
Accounting Standards Board, as in effect on the Balance Sheet Date in respect of
such Transportation Equipment; and (d) in the case of Transportation Equipment
leased by a Person as lessee under a lease which is not a Capitalized Lease but
which is included as a Lease Obligation under this Agreement, the amount of such
Lease Obligation.
"Net Worth" means, at any date as of which the amount thereof shall be
---------
determined with respect to any Person, the sum of the following amounts which
would be set forth on a balance sheet of such Person on such date, in each case
as determined in accordance with GAAP: (a) the par value (or values stated on
the books of such Person) of the capital stock of all classes of such Person,
other than capital stock held in the treasury of such Person, plus (b) the
amount of the surplus, whether capital or earned, of such Person, minus (c) the
amount which would be carried in the asset side of such balance sheet of such
Person in respect of goodwill, trade names, trademarks, patents, unamortized
debt issuance expense and other intangibles, minus (d) any increase in the net
book value of fixed assets arising from a revaluation thereof after September
30, 1999.
11
"Non-Use Fee" has the meaning specified in subsection 2.9(b)(ii).
-----------
"Note" means a promissory note executed by the Company in favor of a Bank,
----
in substantially the form of Exhibit A.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
-------------------
B.
"Notice of Conversion/Continuation" means a notice in substantially the
---------------------------------
form of Exhibit C.
"Obligations" means all unsatisfied indebtedness, obligations and
-----------
liabilities of the Company to any Bank, Agent or Indemnified Person, arising or
incurred under this Agreement or in respect of the Loans made or any notes or
other instruments at any time evidencing any of the foregoing, whether direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise.
"Other Taxes" means any present or future stamp or documentary taxes or
-----------
similar levies which arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.
"Parent" means XTRA Corporation, a Delaware corporation.
------
"Participant" has the meaning specified in Section 12.2.
-----------
"PBGC" means the Pension Benefit Guaranty Corporation, created by Section
----
4002 of ERISA, and any Governmental Authority succeeding to any of its
principal functions under ERISA.
"Person" means any individual, corporation (including a business trust),
------
partnership, trust, unincorporated association, joint stock company or other
legal entity or organization and any government or agency or political
subdivision thereof.
"Plan" means, at any time, an employee pension benefit plan as defined in
----
Section 3(2) of ERISA (including Multi-employer Plans) that at such time is
either: (a) maintained by any member of a Controlled Group, or (b) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which any member of a
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions.
"Pro Rata Share" means, as to any Bank, the percentage amount (expressed as
--------------
a decimal, rounded to the ninth decimal place) set forth on Schedule 1.1(B) with
respect to such Bank.
"Purchase Money Equipment Indebtedness" means, with respect to any Person,
-------------------------------------
all Indebtedness of such Person which is Secured Equipment Indebtedness and
which is incurred to
12
finance the purchase of Transportation Equipment if such Indebtedness (a) shall
have been incurred within one hundred and eighty (180) days of the acquisition
of such Transportation Equipment by the Person whose Purchase Money Equipment
Indebtedness is being determined and (b) does not exceed in principal amount the
initial cost of such Transportation Equipment and shall include all extensions,
renewals and refinancings of such Indebtedness not in excess of the principal
amount thereof outstanding immediately prior to such extension, renewal or
refinancing. The initial cost of Transportation Equipment may include, in
addition to the purchase price thereof and the purchase price of all accessories
and equipment installed thereon, all freight, delivery and handling charges,
excise, sales and use taxes and all other amounts which may be capitalized and
included in the cost of the equipment under GAAP.
"Rating Agencies" means ▇▇▇▇▇'▇ and S&P (or any other nationally recognized
---------------
rating agency acceptable to the Administrative Agent and the Banks that may be
substituted for ▇▇▇▇▇'▇ or S&P).
"Requirement of Law" means, as to any Person, any law (statutory or
------------------
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon such Person
or any of its assets or to which such Person or any of its assets is subject.
"Reserve Charge" means, for any day for any Interest Period, with respect
--------------
to Eurodollar Loans comprising part of the same Borrowing, a percentage amount
equal to the difference of (a) a fraction (expressed as a percentage) the
numerator of which is the Eurodollar Rate (expressed as a decimal) and the
denominator of which is one minus the Reserve Rate, minus (b) the Eurodollar
-----
Rate (as so expressed).
"Reserve Rate" means, for any day for any Interest Period, the maximum
------------
reserve percentage (expressed as a decimal, rounded upward to the next 1/100th
of 1%) in effect on such day (whether or not applicable to any Bank) under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred to
as "Eurocurrency liabilities").
"Revolving Loan" has the meaning specified in subsection 2.1(a).
--------------
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-
---
Hill Companies, Inc., or any successor thereto performing the same function.
"Secured Equipment Indebtedness" means, with respect to any Person, all
------------------------------
Indebtedness which is secured by any Lien on the Transportation Equipment of
such Person or on leases by such Person of any such Transportation Equipment and
includes all Lease Obligations. Transportation Equipment which is subject to a
lease or contract which is included as a Lease Obligation is deemed to secure
the Indebtedness evidenced thereby.
13
"Secured Indebtedness" means, with respect to any Person, all Indebtedness
--------------------
which is secured by any Lien on any asset of such Person or on any lease by such
Person of any such assets, and includes all Lease Obligations of such Person.
"Subsidiary" of a Person means any corporation, association, partnership,
----------
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by such Person, or one or more of the Subsidiaries of such Person, or
a combination thereof.
"Syndication Agent" means Fleet National Bank, in its capacity as
-----------------
syndication agent for the Banks hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agents, taxes imposed on such
Person's net income and franchise taxes imposed on such Person, except in a
jurisdiction in which such Person is not doing any business except making loans
to the Company hereunder.
"Term Out Date" means September 26, 2001.
-------------
"Term Out Loan" has the meaning specified in subsection 2.1(b).
-------------
"Termination Date" means the first anniversary of the Term Out Date.
----------------
"Transportation Equipment" means containers, trucks, tractors, trailers,
------------------------
chassis, cranes, portable ramps, lifting equipment, railroad rolling stock,
modular office units and mobile office trailers, and includes all accessories
and attachments thereto.
"Type" has the meaning specified in the definition of "Loan".
----
"United States" and "U.S." each mean the United States of America.
------------- ----
"Utilization Fee" has the meaning specified in subsection 2.9(b)(i).
---------------
"Welfare Plan" means, with respect to any member of a Controlled Group at
------------
any time, an employee welfare benefit plan as defined in Section 3(1) of ERISA
that is maintained for the employees of such member at such time.
1.2 Other Interpretive Provisions.
-----------------------------
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
14
(b) The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation".
(iii) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including".
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all exhibits and schedules thereto, subsequent amendments,
restatements and other modifications thereof, and supplements thereto, but only
to the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or regulation are
to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by respective counsel to the Agents,
the Banks and the Company and are the products of all parties. Accordingly,
they shall not be construed against any Agent or Bank merely because of such
Person's involvement in their preparation.
(h) As used in the definition of the term "Applicable Margin" and Section
2.9, the term "rating" shall include "preliminary" or "indicative" senior debt
ratings or their equivalents.
1.3 Accounting Principles. Unless the context otherwise clearly requires,
---------------------
all accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP.
2. THE CREDIT FACILITIES.
---------------------
2.1 Amounts and Terms of Commitments.
--------------------------------
15
(a) The Revolving Credit. Each Bank severally agrees, on the terms and
--------------------
conditions set forth herein, upon request of the Company to make loans to the
Company (each such loan, a "Revolving Loan") from time to time on any Business
Day during the period from the Closing Date to the Term Out Date, in an
aggregate outstanding amount not to exceed at any time such Bank's Pro Rata
Share of the Commitment; provided, that, after giving effect to any Borrowing of
Revolving Loans, the aggregate outstanding amount of the Revolving Loans shall
not exceed the Commitment in effect at such time. Within the limits of each
Bank's Pro Rata Share of the Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this subsection 2.1(a), prepay
under Section 2.6 and reborrow under this subsection 2.1(a).
(b) The Term Out Credit. Each of the Banks severally agrees, on the terms
-------------------
and conditions set forth herein, upon not less than five Business Days' prior
written notice from the Company to the Administrative Agent (which shall
promptly notify each Bank of its receipt of such notice and of the amount of
such Bank's Pro Rata Share of the aggregate principal amount of the Term Out
Loans requested), to convert, on the Term Out Date, all or any portion of each
Revolving Loan outstanding in favor of such Bank on such date into a term loan
in an equal amount (each such converted Revolving Loan, a "Term Out Loan"), so
long as on such date the aggregate amount of all (or the same portion) of the
outstanding Revolving Loans of each of the other Banks shall also be so
converted. Term Out Loans which are subsequently repaid or prepaid by the
Company may not be reborrowed.
2.2 Notes. The Loans made by each Bank shall be evidenced by one or more
-----
Notes. Each Bank shall record in its records or, at its option, endorse on the
schedules annexed to its Note(s), the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the Company with
respect thereto. Each Bank is irrevocably authorized by the Company to endorse
its Note(s) and each Bank's record shall be rebuttable presumptive evidence of
the principal amount owing and unpaid on such Note(s); provided, that the
failure of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank.
2.3 Procedure for Borrowing.
-----------------------
(a) Each Borrowing (including any Borrowing on the Closing Date) shall be
made upon the Company's irrevocable written notice delivered to the
Administrative Agent in the form of a Notice of Borrowing, which notice must be
received by the Administrative Agent prior to 11:00 a.m. (Dallas time), (i)
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans; and (ii) on the requested Borrowing Date, in the case of Base
Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an aggregate
minimum amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof (and the respective portions, if any, thereof comprised of
Revolving Loans or Term Out Loans);
16
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable to any Eurodollar
Loans included in such notice. If the Notice of Borrowing fails to specify
the duration of the Interest Period for any Borrowing comprised of
Eurodollar Loans, such Interest Period shall be one month.
(b) The Administrative Agent will promptly notify each Bank of its receipt
of any Notice of Borrowing and of the amount of such Bank's Pro Rata Share of
that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each Borrowing
available to the Administrative Agent for the account of the Company at the
Administrative Agent's Payment Office by 1:00 p.m. (Dallas time) on the
Borrowing Date requested by the Company in funds immediately available to the
Administrative Agent. The proceeds of all such Loans will then be made
available to the Company by the Administrative Agent by wire transfer in
accordance with written instructions provided to the Administrative Agent by the
Company of like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, there may not be more than ten
(10) different Interest Periods in effect.
2.4 Conversion and Continuation Elections.
-------------------------------------
(a) The Company may, upon irrevocable written notice to the Administrative
Agent in accordance with subsection 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans, or
as of the last day of the applicable Interest Period, in the case of
Eurodollar Loans, to convert any such Loans (or any part thereof in an
amount not less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof) into Loans of the other Type; or
(ii) elect, as of the last day of the applicable Interest Period, to
continue as Eurodollar Loans for another Interest Period any Eurodollar
Loans having Interest Periods expiring on such day (or any part thereof in
an amount not less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Eurodollar Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to less than $1,000,000, such Eurodollar Loans shall automatically
convert into Base Rate Loans, and on and after such date the right of the
Company to continue such Loans as, and convert such Loans into, Eurodollar
Loans, as the case may be, shall terminate.
17
(b) The Company shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than 11:00 a.m. (Dallas time) at
least (i) three Business Days in advance of the Conversion/Continuation Date, if
the Loans are to be converted into or continued as Eurodollar Loans; and (ii) on
the Conversion/Continuation Date, if the Loans are to be converted into Base
Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued (and
the respective portions, if any, thereof comprised of Revolving Loans or
Term Out Loans);
(C) the Type of Loans resulting from the proposed conversion or
continuation; and
(D) other than in the case of conversions into Base Rate Loans, the
duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to Eurodollar
Loans, the Company has failed to select timely a new Interest Period to be
applicable to such Loans, or if any Default or Event of Default then exists, the
Company shall be deemed to have elected to convert such Loans into Base Rate
Loans effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Bank of its receipt
of a Notice of Conversion/Continuation, or, if no timely notice is provided by
the Company, the Administrative Agent will promptly notify each Bank of the
details of any automatic conversion. All conversions and continuations shall be
made ratably according to the respective outstanding principal amounts of the
Loans held by each Bank with respect to which the notice was given.
(e) Unless the Majority Banks otherwise agree, during the existence of a
Default or Event of Default, the Company may not elect to have a Loan converted
into or continued as a Eurodollar Loan.
(f) After giving effect to any conversion or continuation of Loans, there
may not be more than ten (10) different Interest Periods in effect.
2.5 Voluntary Termination or Reduction of Commitment. The Company may,
------------------------------------------------
upon not less than five Business Days' prior notice to the Administrative Agent
(which shall promptly notify each Bank thereof), terminate the Commitment, or
permanently reduce the Commitment by an aggregate minimum amount of $5,000,000
or any multiple of $1,000,000 in excess thereof; unless, after giving effect
thereto and to any prepayments of Revolving Loans made on the effective date
thereof, the then-outstanding principal amount of the Revolving Loans would
exceed the amount of the Commitment then in effect. Once reduced in accordance
with this Section 2.5, the Commitment may not be increased. Any reduction of
the Commitment shall be applied to each Bank according to its Pro Rata Share.
All Non-Use Fees and Utilization Fees accrued until the effective date of any
reduction or termination of the Commitment shall be paid on such date.
18
2.6 Prepayments.
-----------
(a) Optional Prepayments. Subject to Section 3, the Company may, at any
--------------------
time or from time to time, upon not less than (i) in the case of Base Rate
Loans, one Business Day's irrevocable notice to the Administrative Agent, and
(ii) in the case of Eurodollar Loans, three Business Days' irrevocable notice to
the Administrative Agent (which shall in each case promptly notify each Bank
thereof), ratably prepay Loans in whole or in part, in minimum amounts of
$1,000,000 or any multiple of $100,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment, whether the
Loans to be prepaid are Revolving Loans or Term Out Loans, and the Type(s) of
Loans to be prepaid. The Administrative Agent will promptly notify each Bank of
its receipt of any such notice, and of such Bank's Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together, if such prepayment is a
prepayment of Eurodollar Loans or Term Out Loans, with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to Section 3.
Term Out Loans which are prepaid by the Company may not be reborrowed.
(b) Mandatory Prepayment Upon Change of Control. No later than the date
-------------------------------------------
of the occurrence of any Change of Control, the Company shall give written
notice thereof to the Administrative Agent accompanied by a certificate of any
one of the president, the chief financial officer or the general counsel of the
Company specifying the nature of such Change of Control and the date on which
such Change of Control occurred. Such notice shall (a) contain the written,
irrevocable offer of the Company to prepay in full all Obligations of the
Company (including, without limitation, all Obligations under Section 3 hereof)
on a date (the "Change of Control Prepayment Date") specified in such notice
(which date shall in no event be later than the date which is five (5) Business
Days after the date such Change of Control shall have occurred), (b) state that,
unless the Company receives written notice to the contrary from the
Administrative Agent at the direction of the Majority Banks not later than one
Business Day prior to the Change of Control Prepayment Date, the Company's offer
to prepay under this subsection 2.6(b) shall be deemed to have been accepted by
the Administrative Agent at the direction of the Majority Banks, (c) state the
outstanding principal amount under each of the Notes as of the date of such
notice and (d) contain such additional information as the Administrative Agent
or any Bank shall reasonably request. If the Company does not receive written
notice from the Administrative Agent on or before the Business Day preceding the
Change of Control Prepayment Date, of the election of the Administrative Agent
at the direction of the Majority Banks not to accept the offer of the Company to
prepay as described above, all Obligations shall become immediately due and
payable by the Company on the Change of Control Prepayment Date and the
Commitment shall be terminated on such date.
2.7 Repayment.
---------
(a) The Revolving Credit. Unless and to the extent the Revolving Loans
--------------------
are converted on the Term Out Date to Term Out Loans pursuant to subsection
2.1(b), the Company
19
shall repay to the Banks on the Term Out Date the aggregate principal amount of
Revolving Loans outstanding on such date, plus all accrued and unpaid interest
thereon.
(b) The Term Out Credit. The Company shall repay to the Banks on the
-------------------
Termination Date the aggregate principal amount of Term Out Loans outstanding on
such date, plus all accrued and unpaid interest thereon.
2.8 Interest.
--------
(a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Adjusted Eurodollar Rate or the Adjusted Base Rate, as the case may be (and
subject to the Company's right to convert to other Types of Loans under Section
2.4).
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Eurodollar Loans or Term Out Loans under Section 2.6 for the portion of the
Eurodollar Loans or Term Out Loans so prepaid and upon payment (including
prepayment) in full of the Loans and also, during the existence of any Event of
Default, interest shall be paid on demand of the Administrative Agent at the
request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section 2.8, if any amount of
principal of or interest on any Loan, or any other amount payable hereunder or
under any other Loan Document is not paid in full when due (whether at stated
maturity, by acceleration, demand or otherwise), the Company agrees to pay
interest on such unpaid principal or other amount, from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand, at a fluctuating rate per annum equal to the interest rate otherwise
applicable hereunder plus two percent (2%).
(d) Anything herein to the contrary notwithstanding, the obligations of
the Company to any Bank hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Bank would be contrary to the provisions of
any law applicable to such Bank limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Bank, and in such event
the Company shall pay such Bank interest at the highest rate permitted by
applicable law.
2.9 Fees.
----
(a) Arrangement, Agency Fees. The Company shall pay all of the fees
------------------------
payable under the Fee Letter as and when such fees become due and payable
pursuant to the terms thereof.
