EXHIBIT 4.A.4
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of February 16, 1996, among
Louisiana-Pacific Corporation, a corporation organized under the laws of the
State of Delaware (the "Company"), the several financial institutions from
time to time party to this Agreement (collectively, the "Banks"; individually,
a "Bank"), and Bank of America National Trust and Savings Association, as
agent for the Banks and the Designated Bidders.
WITNESSETH THAT:
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility with a swingline subfacility upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. In addition to the terms defined elsewhere
in this Agreement, the following terms have the meanings indicated for
purposes of this Agreement:
"Absolute Rate" has the meaning specified in
subsection 2.06(c)(ii)(D).
"Absolute Rate Auction" means a solicitation of
Competitive Bids setting forth Absolute Rates pursuant to
Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears
interest at a rate determined with reference to the Absolute
Rate.
"Agent" means BofA in its capacity as agent for the Banks
and the Designated Bidders hereunder, and any successor agent
arising under Section 9.09.
"Agent-Related Persons" means BofA in its capacity as
Agent and any successor agent arising under Section 9.09,
together with their respective affiliates (including, in the
case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
affiliates.
"Agent's Payment Office" means the address for payments
set forth on Schedule 10.02 in relation to the Agent, or such
other address as the Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, in respect of all Committed
Loans outstanding on any date (A) for the period from the
Closing Date through March 31, 1996, 0.1700% for Offshore Rate
Committed Loans and 0.0000% for Base Rate Committed Loans and
Swingline Loans, and (B) from and after April 1, 1996, the
percentage specified below opposite the Interest Coverage Ratio
(which ratio shall be calculated for the relevant four fiscal
quarter period) calculated for the periods described below.
Interest Coverage Ratio
at End of Fiscal Quarter Applicable Margin
------------------------ ---------------------------
Offshore Base Rate
Rate and
-------- Swingline
---------
Greater than or equal to
5.00 to 1.00 0.1700% 0.0000%
Greater than 3.00 to 1.00 but
less than 5.00 to 1.00 0.2500% 0.0000%
Less than 3.00 to 1.00 0.3250% 0.0000%
The Applicable Margin for each fiscal quarter commencing on and
after April 1, 1996 shall be calculated in reliance on the
financial reports delivered pursuant to subsections 6.07(a) and
6.07(b) and the certificate delivered with respect thereto
pursuant to subsection 6.07(c) with respect to the fiscal
quarter ending immediately before the fiscal quarter in
question (e.g., March 31 financials determine the Applicable
Margin for the fiscal quarter beginning April 1). As such
financial reports and certificate are not required to be
delivered hereunder until 45 days (or 90 days in the case of
fiscal year-end financial reports) after the end of the
applicable fiscal quarter, the Applicable Margin for each
fiscal quarter shall be assumed for interim calculation and
collection purposes, until delivery of such financial reports
and certificate, to be the same as for the immediately
preceding fiscal quarter. The Applicable Margin shall be
adjusted automatically in accordance with the provisions of
Section 2.17 as to all Committed Loans then outstanding
(without regard to the timing of Interest Periods) as of the
effective date of any change in the Applicable Margin.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Bank" has the meaning specified in the introductory
clause hereto. References to the "Banks" shall include BofA,
including in its capacity as the Swingline Bank; for purposes
of clarification only, to the extent that BofA may have any
rights or obligations in addition to those of the Banks due to
its status as the Swingline Bank, its status as such will be
specifically referenced.
"Base Rate" means, for any day, the higher of: (a) 0.50%
per annum above the latest Federal Funds Rate; and (b) the
rate of interest in effect for such day as publicly announced
from time to time by BofA in San Francisco, California, as its
"reference rate." (The "reference rate" is a rate set by BofA
based upon various factors including BofA's costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that
bears interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of
one or more Bid Loans made to the Company on the same day by
one or more Banks or Designated Bidders.
"Bid Loan" means a Loan by a Bank or a Designated Bidder
to the Company under Section 2.05, which may be a LIBOR Bid
Loan or an Absolute Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the
Bank or Designated Bidder making such Bid Loan to the Company.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of (i)
Committed Loans of the same Type made to the Company on the
same day by the Banks, (ii) Bid Loans made to the Company on
the same day by the Banks or Designated Bidders, or (iii) a
Swingline Loan or Loans made to the Company on the same day by
the Swingline Bank, in each case pursuant to Article II, and,
other than in the case of Base Rate Committed Loans and
Swingline Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.03, Section 2.06, or Section 2.07, as
applicable.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York City
or San Francisco are authorized or required by law to close
and, if the applicable Business Day relates to any Offshore
Rate Loan, means such a day on which dealings are carried on in
the applicable offshore dollar interbank market.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived by
all Banks (or, in the case of subsection 4.01(e), waived by the
Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified
in subsection 2.01(a).
"Committed Borrowing" means a Borrowing hereunder
consisting of Committed Loans made on the same day by the Banks
ratably according to their respective Pro Rata Shares and, in
the case of Offshore Rate Committed Loans, having the same
Interest Periods.
"Committed Loan" means a Loan by a Bank to the Company
under Section 2.01, and may be an Offshore Rate Committed Loan
or a Base Rate Committed Loan (each, a "Type" of Committed
Loan).
"Competitive Bid" means an offer by a Bank or a
Designated Bidder to make a Bid Loan in accordance with
subsection 2.06(b).
"Competitive Bid Request" has the meaning specified in
subsection 2.06(a).
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C.
"Conversion/Continuation Date" means any date on which,
under Section 2.04, the Company (a) converts Committed Loans of
one Type to another Type, or (b) continues as Committed Loans
of the same Type, but with a new Interest Period, Committed
Loans having Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an
Event of Default.
"Designated Bidder" means an affiliate of a Bank that is
an entity described in clause (i) or (ii) of the definition of
"Eligible Assignee" and that has become a party hereto pursuant
to Section 10.09.
"Designation Agreement" means a designation agreement
entered into by a Bank and a Designated Bidder and accepted by
the Agent, in substantially the form of Exhibit K.
"Dollars", "dollars", and "$" means dollars of the United
States of America.
"EBIT" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, determined in accordance
with GAAP, the sum of (a) net income (or net loss) for such
period plus (b) all amounts treated as expenses for interest to
the extent included in the determination of such net income (or
loss), plus (c) all accrued taxes on or measured by income to
the extent included in the determination of such net income (or
loss); provided, however, that net income (or loss) shall be
computed for these purposes without giving effect to
extraordinary losses or extraordinary gains or the cumulative
effect of changes in accounting principles.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $250,000,000;
(ii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital
and surplus of at least $250,000,000, provided that such bank
is acting through a branch or agency located in the United
States; and (iii) a Person that is primarily engaged in the
business of commercial banking and that is (A) a Subsidiary of
a Bank, (B) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (C) a Person of which a Bank is a Subsidiary.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Company within
the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating
to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect
to a Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of
operations which is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal
by the Company or any ERISA Affiliate from a Multiemployer Plan
or notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate a Pension
Plan or Multiemployer Plan, the treatment of a Plan amendment
as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which
might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any
ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified
in the definition of "Offshore Rate".
"Event of Default" means any event listed in
Section 8.01.
"Existing Agreement" has the meaning specified in
subsection 4.01(g).
"Facility Fee Percentage" means (A) for the period from
the Closing Date through March 31, 1996, 0.0800%, and (B) from
and after April 1, 1996, the percentage specified below
opposite the Interest Coverage Ratio (which ratio shall be
calculated for the relevant four fiscal quarter period)
calculated for the periods described below.
Interest Coverage Ratio Facility Fee
at End of Fiscal Quarter Percentage
-------------------------- ------------
Greater than or equal to
5.00 to 1.00 0.0800%
Greater than 3.00 to 1.00
but less than 5.00 to 1.00 0.1250%
Less than 3.00 to 1.00 0.1750%
The Facility Fee Percentage for each fiscal quarter commencing
on and after April 1, 1996 shall be calculated in reliance on
the financial reports delivered pursuant to subsections 6.07(a)
and 6.07(b) and the certificate delivered with respect thereto
pursuant to subsection 6.07(c) with respect to the fiscal
quarter ending immediately before the fiscal quarter in
question (e.g., March 31 financials determine the Facility Fee
Percentage for the fiscal quarter beginning April 1). As such
financial reports and certificate are not required to be
delivered hereunder until 45 days (or 90 days in the case of
fiscal year-end financial reports) after the end of the
applicable fiscal quarter, the Facility Fee Percentage for each
fiscal quarter shall be assumed for interim calculation and
collection purposes, until delivery of such financial reports
and certificate, to be the same as for the immediately
preceding fiscal quarter. The facility fee payable hereunder
shall be adjusted automatically in accordance with the
provisions of Section 2.17 as of the effective date of any
change in the Facility Fee Percentage.
"FDIC" means the Federal Deposit Insurance Corporation,
and any governmental authority succeeding to any of its
principal functions.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such
rate is not so published on any such preceding Business Day,
the rate for such day will be the arithmetic mean as determined
by the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time)
on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection
2.12(b).
"FRB" means the Board of Governors of the Federal Reserve
System, and any governmental authority succeeding to any of its
principal functions.
"Funded Debt" means indebtedness for borrowed money or
liability under a lease which is the primary source of payment
of industrial revenue or pollution control bonds. Funded Debt
also includes Purchase Money Indebtedness, prepayment deposits
in respect of sales contracts and unfunded reserves maintained
with respect to pending or threatened disputes or settlement
thereof.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within
the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Indemnified Liabilities" has the meaning specified in
Section 10.05.
"Interest Coverage Ratio" means, as measured quarterly on
the last day of each fiscal quarter for the four fiscal quarter
period then ending, the ratio of (i) EBIT to (ii) an amount
equal to the consolidated interest expense (including
capitalized interest) of the Company and its Subsidiaries for
the four fiscal quarter period then ending calculated in
accordance with GAAP.
"Interest Payment Date" means, (a) as to any Offshore
Rate Committed Loan or Bid Loan, the last day of each Interest
Period applicable to such Loan, (b) as to any Base Rate
Committed Loan, the last Business Day of each calendar quarter
and each date such Base Rate Committed Loan is converted into
another Type of Committed Loan, and (c) as to any Swingline
Loan, the Business Day agreed upon by the Company and the
Swingline Bank, which will not be later than the fourteenth
Business Day following the Borrowing Date thereof or, if
sooner, the date set forth in clause (a) of the definition of
Revolving Termination Date; provided, however, that (i) if any
Interest Period for an Offshore Rate Committed 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, and
(ii) as to any Bid Loan, such intervening dates prior to the
maturity thereof as may be specified by the Company and agreed
to by the applicable Bid Loan Lender in the applicable
Competitive Bid shall also be Interest Payment Dates.
"Interest Period" means, (a) as to any Offshore Rate
Committed Loan, the period commencing on the Borrowing Date of
such Loan or on the Conversion/Continuation Date on which the
Loan is converted into or continued as an Offshore Rate
Committed 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, as the case may
be; (b) as to any LIBOR Bid Loan, a period of one to twelve
months as selected by the Company in the applicable Competitive
Bid Request; and (c) as to any Absolute Rate Bid Loan, a period
of not less than 7 days and not more than 365 days as selected
by the Company in the applicable Competitive Bid Request;
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, in the case of
an Offshore Rate Loan, 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 pertaining to an
Offshore Rate Loan that begins on the last
Business Day of a calendar month (or on a day for
which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the
calendar month at the end of such Interest
Period; and
(iii) no Interest Period for any Loan
shall extend beyond February 16, 2001.
"Invitation for Competitive Bids" means a solicitation
for Competitive Bids, substantially in the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any
governmental authority succeeding to any of its principal
functions under the Code.
"Lending Office" means, as to any Bank or Designated
Bidder, the office or offices of such Bank or Designated Bidder
specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office", as the case may be, on Schedule
10.02, or such other office or offices as such Bank or
Designated Bidder may from time to time notify the Company and
the Agent.
"LIBOR Rate" means, for any Interest Period with respect
to a LIBOR Bid Loan the rate of interest per annum determined
by the Agent to be the arithmetic mean (rounded upward to the
nearest 1/16th of 1%) of the rates of interest per annum
notified to the Agent by each Reference Bank as the rate of
interest at which dollar deposits in the approximate amount of
the LIBOR Bid Loans to be borrowed in such Bid Loan Borrowing
and having a maturity comparable to such Interest Period would
be offered to major banks in the London interbank market at
their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest
Period.
"LIBOR Auction" means a solicitation of Competitive Bids
setting forth a LIBOR Bid Margin pursuant to Section 2.06.
"LIBOR Bid Loan" means any Bid Loan that bears interest
at a rate based upon the LIBOR Rate.