(b) Utilization Fee and Non-Use Fee. The Company shall pay to the
-------------------------------
Administrative Agent for the account of each Bank and in accordance with each
Bank's Pro Rata Share:
20
(i) a fee (the "Utilization Fee") at the per annum rate set forth on
---------------
Schedule 1.1(A) corresponding to the higher of the Company's Debt Ratings
on the total amount of Loans outstanding for each calendar quarter during
the period from the Closing Date to the Termination Date in which the sum
of (x) the average outstanding aggregate principal balance of the Loans,
and (y) the average outstanding principal balance of the Five-Year Loans
exceeds 33 1/3% of the sum of the Commitment and the Five-Year Commitment
in effect for such calendar quarter; and
(ii) a fee (the "Non-Use Fee") for the period from the Closing Date
-----------
to the Term Out Date at the per annum rate set forth on Schedule 1.1(A)
corresponding to the higher of the Company's Debt Ratings on the actual
daily amount by which the Commitment exceeds the outstanding Loans;
provided, that, if at any time, neither of the Rating Agencies rates the
Company's long-term senior unsecured debt, then the respective percentages set
forth in Column V of Schedule 1.1(A) shall be used to determine the Utilization
Fee and Non-Use Fee, respectively. Notwithstanding the foregoing, at any time
that the Company's Debt Ratings differ by more than one level, then the rating
level that is one level higher than the lower Debt Rating shall apply.
Initially, the Utilization Fee and Non-Use Fee shall be determined based upon
the respective percentages set forth in Column II of Schedule 1.1(A).
Thereafter, any change in the Utilization Fee and Non-Use Fee resulting from a
change in a Debt Rating shall become effective one Business Day after the
effective date of such change. The Utilization Fee and Non-Use Fee shall in
each case be calculated for the number of actual days elapsed in the then ending
quarter, and computed on the actual number of days elapsed and a year of 360
days, except that the Utilization Fee and Non-Use Fee for the first calendar
quarter shall be calculated for the period beginning with the Closing Date. The
Utilization Fee and Non-Use Fee shall in each case be payable in arrears on or
before the fifth (5th) Business Day following the last day of each calendar
quarter, and if the Term Out Date or the Termination Date occurs on any day
other than the last day of a calendar quarter, on or before the fifth (5th)
Business Day following the Term Out Date or the Termination Date, as the case
may be.
2.10 Computation of Interest.
-----------------------
(a) All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of interest shall be made on the basis of a 360-day year and actual
days elapsed. Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.
(b) Each determination of an interest rate by the Administrative Agent
shall be conclusive and binding on the Company and the Banks in the absence of
manifest error.
2.11 Payments by the Company.
-----------------------
21
(a) All payments to be made by the Company shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Administrative Agent for the
account of the Banks at the Administrative Agent's Payment Office, and shall be
made in dollars and in immediately available funds, no later than 2:00 p.m.
(Dallas time) on the date specified herein. The Administrative Agent will
promptly distribute to each Bank its Pro Rata Share (or other applicable share
as expressly provided herein) of such payment in like funds as received. Any
payment received by the Administrative Agent later than 2:00 p.m. (Dallas time)
may be deemed by the Administrative Agent to have been received on the following
Business Day, in which case any applicable interest or fee shall continue to
accrue. The Administrative Agent shall be entitled to debit any general account
of the Company with the Administrative Agent in the amount of any payment to be
made by the Company when due in order to effect timely payment thereof;
provided, however, that the Administrative Agent shall promptly notify the
Company that its account has been so debited.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment of principal, interest or fees is due on a
day other than a Business Day, such payment shall be made on the following
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the Company prior
to the date on which any payment is due to the Banks that the Company will not
make such payment in full as and when required, the Administrative Agent may
assume that the Company has made such payment in full to the Administrative
Agent on such date in immediately available funds and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, distribute
to each Bank on such due date an amount equal to the amount then due such Bank.
If and to the extent the Company has not made such payment in full to the
Administrative Agent, each Bank shall repay to the Administrative Agent on
demand such amount distributed to such Bank, together with interest thereon at
the Federal Funds Rate for each day from the date such amount is distributed to
such Bank until the date repaid.
2.12 Payments by the Banks to the Administrative Agent.
-------------------------------------------------
(a) Unless the Administrative Agent receives notice from a Bank on or prior
to the Closing Date or, with respect to any Borrowing after the Closing Date, no
later than 12:00 noon (Dallas time) on the date of such Borrowing, that such
Bank will not make available as and when required hereunder to the
Administrative Agent for the account of the Company the amount of that Bank's
Pro Rata Share of the Borrowing, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent in immediately
available funds on the Borrowing Date and the Administrative Agent may (but
shall not be so required), in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If any Bank shall not have
made its full amount available to the Administrative Agent in immediately
available funds to the extent required by the terms of this Agreement and the
Administrative Agent in such circumstances has made available to the Company
such amount, such Bank shall on the Business Day following such Borrowing Date
make such amount available to the Administrative Agent, together with interest
at the Federal Funds Rate for each day from the date such amount
22
was made available by the Administrative Agent to the Company until the date on
which such Bank makes such amount available to the Administrative Agent. A
notice of the Administrative Agent submitted to any Bank with respect to amounts
owing under this subsection (a) shall be conclusive, absent manifest error. If
such amount is so made available, such payment to the Administrative Agent shall
constitute such Bank's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the Business Day following the Borrowing Date, the Administrative Agent will
notify the Company of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing Date shall
not relieve any other Bank of any obligation hereunder to make a Loan on such
Borrowing Date, but no Bank shall be responsible for the failure of any other
Bank to make the Loan to be made by such other Bank on any Borrowing Date.
3. TAXES, YIELD PROTECTION AND ILLEGALITY.
--------------------------------------
3.1 Taxes.
-----
(a) Any and all payments by the Company to any Bank or the Administrative
Agent under this Agreement or any other Loan Document shall be made free and
clear of, and without deduction or withholding for, any Taxes, unless the
Company is required by law to make such deduction or withholding. In addition,
the Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless each Bank and the
Administrative Agent for the full amount of Taxes or Other Taxes (including any
Taxes imposed by any jurisdiction on amounts payable under this Section) paid by
such Bank or the Administrative Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted; provided, that the Company shall have the right to contest, reasonably
and in good faith to the appropriate Governmental Authorities, whether such
Taxes or Other Taxes were correctly or legally asserted if the Company has set
aside on its books provisions reasonably adequate for the payment of such Taxes
or Other Taxes. Payment under this indemnification shall be made within thirty
(30) days after the date any Bank or the Administrative Agent makes written
demand therefor.
(c) If the Company shall be required by law to deduct or withhold any
Taxes from or in respect of any sum payable hereunder to any Bank or the
Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section) such
Bank or the Administrative Agent, as
23
the case may be, receives an amount equal to the sum it would have received
had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance with
applicable law.
Each Bank agrees that if, after the payment by the Company of any such
additional amount, any amount identifiable as a part thereof is subsequently
recovered or used as a credit by such Bank, such Bank shall reimburse the
Company to the extent of the amount so recovered or used. A certificate of any
officer of such Bank setting forth the amount of such Tax or recovery or use and
the basis therefor shall, in the absence of manifest error, be conclusive.
(d) The provisions of subsections (a), (b) and (c) of this Section 3.1
shall not apply to any Bank which fails to comply with the provisions of Section
11.10 hereof.
(e) Within thirty (30) days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent or the relevant
Bank, as the case may be.
(f) If the Company is required to pay additional amounts to any Bank or the
Administrative Agent pursuant to subsection (c) of this Section, then such Bank
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue, if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
3.2 Illegality.
----------
(a) If any Bank determines that the introduction of any Requirement of Law,
or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its applicable Lending Office to make Eurodollar Loans, then, on
notice thereof by such Bank to the Company through the Administrative Agent, any
obligation of such Bank to make Eurodollar Loans shall be suspended until such
Bank notifies the Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any Eurodollar
Loan, the Company shall, upon its receipt of notice of such fact and demand from
such Bank (with a copy to the Administrative Agent), prepay in full such
Eurodollar Loans of Bank then outstanding, together with interest accrued
thereon and amounts required under Section 3.4, either on the last day of the
Interest Period thereof, if such Bank may lawfully continue to maintain such
Eurodollar
24
Loans to such day, or immediately, if such Bank may not lawfully continue to
maintain such Eurodollar Loan. If the Company is required to so prepay any
Eurodollar Loan, then concurrently with such prepayment, the Company shall
borrow from the affected Bank, in the amount of such repayment, a Base Rate
Loan.
(c) If the obligation of any Bank to make or maintain Eurodollar Loans has
been so terminated or suspended, the Company may elect, by giving notice to such
Bank through the Administrative Agent that all Loans which would otherwise be
made by such Bank as Eurodollar Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section, the affected
Bank shall designate a different Lending Office with respect to its Eurodollar
Loans if such designation will avoid the need for giving such notice or making
such demand and will not, in the judgment of the Bank, be illegal or otherwise
disadvantageous to the Bank.
3.3 Increased Costs and Reduction of Return.
---------------------------------------
(a) If any Bank determines that, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation, or (ii) the
compliance by such Bank with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Eurodollar Loans (which increase is not otherwise
reflected in amounts payable by the Company hereunder), then the Company shall
be liable for, and shall from time to time, upon demand (with a copy of such
demand to be sent to the Administrative Agent), pay to the Administrative Agent
for the account of such Bank, additional amounts as are sufficient, in the good
faith judgment of such Bank, to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration thereof
or (iii) compliance by such Bank (or its Lending Office) or any corporation
controlling such Bank with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by such Bank,
such Bank shall promptly after its determination of such occurrence give notice
to the Company of (a) the occurrence thereof, and (b) the additional amount
payable by the Company which in such Bank's reasonable determination will
compensate such Bank or such corporation controlling such Bank for such
reduction and, subject to the further terms of this paragraph, such amount shall
be due and payable by the Company to such Bank at the time of such notice. If,
at the time of notice to the Company that amounts are due under this subsection
3.3(b), the Company and such Bank disagree as to the amounts payable, then the
Company and such Bank shall thereafter attempt to negotiate in good faith an
adjustment to the compensation payable hereunder which will adequately
compensate such Bank for such reduction. If the Company and such Bank are unable
to agree to such adjustment, then, unless the Commitments shall have been
terminated or any amount on which adjustments are to be made under this
subsection 3.3(b) has been prepaid in full, as the
25
case may be, commencing on the thirty first (31st) day following such notice
(but not earlier than the effective date of such introduction, change or
compliance), the fees payable hereunder shall increase by an amount which will,
in such Bank's reasonable determination, compensate such Bank for such
reduction, such Bank's determination of such amount to be conclusive and binding
on the Company, absent manifest error. In determining such amount, such Bank or
such corporation controlling such Bank may use any reasonable methods of
averaging, allocating or attributing such reduction among their respective
customers.
3.4 Funding Losses. The Company shall reimburse each Bank and hold each
--------------
Bank harmless from any loss or expense which such Bank may sustain or incur as a
consequence of:
(a) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/Continuation; or
(b) the prepayment or other payment (including after acceleration
thereof) of a Eurodollar Loan on a day prior to the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Loans or from fees payable to
terminate the deposits from which such funds were obtained. The Company shall
also pay any customary administrative fees charged by such Bank in connection
with the foregoing.
3.5 Inability to Determine Rates. If the Administrative Agent determines
----------------------------
that for any reason adequate and reasonable means do not exist for determining
the Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Loan, or that the Adjusted Eurodollar Rate applicable pursuant to
subsection 2.8(a) for any requested Interest Period with respect to a proposed
Eurodollar Loan does not adequately and fairly reflect the cost to the Banks of
funding such Loan, the Administrative Agent will promptly so notify the Company
and each Bank. Thereafter, the obligation of the Banks to make or maintain
Eurodollar Loans hereunder shall be suspended until the Administrative Agent
upon the instruction of the Majority Banks revokes such notice in writing. Upon
receipt of such notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Banks shall make, convert or continue the Loans, as proposed by
the Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate Loans
instead of Eurodollar Loans.
3.6 Certificates of Banks. Any Bank claiming reimbursement or
---------------------
compensation under this Section 3 shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to such Bank hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error.
3.7 Substitution of Banks. Upon the receipt by the Company from any Bank
---------------------
(an "Affected Bank") of a notice pursuant to Section 3.2 that it is unlawful for
such Bank to maintain Eurodollar Loans, or of a claim by such Bank for
compensation under Section 3.3, the Company
26
may: (i) request one or more of the other Banks to acquire and assume all or
part of such Affected Bank's Loans and Commitment; or (ii) designate a
replacement bank or other financial institution. Any such designation of a
replacement bank or other financial institution under this Section 3.7 shall be
subject to the prior written consent of the Administrative Agent (which consent
shall not be unreasonably withheld). Nothing in this Section 3.7 is intended or
shall be deemed to require any Affected Bank to accept less than payment in full
of the aggregate then outstanding principal balance of the Loans made by such
Affected Bank (together with then accrued interest and fees payable with respect
thereto and all other amounts payable to such Bank hereunder) in connection with
the replacement of such Affected Bank by any other Person hereunder.
3.8 Survival. The agreements and obligations of the Company in this
--------
Section 3 shall survive the payment of all other Obligations and the termination
of this Agreement.
4. CONDITIONS PRECEDENT.
--------------------
4.1 Conditions of Initial Loans. The obligation of each Bank to make its
---------------------------
initial Loan hereunder is subject to the condition precedent that the
Administrative Agent has received on or before the Closing Date all of the
following, in form and substance satisfactory to the Administrative Agent and
each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement duly executed by each party
hereto and the Notes, duly executed by the Company;
(b) Joinder. The Joinder duly executed by the Parent;
(c) Other Documents. Each of the other documents described on Exhibit D
hereto, in each case in form and substance satisfactory to the Administrative
Agent and each of the Banks;
(d) Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses under this Agreement and the other Loan
Documents, to the extent then due and payable on the Closing Date;
(e) Officer's Certificate. A certificate signed by the Chief Financial
Officer or Treasurer of the Company, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Section 5 are
true and correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result from the
initial Borrowing; and
(iii) there has not occurred since September 30, 1999, any
material adverse change in the assets, liabilities (actual or contingent),
operations, business, properties, condition
27
(financial or otherwise) or prospects of the Parent, the Company and their
respective Subsidiaries taken as a whole; and
(f) Other Documents. Such other approvals, opinions, documents or
materials as any Bank may reasonably request.
4.2 Conditions to All Borrowings. The obligation of each Bank to make any
----------------------------
Loan to be made by it (including its initial Loan) or to continue or convert any
Loan (whether under Section 2.1 or Section 2.4) is in each case subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or on the Term Out Date or, except in the case of conversions and
continuations of Loans under Section 2.4, with respect to which the condition
set forth in paragraph (b) below shall not apply, the Conversion/Continuation
Date, as the case may be:
(a) Notice. The Administrative Agent shall have received (with, in the
------
case of the initial Loan only, a copy for each Bank) a Notice of Borrowing,
Notice of Conversion/Continuation or other notice, as applicable;
(b) Continuation of Representations and Warranties. The representations
----------------------------------------------
and warranties in Section 5 shall be true and correct in all material respects
on and as of such Borrowing Date, or on and as of the Term Out Date, as the case
may be, with the same effect as if made on and as of such date, except to the
extent that the facts upon which such representations and warranties are based
may be changed by transactions permitted or contemplated hereby or such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date; and
(c) No Existing Default. No Default or Event of Default shall exist or
-------------------
shall result from such Borrowing or continuation or conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by the
Company hereunder, and any notice submitted by the Company pursuant to
subsection 2.1(b), shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice and as of each Borrowing Date or
Conversion/Continuation Date, as the case may be, that the applicable conditions
in this Section 4.2 are satisfied.
5. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Company represents and warrants to the Agents and each Bank that:
5.1 Corporate Existence and Good Standing. The Company and each of its
-------------------------------------
Subsidiaries, (a) are corporations duly organized, validly existing and in good
standing under the laws of the respective jurisdictions in which they are
incorporated, (b) have corporate power to own their property and conduct their
respective businesses as now conducted and as presently contemplated, and (c)
are duly qualified to do business and in good standing as foreign corporations
in each jurisdiction where the conduct of their business or the nature of their
assets
28
require such qualification and as to which the failure so to be qualified could
singly or in the aggregate reasonably be expected to have a Material Adverse
Effect on the Company.
5.2 Corporate Power; Consent; Absence of Conflict with Other Agreements.
-------------------------------------------------------------------
The execution, delivery and performance of this Agreement and the other Loan
Documents by the Company and the borrowings and transactions contemplated
hereby:
(a) are within the corporate powers of the Company, have been duly
authorized by all necessary corporate action, and do not and will not contravene
any provision of law applicable to it or any contractual restriction binding on
or affecting it;
(b) do not require any approval or consent of, or filing with, any
Governmental Authority bearing on the validity of such documents and borrowings
which is required by law or regulation of any Governmental Authority, except for
those which have been duly obtained or made and are in full force and effect,
and are not in contravention of the terms of the Company's charter documents or
by-laws, or any amendment thereof, and are not in contravention of the terms of
the charter documents or by-laws, or any amendment thereof, of any Subsidiary of
the Company;
(c) will not conflict with or result in any breach or contravention of or
the creation of any lien (other than Liens permitted under Section 7.1) under
any document to which the Company or any of its Subsidiaries is a party or by
which the Company or any Subsidiary is bound and which is material to the
Company and its Subsidiaries taken as a whole; and
(d) are and will be duly executed, valid and legally binding obligations
of the Company and are and will be enforceable in accordance with their
respective terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting generally the enforcement of
creditors' rights.
5.3 Title to Properties. The Company and each of its Subsidiaries have
-------------------
good and valid title to all properties, assets and rights of every name and
nature now purported to be owned by the Company or such Subsidiary which are
material to the business of the Company and its Subsidiaries, on a consolidated
basis, free from all defects, liens, charges and encumbrances whatsoever, other
than statutory and other similar non-consensual liens and insubstantial defects
in title which do not materially detract from the value, or impair the use of,
the affected properties, and liens permitted under Section 7.1. The Company and
each of its Subsidiaries possess all patents, patent applications, patent
licenses, copyrights, trademarks, service marks and trade names and rights with
respect to the foregoing necessary for the conduct of the respective businesses
of the Company and its Subsidiaries substantially as now conducted without any
known conflict with the rights of others except conflicts which are not in the
aggregate material to the business of the Company and its Subsidiaries, on a
consolidated basis.
5.4 Financial Statements. The Company has furnished to the Banks the
--------------------
following: (a) as of September 30, 1999 or for the fiscal year then ended (i) a
consolidated balance sheet and related consolidated statements of operations,
stockholders' equity and cash flows of the Parent
29
and its Subsidiaries, all certified by the Parent's Independent Accountant, (ii)
a consolidating balance sheet and related consolidating statement of operations
of the Parent and its Subsidiaries, and (iii) consolidated and consolidating
balance sheets of the Company and its Subsidiaries and related statements of
operations; and (b) as of June 30, 2000 or for the quarterly fiscal period then
ended (i) a consolidated balance sheet and related consolidated statements of
operations, stockholders' equity and cash flows of the Parent and its
Subsidiaries, (ii) a consolidating balance sheet and related consolidating
statement of operations of the Parent and its Subsidiaries, and (iii)
consolidated and consolidating balance sheets of the Company and its
Subsidiaries and related statements of operations. The balance sheets,
statements of operations, stockholders' equity and cash flows described above
(x) have been prepared in conformity with GAAP applied on a consistent basis
throughout the periods specified, except where such principles are inconsistent
with the applicable provisions of regulatory authorities having jurisdiction in
the premises (and such exception has been noted to the Banks and explained in
reasonable detail in the applicable statements), and (y) present fairly the
financial position of the Parent and its Subsidiaries and the Company and its
Subsidiaries as of the dates thereof, subject, with respect to unaudited
statements, to year end audit adjustments.
5.5 Holding Company and Investment Company Acts. Neither the Company nor
-------------------------------------------
any of its Subsidiaries is a "registered holding company, or a "subsidiary
company" of a "registered holding company", or an "affiliate" of a "registered
holding company" or of a "subsidiary company" of a "registered holding company",
as each of such terms is defined in the Public Utility Holding Company Act of
1935. Neither the Company nor any of its Subsidiaries is a "registered
investment company" or an "affiliated company" or a "principal underwriter" of a
"registered investment company", as each of such terms is defined in the
Investment Company Act of 1940.
5.6 Litigation. There is no action, suit, investigation or proceeding
----------
pending, or to the knowledge of any officer of any of such Persons, threatened
against the Parent or any of its Subsidiaries, before any court or
administrative agency which, by itself or taken together with other such
litigation, involves an amount not covered by insurance material to the Parent
and the Company, and their Subsidiaries, on a consolidated basis, nor is any
substantial basis for any such litigation known to exist.
5.7 No Materially Adverse Contracts. Neither the Parent, the Company, nor
-------------------------------
any of their respective Subsidiaries, is subject to any indenture, bond, note,
agreement or charter, corporate or other legal restriction, or any judgment,
decree, order, rule, ordinance, resolution or regulation which could singly or
in the aggregate reasonably be expected to have a Material Adverse Effect on the
Parent. Neither the Parent, the Company, nor any of their respective
Subsidiaries, is a party to any contract or agreement which has had, or could
reasonably be expected to have, a Material Adverse Effect on the Parent.
5.8 Compliance with Other Instruments; Laws. Neither the Parent, the
---------------------------------------
Company, nor any of their respective Subsidiaries, is in violation of any
provision of its charter documents or by-laws or any document by which it or any
of its properties may be bound, or any decree, order, judgment, or, to the
knowledge of any officer of any of such Persons, any statute, license,
30
rule or regulation, in each case in a manner which could reasonably be expected
to, singly or in the aggregate, (i) result in the imposition of substantial
penalties material to the Parent, the Company and their respective Subsidiaries,
taken as a whole, or (ii) have a Material Adverse Effect on the Parent.
5.9 Taxes. All federal, state and other tax returns of the Parent, the
-----
Company and each of their Subsidiaries required by law to be filed have been
filed, and all federal, state and other taxes, assessments and other
governmental charges upon each of such Persons or their properties which are due
and payable have been paid. The Parent has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods for which such returns have been filed to the extent such provisions are
required by GAAP.
5.10 No Default. No Default or Event of Default exists at the
----------
delivery of this Agreement.
5.11 Use of Proceeds. The proceeds of all Loans will be used by the
---------------
Company for working capital, capital expenditures and other general corporate
purposes. No portion of the Loans is to be or will be used for the purpose of
purchasing or carrying any "margin security" or "margin stock" of an issuer as
such terms are used in Regulation U of the Board of Governors of the Federal
Reserve System, 12 C.F.R. 221, in violation of such Regulation U.
5.12 ERISA. Except as set forth in Schedule 5.12, neither the Parent,
-----
the Company nor any of their respective Subsidiaries (i) has or maintains, or
has during the past five years maintained or established, any Plan or Welfare
Plan, or (ii) is, or during the past five years has been, a participating
employer in any Plan under which more than one employer makes contributions
described in Sections 4063 and 4064 of ERISA or a Multi-employer Plan. All such
Plans and Welfare Plans so scheduled have been maintained, operated and funded
in all material respects in compliance with the requirements of ERISA, the Code
and applicable law. The Parent, the Company and each of their respective
Subsidiaries have funded all of their respective obligations to any Multi-
employer Plans.
5.13 Licenses and Approval. Each of the Company and its Subsidiaries
---------------------
has all necessary licenses, permits and governmental authorizations, including,
licenses, permits and authorizations relating to Environmental Matters, to own
and operate its properties and to carry on its business as now conducted, except
where the failure to do so could not singly or in the aggregate reasonably be
expected to have a Material Adverse Effect on the Company and could not
reasonably be expected to have an adverse effect on the enforceability of any of
the Loan Documents.
5.14 Condition of Assets. All of the respective assets of the Company
-------------------
and its Subsidiaries which are reasonably necessary for the operation of the
business of the Company and its Subsidiaries, taken as a whole, are in good
working condition, ordinary wear and tear excepted, and are able to serve the
function for which they are currently being used.
31
5.15 Subsidiaries. Except for certain inactive Subsidiaries, Schedule
------------
5.15 attached hereto correctly identifies all Subsidiaries of the Parent and the
Company. All of the issued and outstanding shares of the capital stock of each
such Subsidiary are duly issued and outstanding, fully paid and non-assessable
and, except for directors' qualifying shares and shares issued solely for the
purpose of satisfying local requirements concerning the minimum number of
shareholders, are owned by the Parent, the Company or a Subsidiary thereof free
and clear of any mortgage, pledge, lien, encumbrance, charge or restriction on
transfer.
5.16 Full Disclosure. None of the financial statements nor any balance
---------------
sheet, nor any certificate, opinion, or any other statement made or furnished in
writing to the Administrative Agent or any Bank by or on behalf of the Parent,
the Company or any of their respective Subsidiaries in connection with this
Agreement or the transactions contemplated herein, contains any untrue statement
of a material fact, or omits to state, under the circumstances in which made, a
material fact necessary in order to make the statements contained therein or
herein not misleading, as of the date such statement was made. There are no
facts known to the Company which singly or in the aggregate have, or could
reasonably be expected now or in the foreseeable future to have, a Material
Adverse Effect on the Parent, which fact was required to be and was not set
forth in the Parent's reports and filings, if any, filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934.
6. AFFIRMATIVE COVENANTS.
---------------------
The Company covenants and agrees that, so long as any portion of the
Commitments remains outstanding or until such date as the Loans and all other
Obligations have been paid and satisfied in full, whichever shall later occur,
it will and each of its Subsidiaries will:
6.1 Punctual Payment. Duly and punctually pay or cause to be paid
----------------
principal and interest and all other sums due under this Agreement and the Notes
in accordance with the terms hereof and thereof.
6.2 Financial Statements. Deliver to the Administrative Agent and each
--------------------
Bank:
(a) as soon as practicable and in any event within ninety (90) days after
the end of each of the first three quarterly periods of each fiscal year of the
Parent and the Company, financial statements of the type set forth in subsection
5.4(b) hereof for each of the Company and the Parent as of the end of each of
such quarterly periods or for the respective fiscal periods then ended and for
the period from the beginning of the current fiscal year to the end of such
period, setting forth in comparative form the figures for the corresponding
periods of the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, subject to changes resulting from audit and year-end
adjustments, and certified by the principal financial officers of the Parent and
the Company, who shall also provide a certificate and covenant compliance
worksheet in the form of Exhibit E as to the computations evidencing compliance
by the Company with Sections 7.2 through 7.5 (the "Compliance Certificate");
----------------------
32
(b) as soon as practicable and in any event within 120 days after the end
of each fiscal year of the Parent and the Company, audited financial statements
of the type set forth in subsection 5.4(a) hereof as of the end of such year and
for the fiscal year then ended, setting forth in comparative form the figures
for the previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP and, with respect to the Parent, such consolidated balance sheets and
statements, and with respect to the Parent and its Subsidiaries, such
consolidating balance sheets and statements accompanied by a report and opinion
of the Independent Accountant, which report and opinion shall have been prepared
in accordance with generally accepted auditing standards, and all such financial
statements in all cases shall be certified by the principal financial officer of
the Parent or the Company, as the case may be; provided, that at any time that
the assets of the Company and its consolidated Subsidiaries comprise less than
85% of the consolidated assets of the Parent and its Subsidiaries (including
the Company and its Subsidiaries), the Company shall furnish to the Bank, within
the time period set forth above, the consolidated audited financial statements
as described above in this subsection 6.2(b) for the Company and its
Subsidiaries, accompanied by a report and opinion of the Independent Accountant,
which report and opinion shall have been prepared in accordance with generally
accepted auditing standards, and all such financial statements shall be
certified by the principal financial officer of the Company.
(c) promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by the Parent, the
Company or any Subsidiary to stock holders, and of all material regular and
periodic reports filed by the Parent, the Company or any Subsidiary with any
securities exchange or with the Securities and Exchange Commission or any
Governmental Authority succeeding to any or all of the functions of said
Commission; and
(d) from time to time any such information regarding the financial and
other affairs of the Parent, the Company, or any of their respective
Subsidiaries as may reasonably be requested by any Bank, including, copies of
all letters issued by the Independent Accountant or other management consultants
with respect to any material inadequacies in the Company's internal control
systems, and copies of the corporate documents of the Company and each of the
Subsidiaries.
At the time of each delivery of financial statements pursuant to subsection
6.2(b), the Company shall furnish a statement of the Independent Accountant
addressed to the Administrative Agent and the Banks that such accountant has
caused the provisions of this Agreement to be reviewed, and that such accountant
has no knowledge of the existence of any Default or Event of Default, or if such
accountant has such knowledge, specifying the nature and period of existence
thereof and reasons therefor. At the time of each delivery of financial
statements pursuant to subsections 6.2(a) and (b), respectively, the Company
shall furnish the Banks a Compliance Certificate evidencing compliance with the
covenants described therein as of the end of the fiscal period covered by such
financial statements which shall include a certification to the effect that no
Default or Event of Default exists, or, if such cannot be so certified,
specifying in reasonable detail the exceptions, if any, to such statement.
33
6.3 Notification of Defaults and Event of Default. If the Company or any
---------------------------------------------
of its Subsidiaries shall at any other time obtain knowledge of the existence of
any Default or Event of Default, the Company shall forthwith deliver to the
Administrative Agent (for prompt transmittal to the Banks) a certificate
specifying the nature and period of existence thereof and what action the
Company proposes to take with respect thereto.
6.4 Conduct of Business. Cause to be done all things necessary to
-------------------
preserve and keep in full force and effect its corporate existence, corporate
rights and franchises; effect and maintain its foreign qualifications,
licensing, domestication or authorization, except as terminated by its Board of
Directors in the exercise of its reasonable judgment; use its best efforts to
comply with all applicable laws, and not become obligated under any contract or
binding arrangement which, at the time it was entered into, could singly or in
the aggregate have a Material Adverse Effect on the Company.
6.5 Taxes. Duly pay and discharge, or cause to be paid and discharged,
-----
before the same shall become in arrears, all taxes, assessments and other
governmental charges imposed upon it and its properties, sales and activities,
or any part thereof, or upon the income or profits therefrom, as well as all
claims for labor, materials, or supplies which if unpaid might by law become a
lien or charge upon any of its property, except such of those items as are being
in good faith appropriately contested by it, if in such case the Company shall
have set aside on its books reserves deemed by it to be adequate with respect to
such tax, assessment, or other charge.
6.6 Maintenance of Properties. Maintain and keep the properties used or
-------------------------
deemed by it to be useful in its business in good repair, working order and
condition, and make or cause to be made all necessary and proper repairs thereto
and replacements thereof.
6.7 Maintenance of Insurance. Maintain with financially sound and
------------------------
reputable insurers, insurance with respect to properties and business of the
Company and its Subsidiaries against such casualties and contingencies and in
such types and amounts as shall be in accordance with sound business practices
for companies in similar businesses similarly situated.
6.8 Records and Accounts. Keep true records and books of account in which
--------------------
full, true and correct entries will be made in accordance with GAAP and with the
requirements of regulatory authorities having jurisdiction in the premises and
maintain adequate accounts and reserves for all taxes (including income taxes),
all depreciation, depletion, obsolescence and amortization of its properties,
all other contingencies, and all other proper reserves.
6.9 Inspection.
----------
(a) Permit any officer designated by any Bank, at such Bank's expense, to
visit and inspect any of its properties and to examine its books of account and
discuss the affairs, finances and accounts of the Company or any Subsidiary with
its officers, all at such reasonable times, in a reasonable manner and as often
as such Bank may reasonably request.
34
(b) All confidential information and documents concerning the Parent, the
Company, or any of their respective Subsidiaries supplied by the Company to such
Bank pursuant to the terms of this Agreement shall be held in confidence by such
Bank and such Bank shall not disclose such information and documents, except the
Company hereby authorizes such Bank to disclose any information obtained
pursuant to this Agreement (i) to any other Bank or to the Administrative Agent,
(ii) to any bank regulatory authority, (iii) to any independent auditor or
counsel or Participant or potential Assignee or potential Participant of such
Bank, provided that the independent auditor or counsel or Participant or
potential Assignee or potential Participant enters into a confidentiality
agreement with the Company substantially similar to such Bank's agreement in
this subsection 6.9(b), and (iv) to all other appropriate Governmental
Authorities to the extent required of such Bank by law or subpoena, but only to
the extent permitted by applicable laws and regulations, including those
applying to classified material. Upon receipt of a notice of any requirement to
disclose any information to any such Governmental Authority, such Bank will
promptly notify, unless prohibited by applicable law and regulations, the
Company of such notice, and unless otherwise required by law, will not disclose
such information until the Company has been afforded an opportunity to contest
the requirement of such disclosure.
6.10 Notice of Litigation. Promptly notify the Administrative Agent (for
--------------------
prompt transmittal to the Banks) of the commencement of any litigation against
the Parent, the Company or any of their respective Subsidiaries which could
singly or in the aggregate have a Material Adverse Effect on the Parent.
6.11 Pension Plan.
------------
(a) Maintain, operate and administer all Plans in all material respects in
accordance with the requirements of ERISA, the Code and applicable law.
(b) Fund and cause each of its Subsidiaries to fund any Plan, if
maintained by the Company or any of its Subsidiaries, as required by the
provisions of Section 302 of ERISA and Section 412 of the Code, or, if the Plan
is maintained by a third party or is a Multi-employer Plan, make payments to
such third party or Multi-employer Plan in the amounts and at the times required
by applicable law. The Company and each of its Subsidiaries will deliver to the
Administrative Agent (for prompt transmittal to the Banks), copies of any
request for waiver from the funding standards or extension of the amortization
periods required by 303 and 304 of ERISA or 412 of the Code promptly following
the date on which the request is submitted to the Internal Revenue Service.
(c) Upon request made by any Bank, send to such Bank copies of all Forms
5500, Forms 5500-R and/or Forms 5500-C relating to a Plan or Welfare Plan (with
the exception of Multi-employer Plans) together with all attachments thereto,
including any actuarial statement required to be made under 103(d) of ERISA
promptly following the date on which such Form is filed with the Internal
Revenue Service.
(d) Furnish to the Administrative Agent forthwith upon filing or receipt,
as the case may be (i) a copy of the Company report, or any demand sent or
received by the Company or any
35
of its Subsidiaries under Section 4041, 4042, 4043, 4063, 4065, 4066, or 4068 of
ERISA; (ii) a statement of the action, if any, which the Company or such
Subsidiary proposes to take with respect to such Company report, or demand sent
or received by the Company or such Subsidiary under Section 4041, 4042, 4043,
4063, 4065, 4066 or 4068 of ERISA; (iii) a copy of all correspondence with the
PBGC, the Secretary of Labor or any representative of the IRS with respect to
any Plan, relating to an actual or threatened change or development which could
reasonably be expected to be materially adverse to the Company or any of its
Subsidiaries; (iv) copies of all actuarial valuations received by the Company
with respect to any Plan; and (v) copies of any notices of Plan termination
filed by any Plan Administrator (as those terms are used in ERISA) with the PBGC
and of any notices from PBGC to the Company with respect to the intent of the
PBGC to institute involuntary termination proceedings.
(e) Cause any Plan maintained by the Company or any of its Subsidiaries to
pay all benefits guaranteed by the PBGC when due, except where the obligation to
pay such benefits is being contested in good faith by the Company or any of its
Subsidiaries.