"LIBOR Bid Margin" has the meaning specified in
subsection 2.06(c)(ii)(C).
"Loan" means an extension of credit by a Bank, the
Swingline Bank or a Designated Bidder, as the case may be, to
the Company under Article II, and may be a Committed Loan, a
Swingline Loan, or a Bid Loan.
"Majority Banks" means (a) at any time prior to the
Revolving Termination Date, or after the Revolving Termination
Date if no Loans are then outstanding, Banks then holding at
least 60% of the Commitments, and (b) otherwise, Banks then
holding at least 60% of the then aggregate unpaid principal
amount of the Loans. For purposes of this definition, each
Bank shall be deemed to hold all outstanding Bid Loans of such
Bank's Designated Bidders.
"Multiemployer Plan" means a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA, to which the
Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make,
contributions.
"Net Worth" means the total, determined on a consolidated
basis for the Company and its Subsidiaries, of (1) the capital
accounts as determined by GAAP and (2) debt which is
subordinated by the holders thereof to the Loans and other sums
now or hereafter owed by the Company or Subsidiaries to the
Agent, the Banks or the Designated Bidders with respect to the
Loans or otherwise under this Agreement or the Notes, by
arrangements or agreements in form and substance satisfactory
to the Majority Banks.
"Notes" has the meaning specified in subsection 2.02(b).
"Notice of Borrowing" means a notice in substantially the
form of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Offshore Rate" means, for any Interest Period, with
respect to Offshore Rate Committed Loans comprising part of the
same Borrowing, the rate of interest per annum (rounded upward
to the next 1/16th of 1%) determined by the Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" 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");
and
"LIBOR" means the rate of interest per annum determined by the
Agent to be the arithmetic mean (rounded upward to the next
1/16th of 1%) of the rates of interest per annum notified to
the Agent by each Reference Bank as the rate of interest at
which dollar deposits in the approximate amount of the amount
of the Loan to be made or continued as, or converted into, an
Offshore Rate Committed Loan by such Reference Bank and having
a maturity comparable to such Interest Period would be offered
to major banks in the London interbank market at their request
at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to
all Offshore Rate Loans then outstanding as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Committed Loan" means any Committed Loan
that bears interest based on the Offshore Rate.
"Offshore Rate Loan" means any LIBOR Bid Loan or any
Offshore Rate Committed Loan.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes,
charges or similar levies (but not including such taxes
(including income taxes or franchise taxes) as are imposed on
or measured by each Bank's or Designated Bidder's net income)
which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other documents or
instruments given in connection herewith.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any governmental authority succeeding to any of its principal
functions under ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA which the
Company sponsors or maintains, or to which it makes, is making,
or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Swap Obligations" means all obligations
(contingent or otherwise) of the Company or any Subsidiary
existing or arising under Swap Contracts, provided that each of
the following criteria is satisfied: (a) such obligations are
(or were) entered into by such Person for the purpose of
directly mitigating risks associated with liabilities,
commitments or assets held or reasonably anticipated by such
Person, or changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of
speculation or taking a "market view;" and (b) such Swap
Contracts do not contain any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to
make payments on outstanding transactions to the defaulting
party.
"Person" means any individual, association, joint
venture, partnership, joint stock company, corporation, trust,
business trust, government, governmental agency, governmental
subdivision or other entity.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company sponsors or maintains
or to which the Company makes, is making, or is obligated to
make contributions and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the
ninth decimal place) at such time of such Bank's Commitment
divided by the combined Commitments of all Banks.
"Purchase Money Indebtedness" means indebtedness incurred
for the purchase of assets either by way of deferred payment of
the purchase price thereof or by borrowing in order to finance
such purchase.
"Reference Banks" means BofA and The Chase Manhattan
Bank, N.A.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement
under ERISA has been waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a governmental authority,
in each case applicable to or binding upon the Person or any of
its property or to which the Person or any of its property is
subject.
"Revolving Termination Date" means the earlier to occur
of:
(a) February 16, 2001; and
(b) the date on which the Commitments terminate
in accordance with the provisions of this Agreement.
"Subsidiary" of a Person means any corporation,
association, partnership, joint venture or other business
entity of which more than 50% of the voting stock or other
equity interests (in the case of Persons other than
corporations) is owned or controlled directly or indirectly by
the Person, or one or more of the Subsidiaries of the Person,
or a combination thereof. Unless the context otherwise clearly
requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or
▇▇▇▇ option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any
other, similar transaction (including any option to enter into
any of the foregoing) or any combination of the foregoing, and,
unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or
more Swap Contracts, after taking into account the effect of
any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap
Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a)
the amount(s) determined as the ▇▇▇▇-to-market value(s) for
such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may include
any Bank).
"Swingline Bank" means BofA.
"Swingline Borrowing" means a Borrowing hereunder
consisting of one or more Swingline Loans made to the Company
on the same day by the Swingline Bank.
"Swingline Clean-Up Day" has the meaning specified in
subsection 2.09(c).
"Swingline Commitment" has the meaning specified in
subsection 2.01(b).
"Swingline Loan" has the meaning specified in
subsection 2.01(b).
"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, each Designated Bidder and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on
or measured by such Person's net income by the jurisdiction (or
any political subdivision thereof) under the laws of which such
Person is organized or maintains a lending office.
"Type" has the meaning specified in the definition of
"Committed Loan."
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over
the current value of that Plan's assets, determined in
accordance with the assumptions used for funding that Plan
pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." each means the United States
of America.
1.02 Accounting Principles. All financial computations required under
this Agreement shall be made, and all financial information required under
this Agreement shall be prepared, in accordance with GAAP, consistently
applied. References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. (a) Each Bank severally
agrees, on the terms and conditions set forth herein, to make loans to the
Company from time to time on any Business Day during the period from the
Closing Date to the Revolving Termination Date in an aggregate amount not to
exceed at any time outstanding, together with such Bank's participation, if
any, in Swingline Loans then outstanding, the amount set forth on Schedule
2.01 (such amount, as the same may be reduced under Section 2.08 or as a
result of one or more assignments under Section 10.08, the Bank's
"Commitment"); provided, however, that, after giving effect to any Committed
Borrowing, the aggregate principal amount of all outstanding Loans shall not
at any time exceed the combined Commitments. Within the limits of each Bank's
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this subsection 2.01(a), prepay under Section 2.09 and
reborrow under this subsection 2.01(a).
(b) The Swingline Bank agrees, on the terms and conditions set forth
herein, to make a portion of the combined Commitments of all the Banks
available to the Company by making swingline loans (each such loan a
"Swingline Loan") to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination Date, in an
aggregate principal amount not to exceed at any time outstanding $25,000,000
(as such amount may be reduced under Section 2.08 or as a result of one or
more assignments under Section 10.08, the Swingline Bank's "Swingline
Commitment"), notwithstanding the fact that such Swingline Loans, when
aggregated with the Swingline Bank's outstanding Committed Loans, may exceed
the Swingline Bank's Commitment; provided, however, that, after giving effect
to any Borrowing of a Swingline Loan, the aggregate principal amount of all
outstanding Loans shall not at any time exceed the combined Commitments.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Company may borrow under this subsection 2.01(b), prepay under
Section 2.09 and reborrow under this subsection 2.01(b).
2.02 Loan Accounts.
(a) The Loans made by each Bank or Designated Bidder shall be
evidenced by one or more loan accounts or records maintained by such Bank or
Designated Bidder in the ordinary course of business. The loan accounts or
records maintained by the Agent and each Bank or Designated Bidder shall be
rebuttable presumptive evidence of the amount of the Loans made by the Banks
and Designated Bidders to the Company and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount
owing with respect to the Loans.
(b) Upon the request of any Bank or Designated Bidder made through the
Agent, the Loans made by such Bank or Designated Bidder may be evidenced by
one or more notes in the form of Exhibit I or Exhibit J hereto, as applicable
(the "Notes"), instead of loan accounts. Each such Bank or Designated Bidder
shall 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 such Bank and Designated
Bidder is irrevocably authorized by the Company to endorse its Note(s) and
each Bank's or Designated Bidder's notations on its Note(s) or other loan
accounts or records shall be rebuttable presumptive evidence of the amount of
the Loans made by such Bank or Designated Bidder to the Company and the
payments thereon; provided, however, that the failure of a Bank or Designated
Bidder to make, or an error in making, a notation on its Note(s) or other loan
accounts or records 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 or Designated Bidder.
2.03 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a Notice of
Borrowing (which notice must be received by the Agent prior to 9:00 a.m. (San
Francisco time)) (i) three Business Days prior to the requested Borrowing
Date, in the case of Offshore Rate Committed Loans, and (ii) one Business Day
prior to the requested Borrowing Date, in the case of Base Rate Committed
Loans, specifying:
(A) the amount of the Committed Borrowing, which shall
be in an aggregate minimum amount of $5,000,000 or any multiple
of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Committed
Borrowing; and
(D) the duration of the Interest Period applicable to
any Offshore Rate Committed Loans included in such notice. If
the Notice of Borrowing fails to specify the duration of the
Interest Period for any Committed Borrowing comprised of
Offshore Rate Loans, such Interest Period shall be three
months.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office by 11:00 a.m. (San Francisco time) on the Borrowing
Date requested by the Company in funds immediately available to the Agent.
The proceeds of all such Committed Loans received in immediately available
funds by the Agent by 11:00 a.m. (San Francisco time) on such Borrowing Date
will then be made available to the Company by the Agent in immediately
available funds at such office by crediting by 1:00 p.m. (San Francisco time)
on such date the account of the Company on the books of BofA with the
aggregate of the amounts made available in immediately available funds to the
Agent by the Banks; provided, that, if on such Borrowing Date all or any
portion of the proceeds thereof shall then be required to be applied to the
repayment of any outstanding Swingline Loans pursuant to Section 2.07, such
proceeds or portion thereof shall be applied to the repayment of such
Swingline Loans. Subject to the proviso in the immediately preceding
sentence, any proceeds of such Committed Loans received in immediately
available funds by the Agent by 11:00 a.m. (San Francisco time) on such
Borrowing Date and not credited to the Company by 1:00 p.m. (San Francisco
time) on such date shall be deemed to have been disbursed on the following
Business Day and interest shall begin to accrue thereon on such following
Business Day.
(d) After giving effect to any Committed Borrowing, there may not be
more than seven different Interest Periods in effect in respect of all
Committed Loans and Bid Loans together then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings.
(a) The Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base
Rate Committed Loans, or as of the last day of the applicable
Interest Period, in the case of any other Type of Committed
Loans, to convert any such Committed 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
Committed Loans of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Committed 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 Offshore Rate Committed
Loans in respect of any Committed Borrowing is reduced, by payment,
prepayment, or conversion of part thereof to be less than $5,000,000, such
Offshore Rate Committed Loans shall automatically convert into Base Rate
Committed Loans, and on and after such date the right of the Company to
continue such Committed Loans as, and convert such Committed Loans into,
Offshore Rate Committed Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/
Continuation to be received by the Agent not later than 9:00 a.m. (San
Francisco time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted into
or continued as Offshore Rate Committed Loans and (ii) one Business Day in
advance of the Conversion/Continuation Date, if the Committed Loans are to be
converted into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be
converted or renewed;
(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Base
Rate Committed Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Committed Loans, the Company has
failed to select timely a new Interest Period to be applicable
to such Offshore Rate Committed Loans, or if any Default or
Event of Default then exists, the Company shall be deemed to
have elected to convert such Offshore Rate Committed Loans into
Base Rate Committed Loans effective as of the expiration date
of such Interest Period.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no
timely notice is provided by the Company, the Agent will
promptly notify each Bank of the details of any automatic
conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal
amounts of the Committed Loans with respect to which the notice
was given held by each Bank.
(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 Committed Loan converted into or continued
as an Offshore Rate Committed Loan.
(f) After giving effect to any conversion or
continuation of Committed Loans, there may not be more than
seven different Interest Periods in effect in respect of all
Committed Loans and Bid Loans together then outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bank severally agrees that the Company may, as set forth in
Section 2.06, from time to time request the Banks and Designated Bidders prior
to the Revolving Termination Date to submit offers to make Bid Loans to the
Company; provided, however, that the Banks and Designated Bidders may, but
shall have no obligation to, submit such offers and the Company may, but shall
have no obligation to, accept any such offers, and any Bank may designate a
Designated Bidder to make such offers from time to time and, if such offers
are accepted by the Company, to make such Bid Loans; and provided, further,
that at no time shall (a) the outstanding aggregate principal amount of all
Bid Loans made by all Banks and Designated Bidders plus the outstanding
aggregate principal amount of all Committed Loans made by all Banks plus the
aggregate principal amount of all Swingline Loans then outstanding exceed the
combined Commitments or (b) the number of Interest Periods for Bid Loans then
outstanding plus the number of Interest Periods for Committed Loans then
outstanding exceed seven.