6.12 Depreciation Schedule. For purposes of calculation of all of the
---------------------
financial covenants contained in this Agreement, the Company will, and will
cause the Parent and each of the Company's Subsidiaries to, (a) calculate
depreciation on such Person's Transportation Equipment and all other depreciable
assets in accordance with the depreciation schedules for such assets set forth
in Schedule 6.12, and (b) with respect to depreciable assets acquired from and
after the Closing Date, calculate depreciation for such assets in accordance
with depreciation schedules similar to those set forth in Schedule 6.12 for
similar assets.
6.13 Perform Obligations. Pay and discharge all of its obligations and
-------------------
liabilities, including, all material taxes, assessments and governmental charges
upon its income and properties, when due, unless and only to the extent that
such obligations, liabilities, taxes, assessments and governmental charges shall
be contested in good faith and by appropriate proceedings diligently conducted
and that, to the extent required by GAAP then in effect, proper and adequate
book reserves relating thereto are established and maintained by the Company,
or, as the case may be, by the appropriate Subsidiary or the Parent.
6.14 Comply with ERISA. Comply with all applicable provisions of ERISA now
-----------------
or hereafter in effect with respect to the Plans, Welfare Plans and Multi-
employer Plans set forth on Schedule 5.12 and all other Plans, Welfare Plans and
Multi-employer Plans hereafter established unless and only to the extent that
such compliance is contested in good faith and by appropriate proceedings
diligently conducted and that, to the extent required by GAAP then in effect,
proper and adequate book reserves relating thereto are established and
maintained by the Company, or, as the case may be, by the appropriate Subsidiary
or the Parent. The Company shall promptly notify the Administrative Agent of the
establishment or assumption of any Plans, Welfare Plans and Multi-employer Plans
in addition to the plans set forth on Schedule 5.12, and upon such notification,
such plans shall be deemed to be included on such Schedule.
6.15 Environmental Compliance. If any claim is made, or any obligation
------------------------
arises, under any Environmental Law, the Parent, the Company or such Subsidiary
shall, if such claim or
36
obligation could singly or in the aggregate reasonably be expected to have a
Material Adverse Effect on the Company, undertake any required removal or
containment so as to comply with such Environmental Law or contest such claim or
obligation in good faith by appropriate proceedings diligently conducted and, to
the extent required by GAAP then in effect, establish and maintain proper and
adequate book reserves with respect thereto.
6.16 Debt Rating. Notify the Administrative Agent, by telephone,
-----------
facsimile, telex or cable, in each case confirmed, immediately in the manner
specified in Section 20, of any change in the rating of the Company's long-term
senior unsecured debt by ▇▇▇▇▇'▇ or S&P (or any other applicable rating agency)
within five (5) Business Days of such change.
7. CERTAIN NEGATIVE COVENANTS.
--------------------------
The Company covenants and agrees that, so long as any portion of the
Commitments remains outstanding, or until such date as the Loans and all other
Obligations have been paid and satisfied in full, whichever shall later occur,
the following covenants will be complied with:
7.1 Liens. The Company shall not create or permit to exist any mortgage,
-----
charge, pledge, deed of trust, financing lease under which the Company is the
lessee, security interest or other similar consensual encumbrance ("Liens") on
-----
any of its property, whether owned at the date hereof or hereafter acquired,
other than:
(a) Liens on Transportation Equipment, securing Acquired Equipment
Indebtedness;
(b) Liens on Transportation Equipment, securing Purchase Money Equipment
Indebtedness, but only on the Transportation Equipment in respect of which such
Purchase Money Equipment Indebtedness was incurred;
(c) Liens on real property;
(d) Liens incurred, or deposits made, in the ordinary course of business
(i) in connection with workmen's compensation, unemployment insurance, social
security and other like laws, or (ii) to secure the performance of letters of
credit, bids, tenders, sales contracts, leases, statutory obligations, surety
appeal and performance bonds and other similar obligations not incurred in
connection with Indebtedness, or (iii) in connection with the opening of
commercial letters of credit naming the Company as account party;
(e) Liens on Transportation Equipment securing Lease Obligations;
provided, that no such Lease Obligations shall arise out of the sale and
leaseback of Transportation Equipment unless the sale and leaseback in question
is entered into prior to, at the time of or within 180 days of the acquisition
of the Transportation Equipment being sold and leased back; and provided,
further, that the leasing of Transportation Equipment which has been
remanufactured so that it is the substantial equivalent of new equipment shall
be considered the leasing of new equipment and not of used equipment which was
remanufactured and subsequently sold and leased back; and
37
(f) Liens to secure Indebtedness and other obligations which are not
referred to as permitted Liens in subsections (a), (b), (c), (d) or (e) above;
provided, that the aggregate principal amount of Indebtedness and other
obligations secured thereby at any one time outstanding shall not exceed three
percent (3%) of the Net Worth of the Company and its consolidated Subsidiaries;
unless, prior to or simultaneously with the granting of any such Lien not
referred to in (a) through (f) above, the Company shall have executed and
delivered to a Collateral Trustee (as hereinafter defined), a security agreement
and such other documents as the Collateral Trustee may reasonably request, each
in form and substance reasonably satisfactory to the Administrative Agent,
granting to the Collateral Trustee a Lien on the assets of the Company subject
to such Lien, such Lien to be for the equal and ratable benefit of the
Administrative Agent and the Banks and such other holder or holders of
Indebtedness with which the Company has agreed to permit such holders to share
in such Lien. Such security agreement and other documents may provide, at the
option of the Company, that the Lien granted to the Collateral Trustee
thereunder shall terminate upon the termination of all other Liens for the
benefit of such other holder or holders of Indebtedness. The "Collateral
----------
Trustee" shall be such Person as may be selected by the Company, or any holder
-------
of Indebtedness to whom the Company has specifically granted the right to select
such Collateral Trustee, and who shall be entitled to act without qualification
or who, if required, shall qualify to act as such under the Trust Indenture Act
of 1939.
7.2 Maximum Secured Equipment Indebtedness of Company. The Company shall
-------------------------------------------------
not permit Secured Equipment Indebtedness (including Lease Obligations) of the
Company to exceed 15% of the Net Worth of the Company at the end of any fiscal
quarter.
7.3 Maximum Equipment Indebtedness. The Company shall not permit the
------------------------------
Equipment Indebtedness (less Secured Equipment Indebtedness) of the Company to
exceed 90% of the Net Book Value of the Company's Transportation Equipment (less
the Net Book Value of Equipment which secures or is subject to leases which
secure Secured Equipment Indebtedness) plus the amount of its Cash, in each case
as of the end of each fiscal quarter.
7.4 Consolidated Leverage Ratio. The Parent shall not permit the ratio of
---------------------------
Consolidated Liabilities of the Parent and its Subsidiaries to Consolidated Net
Worth of the Parent and its Subsidiaries to exceed 4.50 to 1.00 at any time.
7.5 Consolidated Cash Flow Coverage Ratio. The Company shall not permit
-------------------------------------
the ratio of (a) Consolidated Cash Flow of the Company and its Subsidiaries for
the four (4) fiscal quarters ending on the last day of any fiscal quarter to (b)
the Consolidated Cash Requirements of the Company and its Subsidiaries for the
four (4) fiscal quarters ending on the last day of such fiscal quarter to be
less than 1.25 to 1.00.
7.6 Investments in the Parent. The Company shall not acquire any of the
-------------------------
capital stock of the Parent except for the purpose of the immediate retirement
of any such capital stock.
7.7 Mergers, Acquisitions, etc.
--------------------------
38
(a) Neither the Parent, the Company nor any of their Subsidiaries shall
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and
neither the Parent, the Company nor any of their Subsidiaries shall permit any
Person to consolidate with or merge into the Parent, the Company or any of their
Subsidiaries, as the case may be, or convey, transfer or lease its properties
and assets substantially as an entirety to the Parent, the Company or any of
their Subsidiaries, as the case may be, unless:
(i) in case the Parent, the Company or any of their Subsidiaries, as
the case may be, shall consolidate with or merge into another corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the corporation formed by such consolidation or
into which the Parent or the Company or any of their Subsidiaries, as the
case may be, is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Parent or the
Company or any of their Subsidiaries, as the case may be, substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an instrument, executed and delivered to the
Administrative Agent, in form reasonably satisfactory to the Administrative
Agent and its counsel, in the case of the Company, the due and punctual
payment of the principal of (and premium,if any) and interest on the Notes
and the performance and observance of every covenant of this Agreement on
the part of the Company to be performed or observed and, in the case of the
Parent, the due and punctual performance of the Guaranty and the
performance and observance of every covenant in the Guaranty to be
performed or observed by the Parent;
(ii) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company or a Subsidiary
or of the Parent or a Subsidiary as a result of such transaction as having
been incurred by the Company, the Parent or such Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(iii) as a result of any such consolidation or merger or conveyance,
transfer or lease none of the properties or assets of the Company, the
Parent or a Subsidiary would become subject to a Lien, which would not be
permitted by this Agreement; and
(iv) the Company or the Parent, as the case may be, has delivered to
the Administrative Agent a certificate executed by its President or any of
its Vice Presidents and its Secretary, any of its Assistant Secretaries,
its Clerk or any of its Assistant Clerks and an opinion of counsel
reasonably satisfactory to the Administrative Agent addressed to the Banks,
each stating that all conditions precedent herein provided for relating to
such consolidation, merger, conveyance, transfer or lease have been
complied with.
(b) Upon any consolidation by the Company or the Parent, as the case may
be, with or merger by the Company or the Parent, as the case may be, into any
other corporation or any
39
conveyance, transfer or lease of the properties and assets of the Company or the
Parent, as the case may be, substantially as an entirety in accordance with this
Section 7.7, the successor corporation formed by such consolidation or into
which the Company or the Parent, as the case may be, is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or the Parent, as the
case may be, under this Agreement and the other Loan Documents, as the case may
be, with the same effect as if such successor corporation had been named as the
Company or the Parent, as the case may be, herein; provided, that neither the
Company, nor the Parent, and thereafter, except in the case of a lease, the
predecessor corporation shall be relieved of their respective obligations and
covenants under this Agreement or any other Loan Document, as the case may be.
(c) The provisions of subsections 7.7(a) and (b) shall not apply to a
concurrent merger of the Company into the Parent or a concurrent merger of the
Parent into the Company, provided that each of the following conditions are met:
(i) the Company gives the Administrative Agent no less than five (5) Business
Days prior written notice of such merger; (ii) the merger involves no Persons
other than the Company and the Parent; (iii) immediately after giving effect to
such Merger, no Event of Default, and no event which, after notice, or lapse of
time, or both, would become an Event of Default, shall have happened and be
continuing; (iv) as the result of such merger or consolidation, none of the
properties or assets of the Company, the Parent or any of their respective
Subsidiaries would become subject to a Lien which would not be permitted by this
Agreement; and (v) the Company delivers to the Administrative Agent a
certificate executed by its President or any of its Vice Presidents and its
Secretary stating that all conditions of this subsection 7.7(c) relating to such
merger have been complied with. The succeeding corporation of such merger shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company and the Parent under this Agreement or any other Loan Document, with
the same effect as if such successor corporation had been named as the Company
and the Parent; provided, that neither the Company nor the Parent, and
thereafter, any predecessor corporation, if any, shall be relieved of their
respective obligations and covenants under this Agreement, the Notes or the
Guaranty.
7.8 Changes in Business. The Company will not, and it will not permit any
-------------------
of its Subsidiaries, to make any material change in its business, or in the
nature of its operations, or liquidate or dissolve itself (or suffer any
liquidation or dissolution).
7.9 ERISA. The Company shall not directly or indirectly, and will not
-----
permit any member of any Controlled Group to directly or indirectly, enter into
any new Plan, Welfare Plan or Multi-employer Plan without complying with the
notification obligations contained in Section 6.14 hereof.
8. EVENTS OF DEFAULT; ACCELERATION.
-------------------------------
Any of the following shall constitute an "Event of Default":
40
(a) the Company shall default in any payment of any principal amount
outstanding hereunder or under any Notes when due and payable, whether at
maturity or at any date fixed for payment or prepayment or by declaration or
otherwise; or
(b) the Company shall fail to pay any interest with respect to principal
outstanding hereunder, or any fee pursuant to the terms of Section 2.9, within
five (5) Business Days after the date due and payable, whether at maturity or at
any date fixed for payment or prepayment or by declaration or otherwise, other
than due to a failure of the Administrative Agent to charge an account of the
Company having a sufficient credit balance; or
(c) there shall be a default in the performance of or compliance with any
covenant in Section 7 hereof; or
(d) the Company shall default in the performance of or compliance with any
term contained herein (other than those referred to above in this Section 8),
and such default shall not have been remedied within thirty (30) Business Days
after the occurrence thereof; or
(e) any representation or warranty made in writing by or on behalf of the
Company herein, in any other Loan Document or in connection with any of the
transactions contemplated hereby shall prove to have been false or incorrect in
any material respect on the date as of which made; or
(f) the Parent, the Company or any of their respective Subsidiaries shall
default (as principal or guarantor or other surety) in the payment of any
principal or premium, if any, of, or interest or fees on, any other Indebtedness
to any Bank, or any other Indebtedness in respect of borrowed money in an
aggregate principal amount of $10,000,000 or more (which default is in payment
thereof at its stated maturity or shall result in such Indebtedness becoming or
being declared due prior to the scheduled maturity thereof) or if the Parent,
the Company or any of their respective Subsidiaries shall fail to comply (and
such failure to comply has not been cured or waived) with any of the terms of
any document evidencing any such Indebtedness or any mortgage, pledge,
assignment, indenture or other document relating thereto, and as a consequence
of any of the foregoing, the holder of such Indebtedness shall have the right to
declare all amounts payable with respect thereto to be due and payable by reason
of such default prior to the scheduled maturity thereof or demand payment of all
amounts payable in respect of any Indebtedness payable on demand; or
(g) if the Parent, the Company or any of their respective Subsidiaries
makes an assignment for the benefit of creditors, or petitions or applies for
the appointment of a liquidator or receiver of or for any of such Persons, or of
any substantial part of the respective assets thereof, or commences any
proceeding relating to any of such Persons under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect; or
(h) if any such petition or application is filed or any such proceeding is
commenced against the Parent, the Company or any of their respective
Subsidiaries, and any of such Persons
41
indicates its approval thereof, consents thereto or acquiesces therein, or any
such petition, application or proceeding remains undischarged for thirty (30)
days, or an order is entered appointing any such liquidator or receiver, or
adjudicating the Parent, the Company or any of their respective Subsidiaries
bankrupt or insolvent, or approving a petition in any such proceeding; or
(i) any order is entered in any proceeding by or against the Parent, the
Company or any of their respective Subsidiaries decreeing or permitting the
dissolution or split-up of any of such Persons or the winding-up of the affairs
of any of such Persons; or
(j) there shall be in force, undischarged, unsatisfied and unstayed, for
more than thirty (30) days, whether or not consecutive, any final judgment (from
which all appeals have been taken and determined or as to which all time for the
taking of appeals has lapsed) in excess of $1,000,000 in the aggregate against
the Parent, the Company or any of their respective Subsidiaries; or
(k) any representation or warranty made in writing by or on behalf of the
Parent in the Guaranty, in any other Loan Document or in connection with any of
the transactions contemplated hereby or thereby shall prove to have been false
or incorrect in any material respect on the date as of when made, or if the
Parent shall default in respect of any of its obligations under the Guaranty or
if the Guaranty shall cease to be in full force and effect without the prior
written consent of the Banks; or
(l) the Parent shall at any time own, beneficially, and of record, less
than a majority of all of the issued and outstanding shares of capital stock of
the Company having ordinary voting rights for the election of directors.
9. NOTICE AND WAIVERS OF DEFAULT.
-----------------------------
9.1 Notice of Default. If any Person shall give any notice or take any
-----------------
other action in respect of a claimed default (whether or not constituting an
Event of Default) under this Agreement or any other document as to which the
Parent, the Company or any of their respective Subsidiaries is a party or
obligor, whether as principal or surety, the Company shall forthwith give
written notice thereof to the Administrative Agent (which shall promptly give
notice thereof to each of the Banks), describing the notice or action and the
nature of the claimed default.
9.2 Waivers of Default. Any Default or Event of Default may be waived as
------------------
provided in Section 24. Any Default or Event of Default so waived shall be
deemed to have been cured and to be not continuing; but no such waiver shall
extend to or affect any subsequent like default or impair any rights arising
therefrom.
10. REMEDIES ON DEFAULT.
-------------------
10.1 Rights of Banks. If any Event of Default occurs, the Administrative
---------------
Agent shall at the request of, or may with the consent of, the Majority Banks,
42
(a) declare the Commitment of each Bank to make Loans to be terminated,
whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
provided, that upon the occurrence of any event specified in subsection (g), (h)
or (i) of Section 8, the obligation of each Bank to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable without further act of the Administrative Agent or any Bank.
10.2 Set-off; Sharing.
----------------
(a) Set-off. In addition to any rights and remedies of the Banks provided
-------
by applicable law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Bank shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or unmatured. Each
Bank agrees promptly to notify the Company and the Administrative Agent after
any such set-off and application made by such Bank; provided, that the failure
to give such notice shall not affect the validity of such set-off and
application.
(b) Sharing. If, other than as expressly provided elsewhere herein, any
-------
Bank shall obtain on account of the Loans made by it any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Pro Rata Share, such Bank shall immediately (a)
notify the Administrative Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each of
them; provided, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Bank, such purchase shall to that extent be
rescinded and each other Bank shall repay to the purchasing Bank the purchase
price paid therefor, together with an amount equal to such paying Bank's ratable
share (according to the proportion of (i) the amount of such paying Bank's
required repayment to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Company agrees that any Bank so
purchasing a participation from another Bank may, to the fullest extent
43
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to this Section 10) with respect to such participation as
fully as if such Bank were the direct creditor of the Company in the amount of
such participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this subsection 10.2(b) and will in each case notify the Banks
following any such purchases or repayments.
11. THE ADMINISTRATIVE AGENT.
------------------------
11.1 Appointment and Authorization. Each Bank hereby irrevocably (subject
-----------------------------
to Section 11.9) appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
11.2 Delegation of Duties. The Administrative Agent may execute any of its
--------------------
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or attorney-in-
fact that it selects in the absence of gross negligence or willful misconduct.
11.3 Liability of Administrative Agent. None of the Administrative
---------------------------------
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Banks for any recital, statement, representation or warranty made by the
Parent, the Company or any of their respective Subsidiaries, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Administrative
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the
44
agreements contained in, or conditions (other than delivery to the
Administrative Agent of the documents described in subsections 4.1(a), (b) and
(d)) of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Parent, the Company or any of their
respective Subsidiaries.
11.4 Reliance by Administrative Agent.
--------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority Banks (or when
expressly required hereby or thereby, all the Banks) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of the
Banks.
(b) For purposes of determining compliance with the conditions specified
in Section 4.1, each Bank that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Bank.
11.5 Notice of Default. The Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Banks,
unless the Administrative Agent shall have received written notice from a Bank
or the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Agent will promptly notify the Banks of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Majority Banks in
accordance with Section 10.1; provided, that unless and until the Administrative
Agent has received any such request, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in the
best interest of the Banks.
11.6 Credit Decision. Each Bank acknowledges that none of the
---------------
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Parent, the
45
Company and their respective Subsidiaries, shall be deemed to constitute any
representation or warranty by any Administrative Agent-Related Person to such
Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon any Administrative Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Parent, the
Company and their respective Subsidiaries, and all applicable bank regulatory
laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Company hereunder. Each
Bank also represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly herein required to be
furnished to the Banks by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Parent, the Company, or
any of their respective Subsidiaries, which may come into the possession of any
of the Administrative Agent-Related Persons.
11.7 Indemnification of Administrative Agent. Whether or not the
---------------------------------------
transactions contemplated hereby are consummated, the Banks shall indemnify upon
demand the Administrative Agent-Related Persons (to the extent not reimbursed by
or on behalf of the Company and without limiting the obligation of the Company
to do so), pro rata, from and against any and all Indemnified Liabilities;
provided, that no Bank shall be liable for the payment to the Administrative
Agent-Related Persons of any portion of such Indemnified Liabilities to the
extent resulting from such Person's gross negligence or willful misconduct;
provided further, that no action taken in accordance with the directions of the
Majority Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section 11.7. Without limitation of the
foregoing, each Bank shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertaking in this Section 11.7 shall survive
the payment of all Obligations hereunder and the resignation or replacement of
the Administrative Agent.
11.8 Agents in Individual Capacity. Each of the Agents and its affiliates
-----------------------------
may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Parent, the Company and their respective Subsidiaries as though such Person were
not an Agent hereunder and without notice to or consent of the other Agents or
the Banks.
46
The Banks acknowledge that, pursuant to such activities, each Agent and its
affiliates may receive information regarding the Parent, the Company or their
respective Subsidiaries (including information that may be subject to
confidentiality obligations in favor of any of such Persons) and acknowledge
that such Agent shall be under no obligation to provide such information to
them. With respect to their respective Loans, the Syndication Agent and the
Documentation Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any other Bank and may exercise the same as
though such Persons were not an Agent or an affiliate of an Agent, as the case
may be.
11.9 Successor Administrative Agent. The Administrative Agent may
------------------------------
resign as Administrative Agent upon 30 days' notice to the Banks and the
Company. If the Administrative Agent resigns under this Agreement, the Majority
Banks shall appoint from among the Banks a successor administrative agent for
the Banks, which successor administrative agent shall be approved by the Company
at all times other than during the existence of an Event of Default (which
approval of the Company shall not be unreasonably withheld or delayed). If no
successor administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Banks and the Company, a successor administrative
agent from among the Banks. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 11 and Section 15 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor agent has accepted appointment as
Administrative Agent by the date which is thirty (30) days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the Banks
shall perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above.
11.10 Withholding Tax. Each Bank that is a "foreign corporation,
---------------
partnership or trust" within the meaning of the Code (a "Foreign Lender") shall
--------------
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Person
by the Company pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Person by the Company
pursuant to this Agreement) or such other evidence satisfactory to the
47
Company and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (a) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Company pursuant to this Agreement, (b) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (c) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Bank, and as may be reasonably necessary (including the re-
designation of its Lending Office) to avoid any requirement of applicable Laws
that the Company make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction. If any
Governmental Authority asserts that the Administrative Agent did not properly
withhold any tax or other amount from payments made in respect of such Person,
such Person shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Banks under this Section shall survive the payment of all Obligations and the
resignation or replacement of the Administrative Agent.
11.11 Syndication Agent and Documentation Agent. Neither the Syndication
-----------------------------------------
Agent nor the Documentation Agent shall have or be deemed to have any right,
power, obligation, liability, responsibility or duty under this Agreement by
virtue of such titles other than those applicable to all Banks as such. Without
limiting the foregoing, neither the Syndication Agent nor the Documentation
Agent shall have or be deemed to have any fiduciary relationship with any Bank.
Each Bank acknowledges that it has not relied, and will not rely, on the
Syndication Agent or the Documentation Agent in deciding to enter into this
Agreement or in taking or not taking action hereunder.
12. ASSIGNMENT; PARTICIPATION.
-------------------------
12.1 Assignments.
-----------
(a) Any Bank may, with the written consent of the Company (at all times
other than during the existence of an Event of Default) and the Administrative
Agent, which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
the Company or the Administrative Agent shall be required in connection with any
assignment and delegation by a Bank to another Bank or to an Eligible Assignee
that is an affiliate of the assignor Bank) (each an "Assignee") all, or any
--------
ratable part of all, of the Loans, the Commitment and the other rights and
obligations of such Bank hereunder, in a minimum amount of $10,000,000; provided
that such minimum amount shall not apply in the case of an assignment of the
entire remaining amount of the assignor Bank's Commitment and the Loans at the
time owing to it or in the case of an assignment by a Bank to another Bank or to
an Eligible Assignee that is an affiliate of the assignor Bank; provided further
that the Company and the Administrative Agent may continue to deal solely and
directly with such Bank in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
48
shall have been given to the Company and the Administrative Agent by such Bank
and the Assignee; (ii) such Bank and its Assignee shall have delivered to the
Company and the Administrative Agent an Assignment and Acceptance Agreement in
substantially the form of Exhibit F ("Assignment and Acceptance"), together with
-------------------------
any Note or Notes subject to such assignment, and (iii) the assignor Bank or
Assignee has paid to the Administrative Agent a processing fee in the amount of
$3,500. From and after the date that the Administrative Agent notifies the
assignor Bank that it has received (and provided its consent with respect to) an
executed Assignment and Acceptance and payment of the above-referenced
processing fee, (I) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (II) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(b) Within five (5) Business Days after its receipt of notice by the
Administrative Agent that it has received an executed Assignment and Acceptance
and payment of the processing fee (and provided that it consents to such
assignment in accordance with subsection 12.1(a)), the Company shall execute and
deliver to the Administrative Agent, a new Note evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Bank has retained a portion
of its Loans and Commitment and so requests, a replacement Note evidencing such
retained Loans and Commitment (such Notes to be in substitution for, but not in
payment of, the Note held by such Bank). Immediately upon payment of the
processing fee under the Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee shall reduce such
Commitment of the assigning Bank pro tanto.
12.2 Participations. Any Bank may at any time sell to one or more
--------------
commercial banks or other Persons not affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that Bank
and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; provided, that (i) the originating Bank's
obligations under this Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance of such obligations,
(iii) the Company and the Administrative Agent shall continue to deal solely and
directly with the originating Bank in connection with the originating Bank's
rights and obligations under this Agreement and the other Loan Documents, and
(iv) no Bank shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Banks
as described in the first proviso to Section 24. In the case of any such
-------------
participation, the Participant shall not have any rights under this Agreement,
or any other Loan Documents, and all amounts payable by the Company hereunder
shall be determined as if such Bank had not sold such participation, except that
if amounts outstanding under this Agreement are due and unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be
49
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement.
A Participant shall not be entitled to receive any greater payment under
Section 3.1 or 3.3 than the originating Bank would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Company's prior written
consent. A Participant that would be a Foreign Lender if it were a Bank shall
not be entitled to the benefits of Section 3.1 unless the Company is notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Company and the Administrative Agent, to comply with Section
10.11 as though it were a Bank.
Notwithstanding any other provision in this Agreement, any Bank may at any
time create a security interest in, or pledge, all or any portion of its rights
under and interest in this Agreement and any Note held by it in favor of any
Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
13. CONSENT TO JURISDICTION; WAIVER OF TRIAL BY JURY.
------------------------------------------------
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
SITTING IN CHICAGO OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY, THE
ADMINISTRATIVE AGENT AND EACH BANK CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY, THE
ADMINISTRATIVE AGENT AND EACH BANK IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. THE COMPANY, THE ADMINISTRATIVE Agent AND EACH BANK
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
(b) Nothing in this Section 13 shall affect the right of the
Administrative Agent or any Bank to serve legal process in any other manner
permitted by law or affect the right of the Administrative Agent or any Bank to
bring any action or proceeding against the Company or its property in the courts
of any other jurisdictions.
(c) EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO
50
OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
14. BINDING ACT.
-----------
This Agreement shall become effective when it shall have been executed by
all of the parties hereto and the conditions precedent set forth in Section 4.1
shall have been satisfied, and shall be binding upon and inure to the benefit of
the Company, the Banks and the Administrative Agent and their respective
successors and assigns, except that the Company shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Banks and any attempted assignment without such consent shall be
void.
15. FEES AND EXPENSES; INDEMNITY.
----------------------------
15.1 Costs and Expenses. The Company shall:
------------------
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse the Administrative Agent and the Arranger within five Business
Days after demand for all costs and expenses incurred by such Persons in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any Loan Document and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by the Administrative Agent with respect
thereto; and
(b) pay or reimburse the Administrative Agent, the Arranger and each Bank
within five Business Days after demand for all costs and expenses (including
Attorney Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any insolvency proceeding or
appellate proceeding).
15.2 Company Indemnification. Whether or not the transactions
-----------------------
contemplated hereby are consummated, the Company shall indemnify and hold the
Administrative Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
------------------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges,
51
expenses and disbursements (including reasonable Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Administrative Agent or replacement of any Bank) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any insolvency
proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
-----------
Liabilities"); provided, that the Company shall have no obligation hereunder to
-----------
any Indemnified Person with respect to Indemnified Liabilities to the extent
resulting from the gross negligence or willful misconduct of such Indemnified
Person. The agreements in this Section 15.2 shall survive payment of all other
Obligations and termination of this Agreement.
16. REMEDIES CUMULATIVE.
-------------------
Each and every right granted to the Banks and the Administrative Agent
hereunder or under any other document delivered hereunder or in connection
herewith, or allowed them by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of any Bank or the
Administrative Agent to exercise, and no delay in exercising, any right shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right preclude any other or future exercise thereof or the exercise of any other
right. The due payment and performance of the Company's Obligations under this
Agreement shall be without regard to any counterclaim, right of offset or any
other claim whatsoever which the Company may have against the Banks and the
Administrative Agent and without regard to any other obligation of any nature
whatsoever which the Banks and the Administrative Agent may have to the Company,
and no such counterclaim (other than any compulsory counterclaims) or offset
shall be asserted by the Company in any action, suit or proceeding instituted by
the Administrative Agent or any Bank for payment or performance of the Company's
Obligations.
17. FURTHER ASSURANCES.
------------------
At any time and from time to time, upon the request of any Bank or the
Administrative Agent, the Company shall execute, deliver and acknowledge or
cause to be executed, delivered and acknowledged, such further documents and do
such other acts and things as such Bank or the Administrative Agent may
reasonably request in order to fully effect the purposes of this Agreement, the
other Loan Documents and any other documents delivered pursuant hereto or in
connection with the Loans.
18. SURVIVAL OF COVENANTS.
---------------------
All covenants, agreements, representations and warranties made herein and
in any document delivered by or on behalf of the Company pursuant hereto are
material and shall be deemed to have been relied upon by the Administrative
Agent and the Banks, notwithstanding any
52
investigation heretofore or hereafter made by the Administrative Agent or the
Banks, and shall survive the making by the Banks of the Loans as herein
contemplated and shall continue in full force and effect so long as any
Obligations remain outstanding and unpaid. All statements contained in any
certificate or other document delivered to the Administrative Agent or the Banks
at any time by or on behalf of the Company pursuant hereto or in connection with
the transactions contemplated hereby shall constitute representations and
warranties by the Company hereunder.
19. SEVERABILITY.
------------
The provisions of this Agreement are severable, and if any clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Agreement in any jurisdiction.
20. NOTICE.
------
(a) All notices, requests and other communications shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to subsection (e) below) electronic mail
specified for notices on Schedule 20; or, as directed to the Company or the
Administrative Agent, to such other address as shall be designated by such party
in a written notice to the other parties, and as directed to any other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Administrative Agent.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine and
receipt has been confirmed by telephone, respectively, or if mailed, upon the
third Business Day after the date deposited into the U.S. mail, or if delivered,
upon delivery, or if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (e) below), when delivered; except that
notices pursuant to Section 2 or Section 11 shall not be effective until
actually received by the Administrative Agent.
(c) Any agreement of the Administrative Agent and the Banks herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Company. The Administrative Agent and the Banks shall
be entitled to rely on the authority of any Person purporting to be a Person
authorized by the Company to give such notice and the Administrative Agent and
the Banks shall not have any liability to the Company or other Person on account
of any action taken or not taken by the Administrative Agent or the Banks in
reliance upon such telephonic or facsimile notice. The obligation of the
Company to repay the Loans shall not be affected in any way or to any extent by
any failure by the Administrative Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Banks of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Banks to be contained
in the telephonic or facsimile notice.
53
(d) Loan Documents may be transmitted or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to applicable
law, have the same force and effect as manually-signed originals and shall be
binding on the Company, the Administrative Agent and the Banks. The
Administrative Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
document or signature.
(e) Electronic mail and internet and intranet websites may be used only to
distribute routine communications, such as financial statements and other
information, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose.
21. GOVERNING LAW.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH BANK
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
22. MISCELLANEOUS.
-------------
The rights and remedies herein expressed are cumulative and not exclusive
of the other rights which the Banks would otherwise have. Any documents
required by any of the provisions hereof to be in the form annexed hereto as an
exhibit shall be substantially in such form with such changes therefrom, if any,
as may be approved by the Majority Banks and the Company. The captions in this
Agreement are for convenience of reference only and shall not define or limit
the provisions hereof. This Agreement, and any amendment, consent or waiver
executed and delivered hereunder or in connection herewith or with any other
Loan Document, may be executed in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one document. In proving this Agreement, it shall not be necessary
to produce or account for more than one Agreement, executed by each of the
parties hereto.
23. ENTIRE AGREEMENT.
----------------
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN AGREEMENTS BETWEEN THE PARTIES RELATING TO ANY OF THE PROVISIONS OF
THIS AGREEMENT.
24. CONSENTS, AMENDMENTS AND WAIVERS.
--------------------------------
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by the Company therefrom,
shall be effective unless
54
the same shall be in writing and signed by the Majority Banks (or by the
Administrative Agent at the written request of the Majority Banks) and the
Company (or, in the case of the Guaranty, the Parent) and acknowledged by the
Administrative Agent, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, that no such waiver, amendment, or consent shall, unless in writing
and signed by all of the Banks and the Company (or, in the case of the Guaranty,
the Parent) and acknowledged by the Administrative Agent, do any of the
following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 10.1);
(b) postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein on
any Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Banks or any of them to
take any action hereunder; or
(e) amend this Section 24, or Section 10, or any provision herein providing
for consent or other action by all Banks;
(f) release, amend or otherwise modify the Guaranty;
and, provided, further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Majority
Banks or all the Banks, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document, and (ii)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
25. OPTIONAL INCREASE IN COMMITMENTS.
--------------------------------
The Company may, from time to time prior to Term Out Date, by means of a
letter to the Administrative Agent substantially in the form of Exhibit G,
request that the Commitment be increased by (a) increasing the Pro Rata Share of
the Commitment of one or more Banks which have agreed to such increase and/or
adding one or more commercial banks or other Persons as a party hereto with a
Pro Rata Share in an amount agreed to by any such commercial bank or other
Person; provided that (i) no commercial bank or other Person shall be added as a
party hereto without the written consent of the Administrative Agent (which
consent shall not be unreasonably withheld or delayed); (ii) in no event shall
the Commitment exceed $110,000,000 without the written consent of all Banks; and
(iii) the Commitment under (and as defined in) the Five-Year Agreement shall be
increased in proportion to the increased Commitment under this Agreement
(provided that the Five-Year Agreement is then still in effect). Any increase
in the Commitment pursuant to this Section 25 shall be effective three Business
Days after the date on which the Administrative Agent has received and accepted
the applicable increase letter in the form of Annex 1 to Exhibit G (in the case
of an increase in the Commitment of an existing Bank) or assumption letter in
the form of Annex 2 to Exhibit G (in the case of the addition of a commercial
bank or other Person as a new Bank). The Administrative Agent shall promptly
notify the Company and the Banks of any increase in the amount of the Commitment
pursuant to this Section 25 and of the Pro Rata Share of each Bank after giving
effect thereto. The Company shall prepay any Loans outstanding on the effective
date of any increase in the amount of the Commitment pursuant to this Section 25
(and pay additional amounts required pursuant to Section 3.4) to the extent
necessary to keep the outstanding Loans ratable with any revised Pro Rata Share
arising from any nonratable increase in the Commitment under this Section. This
Section shall supersede any provisions in Section 24 to the contrary.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
55
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
XTRA, INC.