2.06 Procedure for Bid Borrowings.
(a) When the Company wishes to request the Banks and Designated
Bidders to submit offers to make Bid Loans hereunder, it shall transmit to the
Agent by telephone call followed promptly by facsimile transmission a notice
in substantially the form of Exhibit G (a "Competitive Bid Request") so as to
be received no later than 9:00 a.m. (San Francisco time) (x) four Business
Days prior to the date of a proposed Bid Borrowing in the case of a LIBOR
Auction, or (y) two Business Days prior to the date of a proposed Bid
Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing, which
shall be a minimum amount of $10,000,000 or in multiples of
$1,000,000 in excess thereof;
(iii) whether the Competitive Bids requested are to be
for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
"Interest Period" herein.
Subject to subsection 2.06(c), the Company may not request Competitive Bids
for more than three Interest Periods in a single Competitive Bid Request and
may not request Competitive Bids more than once in any period of five Business
Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will promptly
send to the Banks and Designated Bidders by facsimile transmission an
Invitation for Competitive Bids, which shall constitute an invitation by the
Company to each Bank and Designated Bidder to submit Competitive Bids offering
to make the Bid Loans to which such Competitive Bid Request relates in
accordance with this Section 2.06.
(c) (i) Each Bank and Designated Bidder may at its discretion submit
a Competitive Bid containing an offer or offers to make Bid Loans in response
to any Invitation for Competitive Bids. Each Competitive Bid must comply with
the requirements of this subsection 2.06(c) and must be submitted to the Agent
by facsimile transmission at the Agent's office for notices set forth on
Schedule 10.02 (and immediately confirmed by a telephone call) not later than
(1) 6:30 a.m. (San Francisco time) three Business Days prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (2) 6:30 a.m. (San
Francisco time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction; provided that Competitive Bids submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank or Designated Bidder may be
submitted, and may only be submitted, if the Agent or such affiliate notifies
the Company of the terms of the offer or offers contained therein not later
than (A) 6:15 a.m. (San Francisco time) three Business Days prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (B) 6:15 a.m.
(San Francisco time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit H, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for which
such Competitive Bid is being made, which principal amount
(x) may be equal to, greater than or less than the Commitment
of the quoting Bank, (y) must be $10,000,000 or in multiples of
$1,000,000 in excess thereof, and (z) may not exceed the
principal amount of Bid Loans for which Competitive Bids were
requested;
(C) in case the Company elects a LIBOR Auction, the
margin above or below LIBOR (the "LIBOR Bid Margin") offered
for each such Bid Loan, expressed in multiples of 1/100th of
one basis point to be added to or subtracted from the
applicable LIBOR and the Interest Period applicable thereto;
(D) in case the Company elects an Absolute Rate
Auction, the rate of interest per annum expressed in multiples
of 1/100th of one basis point (the "Absolute Rate") offered for
each such Bid Loan; and
(E) the identity of the quoting Bank or Designated
Bidder.
A Competitive Bid may contain up to three separate offers by
the quoting Bank or Designated Bidder with respect to each
Interest Period specified in the related Invitation for
Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity
with Exhibit H or does not specify all of the
information required by subsection (c)(ii) of
this Section;
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bids; or
(D) arrives after the time set forth in
subsection (c)(i) of this Section.
(d) Promptly on receipt and not later than 7:00 a.m. (San Francisco
time) three Business Days prior to the proposed date of Borrowing, in the case
of a LIBOR Auction, or 7:00 a.m. (San Francisco time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction, the Agent will notify the
Company of the terms (i) of any Competitive Bid submitted by a Bank or
Designated Bidder that is in accordance with subsection 2.06(c), and (ii) of
any Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Bank or Designated Bidder with
respect to the same Competitive Bid Request. Any such subsequent Competitive
Bid shall be disregarded by the Agent unless such subsequent Competitive Bid
is submitted solely to correct a manifest error in such former Competitive Bid
and only if received within the times set forth in subsection 2.06(c). The
Agent's notice to the Company shall specify (1) the aggregate principal amount
of Bid Loans for which offers have been received for each Interest Period
specified in the related Competitive Bid Request; and (2) the respective
principal amounts and LIBOR Bid Margins or Absolute Rates, as the case may be,
so offered. Subject only to the provisions of Sections 3.02, 3.05 and 4.02
hereof and the provisions of this subsection (d), any Competitive Bid shall be
irrevocable except with the written consent of the Agent given on the written
instructions of the Company.
(e) Not later than 7:30 a.m. (San Francisco time) three Business Days
prior to the proposed date of Borrowing, in the case of a LIBOR Auction, or
7:30 a.m. (San Francisco time) on the proposed date of Borrowing, in the case
of an Absolute Rate Auction, the Company shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.06(d). The Company shall be under no obligation to accept any
offer and may choose to reject all offers. In the case of acceptance, such
notice shall specify the aggregate principal amount of offers for each
Interest Period that is accepted. The Company may accept any Competitive Bid
in whole or in part; provided that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing must be
$10,000,000 or in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis
of ascending LIBOR Bid Margins or Absolute Rates within each
Interest Period, as the case may be; and
(iv) the Company may not accept any offer that is
described in subsection 2.06(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Banks or Designated Bidders with
the same LIBOR Bid Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which such
offers are accepted for the related Interest Period, the principal amount of
Bid Loans in respect of which such offers are accepted shall be allocated by
the Agent among such Banks or Designated Bidders as nearly as possible (in
such multiples, not less than $1,000,000, as the Agent may deem appropriate)
in proportion to the aggregate principal amounts of such offers.
Determination by the Agent of the amounts of Bid Loans shall be conclusive in
the absence of manifest error.
(g) (i) The Agent will promptly notify each Bank or Designated
Bidder having submitted a Competitive Bid if its offer has been accepted and,
if its offer has been accepted, of the amount of the Bid Loan or Bid Loans to
be made by it on the date of the Bid Borrowing.
(ii) Each Bank or Designated Bidder, which has received notice pursuant
to subsection 2.06(g)(i) that its Competitive Bid has been accepted, shall
make the amounts of such Bid Loans available to the Agent for the account of
the Company at the Agent's Payment Office, by 11:00 a.m. (San Francisco time)
on such date of Bid Borrowing, in funds immediately available to the Agent for
the account of the Company at the Agent's Payment Office. The proceeds of all
such Bid Loans received in immediately available funds by the Agent by 11:00
a.m. (San Francisco time) on such date of Bid Borrowing will then be made
available to the Company by the Agent in immediately available funds at such
office by crediting by 1:00 p.m. (San Francisco time) on such date the account
of the Company on the books of BofA with the aggregate of the amounts made
available in immediately available funds to the Agent by the Banks. Any
proceeds of such Bid Loans received in immediately available funds by the
Agent by 11:00 a.m. (San Francisco time) on such date of Bid Borrowing and not
credited to the Company by 1:00 p.m. (San Francisco time) on such date shall
be deemed to have been disbursed on the following Business Day and interest
shall begin to accrue thereon on such following Business Day.
(iii) Promptly following each Bid Borrowing, the Agent shall notify each
Bank and Designated Bidder of the ranges of bids submitted and the highest and
lowest bids accepted for each Interest Period requested by the Company and the
aggregate amount borrowed pursuant to such Bid Borrowing and the Interest
Period applicable thereto.
(iv) From time to time, the Company and the Banks and Designated
Bidders shall furnish such information to the Agent as the Agent may request
relating to the making of Bid Loans, including the amounts, interest rates,
dates of borrowings and maturities thereof, for purposes of the allocation of
amounts received from the Company for payment of all amounts owing hereunder.
(h) If, on or prior to the proposed date of Borrowing, the Commitments
have not been terminated and if, on such proposed date of Borrowing all
applicable conditions to funding referenced in Sections 3.02, 3.05 and 4.02
hereof are satisfied, the Banks and Designated Bidders whose offers the
Company has accepted will fund each Bid Loan so accepted. Nothing in this
Section 2.06 shall be construed as a right of first offer in favor of the
Banks or Designated Bidders or to otherwise limit the ability of the Company
to request and accept credit facilities from any Person (including any of the
Banks or Designated Bidders), provided that no Default or Event of Default
would otherwise arise or exist as a result of the Company executing,
delivering or performing under such credit facilities.
2.07 Procedure for Swingline Loans. (a) Each Borrowing of a Swingline
Loan shall be made upon the Company's irrevocable written notice delivered to
the Agent (with a copy to the Swingline Bank) in the form of a Notice of
Borrowing (which notice must be received by the Agent and the Swingline Bank
prior to 11:00 a.m. (San Francisco time) on the requested Borrowing Date,
specifying: (i) the amount of such Swingline Loan; and (ii) the requested
Borrowing Date, which shall be a Business Day. Upon receipt of the Notice of
Borrowing, the Swingline Bank will immediately confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of the Notice of
Borrowing from the Company and, if not, the Swingline Bank will provide the
Agent with a copy thereof.
(b) Unless the Swingline Bank has received notice prior to 2:00 p.m.
(San Francisco time) on the relevant Swingline Borrowing Date from the Agent
(including at the request of any Bank) (i) directing the Swingline Bank not to
make the requested Swingline Loan as a result of the limitation set forth in
the proviso set forth in Section 2.01(b), or (ii) that one or more conditions
specified in Article IV are not then satisfied; then, subject to the terms and
conditions hereof, the Swingline Bank will, not later than 3:00 p.m. (San
Francisco time) on the Borrowing Date specified in such Notice of Borrowing,
make the amount of the requested Swingline Loan available to the Agent for the
account of the Company at the Agent's Payment Office in immediately available
funds. The proceeds of such Swingline Loan received in immediately available
funds by the Agent by 3:00 p.m. (San Francisco time) on such Borrowing Date
will then be made available to the Company by the Agent in immediately
available funds by crediting the account of the Company on the books of BofA
with the amount made available in immediately available funds to the Agent by
the Swingline Bank. Each Swingline Borrowing pursuant to this Section shall
be in an aggregate principal amount equal to $1,000,000 or an integral
multiple of $100,000 in excess thereof, unless otherwise agreed by the
Swingline Bank.
(c) After giving effect to any Borrowing of a Swingline Loan, there
may not be more than three different Swingline Loans outstanding at any one
time.
(d) The Agent will notify the Banks of any Borrowing of a Swingline
Loan or repayment thereof promptly after any such Borrowing or repayment.
(e) If (i) any Swingline Loan shall remain outstanding at 9:00 a.m.
(San Francisco time) on the Business Day immediately prior to a Swingline
Clean-Up Day and by such time on such Business Day the Agent shall have
received neither (A) a Notice of Borrowing delivered pursuant to Section 2.03
requesting that Committed Loans be made pursuant to Section 2.01(a) on the
Swingline Clean-Up Day in an amount at least equal to the principal amount of
such Swingline Loan, nor (B) any other notice indicating the Company's intent
to repay such Swingline Loan with funds obtained from other sources, or (ii)
any Swingline Loans shall remain outstanding during the existence of a Default
or Event of Default and the Swingline Bank shall in its sole discretion notify
the Agent that the Swingline Bank desires that such Swingline Loans be
converted into Committed Loans; then, the Agent shall be deemed to have
received a Notice of Borrowing from the Company pursuant to Section 2.03
requesting that Base Rate Committed Loans be made pursuant to Section 2.01(a)
on such Swingline Clean-Up Day (in the case of the circumstances described in
clause (i) above) or on the first Business Day subsequent to the date of such
notice from the Swingline Bank (in the case of the circumstances described in
clause (ii) above) in an amount equal to the aggregate amount of such
Swingline Loans, and the procedures set forth in Sections 2.03(b) and 2.03(c)
shall be followed in making such Base Rate Committed Loans; provided, that
such Base Rate Committed Loans shall be made notwithstanding the Company's
failure to comply with the conditions specified in Section 4.02 and
notwithstanding that the aggregate amount of such Swingline Loans is less than
the minimum amount for borrowing set forth in Section 2.03(a); and provided,
further, that if a Borrowing of Committed Loans becomes legally impracticable
and if so required by the Swingline Bank at the time such Committed Loans are
required to be made by the Banks in accordance with this subsection 2.07(e),
each Bank agrees that in lieu of making Committed Loans as described above,
such Bank shall purchase a participation from the Swingline Bank in the
applicable Swingline Loans in an amount equal to such Bank's Pro Rata Share of
the aggregate principal amount of such Swingline Loans, and the procedures set
forth in Sections 2.03(b) and 2.03(c) shall be followed in connection with the
purchases of such participations. The proceeds of such Base Rate Committed
Loans or purchases of participations, as the case may be, shall be applied to
repay such Swingline Loans. A copy of each notice given by the Agent to the
Banks pursuant to this subsection 2.07(e) with respect to the making of
Committed Loans or the purchases of participations, as the case may be, shall
be promptly delivered by the Agent to the Company. Each Bank's obligation in
accordance with this Agreement to make the Committed Loans or purchase the
participations, as contemplated by this subsection 2.07(e), shall be absolute
and unconditional and shall not be affected by any circumstance (except the
Swingline Bank's funding of a Swingline Loan when it has received a notice
under subsection 2.07(b)(i) or (ii)), including (1) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the
Swingline Bank, the Company or any other Person for any reason whatsoever; (2)
the occurrence or continuance of a Default or an Event of Default; or (3) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing; provided, that, nothing in this Section 2.07 shall
require any Bank to fund a Committed Loan or purchase a participation to the
extent that such Committed Loan or participation interest, when aggregated
with such Bank's then-outstanding Committed Loans and participation interests,
would exceed such Bank's Commitment.
2.08 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an
aggregate minimum amount of $10,000,000 or any multiple of $1,000,000 in
excess thereof; unless, after giving effect thereto and to any prepayments of
Committed Loans or Swingline Loans made on the effective date thereof, (i) the
then-outstanding principal amount of the Loans would exceed the amount of the
combined Commitments then in effect, or (ii) the then-outstanding principal
amount of all Swingline Loans would exceed the amount of the Swingline
Commitment then in effect, as adjusted pursuant to the last sentence of this
Section 2.08. Once reduced in accordance with this Section, the Commitments
may not be increased. Any reduction of the Commitments shall be applied to
each Bank's Commitment according to its Pro Rata Share. All accrued facility
fees to, but not including the effective date of any reduction or termination
of Commitments, shall be paid on the effective date of such reduction or
termination. At no time shall the Swingline Commitment exceed the combined
Commitments or the Commitment of the Swingline Bank and any reduction of the
Commitments or the Commitment of the Swingline Bank which reduces the combined
Commitments or the Swingline Bank's Commitment, respectively, below the then-
current amount of the Swingline Commitment shall result in an automatic
corresponding reduction of the Swingline Commitment to the amount of the
combined Commitments or the Swingline Bank's Commitment, respectively, as so
reduced, without any action on the part of the Swingline Bank.
2.09 Prepayments. (a) Subject to Section 3.04, the Company may, at any
time or from time to time, upon not less than three Business Days' irrevocable
notice to the Agent, in the case of a prepayment of Offshore Rate Committed
Loans, one Business Day's irrevocable notice to the Agent, in the case of a
prepayment of Base Rate Committed Loans, or irrevocable notice to the Agent on
the Business Day of the proposed prepayment, in the case of a prepayment of
Swingline Loans, ratably prepay Committed Loans or Swingline Loans in whole or
in part, and, in the case of Committed Loans, in minimum amounts of $5,000,000
or any multiple of $1,000,000 in excess thereof. Such notice of prepayment
shall specify the date and amount of such prepayment, whether such prepayment
is of Committed Loans or Swingline Loans, or a combination thereof, and, if
applicable, the Type(s) of Committed Loans to be prepaid. The Agent will
promptly notify each Bank of its receipt of any such notice, and, if
applicable, of such Bank's Pro Rata Share of such prepayment. If such notice
is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount
prepaid and any amounts required pursuant to Section 3.04.
(b) Bid Loans may not be voluntarily prepaid other than with the
consent of the applicable Bid Loan Lender, to be given or withheld in its sole
discretion.
(c) (i) If following any reduction of the Swingline Commitment
pursuant to Section 2.08 the aggregate outstanding principal amount of
Swingline Loans would exceed the Swingline Commitment as reduced, the Company
shall prepay without notice or demand on the reduction date of the Swingline
Commitment the outstanding principal amount of the Swingline Loans in an
amount equal to the excess of the Swingline Loans over the Swingline
Commitment as so reduced, and (ii) so that for one Business Day during each
successive two calendar week period the aggregate principal amount of
Swingline Loans shall be $0 (a "Swingline Clean-Up Day"), the Company shall
prepay without notice or demand on the Swingline Clean-Up Day the outstanding
principal amount of the Swingline Loans (which Swingline Loans may not be
reborrowed until such Swingline Clean-Up Day has ended).
2.10 Repayment.
(a) The Revolving Credit. The Company shall repay to the Banks on the
Revolving Termination Date the aggregate principal amount of Committed Loans
outstanding on such date.
(b) Bid Loans. The Company shall repay each Bid Loan on the
last day of the relevant Interest Period.
(c) Swingline. The Company shall repay to the Swingline Bank in
full on the Revolving Termination Date the aggregate principal amount of the
Swingline Loans outstanding on such date.
2.11 Interest.
(a) (i) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per
annum equal to the Offshore Rate or the Base Rate, as the case may be (and
subject to the Company's right to convert to other Types of Committed Loans
under Section 2.04), plus the Applicable Margin, (ii) each Swingline Loan
shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the Base Rate plus the
Applicable Margin or at such other rate not in excess of the Base Rate plus
the Applicable Margin agreed to by the Swingline Bank in its sole discretion
at the time of the applicable Swingline Borrowing, and (iii) each Bid Loan
shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the LIBOR Rate plus (or
minus) the LIBOR Bid Margin or at the Absolute Rate, as the case may be.
(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
Committed Loans or Swingline Loans under Section 2.09 for the portion of the
Loans so prepaid and upon payment (including prepayment) in full thereof and,
during the existence of any Event of Default, interest shall be paid on demand
of the Agent at the request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, if any amount of
principal of or interest on any Loan or any other amount payable hereunder or
under any other document or instrument given in connection herewith 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 Base Rate plus 1%.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Bank or Designated Bidder 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 or
Designated Bidder would be contrary to the provisions of any law applicable to
such Bank or Designated Bidder limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Bank or Designated
Bidder, and in such event the Company shall pay such Bank or Designated Bidder
interest at the highest rate permitted by applicable law.
2.12 Fees.
(a) Facility Fees. The Company shall pay to the Agent for the account
of each Bank a facility fee on the full amount of such Bank's Commitment
(regardless of usage), computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter, at a rate per annum equal to the
Facility Fee Percentage. Such facility fee shall accrue from the Closing Date
to the Revolving Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing on March
31, 1996 through the Revolving Termination Date, with the final payment to be
made on the Revolving Termination Date; provided that, in connection with any
reduction or termination of Commitments under Section 2.08, the accrued
facility fee calculated for the period ending on such date shall also be paid
on the date of such reduction or termination, with the following quarterly
payment being calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The facility fees provided
in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions
in Article IV are not met.
(b) Arrangement, Agency, Bid Loan Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay
an agency fee and Bid Loan fees to the Agent for the Agent's own account, as
required by the letter agreement ("Fee Letter") between the Company and the
Arranger and Agent dated December 18, 1995.
2.13 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Committed Loans and
Swingline Loans bearing interest based on the Base Rate when the Base Rate is
determined by BofA's "reference rate" shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof. The Agent will provide to the
Company a statement of the amount of interest due on each Interest Payment
Date and such other dates that interest is due hereunder and a statement of
the amount of fees due on each date that fees are due hereunder; provided that
the failure of the Agent to provide any such statement shall not limit or
otherwise affect the Company's obligations hereunder or under any Note.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company, the Banks and Designated Bidders in the
absence of manifest error.
(c) If any Reference Bank's Commitment terminates (other than on
termination of all the Commitments), or for any reason whatsoever any
Reference Bank ceases to be a Bank hereunder, that Reference Bank shall
thereupon cease to be a Reference Bank. The Agent shall promptly appoint
another Bank (which Bank shall be approved by the Company) as a replacement
Reference Bank for the terminated Reference Bank. Until the appointment of
such replacement Reference Bank, the Offshore Rate and LIBOR Rate shall be
determined on the basis of the rates as notified by the remaining Reference
Bank.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks fails to supply such rates to the Agent upon its request, the
rate of interest shall be determined on the basis of the quotations of the
remaining Reference Bank.
2.14 Payments by the Company.
(a) All payments to be made by the Company shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Company shall be made to the Agent for the account
of the Banks and Designated Bidders at the Agent's Payment Office, and shall
be made in dollars and in immediately available funds, no later than 11:00
a.m. (San Francisco time) on the date specified herein. The Agent will
promptly distribute to each Bank (or Designated Bidder) its Pro Rata Share (or
other applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Agent later than 11:00 a.m.
(San Francisco time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Banks or Designated Bidders that the
Company will not make such payment in full as and when required, the Agent may
assume that the Company has made such payment in full to the Agent on such
date in immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Bank or
Designated Bidder on such due date an amount equal to the amount then due such
Bank or Designated Bidder. If and to the extent the Company has not made such
payment in full to the Agent, each Bank or Designated Bidder shall repay to
the Agent on demand such amount distributed to such Bank or Designated Bidder,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank or Designated Bidder until the
date repaid.
2.15 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at
least one Business Day prior to the date of such Borrowing, that such Bank
will not make available as and when required hereunder to the Agent for the
account of the Company the amount of that Bank's Pro Rata Share of the
Committed Borrowing, in the case of a Committed Borrowing, or the Swingline
Loan, in the case of a Swingline Borrowing, the Agent may assume that each
Bank, in the case of a Committed Borrowing, or the Swingline Bank, in the case
of a Swingline Borrowing, has made such amount available to the Agent in
immediately available funds on the Borrowing Date and the Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
Company on such date a corresponding amount. If and to the extent any Bank
shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during the period from the Borrowing
Date to the date that Bank makes such amount available to the Agent. A notice
of the Agent submitted to any Bank with respect to amounts owing under this
subsection (a) shall be conclusive, absent manifest error. If such amount is
so made available, such payment to the Agent shall constitute such Bank's Loan
as of the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to the Agent for
the Agent's account, together with interest thereon for each day elapsed since
the date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Committed Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Committed Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Committed Loan to be made by
such other Bank on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed 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 Agent of such fact, and (b) purchase from the
other Banks such participations in the Committed Loans made by them as shall
be necessary to cause such purchasing Bank to share the excess payment pro
rata with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Bank, such purchase
shall to that extent be rescinded and each other Bank shall repay to the
purchasing Bank the purchase price paid therefor, together with an amount
equal to such paying Bank's ratable share (according to the proportion of (i)
the amount of such paying Bank's required repayment to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered.
The Company agrees that any Bank so purchasing a participation from another
Bank may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 10.11) with
respect to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. The Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Banks following any such purchases or repayments. Any Bank having
outstanding both Committed Loans, Swingline Loans, and Bid Loans at any time a
right of set-off is exercised by such Bank and applying such setoff to the
Loans shall apply the proceeds of such set-off first to such Bank's Committed
Loans, until its Committed Loans are reduced to zero, thereafter to its
Swingline Loans, until reduced to zero, and thereafter to its Bid Loans.
2.17 Quarterly Adjustments.
(a) If the financial reports delivered pursuant to subsections 6.07(a)
and 6.07(b) and the certificate delivered pursuant to subsection 6.07(c) when
delivered with respect to any fiscal quarter indicate that the Applicable
Margin or Facility Fee Percentage for any period should have been higher than
the Applicable Margin or Facility Fee Percentage assumed for such period
pursuant to the definitions of such terms, and the interest or fee that would
have been collected hereunder based upon the actual Applicable Margin or
Facility Fee Percentage exceeds the interest or fee actually collected
hereunder, then the Company shall pay an amount equal to such excess to the
Agent for the account of the Banks. The Agent will provide a statement to the
Company of such amounts due within five Business Days of the Agent's receipt
of such financial reports and certificate, and the Company shall pay such
amounts within three Business Days of its receipt of such statement; provided
that the failure of the Agent to provide any such statement shall not limit or
otherwise affect the Company's obligations hereunder or under any Note.
(b) If (i) the financial reports delivered pursuant to subsections
6.07(a) and 6.07(b) and the certificate delivered pursuant to subsection
6.07(c) when delivered with respect to any fiscal quarter indicate that the
Applicable Margin or Facility Fee Percentage for any period should have been
lower than the Applicable Margin or Facility Fee Percentage assumed for such
period pursuant to the definitions of such terms, and (ii) the interest or fee
actually collected hereunder exceeds the interest or fee that would have been
collected hereunder based upon the actual Applicable Margin or Facility Fee
Percentage, then the Agent shall credit such excess to interest and fees owing
hereunder (including any interest owing under subsection 2.11(c)) during the
calendar quarter when such financial reports and certificate were received
and, if all such excess is not credited by the end of such calendar quarter,
upon request of the Company, each Bank, severally, if no Default or Event of
Default exists, shall refund to the Agent for distribution to the Company the
amount of such excess actually received and retained by such Bank.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to each Bank or
Designated Bidder or the Agent under this Agreement and any other document or
instrument given in connection herewith shall be made free and clear of, and
without deduction or withholding for any Taxes. In addition, the Company
shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless each Bank and
Designated Bidder and the Agent for the full amount of Taxes or Other Taxes
imposed on any payments under this Agreement (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section) paid
by such Bank or Designated Bidder or the Agent and any liability (including
penalties, interest, additions to tax and expenses, unless arising from the
gross negligence or willful misconduct of such Bank or Designated Bidder or
the Agent) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date such Bank or
Designated Bidder or the Agent makes written demand therefor.