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Address for Notices: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
and Chief Financial Officer
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
BANK OF AMERICA, N.A.,
individually, as a Bank, and as Administrative Agent
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO),
individually, as a Bank, and as Documentation Agent
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
THE CHASE MANHATTAN BANK
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
JOINDER TO CREDIT AGREEMENT DATED
AS OF SEPTEMBER 28, 2000
This Joinder to Credit Agreement dated as of September 28, 2000 among Bank
of America, N.A. and various other financial institutions from time to time
parties thereto, as Banks, with Bank of America, N.A., as Administrative Agent,
Fleet National Bank, as Syndication Agent and Bank One, NA (Main Office
Chicago), as Documentation Agent (the "Credit Agreement") is made by XTRA
Corporation, a Delaware corporation, for the purpose of acknowledging and
agreeing to be bound by all the terms thereof. Defined terms used herein and not
otherwise defined herein to the contrary shall have the respective meanings
attributed to them in the Credit Agreement. Parent hereby agrees to comply with
the terms and conditions of the Credit Agreement that affect Parent, including
without limitation, the provisions of Sections 7.4 and 7.7. Parent acknowledges
and agrees that a breach of the provisions of Section 7.4 and 7.7 of the Credit
Agreement constitutes an Event of Default under the Credit Agreement pursuant to
the provisions of subsection 8(c). Parent hereby acknowledges and agrees that
the representations and warranties attributed to Parent in the Credit Agreement
are true and correct and Parent acknowledges that Parent will abide by the
covenants attributable to Parent in the Credit Agreement.
In Witness Whereof, intending to be legally bound hereby and to induce
Banks to execute the Credit Agreement, Parent hereby joins in the execution of
the Credit Agreement on the terms set forth in this Joinder as of the day and
year set forth above.
XTRA CORPORATION
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
EXHIBIT A
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF PROMISSORY NOTE
-----------------------
$[________] September 28, 2000
FOR VALUE RECEIVED, the undersigned, XTRA, INC., a Maine corporation (the
"Company"), hereby promises to pay to the order of [_______________] (the
"Bank") the principal sum of [_____________]Dollars ($[_________]) or, if less,
the aggregate unpaid principal amount of all Loans made by the Bank to the
Company pursuant to the Credit Agreement, dated as of September 28, 2000 (such
Credit Agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being hereinafter called the "Credit Agreement"),
among the Company, the Bank, the other banks parties thereto, Bank of America,
N.A., as Administrative Agent, Fleet National Bank, as Syndication Agent and
Bank One, NA (Main Office Chicago), as Documentation Agent, respectively, for
the Banks, on the dates and in the amounts provided in the Credit Agreement.
The Company further promises to pay interest on the unpaid principal amount of
the Loans evidenced hereby from time to time at the rates, on the dates, and
otherwise as provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on which each
Loan is made, the maturity date therefor and each payment of principal with
respect thereto on the schedules annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
provided, that any failure to so endorse such information on such schedule or
--------
continuation thereof shall not in any manner affect any obligation of the
Company under the Credit Agreement and this Promissory Note (the "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
Terms defined in the Credit Agreement are used herein with their defined
meanings therein unless otherwise defined herein. This Note shall be governed
by, and construed and interpreted in accordance with, the internal substantive
laws of the State of Illinois, without regard to the conflicts of law provisions
thereof.
XTRA, INC.
By:______________________________
Name:____________________________
Title:___________________________
A-1
Schedule A to Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
------------------------------------------------
(2) (3) (4)
Amount Maturity Amount of (5) (6)
(1) of Base Date of Base Base Rate Revolving/ Notation
Date Rate Loan Rate Loan Loan Repaid Term Out Loan Made By
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A-2
Schedule B to Note
EURODOLLAR LOANS AND REPAYMENT OF EURODOLLAR LOANS
--------------------------------------------------
(3) (4)
(2) Maturity Amount of
Amount Date of Eurodollar (5) (6)
(1) of Eurodollar Eurodollar Rate Revolving/ Notation
Date Rate Loan Rate Loan Loan Repaid Term Out Loan Made By
------ -------------- ------------- ------------- ---------------- -----------
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A-3
EXHIBIT B
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF NOTICE OF BORROWING
---------------------------
Date:_________________
To: Bank of America, N.A., as Administrative Agent ("Administrative Agent") for
the Banks parties to the Credit Agreement dated as of September 28, 2000
(as extended, renewed, amended or restated from time to time, the "Credit
Agreement"), among XTRA, Inc., a Maine corporation (the "Company"), certain
Banks which are parties thereto, Fleet National Bank, as Syndication Agent,
Bank One, NA (Main Office Chicago), as Documentation Agent, and the
Administrative Agent
Ladies and Gentlemen:
The undersigned, the Company, refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 2.3 of the Credit Agreement, of the
Borrowing specified below:
1. The Business Day of the proposed Borrowing is _________, _____.
2. The aggregate amount of the proposed Borrowing is $___________.
3. The Borrowing is to be comprised of $_______ of [Base Rate]
[Eurodollar] Loans.
4. [If applicable:] The duration of the Interest Period for the
Eurodollar Loans included in the Borrowing shall be [___] months.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
B-1
(a) the representations and warranties of the Company contained in Section
5 of the Credit Agreement are true and correct in all material respects with the
same effect as if made on and as of such date (except to the extent that the
facts upon which such representations and warranties are based may be changed by
transactions permitted or contemplated by the Credit Agreement and except to the
extent that such representations and warranties refer expressly to an earlier
date, in which case they are true and correct as of such date);
(b) no Default or Event of Default has occurred and is continuing, or would
result from such proposed Borrowing; and
(c) the proposed Borrowing will not cause the aggregate principal amount of
all outstanding Loans to exceed the combined Commitments of the Banks.
XTRA, INC.
By:_____________________________
Name:___________________________
Title:__________________________
B-2
EXHIBIT C
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF NOTICE OF CONVERSION/CONTINUATION
-----------------------------------------
Date:_________________
To: Bank of America, N.A., as Administrative Agent ("Administrative Agent") for
the Banks parties to the Credit Agreement dated as of September 28, 2000
(as extended, renewed, amended or restated from time to time, the "Credit
Agreement"), among XTRA, Inc., a Maine corporation (the "Company"), certain
Banks which are parties thereto, Fleet National Bank, as Syndication Agent,
Bank One, NA (Main Office Chicago), as Documentation Agent, and the
Administrative Agent
Ladies and Gentlemen:
The undersigned, the Company, refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 2.4 of the Credit Agreement, of the
[conversion] [continuation] of the Loans specified herein, that:
1. The Conversion/Continuation Date is _____ __, ____.
2. The aggregate amount of the Loans to be [converted] [continued] is
$_________.
3. The Loans are to be [converted into] [continued as] [Base Rate]
[Eurodollar] Loans.
4. [If applicable:] The duration of the Interest Period for the Loans
included in the [conversion] [continuation] shall be [___] months.
The undersigned hereby certifies that the following statement is true on
the date hereof, and will be true on the proposed Conversion/Continuation Date,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) no Default or Event of Default has occurred and is continuing, or
would result from the proposed [conversion][conversion]; and
(b) the proposed [conversion][continuation] will not cause the
aggregate principal amount of all outstanding Loans to exceed the combined
Commitments of the Banks.
C-1
XTRA, INC.
By:_________________________
Name:_______________________
Title:______________________
C-2
EXHIBIT D
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
LIST OF CLOSING DOCUMENTS
-------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent,
FLEET NATIONAL BANK,
as Syndication Agent
BANK ONE, NA,
as Documentation Agent
$108,000,000
CREDIT AGREEMENT
FOR
XTRA, INC.
SEPTEMBER 28, 2000
1. Credit Agreement among XTRA, Inc., a Maine corporation (the "Company"),
Bank of America, N.A. and certain other banks parties thereto
(collectively, the "Banks"), with Bank of America, N.A., as Administrative
Agent, Fleet National Bank, as Syndication Agent and Bank One, NA (Main
Office Chicago) as Document Agent:
EXHIBITS
--------
EXHIBIT A Form of Promissory Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Notice of Conversion/Continuation
EXHIBIT D List of Closing Documents
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Assignment and Acceptance Agreement
EXHIBIT G Form of Request for Increase in Aggregate Commitment
EXHIBIT H Form of Guaranty
D-1
SCHEDULES
---------
Schedule 1.1(A) Applicable Margin; Non Use Fee; Utilization Fee
Schedule 1.1(B) Commitments and Pro Rata Shares
Schedule 5.12 Plans
Schedule 5.15 Subsidiaries
Schedule 6.12 Depreciation Schedule
Schedule 20 Eurodollar and Domestic Lending Offices; Addresses for
Notices
2. Promissory Notes, executed by the Company and payable to the respective
Banks:
a. Promissory Note in the principal amount of up to $24,000,000, payable
to Bank of America, N.A.
b. Promissory Note in the principal amount of up to $24,000,000, payable
to Fleet National Bank.
c. Promissory Note in the principal amount of up to $24,000,000, payable
to Bank One, NA (Main Office Chicago).
d. Promissory Note in the principal amount up to $10,000,000, payable to
Union Bank of California, N.A.
e. Promissory Note in the principal amount up to $10,000,000, payable to
The Bank of Nova Scotia.
f. Promissory Note in the principal amount up to $10,000,000, payable to
The Chase Manhattan Bank.
g. Promissory Note in the principal amount up to $6,000,000, payable to
LaSalle Bank National Association.
3. Guaranty, executed by XTRA Corporation, a Delaware corporation ("Parent"),
in favor of the Banks.
4. Certificate of the Secretary or Assistant Secretary of the Company.
5. Articles of Incorporation of the Company certified by the Department of
State of Maine.
6. Good Standing Certificate for the Company from the office of the Department
of State of Maine.
7. Certificate of the Secretary or Assistant Secretary of Parent.
8. Certificate of Incorporation of Parent certified by the Secretary of State
of Delaware.
D-2
9. Good Standing Certificate for Parent, from the office of the Secretary of
State of Delaware.
10. Opinion of counsel to the Company and the Parent: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Esq., General Counsel to the Company.
11. Officer's Certificate of the Company.
12. Evidence that the Existing Credit Agreement has been or concurrently with
the Closing Date is being terminated.
13. Evidence of payment by the Company of all sums due under the Loan Documents
on the Closing Date.
14. Evidence of the execution and delivery of the Five-Year Agreement.
D-3
EXHIBIT E
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF COMPLIANCE CERTIFICATE
------------------------------
Date:__________________
The Banks Parties to
the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of September 28, 2000
(as the same is amended and in effect from time to time, the "Credit
Agreement"), among XTRA, INC., a Maine corporation (the "Company"), certain
financial institutions from time to time parties thereto and BANK OF AMERICA,
N.A., a national banking association, FLEET NATIONAL BANK, a national banking
association, and BANK ONE, NA (Main Office Chicago), a national banking
association, as Administrative Agent, Syndication Agent and Documentation Agent,
respectively, for the Banks. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
The Company hereby certifies to the Banks as follows: (a) the information
furnished in each of the calculations attached hereto was true and correct as of
the last day of the fiscal [quarter/year] immediately preceding the date of this
certificate; (b) as of the date of this certificate, there exists no Default or
Event of Default; and (c) the financial statements delivered herewith were
prepared in accordance with generally accepted accounting principles.
IN WITNESS WHEREOF, the undersigned has executed this Compliance
Certificate as of the date first written above.
XTRA, INC.
By:__________________________
Name:________________________
Title:_______________________
E-1
SUBMISSION OF THE COVENANTS PURSUANT TO SECTION 6.2 OF THE CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000 AMONG XTRA, INC., SUCH BANKS AS MAY BE PARTIES
TO THE CREDIT AGREEMENT FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF,
AND BANK OF AMERICA, N.A., FLEET NATIONAL BANK AND BANK ONE, NA (MAIN OFFICE
CHICAGO), AS AGENTS.
FOR THE QUARTER ENDED MM/DD/YY PAGE NO.
------------------------------ --------
SECTION 7.2- MAXIMUM SECURED EQUIPMENT
INDEBTEDNESS OF COMPANY 1
SECTION 7.3- MAXIMUM EQUIPMENT INDEBTEDNESS 2
SECTION 7.4- CONSOLIDATED LEVERAGE RATIO 4
SECTION 7.5- CONSOLIDATED CASH FLOW COVERAGE RATIO 5
E-2
SECTION 7.2 - MAXIMUM SECURED EQUIPMENT INDEBTEDNESS
XTRA, INC. (ALONE)
------------------
CAPITAL STOCK & SURPLUS 0
LESS: INTANGIBLES 0
DEFERRED LOAN COSTS 0
NON-COMPETE AGREEMENTS 0
OTHER 0
LESS: INCREASE IN NBV OF ASSETS FROM
REVALUATION SINCE 9/30/99 0
NET WORTH AS DEFINED (i) 0
RATE OF LIMITATION 15%
---
LIMITATION 0
SECURED EQUIPMENT INDEBTEDNESS AS DEFINED (ii) 0
---
AMOUNT UNDER LIMITATION 0
===
SECURED EQUIPMENT INDEBTEDNESS/NET WORTH [(ii)/(i)] 0%
MAXIMUM EQUIPMENT INDEBTEDNESS RATIO PER THE AGREEMENT 15%
E-3
SECTION 7.3 - MAXIMUM EQUIPMENT INDEBTEDNESS
XTRA, INC. (ALONE)
UNSECURED TRANSPORTATION EQUIPMENT
----------------------------------
TRANSPORTATION EQUIPMENT PER THE FINANCIALS 0
LESS: ACCUMULATED DEPRECIATION 0
--
NET BOOK VALUE OF TRANSPORTATION EQUIPMENT 0
ADD: LEASE CONTRACTS RECEIVABLES & RESIDUALS 0
UNCAPITALIZED LEASE EQUIPMENT
(PER FASB 13) 0
--
NET BOOK VALUE OF TRANSPORTATION EQUIPMENT AS DEFINED 0
LESS: NET BOOK VALUE OF SECURED
EQUIPMENT 0
--
NET BOOK VALUE OF UNSECURED EQUIPMENT AS DEFINED 0
ADD: CASH & CASH EQUIVALENTS 0
--
NET BOOK VALUE OF TRANSPORTATION EQUIPMENT & CASH (i) 0
RATE OF LIMITATION 90%
--
LIMITATION 0
EQUIPMENT INDEBTEDNESS
----------------------
INDEBTEDNESS PER THE FINANCIALS 0
ADD: UNCAPITALIZED LEASE OBLIGATIONS
(PER FASB 13) 0
LESS: INDEBTEDNESS SECURED BY REAL PROPERTY 0
--
EQUIPMENT INDEBTEDNESS AS DEFINED 0
LESS: SECURED EQUIPMENT
INDEBTEDNESS 0
--
UNSECURED EQUIPMENT INDEBTEDNESS (ii) 0
--
AMOUNT UNDER LIMITATION 0
==
E-4
UNSECURED EQUIPMENT INDEBTEDNESS TO NBV
OF UNSECURED TRANSPORTATION
EQUIPMENT RATIO [(ii)/(i)] 0
MAXIMUM UNSECURED EQUIPMENT INDEBTEDNESS RATIO
PER THE AGREEMENT 90%
E-5
SECTION 7.4 - CONSOLIDATED LEVERAGE RATIO
XTRA CORPORATION CONSOLIDATED
CONSOLIDATED NET WORTH:
CAPITAL STOCK & SURPLUS 0
LESS: INTANGIBLES:
DEFERRED LOAN COSTS 0
NON-COMPETE AGREEMENTS 0
OTHER 0
LESS: INCREASE IN NBV OF ASSETS FROM
REVALUATION SINCE 9/30/99 0
----
CONSOLIDATED NET WORTH AS DEFINED (i) 0
RATE OF LIMITATION 450%
----
LIMITATION 0
CONSOLIDATED LIABILITIES
------------------------
TOTAL LIABILITIES PER BALANCE SHEET 0
ADD: LETTERS OF CREDIT 0
ADD: UNCAPITALIZED LEASE OBLIGATIONS 0
LESS: DEFERRED TAXES 0
----
CONSOLIDATED LIABILITIES AS DEFINED (ii) 0
----
AMOUNT UNDER LIMITATION 0
====
CONSOLIDATED LEVERAGE RATIO [(ii)/(i)] = 0
MAXIMUM LEVERAGE RATIO PER THE AGREEMENT = 4.50
E-6
PAGE 7
SECTION 7.5 - CONSOLIDATED CASH FLOW COVERAGE
XTRA, INC. CONSOLIDATED
CONSOLIDATED CASH FLOW TOTAL FOUR
(LAST FOUR QUARTERS) Q # Q # Q # Q # QUARTERS
------------------ --- --- --- --- --------
THE SUM OF THE FOLLOWING:
CASH FLOW FROM CONTINUING
OPERATIONS
(LESS EXTRAORDINARY ITEMS) 0 0 0 0 0
INTEREST CHARGES 0 0 0 0 0
NON-CAPITALIZED LEASE PAYMENTS 0 0 0 0 0
--- --- --- --- ---
CONSOLIDATED CASH FLOW AS
DEFINED (i) 0 0 0 0 0
--- --- --- --- ---
CONSOLIDATED CASH REQUIREMENTS TOTAL FOUR
(LAST FOUR QUARTERS) QUARTERS
------------------ --------
THE SUM OF THE FOLLOWING:
INTEREST CHARGES 0 0 0 0 0
DEBT PAYMENTS (C.P. OF LONG TERM
DEBT INCLUDING CAPITALIZED LEASE
OBLIGATIONS) 0 0 0 0 0
--- --- --- --- ---
CONSOLIDATED CASH REQUIREMENTS
AS DEFINED (ii) 0 0 0 0 0
CONSOLIDATED CASH FLOW/
CONSOLIDATED CASH REQUIREMENTS
RATIO [(i)(ii)]
MINIMUM RATIO PER THE AGREEMENT 1.25
E-7
EXHIBIT F
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
-------------------------------------------
Reference is made to that certain Credit Agreement, dated as of September 28,
2000 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
---------
herein as therein defined), among XTRA, Inc., a Maine corporation (the
"Company"), the Banks from time to time party thereto, Bank of America, N.A., as
-------
Administrative Agent, Fleet National Bank, as Syndication Agent, and Bank One,
NA (Main Office Chicago), as Documentation Agent..