(c) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Bank or Designated Bidder or the Agent, then:
(i) the sum payable shall be increased as necessary so
that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional
sums payable under this Section) such Bank or Designated Bidder
or the Agent, as 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;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Company shall also pay to each Bank or
Designated Bidder or to the Agent for the account of such Bank
or Designated Bidder, at the time interest is paid, all
additional amounts which the respective Bank or Designated
Bidder specifies as necessary to preserve the after-tax yield
such Bank or Designated Bidder would have received if such
Taxes or Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(e) If the Company is required to pay additional amounts to any Bank
or Designated Bidder or the Agent for such Person's account pursuant to
subsection (c) of this Section, then such Bank or Designated Bidder 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 or Designated Bidder is not otherwise
disadvantageous to such Bank or Designated Bidder, as the case may be.
3.02 Illegality.
(a) If any Bank reasonably 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,
or such Bank's Designated Bidders in the case of LIBOR Bid Loans, to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Company
through the Agent, any obligation of that Bank or Designated Bidder to make
Offshore Rate Loans (including in respect of any LIBOR Bid Loan as to which
the Company has accepted such Bank's or Designated Bidder's Competitive Bid,
but as to which the Borrowing Date has not arrived) shall be suspended until
such Bank notifies the Agent and the Company that the circumstances giving
rise to such determination no longer exist.
(b) If a Bank reasonably determines that it is unlawful for such Bank
or such Bank's Designated Bidder to maintain any Offshore Rate Loan, the
Company shall, upon its receipt of notice of such fact and demand from such
Bank (with a copy to the Agent), prepay in full such Offshore Rate Loans of
that Bank or its Designated Bidder then outstanding, together with interest
accrued thereon and amounts required under Section 3.04, either on the last
day of the Interest Period thereof, if such Bank or its Designated Bidder may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if such Bank or its Designated Bidder may not lawfully continue
to maintain such Offshore Rate Loans. If the Company is required to so prepay
any Offshore Rate Committed Loan, then concurrently with such prepayment, the
Company shall borrow from the affected Bank, in the amount of such repayment,
a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore Rate
Committed Loans has been so terminated or suspended, the Company may elect, by
giving notice to such Bank through the Agent that all Loans which would
otherwise be made by such Bank as Offshore Rate Committed Loans shall be
instead Base Rate Committed Loans.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the introduction of
or any change (other than any change by way of imposition of or increase in
reserve requirements included in the calculation of the Offshore Rate) in or
in the interpretation of any law or regulation or (ii) the compliance by that
Bank with any guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall be any
increase in the cost to such Bank of agreeing to make or making, funding or
maintaining any Offshore Rate Committed Loans, then the Company shall be
liable for, and shall from time to time, upon demand (with a copy of such
demand to be sent to the Agent), pay to the Agent for the account of such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank or, in the case of Bid Loans, such Bank's Designated
Bidder, shall have determined that (i) the introduction of any Capital
Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii)
any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other governmental authority charged with
the interpretation or administration thereof, or (iv) compliance by such Bank
or Designated Bidder (or the Lending Office of either) or any corporation
controlling such Bank or Designated Bidder with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or expected
to be maintained by such Bank or Designated Bidder or any corporation
controlling such Bank or Designated Bidder and (taking into consideration such
Bank's or such Designated Bidder's or such corporation's policies with respect
to capital adequacy and such Bank's or such Designated Bidder's or such
corporation's desired return on capital) determines that the amount of such
capital is increased as a consequence of its Commitment, Swingline Commitment
(in the case of the Swingline Bank), loans, credits or obligations under this
Agreement, then, upon demand of such Bank or such Designated Bidder to the
Company through the Agent, the Company shall pay to such Bank or Designated
Bidder, as applicable, from time to time as specified by such Bank or such
Designated Bidder, additional amounts sufficient to compensate such Bank or
Designated Bidder for such increase. For purposes of this subsection,
"Capital Adequacy Regulation" means any guideline, request or directive of any
central bank or other governmental authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
3.04 Funding Losses. The Company shall reimburse each Bank and, in the
case of Bid Loans, each Bank's Designated Bidder, and hold each Bank and, in
the case of Bid Loans, each Bank's Designated Bidder, harmless from any loss
or expense which such Bank or Designated Bidder may sustain or incur as a
consequence of:
(a) the failure of the Company to make on a timely
basis any payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Committed Loan after the Company has given (or is
deemed to have given) a Notice of Borrowing or a Notice of
Conversion/Continuation;
(c) the failure of the Company to make any prepayment
of any Committed Loan in accordance with any notice delivered
under Section 2.09;
(d) the prepayment (including pursuant to Section 2.09)
or other payment (including after acceleration thereof) of any
Offshore Rate Loan or Absolute Rate Bid Loan on a day that is
not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any
Offshore Rate Committed Loan to a Base Rate Committed Loan on a
day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds were
obtained.
3.05 Inability to Determine Rates. If the Agent determines that for
any reason adequate and reasonable means do not exist for determining the
Offshore Rate or the LIBOR Rate for any requested Interest Period with respect
to a proposed Offshore Rate Loan, or that the Offshore Rate or the LIBOR Rate
applicable pursuant to subsection 2.11(a) for any requested Interest Period
with respect to a proposed Offshore Rate Loan does not adequately and fairly
reflect the cost to the Banks of funding such Loan, the Agent will promptly so
notify the Company and each Bank. Thereafter, the obligation of the Banks to
make or maintain Offshore Rate Loans, as the case may be, hereunder shall be
suspended until the Agent revokes such notice in writing. Upon receipt of
such notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice of Borrowing, the Banks shall make, convert or continue the
Committed Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Committed Loans shall be
made, converted or continued as Base Rate Committed Loans instead of Offshore
Rate Committed Loans.
3.06 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The effectiveness of this Agreement,
the obligation of each Bank to make its initial Committed Loan hereunder and
to receive through the Agent the initial Competitive Bid Request, and the
obligation of the Swingline Bank to make its initial Swingline Loan hereunder,
is subject to the condition that the Agent have received on or before the
Closing Date all of the following, in form and substance satisfactory to the
Agent and each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement and, if
requested by any Bank, the Note(s), executed by each party
thereto;
(b) Legal Opinions. (i) An opinion, dated the Closing
Date, of Miller, Nash, Wiener, Hager & ▇▇▇▇▇▇▇, counsel for the
Company, substantially in the form of Exhibit D-1 hereto, and
(ii) an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, special California counsel to the Agent,
substantially in the form of Exhibit D-2 hereto;
(c) Resolutions. A copy of a resolution or resolutions
passed by the Board of Directors of the Company, certified by
the Secretary or an Assistant Secretary of the Company as being
in full force and effect on the Closing Date, authorizing the
Borrowings provided for herein and the execution, delivery and
performance of this Agreement and any instrument or agreement
required hereunder;
(d) Incumbency. A certificate, signed by the Secretary
or an Assistant Secretary of the Company and dated the Closing
Date, as to the incumbency, and containing the specimen
signature or signatures, of the person or persons authorized to
execute and deliver this Agreement and any instrument or
agreement required hereunder on behalf of the Company;
(e) Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to
the extent then due and payable on the Closing Date, together
with attorney costs of BofA to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of attorney
costs as shall constitute BofA's reasonable estimate of
attorney costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the
Company and BofA with respect to such costs); including any
such costs, fees and expenses arising under or referenced in
Sections 2.12(b) and 10.04;
(f) Certificate. A certificate signed by a duly
authorized officer of the Company, dated as of the Closing
Date, stating that:
(i) the representations and warranties
contained in Article V are true and correct on
and as of such date, as though made on and as of
such date; and
(ii) no Default or Event of Default exists
or would result from the initial Borrowing;
(g) Termination of Existing Agreement . Evidence (i)
that all commitments to extend credit under the Credit
Agreement (the "Existing Agreement") dated as of January 31,
1995 between the Company, the financial institutions party
thereto, and BofA, as agent for such financial institutions,
have been terminated, and (ii) of payment or repayment by the
Company of (A) all facility fees accrued to the Closing Date
under subsection 2.11(a) of the Existing Agreement and (B) all
principal, accrued interest and any amounts payable under
Section 3.04 of the Existing Agreement; it being agreed by each
of the Banks which is party to the Existing Agreement (x) that,
upon satisfaction or waiver of all other conditions set forth
in this Section 4.01, its commitment to extend credit under the
Existing Agreement shall be deemed to be terminated,
notwithstanding the notice provisions of Section 2.07 of the
Existing Agreement, which each such Bank hereby waives, and the
condition set forth in clause (i) of this subsection 4.01(g)
shall be deemed to be satisfied, and (y) promptly after the
Closing Date, such Bank will return to the Agent for return to
the Company any promissory note given to it by the Company
under the Existing Agreement; and
(h) Other Documents. Certified copies of all
approvals, consents, exemptions and other actions by, and
notices to and filings with, any governmental authority and any
trustee or holder of any indebtedness or obligation of the
Company which, in any Bank's opinion, are required in
connection with any transaction contemplated hereby.
4.02 Conditions to All Borrowings. The obligation of each Bank to make
any Committed Loan to be made by it, the obligation of any Bank or Designated
Bidder to make any Bid Loan as to which the Company has accepted the relevant
Competitive Bid, and the obligation of the Swingline Bank to make any
Swingline Loan hereunder (including, in each case, its initial Loan), is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date:
(a) Notice of Borrowing. As to any Committed Loan, the
Agent shall have received (with, in the case of the initial
Loan only, a copy for each Bank) a Notice of Borrowing;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article V (exclusive of
Section 5.13) shall be true and correct on and as of such
Borrowing Date with the same effect as if made on and as of
such Borrowing Date;
(c) Financial Statements. The financial statements
then most recently supplied to the Banks under both subsections
6.07(a) and 6.07(b) shall have been prepared in accordance with
the provisions of such subsections as of the dates and periods
therein specified, and since such dates and periods there shall
have been no change in the Company's consolidated financial
condition or results of operations sufficient to impair the
Company's ability to repay the Loans in accordance with the
terms hereof, and neither the Company nor any Subsidiary shall
have any contingent obligations, liabilities for taxes or other
outstanding financial obligations which are material in the
aggregate to the Company, except as shall have been disclosed
in such financial statements, or as shall have been otherwise
previously disclosed to the Banks in writing; and
(d) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing.
Each Notice of Borrowing and Competitive Bid Request submitted by the Company
hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice or request and as of each
Borrowing Date, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence. The Company is a corporation duly organized
and existing under the laws of Delaware, and is properly qualified as a
foreign corporation and in good standing in every jurisdiction in which the
Company is doing business of a nature that requires such qualification;
5.02 Subsidiaries. Each Subsidiary is duly organized and existing
under the laws of the jurisdiction of its formation, and is properly qualified
as a foreign corporation and in good standing in every jurisdiction in which
it is doing business of a nature that requires such qualification;
5.03 Corporate Authorization. The execution, delivery and performance
of this Agreement and any instrument or agreement required hereunder are
within the Company's powers, have been duly authorized, and are not in
conflict with the terms of any charter, bylaw or other organization papers of
the Company, or any instrument or agreement to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is bound or
affected;
5.04 Governmental Authorization. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance by the
Company of this Agreement or any instrument or agreement required hereunder,
except as may have been obtained and certified copies of which have been
delivered to the Agent and each Bank;
5.05 No Contravention. There is no law, rule or regulation applicable
to the Company or any Subsidiary, nor is there any judgment, decree or order
of any court or governmental authority binding on the Company or any
Subsidiary, which would be contravened by the execution, delivery, performance
or enforcement of this Agreement or any instrument or agreement required
hereunder;
5.06 Binding Effect. This Agreement is a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms, and any instrument or agreement required hereunder, when executed
and delivered, will be similarly legal, valid, binding and enforceable;
5.07 Encumbrances. The properties and assets of the Company and
Subsidiaries are free and clear of all security interests, liens, encumbrances
or rights of others, except for security interests, liens and encumbrances
permitted under Section 7.04;
5.08 Compliance with Laws. The Company and each Subsidiary are in
compliance with all applicable federal, state and local laws, ordinances and
regulations relating to hazardous materials or wastes or hazardous or toxic
substances, except where failure to so comply would not have a material
adverse effect on the Company's consolidated financial condition or operations
or materially impair the Company's ability to perform its obligations
hereunder or under any instrument or agreement required hereunder;
5.09 Litigation. Except as disclosed in reports filed by the Company
with the Securities and Exchange Commission, copies of which have been
delivered to the Banks, or in Exhibit A to the legal opinion delivered under
subsection 4.01(b)(i), there are no suits, proceedings, claims or disputes
pending or, to the knowledge of the Company, threatened against or affecting
the Company or any Subsidiary or their respective properties, the adverse
determination of which might reasonably be expected to materially affect the
Company's consolidated financial condition or operations or materially impair
the Company's ability to perform its obligations hereunder or under any
instrument or agreement required hereunder;
5.10 No Default. No Default or Event of Default has occurred and is
continuing or would result from the incurring of obligations by the Company
under this Agreement;
5.11 Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by
Section 6.01 and Section 7.05. Neither the Company nor any Subsidiary is
generally engaged in the business of purchasing or selling "margin stock" as
such term is defined in Regulation G, T, U or X of the FRB or extending
credit for the purpose of purchasing or carrying such margin stock;
5.12 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary is an "Investment Company" within the meaning
of the Investment Company Act of 1940. The Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or
any other Federal or state statute or regulation limiting its ability to incur
indebtedness;
5.13 Financial Statements. All consolidated financial statements for
the year ended December 31, 1994, and subsequent periods, furnished by the
Company to the Agent and the Banks present fairly, in all material respects,
the consolidated financial position of the Company (unless otherwise therein
noted and any changes in accounting principles and practices are concurred
with by the accountants referred to in subsection 6.07(b)) and, together with
all other information and data furnished by the Company to the Agent and the
Banks, are complete and correct as of the dates and periods therein specified.
Since such dates there has been no change in the Company's consolidated
financial condition or results of operations sufficient to impair the
Company's ability to repay the Loans in accordance with the terms hereof.
Neither the Company nor any Subsidiary has any contingent obligations,
liabilities for taxes or other outstanding financial obligations which are
material in the aggregate, except as disclosed in such statements, information
and data;
5.14 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and, to the best
knowledge of the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate have made all
required contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan;
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any governmental
authority, with respect to any Plan which have resulted or could reasonably be
expected to result in a material adverse change in the Company's consolidated
financial condition or results of operations. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or could reasonably be expected to result in a
material adverse change in the Company's consolidated financial condition or
results of operations; and
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) except as disclosed in Schedule 5.14(c), no Plan has any Unfunded
Pension Liability; (iii) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) neither the Company nor any
ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA; and
5.15 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, the Swingline
Bank shall have any Swingline Commitment hereunder, or any Loan or other
obligation hereunder shall remain unpaid or unsatisfied, the Company will and,
with respect to Sections 6.02, 6.03, 6.04, 6.05, 6.06 and 6.08, will cause
each Subsidiary to, unless the Majority Banks waive compliance in writing:
6.01 Use of Proceeds. Use the proceeds of the Loans for general
corporate purposes not in contravention of any Requirement of Law;
6.02 Preservation of Corporate Existence, Etc. Preserve all rights,
privileges and franchises useful or necessary for ordinary business operations
and keep all properties useful or necessary for ordinary business operations
in good working order and condition, and from time to time make all needful
repairs, renewals and replacements thereto and thereof so that the efficiency
of such property shall be fully maintained and preserved;
6.03 Notices. Promptly give notice in writing to the Agent and each
Bank of:
(a) all litigation when the aggregate amount of claims
pending is $50,000,000 or more and the litigation involves
$15,000,000 or more and the Company, or a Subsidiary, is a
defendant;
(b) any dispute which may exist between the Company or
any Subsidiary and any governmental regulatory body or any
threatened action by any governmental agency to acquire or
condemn any of the properties of the Company or any Subsidiary
where the amount involved is $30,000,000 or more;
(c) any strike involving 1,000 or more employees of the
Company or any Subsidiary which has continued for thirty (30)
days;
(d) any proceeding or order before any court or
administrative body requiring the Company or any Subsidiary to
comply with any statute or regulation regarding protection of
the environment if such compliance would require (i)
expenditures in the amount of $50,000,000 or more or (ii) if
such violation involves the possibility of the imposition of a
fine of $10,000,000 or more;
(e) the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event
more than 10 days after such event), and deliver to the Agent
and each Bank a copy of any notice with respect to such event
that is filed with a governmental authority and any notice
delivered by a governmental authority to the Company or any
ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded
Pension Liability of any Plan;
(iii) the adoption of, or the commencement
of contributions to, any Plan subject to
Section 412 of the Code by the Company or any
ERISA Affiliate; or
(iv) the adoption of any amendment to a
Plan subject to Section 412 of the Code, if such
amendment results in a material increase in
contributions or Unfunded Pension Liability; and
(f) any Default or Event of Default known to the
Company.
Each notice under this Section shall be accompanied by a written
statement by the chief financial officer of the Company setting forth details
of the occurrence referred to therein and stating what action the Company or
any affected Subsidiary proposes to take with respect thereto and at what
time. Each notice under subsection 6.03(f) shall describe with particularity
any and all clauses or provisions of this Agreement that have been breached or
violated;
6.04 Payment of Obligations. Promptly pay and discharge all
obligations, including tax claims, at maturity, except such as may be
contested in good faith or as to which a bona fide dispute may exist;
6.05 Insurance. Maintain such insurance as is usually maintained by
others in the business of the same nature as the business of the Company and
each Subsidiary, as the case may be, or maintain a program of self insurance,
with reserves, in accordance with sound business practices;
6.06 Inspection of Property and Books and Records. Maintain adequate
books, accounts and records in accordance with good accounting standards and
permit representatives of the Majority Banks or the Agent to inspect such
books and records and to visit the properties of the Company and Subsidiaries;
6.07 Financial Statements. From time to time as hereinafter set forth
promptly prepare, or cause to be prepared, and deliver to the Agent, with
sufficient copies for each Bank, in form and detail satisfactory to the
Majority Banks:
(a) On a consolidated basis summary balance sheets and
statements of income, shareholders' equity and cash flows for
the Company and Subsidiaries as of the end of each of the first
three quarterly accounting periods in each fiscal year of the
Company; such statements shall be delivered within 45 days from
the end of the period covered and shall be furnished with a
Compliance Certificate signed by a responsible officer of the
Company;
(b) On a consolidated basis summary balance sheets and
statements of income, shareholders' equity and cash flows for
the Company and Subsidiaries as of the end of each fiscal year
of the Company, certified by an independent certified public
accountant or accountants selected by the Company and
acceptable to Majority Banks; such independent certified public
accountant or accountants shall also certify to the effect that
in the course of making their audit they obtained no knowledge
of any existing unremedied Default or Event of Default by the
Company under this Agreement, or a statement disclosing any
such defaults if any are found; such statements shall be
delivered within 90 days from the end of the period covered and
shall be furnished with a Compliance Certificate signed by a
responsible officer of the Company;
(c) Within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company and
within 90 days after the end of each fiscal year of the
Company, a Compliance Certificate, with schedules containing
the information and calculations necessary to substantiate
compliance with Section 7.01 and the calculation of the
Interest Coverage Ratio, certified by a responsible officer of
the Company and, in the case of financial statements as of the
end of each fiscal year, reviewed by the Company's independent
certified public accountant or accountants as being true and
correct;
(d) Within 90 days after the end of each fiscal year of
the Company, a list of Subsidiaries;
(e) Within 15 days after filing with the Securities and
Exchange Commission, a copy of all public documents (with the
exception of Forms S-8) filed by the Company with the
Securities and Exchange Commission; and
(f) Such other financial statements, lists of property
and accounts, forecasts, legal opinions or reports as to the
Company or any Subsidiary, as any Bank may reasonably request
from time to time; and
6.08 ERISA Compliance. (a) Maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code, and
cause each of its ERISA Affiliates to do each of the foregoing.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, the Swingline
Bank shall have any Swingline Commitment hereunder, or any Loan or other
obligation hereunder shall remain unpaid or unsatisfied, the Company will not
and will not permit any Subsidiary to, unless the Majority Banks waive
compliance in writing:
7.01 Funded Debt to Net Worth. On a consolidated basis, permit the
Funded Debt to Net Worth ratio, measured as of the end of each fiscal quarter,
to be in excess of 1.00 to 1.00;
7.02 Disposition of Property. Sell, lease, sell and lease back,
exchange, transfer or otherwise dispose of:
(a) in a transaction, or a series of transactions, all
or substantially all of the property and assets of the Company
and its Subsidiaries on a consolidated basis;
(b) during any calendar year, any of its fixed or
capital assets with a fair market value exceeding on a
cumulative basis for such year for the Company and Subsidiaries
ten percent (10%) of the total consolidated assets of the
Company (determined as of the immediately preceding December
31); or
(c) any of its material assets, to the extent not
otherwise prohibited by this Section, except for full, fair and
reasonable consideration;
7.03 Mergers. Merge or consolidate with any other Person or liquidate
or dissolve; provided, however, that:
(a) the Company may merge or consolidate with any other
Person if the Company (or the resulting corporation in a
consolidation) will be the surviving corporation and the
Company (or such resulting corporation) will not be in default
under any of the terms of this Agreement immediately after the
merger or consolidation; and
(b) any Subsidiary may be merged with or dissolved into
the Company or with or into any other Subsidiary;
7.04 Encumbrances. Subject any property to any mortgage, deed of
trust, encumbrance, or voluntary lien; provided, however, that this
Section 7.04 shall not be deemed to prohibit the assumption of, or purchase
subject to, mortgages already existing upon property being acquired, or the
execution of purchase money mortgages, or the coming into being of other
encumbrances, including in support of industrial revenue or pollution control
bonds which are capitalized and treated as indebtedness by the Company
(provided that the maximum aggregate outstanding balance of indebtedness
secured by such mortgages, purchase money mortgages, or other encumbrances,
including such bonds, shall never be in excess of $100,000,000), liens for
taxes, or loggers' liens, or mechanics' liens, or other liens arising by law
out of the nature of the operations involved;
7.05 Use of Proceeds. (a) Use any portion of the Loan proceeds,
directly or indirectly, (i) to purchase or carry "margin stock" as such term
is defined in Regulation G, T, U or X of the FRB, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
such margin stock, (iii) to extend credit for the purpose of purchasing or
carrying any such margin stock, or (iv) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Securities and Exchange
Act of 1934, and regulations promulgated thereunder; or
(b) directly or indirectly, use any portion of the Loan proceeds (i)
knowingly to purchase Ineligible Securities from the Arranger during any
period in which the Arranger makes a market in such Ineligible Securities,
(ii) knowingly to purchase during the underwriting or placement period
Ineligible Securities being underwritten or privately placed by the Arranger,
or (iii) to make payments of principal or interest on Ineligible Securities
underwritten or privately placed by the Arranger and issued by or for the
benefit of the Company or any Affiliate of the Company. The Arranger is a
registered broker-dealer and permitted to underwrite and deal in certain
Ineligible Securities; and "Ineligible Securities" means securities which may
not be underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh),
as amended; or
7.06 ERISA. (a) engage in one or more prohibited transactions or
violations of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably expected to result in liability of the
Company in an aggregate amount in excess of $50,000,000; or (b) engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA, and the
Company shall not suffer or permit any of its ERISA Affiliates to do any of
the foregoing.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default. Any of the following shall constitute an
"Event of Default":
(a) The Company shall fail to pay, within five (5)
Business Days after the date when due, any installment of
interest or principal or any other sum due under this Agreement
in accordance with the terms hereof;
(b) Any representation or warranty herein or in any
agreement, instrument or certificate executed pursuant hereto
or in connection with any transaction contemplated hereby shall
prove to have been false or misleading in any material respect
when made or when deemed to have been made;
(c) A writ, execution or attachment, or any similar
process, shall be levied against all or any substantial portion
of the property of the Company or any Subsidiary or any
judgment shall be entered against the Company or any Subsidiary
in an amount in excess of $15,000,000 and such writ, execution,
attachment, process or judgment is not released, bonded,
satisfied, vacated or appealed from within 60 days after its
levy or entry, or the total of all judgments against the
Company and Subsidiaries outstanding at any time which have not
been released, bonded, satisfied, vacated or appealed from
within 60 days from the respective dates of entry thereof shall
exceed $45,000,000 in the aggregate;
(d) The Company or any Subsidiary shall fail to pay its
debts generally as they come due, or shall file any petition or
action for relief under any bankruptcy, reorganization,
insolvency or moratorium law, or any other law or laws for the
relief of, or relating to, debtors;
(e) An involuntary petition shall be filed under any
bankruptcy statute against the Company or any Subsidiary, or a
custodian, receiver, trustee, assignee for the benefit of
creditors (or other similar official) shall be appointed to
take possession, custody, or control of the properties of the
Company or any Subsidiary, unless such petition or appointment
is set aside or withdrawn or ceases to be in effect within 45
days from the date of said filing or appointment;
(f) (i) Any default shall occur under any other
agreement involving the borrowing of money or the extension of