The assignor identified on the signature page hereto (the "Assignor") and
--------
the assignee identified on the signature page hereto (the "Assignee") agree as
--------
follows:
1. (a) Subject to paragraph 10, effective as of the date specified on
Schedule 1 hereto (the "Effective Date"), the Assignor hereby irrevocably sells
--------------
and assigns to the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, the interest described on Schedule 1 hereto (the "Assigned
--------
Interest") in and to the Assignor's rights and obligations under the Agreement.
--------
(b) From and after the Effective Date, (i) the Assignee shall be a
party under the Agreement and will have all the rights and obligations of a Bank
for all purposes under the Loan Documents to the extent of the Assigned Interest
and be bound by the provisions thereof, and (ii) the Assignor shall relinquish
its rights and be released from its obligations under the Agreement to the
extent of the Assigned Interest. The Assignor and/or the Assignee, as agreed by
the Assignor and the Assignee, shall deliver, in immediately available funds,
any applicable processing fee required under Section 12.1(a) of the Agreement to
---------------
the Administrative Agent.
2. On the Effective Date, the Assignee shall pay to the Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed upon by the Assignor and the Assignee.
3. From and after the Effective Date, the Administrative Agent shall make
all payments under the Agreement and the Notes, if any, in respect of the
Assigned Interest (including all payments of principal, interest and fees with
respect thereto) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Agreement and such Notes, if any,
for periods prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
F-1
(a) The Assignor is the legal and beneficial owner of the Assigned
Interest, and the Assigned Interest is free and clear of any adverse claim;
(b) the Assigned Interest listed on Schedule 1 accurately and
completely sets forth the outstanding amount of all Loans relating to the
Assigned Interest as of the Effective Date;
(c) it has the power and authority and the legal right to make,
deliver and perform, and has taken all necessary action, to authorize the
execution, delivery and performance of this Assignment and Acceptance, and any
and all other documents delivered by it in connection herewith and to fulfill
its obligations under, and to consummate the transactions contemplated by, this
Assignment and Acceptance and the Loan Documents, and no consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or therewith; and
(d) this Assignment and Acceptance constitutes the legal, valid and
binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company, the Parent or any of
their respective subsidiaries or the performance by the Company of its
respective obligations under the Loan Documents, and assumes no responsibility
with respect to any statements, warranties or representations made under or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document other
than as expressly set forth above.
5. The Assignee represents and warrants to the Assignor and the
Administrative Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to make,
deliver and perform, and has taken all necessary action, to authorize the
execution, delivery and performance of this Assignment and Acceptance, and any
and all other documents delivered by it in connection herewith and to fulfill
its obligations under, and to consummate the transactions contemplated by, this
Assignment and Acceptance and the Loan Documents, and no consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or therewith;
(c) this Assignment and Acceptance constitutes the legal, valid and
binding obligation of the Assignee;
(d) under applicable laws no tax will be required to be withheld by
the Administrative Agent or the Company with respect to any payments to be made
to the Assignee hereunder or under any Loan Document, and unless otherwise
indicated in the space opposite the
F-2
Assignee's signature below, no tax forms described in Section 11.10 of the
-------------
Agreement are required to be delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement, together with
copies of the most recent financial statements of the Company and the Parent
delivered pursuant thereto, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance. The Assignee has independently and without
reliance upon the Assignor or the Administrative Agent and based on such
information as the Assignee has deemed appropriate, made its own credit analysis
and decision to enter into this Assignment and Acceptance. The Assignee will,
independently and without reliance upon the Administrative Agent or any Bank,
and based upon such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Agreement.
6. The Assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto.
7. The Assignor and the Assignee agree to execute and deliver such other
instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Assignment and
Acceptance.
8. This Assignment and Acceptance shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided,
--------
however, that the Assignee shall not assign its rights or obligations hereunder
-------
without the prior written consent of the Assignor and any purported assignment,
absent such consent, shall be void.
9. This Assignment and Acceptance may be executed by facsimile signatures
with the same force and effect as if manually signed and may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Assignment
and Acceptance shall be governed by and construed in accordance with the laws of
the state specified in Section 21 of the Agreement.
----------
10. The effectiveness of the assignment described herein is subject to:
(a) if such consent is required by the Agreement, receipt by the
Assignor and the Assignee of the consent of the Administrative Agent and/or the
Company to the assignment described herein. By delivering a duly executed and
delivered copy of this Assignment and Acceptance to the Administrative Agent,
the Assignor and the Assignee hereby request any such required consent and
request that the Administrative Agent register the Assignee as a Bank under the
Agreement effective as of the Effective Date; and
F-3
(b) receipt by the Administrative Agent of (or other arrangements
acceptable to the Administrative Agent with respect to) any applicable
processing fee referred to in Section 12.1(a) of the Agreement and any tax forms
---------------
required by Section 11.10 of the Agreement.
-------------
By signing below, the Administrative Agent agrees to register the Assignee
as a Bank under the Agreement, effective as of the Effective Date with respect
to the Assigned Interest, and will adjust the registered Pro Rata Share of the
Assignor under the Agreement to reflect the assignment of the Assigned Interest.
11. Attached hereto as Schedule 2 is all contact, address, account and
other administrative information relating to the Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
Assignor:
[Name of Assignor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
[_] Tax forms required by Assignee:
Section 11.10 of the Agreement [Name of Assignee]
included
By:________________________________________
Name:______________________________________
Title:_____________________________________
In accordance with and subject to Section 12.1(a)
---------------
of the Credit Agreement, the undersigned consent
to the foregoing assignment as of the Effective Date:
XTRA, INC.
By:______________________________
Name:____________________________
Title:___________________________
BANK OF AMERICA, N.A.,
as Administrative Agent
By:______________________________
Name:____________________________
Title:___________________________
F-4
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
The Assigned Interest
Effective Date: ______________________
Assigned Commitment Type and amount of Assigned Pro Rata
outstanding Share
Loans assigned
------------------------------------------------------------------------
$___________________ [type] $____________ _______________%
F-5
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
Administrative Details
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
F-6
EXHIBIT G
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF REQUEST FOR INCREASE IN AGGREGATE COMMITMENT
----------------------------------------------------
________________, 2000
Bank of America, N.A., as Administrative Agent
under the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
Please refer to the Credit Agreement dated as of September 28, 2000 (as amended
or otherwise modified from time to time, the "Credit Agreement") among XTRA,
INC. (the "Company"), various financial institutions, Bank of America, N.A., as
Administrative Agent, Fleet National Bank, as Syndication Agent and Bank One, NA
(Main Office Chicago), as Documentation Agent. Capitalized terms used but not
defined herein have the respective meanings set forth in the Credit Agreement.
In accordance with Section 25 of the Credit Agreement, the Company hereby
requests an increase in the Commitment from $__________ to $___________. Such
increase shall be made by [increasing the Pro Rata Share of _______________ from
$____________ to $____________] [adding ____________ as a Bank under the Credit
Agreement with a Commitment of $____________] as set forth in the letter
attached hereto. Such increase shall be effective three Business Days after the
date that the Administrative Agent accepts the letter attached hereto or such
other date as is agreed among the Company, the Administrative Agent and the
[increasing] [new] Bank.
Very truly yours,
XTRA, INC.
By:__________________________
Name:________________________
Title:_______________________
G-1
ANNEX I TO EXHIBIT G
[Date]
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Horos
Ladies/Gentlemen:
Please refer to letter dated _______________, 2000 from XTRA, INC. (the
"Company") requesting an increase in the Commitment from $________________ to
________________ pursuant to Section 25 of the Credit Agreement dated as of
September 28, 2000 (the "Credit Agreement") among the Company, various financial
institutions (including the undersigned Bank), Bank of America, N.A., as
Administrative Agent, Fleet National Bank, as Syndication Agent and Bank One, NA
(Main Office Chicago), as Documentation Agent. Capitalized terms used but not
defined herein have the respective meanings set forth in the Credit Agreement.
The undersigned hereby confirms that it has agreed to increase its Pro Rata
Share under the Credit Agreement from $______________ to $_______________
effective on the date which is three Business Days after the acceptance hereof
by the Administrative Agent or on such other dates as may be agreed among the
Company, the Administrative Agent and the undersigned.
Very truly yours,
[NAME OF INCREASING BANK]
By:_______________________________
Name:_____________________________
Title:____________________________
Accepted as of
_________________, _______
BANK OF AMERICA, N.A.,
as Administrative Agent
By:______________________________
Name:____________________________
Title:___________________________
G-2
ANNEX II TO EXHIBIT G
[Date]
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
Please refer to letter dated _______________, 2000 from XTRA, INC. (the
"Company") requesting an increase in the Commitment from $________________ to
________________ pursuant to Section 25 of the Credit Agreement dated as of
September 28, 2000 (the "Credit Agreement") among the Company, various financial
institutions, Bank of America, N.A., as Administrative Agent, Fleet National
Bank, as Syndication Agent and Bank One, NA (Main Office Chicago), as
Documentation Agent. Terms used but not defined herein have the respective
meanings set forth in the Credit Agreement.
The undersigned hereby confirms that it has agreed to become a Bank under the
Credit Agreement with a commitment of $__________ effective on the date which is
three Business Days after the acceptance hereof, and consent hereto, by the
Administrative Agent or on such other date as may be agreed among the Company,
the Administrative Agent and the undersigned.
The undersigned (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements delivered by the Company and Parent pursuant to
the Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to become a
Bank under the Credit Agreement; and (b) agrees that it will, independently and
without reliance upon the Administrative Agent, the Syndication Agent, the
Documentation Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the Credit
Agreement.
The undersigned represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all action
necessary to execute and deliver this letter and to become a Bank under the
Credit Agreement; and (ii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution and delivery of this letter and the performance of its
obligations as a Bank under the Credit Agreement.
The undersigned agrees to execute and deliver such other instruments, and take
such other actions, as the Administrative Agent may reasonably request in
connection with the transactions contemplated by this letter. The following
administrative details apply to the undersigned:
G-3
(A) Notice Address:
Legal name: ______________________________
Address: ______________________________
______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
Facsimile: ______________________________
Electronic Mail:______________@_______________
(B) Payment Instructions:
Account No.: ______________________________
At: ______________________________
______________________________
______________________________
Reference: ______________________________
Attention: ______________________________
The undersigned acknowledges and agrees that, on the date on which the
undersigned becomes a Bank under the Credit Agreement as set forth in the second
paragraph hereof, the undersigned will be bound by the terms of the Credit
Agreement as fully and to the same extent as if the undersigned were an original
Bank under the Credit Agreement.
Very truly yours
[NAME OF NEW BANK]
By:______________________________
Name:____________________________
Title:___________________________
Accepted and consented to as of
____________________, 2000
BANK OF AMERICA, N.A.,
as Administrative Agent
By:________________________________
Name:______________________________
Title:_____________________________
G-4
EXHIBIT H
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
FORM OF GUARANTY
----------------
GUARANTY, dated as of September 28, 2000 by XTRA CORPORATION, a Delaware
corporation (the "Guarantor"), in favor of each of the Banks (as such term is
defined in the Credit Agreement referred to below). In consideration of the
Banks extending time, credit or banking facilities or accommodations to XTRA,
INC., a Maine corporation, and its successors (the "Company"), the Guarantor
agrees as follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby irrevocably,
absolutely and unconditionally guarantees to the Banks the full and punctual
payment when due (whether at maturity, by acceleration or otherwise), and the
performance, of all liabilities, agreements and other obligations of the Company
to the Banks, whether direct or indirect, absolute or contingent, due or to
become due, secured or unsecured, now existing or hereafter arising
(collectively, the "Obligations") under that certain Credit Agreement of even
date herewith (as extended, renewed, amended, restated or otherwise supplemented
from time to time, the "Credit Agreement") among the Company, the Banks from
time to time parties thereto, and Bank of America, N.A., as Administrative
Agent, Fleet National Bank, as Syndication Agent and Bank One, NA (Main Office
Chicago), as Documentation Agent, respectively, for the Banks thereunder.
Capitalized terms used herein without definition which are defined in the Credit
Agreement shall have the same meanings herein as in the Credit Agreement. This
Guaranty is an absolute, unconditional and continuing guaranty of the full and
punctual payment and performance of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Banks first attempt to collect any of the Obligations from the Company or resort
to any security or other means of obtaining payment of the Obligations which the
Banks may now have or may acquire after the date hereof, or upon any other
contingency whatsoever. Should the Company default in the full and punctual
payment or performance of any of the Obligations, the liabilities and
obligations of the Guarantor hereunder shall become immediately due and payable,
without demand or notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by the Banks on
any number of occasions.
2. GUARANTOR'S AGREEMENT TO PAY. The Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to the Administrative
Agent for the benefit of the Banks, on demand, all costs and expenses (including
court costs and reasonable Attorney Costs) incurred or expended by the Banks in
connection with the Obligations, this Guaranty and the enforcement thereof.
3. LIMITED GUARANTY. The liability of the Guarantor shall be limited to
the Obligations and the obligations of the Guarantor described in Section 2
hereof.
H-1
4. WAIVERS BY GUARANTOR; BANKS' FREEDOM TO ACT. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance with their
respective terms regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any Bank
with respect thereto. The Guarantor waives, to the maximum extent permitted by
law, presentment, demand, protest, notice of acceptance, notice of Obligations
incurred, notice of default or nonpayment, notice of dishonor and all other
notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshalling of assets of the Company, and all
suretyship defenses generally. Without limiting the generality of the foregoing,
the Guarantor agrees to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and agrees, to the maximum
extent permitted by law, that the obligations of the Guarantor hereunder shall
not be released or discharged, in whole or in part, or otherwise affected by (i)
the failure of any Bank or the Administrative Agent to assert any claim or
demand or to enforce any right or remedy against the Company; (ii) any
extensions or renewals of any Obligation; (iii) any rescissions, waivers,
amendments or modifications of any of the terms or provisions of any agreement
or instrument evidencing, securing or otherwise executed in connection with any
Obligation; (iv) the substitution or release of any entity primarily or
secondarily liable for any Obligation; (v) the adequacy of any rights any Bank
or the Administrative Agent may have against any collateral or other means of
obtaining repayment of the Obligations; (vi) the impairment of any collateral
securing the Obligations, including without limitation the failure to perfect or
preserve any rights any Bank or the Administrative Agent might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) to the fullest extent permitted by
applicable law, any other act or omission which might in any manner or to any
extent vary the risk of the Guarantor or otherwise operate as a release or
discharge of the Guarantor, all of which may be done without notice to the
Guarantor.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST COMPANY. If for any reason the
Company has no legal existence or is under no legal obligation to discharge any
of the Obligations undertaken or purported to be undertaken by it or on its
behalf, of if any of the Obligations have become irrecoverable from the Company
by operation of law or for any other reason, this Guaranty shall nevertheless be
binding on the Guarantor to the same extent as if the Guarantor at all times had
been the principal obligor on all such Obligations. In the event that
acceleration of the time for payment of the Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Company, or for any other
reason, all such amounts otherwise subject to acceleration under the terms of
any agreement or instrument evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by the
Guarantor.
6. WAIVER OF SUBROGATION; SUBORDINATION. Notwithstanding any other
provision of this Guaranty, until such time as all of the Obligations shall have
been paid and performed in full and the Credit Agreement and all Commitments
thereunder shall have terminated pursuant to the terms thereof, the Guarantor
hereby waives all rights of subrogation against the Company arising as a result
of payment by the Guarantor hereunder and will not prove any claim in
competition with any Bank in respect of any payment hereunder in bankruptcy or
insolvency
H-2
proceedings of any nature. The Guarantor hereby acknowledges that the waiver
contained in the preceding sentence (the "Subrogation Waiver") is given as an
inducement to the Banks to consummate the transactions contemplated by the
Credit Agreement and any other agreement referred to therein and, in
consideration of the willingness of the Banks to consummate said transactions,
the Guarantor agrees that it shall not in any way amend or modify the
Subrogation Waiver without the prior written consent of the Banks. The Guarantor
further acknowledges that the Subrogation Waiver is made for the benefit of any
and all creditors of the Company, whether existing on the date hereof or
thereafter arising, whether the claim of any such creditor against the Company
is direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise. The Subrogation Waiver and the
provisions of this section shall survive the expiration or termination of the
Credit Agreement and all Commitments thereunder, this Guaranty and the other
Loan Documents. Until such time as all of the Obligations shall have been paid
and performed in full and the Credit Agreement and all Commitments thereunder
shall have been terminated pursuant to the terms thereof, the Guarantor will not
claim any set-off or counterclaim against the Company in respect of any
liability of the Guarantor to the Company; the Guarantor will not claim any set-
off or counterclaim (other than any compulsory counterclaim) against any Bank in
any proceeding or action to enforce this Guaranty; and the Guarantor waives any
benefit of and any right to participate in any collateral which may be held by
the Administrative Agent or any Bank. The payment of any amounts due with
respect to any indebtedness of the Company now or hereafter held by the
Guarantor is hereby subordinated to the prior payment in full of the
Obligations. The Guarantor agrees that after the occurrence of any Event of
Default in the payment or performance of the Obligations, the Guarantor will not
demand, ▇▇▇ for or otherwise attempt to collect any such indebtedness of the
Company to the Guarantor. If, notwithstanding the foregoing sentence, the
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness, such amount shall be collected, enforced and received by the
Guarantor as trustee for the Banks and be paid over to the Administrative Agent
on account of the Obligations without affecting in any manner the liability of
the Guarantor under the other provisions of this Guaranty.