credit under which the Company or any Subsidiary may be
obligated as borrower having an aggregate principal amount
(including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $25,000,000, if such default
consists of the failure to pay any such indebtedness when due
or if such default causes (or upon a lapse of time or notice or
both would cause) the acceleration of any such indebtedness or
the termination of any commitment to lend, or if such default
permits (or upon a lapse of time or notice or both would
permit) the holder or holders of such indebtedness or
beneficiary or beneficiaries of such indebtedness (or a trustee
or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to accelerate any indebtedness or to terminate
any commitment to lend, or (ii) there occurs under any Swap
Contract an Early Termination Date resulting from (1) any event
of default under such Swap Contract as to which the Company or
any Subsidiary is the Defaulting Party or (2) any Termination
Event as to which the Company or any Subsidiary is an Affected
Party, and, in either event, the Swap Termination Value owed by
the Company or such Subsidiary as a result thereof is greater
than $25,000,000; for purposes of this subsection (f), the
terms "Early Termination Date", "Defaulting Party",
"Termination Event", and "Affected Party" shall have the
meanings assigned to them in the relevant Swap Contract, it
being understood that such definitions contemplate Swap
Contracts documented on International Swaps and Derivatives
Association ("ISDA") standard forms; if such Swap Contract is
not documented on an ISDA standard form, such terms shall be
given similar or analogous meanings as used in such non-ISDA
standard agreements
(g) (i) Any one or more ERISA Events shall occur with
respect to one or more Pension Plans or Multiemployer Plans
which has or have resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $50,000,000; (ii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at
any time exceeds $50,000,000; or (iii) the Company or any ERISA
Affiliate shall fail to pay when due, after the expiration of
any applicable grace period, any installment payment or
payments with respect to its withdrawal liability under
Section 4201 of ERISA under any one or more Multiemployer
Plans, which payment or payments are in an aggregate amount in
excess of $50,000,000;
(h) The entering of a final order by any court or
administrative agency requiring the Company or any Subsidiary
to divest itself of such a substantial part of its assets that
the ability of the Company to pay, when due and payable, either
at the fixed maturity thereof or otherwise, the Loans or any
part thereof, or any installment of interest thereon, or the
principal of or interest on any other obligation for borrowed
money, will be or may reasonably be expected to be materially
adversely affected, which order is not subject to appeal or
review by any court or as to which order the right to appeal or
review has expired, and such order remains in effect for more
than 60 days;
(i) Any Person or related group of Persons (other than
employees of the Company or its Subsidiaries and any Plan for
the benefit of such employees) shall beneficially own or shall
control by proxy or otherwise, or shall enter into any
agreement to obtain any right to acquire, more than thirty
percent (30%) of the Company's voting securities; or
(j) The Company shall breach, or default under, any
covenant, term, condition, provision, representation or
warranty contained in this Agreement not specifically referred
to in this Article, and, except in the case of a breach or
default under Section 7.03, such breach or default shall
continue for thirty days after the earlier of its discovery by
any elected or appointed officer of the Company or written
notice thereof to the Company by the Agent or any Bank.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make
Committed Loans and the commitment of the Swingline Bank to
make Swingline 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
document or instrument given in connection herewith 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 and
Designated Bidders all rights and remedies available to it and
the Banks and Designated Bidders under this Agreement, the
Notes, or applicable law;
provided, however, that upon the occurrence of any event specified in
subsection (d) or (e) of Section 8.01 (in the case of subsection (e) upon the
expiration of the 45-day period mentioned therein), 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 Agent or any Bank or Designated Bidder.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other documents or instruments given in connection herewith are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.
8.04 Notice of Default. The Agent shall give notice to the Company
under subsection 8.01(j) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent". Each Bank and Designated
Bidder hereby irrevocably (subject to Section 9.09) appoints, designates and
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and each other document or instrument given in connection
herewith and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any such document or
instrument, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any such document or instrument, the Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Agent have or be deemed to have any fiduciary relationship with any Bank
or Designated Bidder, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other document or instrument given in connection herewith or otherwise exist
against the Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement with reference to the Agent is
not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead,
such term is used merely as a matter of market custom and is intended to
create or reflect only an administrative relationship between independent
contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other document or instrument given in connection
herewith by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other document or instrument given in
connection herewith 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 or Designated Bidders for any recital, statement,
representation or warranty made by the Company or any Subsidiary or affiliate
of the Company, or any officer thereof, contained in this Agreement or in any
other such document or instrument, or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent under
or in connection with, this Agreement or any other document or instrument
given in connection herewith, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other such document or
instrument, or for any failure of the Company or any other party to any other
such document or instrument to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Bank
or Designated Bidder to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other such document or instrument, or to inspect the
properties, books or records of the Company or any of the Company's
Subsidiaries or affiliates.
9.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, statement
or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other document or instrument given in connection herewith
unless it shall first receive such advice or concurrence of the Majority Banks
(or, when expressly required hereby, all of the Banks) as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by
the Banks against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Majority Banks (or, when expressly required hereby, all of 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 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter either sent by the 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 the Bank.
9.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks or Designated
Bidders, unless the Agent shall have received written notice from a Bank or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The Agent will
notify the Banks of its receipt of any such notice. The Agent shall take such
action with respect to such Default or Event of Default as may be requested by
the Majority Banks in accordance with Article VIII; provided, however, that
unless and until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Banks and Designated Bidders.
9.06 Credit Decision. Each Bank (which for purposes of this
Section 9.06 shall include each Designated Bidder) acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Company
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem 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 documents or instruments given in connection
herewith, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of
the Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Bank shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including attorney costs)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement, any other document or
instrument given in connection herewith, or any document contemplated by or
referred to herein, to the extent that the Agent is not reimbursed for such
expenses by or on behalf of the Company. The undertaking in this
Section shall survive the payment of all obligations hereunder and the
resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA (or any successor agent) and
its affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business
with the Company and its Subsidiaries and affiliates as though BofA (or such
successor agent) were not the Agent hereunder and without notice to or consent
of the Banks or Designated Bidders. The Banks and the Designated Bidders
acknowledge that, pursuant to such activities, BofA (or such successor agent)
or its affiliates may receive information regarding the Company or its
Subsidiaries or affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiaries or
affiliates) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, BofA (or such
successor) shall have the same rights and powers under this Agreement as any
other Bank and may exercise the same as though it were not the Agent, and the
terms "Bank" and "Banks" include BofA (or such successor) in its individual
capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Company and
the Banks. If the Agent resigns under this Agreement, the Majority Banks
shall appoint from among the Banks a successor agent for the Banks. If no
successor agent is appointed prior to the effective date of the resignation of
the Agent, the Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed
to all the rights, powers and duties of the retiring Agent and the term
"Agent" shall mean such successor agent and the retiring Agent's appointment,
powers and duties as Agent shall be terminated. The Company may continue to
deal with the retiring Agent as Agent hereunder until it receives notice of
the appointment of such a successor agent. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article IX and Sections
10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement. If no successor
agent has accepted appointment as Agent by the date which is 30 days following
a retiring Agent's notice of resignation, the retiring Agent's resignation
shall nevertheless thereupon become effective and the Banks shall perform all
of the duties of the Agent hereunder until such time, if any, as the Majority
Banks appoint a successor agent as provided for above. If the Company has not
received notice of the appointment of a successor agent within 30 days of the
retiring Agent's notice of resignation, the Company shall deal directly with
the Banks and Designated Bidders until it receives notice of the appointment
of a successor agent as provided above. Notwithstanding the foregoing,
however, BofA may not be removed as the Agent at the request of the Majority
Banks unless BofA shall also simultaneously be replaced as "Swingline Bank"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to BofA.
9.10 Withholding Tax.
(a) If any Bank (which for purposes of this Section 9.10 shall include
any Designated Bidder) is a "foreign corporation, partnership or trust" within
the meaning of the Code and such Bank claims exemption from, or a reduction
of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such Bank
agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms 1001 and W-8 before the payment of
any interest in the first calendar year and before the payment
of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because
it is effectively connected with a United States trade or
business of such Bank, two properly completed and executed
copies of IRS Form 4224 before the payment of any interest is
due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may
be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under
the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Bank
sells, assigns, grants a participation in, or otherwise transfers all or part
of the obligations of the Company hereunder to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner such obligations of the Company to such Bank. To the extent
of such percentage amount, the Agent will treat such Bank's IRS Form 1001 as
no longer valid.
(c) If any Bank claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Agent sells, assigns, grants a participation
in, or otherwise transfers all or part of the obligations of the Company
hereunder to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into
account such reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Bank not providing such forms
or other documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other governmental authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank (because the
appropriate form was not delivered, was not properly executed, or because such
Bank failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Bank shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, together with all costs and
expenses (including attorney costs). The obligation of the Banks under this
subsection shall survive the payment of all obligations and the resignation or
replacement of the Agent.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other document or instrument given in connection
herewith, and no consent with respect to any departure by the Company
therefrom, shall be effective unless the same shall be in writing and signed
by the Majority Banks (or by the Agent at the written request of the Majority
Banks) and the Company and acknowledged by the Agent, and then any such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Banks and
the Company and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any other
document or instrument given in connection herewith for any payment of
principal, interest, fees or other amounts due to the Banks or the Designated
Bidders (or any of them) hereunder or under any other such document or
instrument;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan or (subject to clause (iii) below) any fees or other amounts
payable hereunder or under any other document or instrument given in
connection herewith;
(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, or Section 2.16, or any provision herein
providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Agent in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the Agent under
this Agreement or any other document or instrument given in connection
herewith, (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Bank in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Swingline Bank
under this Agreement or any other document or instrument given in connection
herewith, and (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto.
10.02 Notices.
(a) All notices, requests and other communications shall be in writing
(including, unless the context expressly otherwise provides, by facsimile
transmission, provided that any matter transmitted by or to the Company by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 10.02, and (ii) except in the
case of a Notice of Borrowing, Notice of Conversion/
Continuation, or Competitive Bid Request, in which case the facsimile copy
shall be deemed to be the operative original document, shall be followed
promptly by delivery of a hard copy original thereof) and mailed, faxed or
delivered, to the address or facsimile number specified for notices on
Schedule 10.02; or, if directed to the Company or the Agent, to such other
address as shall be designated by such party in a written notice to the other
parties, and if directed to any other party, at such other address as shall be
designated by such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective upon the next
Business Day after delivery for overnight (next-day) delivery, or when
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the U.S. mail, or if
delivered, upon delivery; except that notices pursuant to Article II or IX
shall not be effective until actually received by the Agent.
(c) Any agreement of the Agent and the Banks and Designated Bidders
herein to receive certain notices by facsimile is solely for the convenience
and at the request of the Company. The Agent and the Banks and Designated
Bidders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Company to give such notice and the Agent and
the Banks and Designated Bidders shall not have any liability to the Company
or other Person on account of any action taken or not taken by the Agent or
the Banks or Designated Bidders in reliance upon such 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 Agent and the Banks and Designated
Bidders to receive written confirmation of any facsimile notice or the receipt
by the Agent and the Banks and Designated Bidders of a confirmation which is
at variance with the terms understood by the Agent and the Banks and
Designated Bidders to be contained in the facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank or Designated
Bidder, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent) within
five Business Days after demand (subject to subsection 4.01(e)) for all costs
and expenses incurred by BofA (including in its capacity as Agent) 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 and any other documents
prepared in connection herewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable attorney costs incurred
by BofA (including in its capacity as Agent) with respect thereto; and
(b) pay or reimburse the Agent and each Bank and Designated Bidder
within five Business Days after demand (subject to subsection 4.01(e)) for all
costs and expenses (including attorney costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other document or instrument given in
connection herewith 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).
10.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons, and each Bank and Designated Bidder and each of their
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, expenses and disbursements (including
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 Agent or replacement of any Bank or
Designated Bidder) 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 (i) Indemnified Liabilities to the
extent resulting from the gross negligence or willful misconduct of such
Indemnified Person (ii) any violation of any banking law or regulation by such
Indemnified Person, (iii) any liability as between or among any Indemnified
Person or their respective shareholders and controlling persons, (iv) any
default hereunder by any Person other than the Company, or (v) any Taxes or
Other Taxes, except to the extent such Taxes or Other Taxes are indemnified
against by other provisions of this Agreement. The agreements in this
Section shall survive payment of all other obligations of the Company.