7. SET-OFF. The Administrative Agent and each of the Banks is hereby
authorized at any time and from time to time, without notice to the Guarantor
(any such notice being expressly waived by the Guarantor) and to the fullest
extent permitted by law, to set-off and apply such deposits and other sums
against the obligations of the Guarantor under this Guaranty.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Guarantor hereby
represents, warrants, and covenants to and with the Banks that:
8.1. (a) Corporate Status. The Guarantor is a corporation duly
----------------
formed, validly existing and in good standing under the laws of the State
of Delaware and has the power and authority to own its property, conduct
its business as now being conducted and to make and perform this Guaranty
and the transactions contemplated hereby, and is duly qualified to do
business and in good standing as a foreign corporation in each jurisdiction
where the nature and extent of the business conducted by it, or property
owned by it, and
H-3
applicable law required such qualification, except where the failure to so
qualify would not have a material adverse effect on the Guarantor and its
Subsidiaries, taken as a whole.
(b) Authorization. The execution, delivery and performance of
-------------
this Guaranty by the Guarantor have been duly authorized by all necessary
corporate action and will not violate any provision of law or any order of
any court or governmental agency or the charter, or other incorporation
papers or bylaws (or the equivalent thereof) of the Guarantor or conflict
with, or result in a breach of, or constitute (with or without notice or
lapse of time or both) a default under, or result in the creation of any
security interest, lien, charge or encumbrance upon any property or assets
of the Guarantor pursuant to any agreement, indenture or other instrument
to which it is a party or by which it may be bound which would have a
material adverse effect upon the financial condition or operations of the
Guarantor and its Subsidiaries, taken as a whole.
(c) Litigation. Except as disclosed to the Banks in writing
----------
prior to the execution hereof, no action, suit, investigation or proceeding
is pending or known to be threatened against or affecting the Guarantor
which, if adversely determined, would have a material adverse effect upon
the financial condition or operations of the Guarantor and its
Subsidiaries, taken as a whole.
(d) Absence of Default. The Guarantor is not in default under
------------------
any provision of its charter, or other incorporation papers, bylaws (or the
equivalent thereof) or stock provisions or any amendment of any thereof, or
any provision of law, or of any agreement, note, indenture or other
instrument to which it is a party or by which it or any of its property is
bound, or of any order of any court or public body or authority by which it
or any of its property is bound, which would have a material adverse effect
upon the financial condition or operations of the Guarantor and its
Subsidiaries, taken as a whole.
(e) No Consents Required. No license, consent or approval of or
--------------------
filing with any governmental body or other regulatory authority is required
for the making and performance of this Guaranty by the Guarantor or any
instrument or transaction contemplated herein. The Guarantor holds all
certificates and authorizations of all governmental agencies and
authorities required by law to enable it to engage in the business
currently transacted by it, except where the failure to obtain such
certificates and authorizations would not have a material adverse effect
upon the financial condition or operations of the Guarantor and its
Subsidiaries, taken as a whole.
(f) Enforceability. This Guaranty has been duly executed and
--------------
delivered by the Guarantor and is the valid and legally binding obligation
of the Guarantor, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting generally the enforcement of creditors'
rights.
H-4
(g) Survival of Representations and Warranties. All
------------------------------------------
representations and warranties of the Guarantor made herein shall survive
until payment in full of all of the Obligations.
8.2 Certain Negative Covenants. The Guarantor covenants and agrees
--------------------------
that, until all of the Obligations have been paid and satisfied in full,
the Guarantor shall not create or suffer to exist any mortgage, pledge,
deed of trust or security interest on the capital stock (or any
indebtedness convertible into capital stock) of any of its Subsidiaries.
9. TERMINATION; REINSTATEMENT. The Obligations of the Guarantor under
this Guaranty shall remain in full force and effect until all of the Obligations
have been indefeasibly satisfied. This Guaranty shall continue to be effective
or be reinstated if at any time any payment made or value received with respect
to an Obligation is rescinded or must otherwise be returned by any Bank or the
Administrative Agent upon the insolvency, bankruptcy or reorganization of the
Company, or otherwise, all as though such payment had not been made or value
received.
10. SUCCESSORS AND ASSIGNS. The obligations represented by this Guaranty
may not be assigned or delegated by the Guarantor without the prior written
consent of the Banks. This Guaranty shall be binding upon the Guarantor, its
permitted successors and assigns, and shall inure to the benefit of and be
enforceable by each of the Banks and their respective successors, transferees
and assigns. Without limiting the generality of the foregoing sentence, each
Bank may assign or otherwise transfer this Guaranty and/or any agreement or any
note held by it evidencing, securing or otherwise executed in connection with
the Obligations, or sell participations in any interest therein, to any other
person or entity and such other person or entity shall thereupon become vested
to the extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such Bank
herein.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless made in writing and the same shall be signed by the Banks. No
failure on the part of any Bank to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other rights.
12. NOTICES. All notices and other communications called for hereunder
shall be made in accordance with Section 20 of the Credit Agreement (and shall
----------
be deemed to be effective at the times provided therein), addressed as follows:
if to the Guarantor, at the address set forth beneath the appropriate signature
line hereto, and if to the Banks, at the respective addresses set forth for the
Banks in the Credit Agreement, or at such other address as any party may
designate in writing in accordance with the provisions hereof.
13. GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty shall be
governed by, and construed in accordance with, the internal substantive law of
the State of Illinois, without regard to the conflicts of law provisions
thereof. The Guarantor agrees that any
H-5
suit for the enforcement of this Guaranty may be brought in any United States
federal or Illinois state court sitting in Chicago, Illinois, and consents to
the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Guarantor by mail at the address of the Guarantor
set forth beneath the appropriate signature line hereto. The Guarantor hereby
waives any objection that it may now or hereafter have to the venue of any such
suit or any such court or that such suit was brought in an inconvenient court.
14. WAIVER OF TRIAL BY JURY. THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS GUARANTY OR ANY OTHER AGREEMENT, INSTRUMENT OR OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH.
15. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of the Obligations. The invalidity or unenforceability of any one or
more sections of this Guaranty shall not affect the validity or enforceability
of its remaining provisions. Captions are for the ease of reference only and
shall not affect the meaning of the relevant provisions.
(SIGNATURE PAGE FOLLOWS)
H-6
SCHEDULE 1.1(B)
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
COMMITMENTS AND PRO RATA SHARES
-------------------------------
------------------------------------------------------------------
Bank Commitment Pro Rata Share
------------------------------------------------------------------
Bank of America, N.A. $ 24,000,000 22.222222222%
------------------------------------------------------------------
Fleet National Bank $ 24,000,000 22.222222222%
------------------------------------------------------------------
Bank One, NA (Main Office Chicago) $ 24,000,000 22.222222222%
------------------------------------------------------------------
Union Bank of California, N.A. $ 10,000,000 9.259259259%
------------------------------------------------------------------
The Bank of Nova Scotia $ 10,000,000 9.▇▇▇▇▇▇▇▇▇%
------------------------------------------------------------------
The Chase Manhattan Bank $ 10,000,000 9.259259259%
------------------------------------------------------------------
LaSalle Bank National Association $ 6,000,000 5.555555557%
------------------------------------------------------------------
------------------------------------------------------------------
TOTAL $108,000,000 100%
-----
------------------------------------------------------------------
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered by its duly authorized officer as of the date first written above.
XTRA CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and
Chief Financial Officer
Accepted and Agreed to as
of September 28, 2000:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ Horos
H-7
SCHEDULE 1.1(B)
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
COMMITMENTS AND PRO RATA SHARES
-------------------------------
------------------------------------------------------------------
BANK COMMITMENT PRO RATA SHARE
------------------------------------------------------------------
Bank of America, N.A. $ 24,000,000 22.222222222%
------------------------------------------------------------------
Fleet National Bank $ 24,000,000 22.222222222%
------------------------------------------------------------------
Bank One, NA (Main Office Chicago) $ 24,000,000 22.222222222%
------------------------------------------------------------------
Union Bank of California, N.A. $ 10,000,000 9.259259259%
------------------------------------------------------------------
The Bank of Nova Scotia $ 10,000,000 9.▇▇▇▇▇▇▇▇▇%
------------------------------------------------------------------
The Chase Manhattan Bank $ 10,000,000 9.259259259%
------------------------------------------------------------------
LaSalle Bank National Association $ 6,000,000 5.555555557%
------------------------------------------------------------------
------------------------------------------------------------------
TOTAL $108,000,000 100%
------------------------------------------------------------------
SCHEDULE 1.1(A)
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
APPLICABLE MARGIN; NON USE FEE; UTILIZATION FEE
-----------------------------------------------
(All Figures Presented In Basis Points)
================================================================================
REVOLVING LOANS AND TERM OUT LOANS
================================================================================
I II III IV V
=============================================
Long-Term Senior A- or A3 BBB+ BBB BBB- BB+ or Ba1
Unsecured Debt Rating or or or or or Lower or
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Not Rated
================================================================================
Non-Use Fee 10.00 12.50 15.00 20.00 30.00
--------------------------------------------------------------------------------
Applicable Eurodollar Rate Margin 62.50 75.00 87.50 112.50 137.50
--------------------------------------------------------------------------------
Applicable Base Rate Margin 0.00 0.00 0.00 0.00 0.00
--------------------------------------------------------------------------------
Utilization Fee 12.50 12.50 12.50 12.50 12.50
================================================================================
SCHEDULE 1.1(B)
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
COMMITMENTS AND PRO RATA SHARES
-------------------------------
------------------------------------------------------------------
BANK COMMITMENT PRO RATA SHARE
------------------------------------------------------------------
Bank of America, N.A. $ 24,000,000 22.222222222%
------------------------------------------------------------------
Fleet National Bank $ 24,000,000 22.222222222%
------------------------------------------------------------------
Bank One, NA (Main Office Chicago) $ 24,000,000 22.222222222%
------------------------------------------------------------------
Union Bank of California, N.A. $ 10,000,000 9.259259259%
------------------------------------------------------------------
The Bank of Nova Scotia $ 10,000,000 9.▇▇▇▇▇▇▇▇▇%
------------------------------------------------------------------
The Chase Manhattan Bank $ 10,000,000 9.259259259%
------------------------------------------------------------------
LaSalle Bank National Association $ 6,000,000 5.555555557%
------------------------------------------------------------------
------------------------------------------------------------------
TOTAL $108,000,000 100%
------------------------------------------------------------------
SCHEDULE 1.1(A)
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
APPLICABLE MARGIN; NON USE FEE; UTILIZATION FEE
-----------------------------------------------
(All Figures Presented In Basis Points)
================================================================================
REVOLVING LOANS AND TERM OUT LOANS
================================================================================
I II III IV V
=============================================
Long-Term Senior A- or A3 BBB+ BBB BBB- BB+ or Ba1
Unsecured Debt Rating or or or or or Lower or
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Not Rated
================================================================================
Non-Use Fee 10.00 12.50 15.00 20.00 30.00
--------------------------------------------------------------------------------
Applicable Eurodollar Rate Margin 62.50 75.00 87.50 112.50 137.50
--------------------------------------------------------------------------------
Applicable Base Rate Margin 0.00 0.00 0.00 0.00 0.00
--------------------------------------------------------------------------------
Utilization Fee 12.50 12.50 12.50 12.50 12.50
================================================================================
SCHEDULE 1.1(B)
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
COMMITMENTS AND PRO RATA SHARES
-------------------------------
------------------------------------------------------------------
BANK COMMITMENT PRO RATA SHARE
------------------------------------------------------------------
Bank of America, N.A. $ 24,000,000 22.222222222%
------------------------------------------------------------------
Fleet National Bank $ 24,000,000 22.222222222%
------------------------------------------------------------------
Bank One, NA (Main Office Chicago) $ 24,000,000 22.222222222%
------------------------------------------------------------------
Union Bank of California, N.A. $ 10,000,000 9.259259259%
------------------------------------------------------------------
The Bank of Nova Scotia $ 10,000,000 9.▇▇▇▇▇▇▇▇▇%
------------------------------------------------------------------
The Chase Manhattan Bank $ 10,000,000 9.259259259%
------------------------------------------------------------------
LaSalle Bank National Association $ 6,000,000 5.555555557%
------------------------------------------------------------------
------------------------------------------------------------------
TOTAL $108,000,000 100%
------------------------------------------------------------------
SCHEDULE 5.12
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
PLANS
-----
1. AJF Warehouse Distributors, Inc. was a former contributing employer to
the Southwest Areas Pension Fund. AJF's withdrawal liability was settled
pursuant to a Settlement Agreement between AJF, XTRA Corporation and the Fund, a
copy of which has been provided to each Bank.
2. XTRA 401(k) Savings and Retirement Plan.
3. XTRA Corporation Long Term Disability Plan.
4. XTRA Corporation Health Insurance Plan.
5. XTRA Corporation Dental Plan.
6. XTRA Corporation Group Life Insurance Plan.
7. XTRA Corporation Group Travel Insurance for Employees Plan.
8. XTRA Corporation Cafeteria Benefit Plan.
9. XTRA Corporation Tuition Plan.
10. XTRA Corporation Accidental Death and Dismemberment Plan.
SCHEDULE 5.15
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
SUBSIDIARIES
------------
NAME STATE OF INCORPORATION
---- ----------------------
Parent*
XTRA Corporation Delaware
Subsidiary of XTRA Corporation
XTRA, Inc. Maine
Subsidiaries of XTRA, Inc.
XTRA Intermodal, Inc. Delaware
XTRA International Ltd. Delaware
XTRA Mexicana, S.A. de C.V. Mexico
Expestos en Administracion, S.A. de C.V. Mexico
Distribution International Corporation Delaware
Subsidiaries of Distribution
International Corporation
▇▇▇▇▇▇ Canada Limited Ontario
▇▇▇▇▇▇ Mexicana, S.A. de C.V. Mexico
XTRA Lease, Inc. Delaware
* Excludes certain inactive Subsidiaries
NAME
----
Subsidiaries of XTRA International Ltd.
XTRA International (HK), Limited Hong Kong
XTRA International (Europe) S.A.R.L. France
XTRA International (France) S.A.R.L France
XTRA International (U.K.) Limited United Kingdom
XTRA International Gmbh Germany
XTRA International Servicos LTDA Brazil
XTRA International (Singapore) PTE Ltd. Singapore
XTRA International Pacific Limited Hawaii
XTRA International (Italia) S.R.L. Italy
Subsidiary of XTRA International Pacific Limited
XTRA International PTY Limited Australia
Subsidiary of XTRA Intermodal, Inc.
XTRA Chassis, Inc. Delaware
SCHEDULE 6.12
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
DEPRECIATION SCHEDULE
---------------------
The Company provides for depreciation by using the straight line method to
amortize the cost of property and equipment over its estimated useful life.
These estimated useful lives and residual values are as follows:
Years Residual Value
----- ---------------
Intermodal trailers 12 15%
Domestic containers 12 10%
Chassis
Domestic 15 20%
Chassis
ISO (Marine) 20 $900.00
Chassis
Over-the-road trailers 12 20%
Buildings, improvements 3-30 various
and other equipment
International Containers 15 15%
SCHEDULE 20
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 28, 2000
EURODOLLAR AND DOMESTIC LENDING
OFFICES; ADDRESSES FOR NOTICES
------------------------------
BANK OF AMERICA, N.A.
A. Administrative Agent's Payment Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Oxford
TEL: 214/▇▇▇-▇▇▇▇
FAX: 214/▇▇▇-▇▇▇▇
B. Domestic Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Oxford
TEL: 214/▇▇▇-▇▇▇▇
FAX: 214/▇▇▇-▇▇▇▇
C. Eurodollar Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Oxford
TEL: 214/▇▇▇-▇▇▇▇
FAX: 214/▇▇▇-▇▇▇▇
D. Address(es) for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ Horos
TEL: 312/▇▇▇-▇▇▇▇
FAX: 312/▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇_▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
FLEET NATIONAL BANK
A. Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Address(es) for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
TEL: 617/▇▇▇-▇▇▇▇
FAX: 617/▇▇▇-▇▇▇▇
Electronic Mail: @
------------------------
BANK ONE, NA (Main Office Chicago)
A. Domestic Lending Office:
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Eurodollar Lending Office:
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Address(es) for Notices:
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
TEL: 312/▇▇▇-▇▇▇▇
FAX: 312/▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
UNION BANK OF CALIFORNIA, N.A.
A. Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Address(es) for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TEL: 415/▇▇▇-▇▇▇▇
FAX: 415/▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
THE BANK OF NOVA SCOTIA
A. Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Address(es) for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
TEL: 312/▇▇▇-▇▇▇▇
FAX: 312/▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE CHASE MANHATTAN BANK
A. Domestic Lending Office:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Eurodollar Lending Office:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Address(es) for Notices:
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
TEL: 212/▇▇▇-▇▇▇▇
FAX: 212/▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
LaSALLE BANK NATIONAL ASSOCIATION
A. Domestic Lending Office:
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B. Eurodollar Lending Office:
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Address(es) for Notices:
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
TEL: 312/▇▇▇-▇▇▇▇
FAX: 312/▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