10.06 Payments Set Aside. To the extent that the Company makes a
payment to the Agent or the Banks or Designated Bidders, or the Agent or the
Banks or Designated Bidders exercise their right of set-off, and such payment
or the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Agent or such Bank
or Designated Bidder in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any insolvency proceeding or otherwise,
then (a) to the extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Bank severally agrees to pay (and to cause any
Designated Bidder designated by it to pay) to the Agent upon demand its pro
rata share of any amount so recovered from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Agent and each Bank.
10.08 Assignments, Participations, etc.
(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 Agent, which
consents shall not be unreasonably withheld, at any time assign and delegate
to one or more Eligible Assignees (each an "Assignee") all, or any ratable (in
the case of Committed Loans) part of all, of the Loans, the Commitments and
the other rights and obligations of such Bank hereunder, in a minimum amount
of $10,000,000; provided, however, that the Company and the Agent may continue
to deal solely and directly with such Bank in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with respect to
the Assignee, shall have been given to the Company and the Agent by such Bank
and the Assignee; (ii) such Bank and its Assignee shall have delivered to the
Company and the Agent an Assignment and Acceptance substantially in the form
of Exhibit E ("Assignment and Acceptance") together with any Note or Notes
subject to such assignment and (iii) the assignor Bank or Assignee has paid to
the Agent a processing fee in the amount of $3,000. In connection with any
assignment by the Swingline Bank, its Swingline Commitment may be in whole or
in part included as part of the assignment transaction, and the Assignment and
Acceptance may be appropriately modified to include an assignment and
delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Agent notifies the assignor Bank
that 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 this Agreement and the other documents or instruments given in
connection herewith, and (ii) the assignor Bank shall, to the extent that
rights and obligations hereunder and under such documents or instruments have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations hereunder and under such other
documents and instruments.
(c) Within five Business Days after its receipt of notice by the Agent
that it has received an executed Assignment and Acceptance and payment of the
processing fee (and provided that it consents to such assignment if required
under subsection 10.08(a)), the Company shall execute and deliver to the
Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and,
if the assignor Bank has retained a portion of its Loans and its Commitment, a
replacement Note in the form of Exhibit I in the principal amount of the
Commitment retained by the assignor Bank (such Note to be in exchange for, but
not in payment of, the Note with respect to Committed Loans held by such Bank,
which shall be returned to the Company concurrently with the delivery by the
Company of the replacement Note). Immediately upon each Assignor's or
Assignee's making its processing fee payment 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 the Commitment of the assigning Bank
pro tanto.
(d) Any Bank or Designated Bidder 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 or Designated Bidder (the
"Originator") hereunder and under the other documents and instruments given in
connection herewith; provided, however, that (i) the Originator's obligations
under this Agreement shall remain unchanged, (ii) the Originator shall remain
solely responsible for the performance of such obligations, (iii) the Company
and the Agent shall continue to deal solely and directly with the Originator
in connection with the Originator's rights and obligations under this
Agreement and the other documents and instruments given in connection
herewith, 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 document or
instrument given in connection herewith, except to the extent such amendment,
consent or waiver would require unanimous consent of the Banks as described in
the first proviso to Section 10.01. In the case of any such participation, the
Participant shall not have any rights under this Agreement, or any of the
other documents or instruments given in connection herewith, and all amounts
payable by the Company hereunder shall be determined as if such Originator 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 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 or
Designated Bidder (as the case may be) under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank or
Designated Bidder 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 the
Notes 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 Section 203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
10.09 Designated Bidders. Any Bank from time to time may designate one
Designated Bidder to have a right to offer and make Bid Loans pursuant to
Section 2.06; provided, however, that (i) no such Bank may make more than 3
such designations, (ii) each such Bank making any such designation shall
retain the right to make Bid Loans, and (iii) the parties to each such
designation shall execute and deliver to the Agent a Designation Agreement.
Upon its receipt of an appropriately completed Designation Agreement executed
by a designating Bank and a designee representing that it is a Designated
Bidder, the Agent will accept such Designation Agreement and give prompt
notice thereof to the Company, whereupon such designation of such Designated
Bidder shall become effective and such designee shall become a party to this
Agreement as a "Designated Bidder."
10.10 Confidentiality. Each Bank and Designated Bidder agrees to take
and to cause its affiliates to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information provided
to it by the Company or any Subsidiary, or by the Agent on such Company's or
Subsidiary's behalf, under this Agreement or any other document or instrument
given in connection herewith, and neither it nor any of its affiliates shall
use any such information other than in connection with or in enforcement of
this Agreement and the other documents and instruments given in connection
herewith or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary, except to the extent such
information (i) was or becomes generally available to the public other than as
a result of disclosure by such Bank or Designated Bidder in breach of this
Section 10.10, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not bound
by a confidentiality agreement with the Company known to such Bank or
Designated Bidder; provided, however, that any Bank or Designated Bidder may
disclose such information (A) at the request or pursuant to any requirement of
any governmental authority to which such Bank or Designated Bidder is subject
or in connection with an examination of such Bank or Designated Bidder by any
such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with
any litigation or proceeding to which the Agent, any Bank or Designated Bidder
or their respective affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other document or instrument given in connection herewith; (F) to such Bank's
or Designated Bidder's independent auditors and other professional advisors;
(G) to any Participant or Assignee, actual or potential, provided that such
Person agrees in writing to keep such information confidential to the same
extent required of the Banks hereunder; and (H) as to any Bank or Designated
Bidder or its affiliates, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the Company or any
Subsidiary is party or is deemed party with such Bank or Designated Bidder or
such affiliate.
10.11 Set-off. In addition to any rights and remedies of the Banks and
Designated Bidders provided by law, if an Event of Default exists or the Loans
have been accelerated, each Bank and each Designated Bidder 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 or Designated Bidder to or for the credit or the account
of the Company against any and all obligations of the Company owing to such
Bank or Designated Bidder, now or hereafter existing, irrespective of whether
or not the Agent or such Bank or Designated Bidder shall have made demand
under this Agreement or any document or instrument given in connection
herewith and although such obligations may be contingent or unmatured. Each
Bank and each Designated Bidder agrees promptly to notify the Company and the
Agent after any such set-off and application made by such Bank or Designated
Bidder; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
10.12 Notification of Addresses, Lending Offices, Etc. Each Bank and
each Designated Bidder shall notify the Agent in writing of any changes in the
address to which notices to such Bank or Designated Bidder should be directed,
of addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative
information as the Agent shall reasonably request.
10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required
hereunder.
10.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Designated Bidders, the Agent-Related Persons, and their permitted successors
and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other documents or instruments
given in connection herewith.
10.16 Certain Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(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 but not limited to;" and (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 subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of this Agreement, 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 documents or instruments given in
connection herewith 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) References to "attorney costs" in this Agreement or in the Notes
or any other document or instrument given in connection herewith means and
includes all fees and disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and all disbursements of
internal counsel.
(i) This Agreement and the other documents and instruments given in
connection herewith are the result of negotiations among and have been
reviewed by counsel to the Agent, the Company and the other parties, and are
the products of all parties. Accordingly, they shall not be construed against
the Banks, the Designated Bidders, the Swingline Bank or the Agent merely
because of the Agent's, Banks', Designated Bidders' or Swingline Bank's
involvement in their preparation.
10.17 Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED
THAT THE AGENT AND THE BANKS AND DESIGNATED BIDDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
10.18 Arbitration; Reference Proceeding.
(a) The Company, the Banks, the Designated Bidders and the Agent each
agree that any controversy or claim between or among the parties, including
but not limited to those arising out of or relating to this Agreement or any
other document or instrument given in connection herewith, and any claim based
on or arising from an alleged tort related hereto or thereto, shall at the
request of any party be determined by arbitration. The arbitration shall be
conducted in accordance with the United States Arbitration Act (Title 9,
U.S. Code), notwithstanding any choice of law provision in this Agreement, and
under the Commercial Rules of the American Arbitration Association ("AAA").
The arbitrators shall give effect to statutes of limitation in determining any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrators. Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of
an action for judicial relief or pursuit of a provisional or ancillary remedy
shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration if any other
party contests such action for judicial relief.
(b) Notwithstanding the provisions of subsection (a), no controversy
or claim shall be submitted to arbitration without the consent of all parties
if, at the time of the proposed submission, such controversy or claim arises
from or relates to an obligation to the Agent or any Bank or Designated Bidder
which is secured by real property collateral located in California. If all
parties do not consent to submission of such a controversy or claim to
arbitration, the controversy or claim shall be determined as provided in
subsection (c).
(c) A controversy or claim which is not submitted to arbitration as
provided and limited in subsections (a) and (b) shall, at the request of any
party, be determined by a reference in accordance with California Code of
Civil Procedure Sections 638 et seq. If such an election is made, the parties
shall designate to the court a referee or referees selected under the auspices
of the AAA in the same manner as arbitrators are selected in AAA-sponsored
proceedings. The presiding referee of the panel, or the referee if there is a
single referee, shall be an active attorney or retired judge. Judgment upon
the award rendered by such referee or referees shall be entered in the court
in which such proceeding was commenced in accordance with California Code of
Civil Procedure Sections 644 and 645.
(d) No provision of this Section shall limit the right of any party to
this Agreement to exercise self-help remedies such as set-off, to foreclose
against or sell any real or personal property collateral or security or to
obtain provisional or ancillary remedies from a court of competent
jurisdiction before, after, or during the pendency of any arbitration or other
proceeding. The exercise of a remedy does not waive the right of either party
to resort to arbitration or reference. At the Majority Banks' option,
foreclosure under a deed of trust or mortgage may be accomplished either by
exercise of power of sale under the deed of trust or mortgage or by judicial
foreclosure.
10.19 Entire Agreement. This Agreement, together with the other
documents and instruments given in connection herewith, including the Notes
and the Fee Letter, embodies the entire agreement and understanding among the
Company, the Banks and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
In Witness Whereof, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year first above written.
LOUISIANA-PACIFIC CORPORATION
By:
Title: Chairman and Chief
Executive Officer
By:
Title: Vice President, Treasurer
and Controller
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By:
Title: Managing Director
ABN AMRO BANK N.V.
By: ABN AMRO
North America,
Inc., as its agent
By:
Title:
By:
Title:
FIRST INTERSTATE BANK OF
OREGON, N.A.
By:
Title:
ROYAL BANK OF CANADA
By:
Title:
SOCIETE GENERALE
By:
Title:
By:
Title:
THE BANK OF NOVA SCOTIA
By:
Title:
By:
Title:
THE CHASE MANHATTAN BANK, N.A.
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
UNITED STATES NATIONAL BANK OF
OREGON
By:
Title:
By:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
By:
Title:
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
--------------------------------- ---------- ---------
Bank of America National
Trust and Savings Association $ 50,000,000 16.666666668%
ABN AMRO Bank N.V. 25,000,000 8.333333333
First Interstate Bank
of Oregon, N.A. 25,000,000 8.▇▇▇▇▇▇▇▇▇
Royal Bank of Canada 25,000,000 8.▇▇▇▇▇▇▇▇▇
Societe Generale 25,000,000 8.▇▇▇▇▇▇▇▇▇
The Bank of Nova Scotia 25,000,000 8.▇▇▇▇▇▇▇▇▇
The Chase Manhattan Bank, N.A. 35,000,000 11.666666667
The First National Bank
of Chicago 20,000,000 6.666666667
United States National
Bank of Oregon 25,000,000 8.333333333
Wachovia Bank of Georgia, N.A. 35,000,000 11.666666667
▇▇▇▇▇ Fargo Bank, N.A. 10,000,000 3.333333333
------------ ------------
TOTAL $300,000,000 100.000000000%
============ =============
SCHEDULE 5.14(c)
The Company's subsidiary, Ketchikan Pulp Company ("KPC"), participates
in the Alaska Loggers Association Retirement Plan ("Plan"), a non-collectively
bargained, multiple employer, defined benefit plan which covers approximately
700 active, retired, and terminated hourly employees of KPC. Contributions to
the Plan are made by participating employers on a cents-per-hour basis, as
determined by the Plan's actuary. On an ongoing basis, it is estimated that
there is no unfunded liability for the Plan. If KPC were to terminate its
participation in the Plan currently, the Company estimates that the liability
to KPC would be approximately $2 million.
The Company maintains the Louisiana-Pacific Retirement Plan ("Plan")
covering its hourly employees. With the exception of certain hourly employees
at one small location of the Company, no employee whose employment commenced
after December 31, 1994, shall become a participant in the Plan and no further
benefits accrue to participants after said date. The Plan covers
approximately 13,900 active, terminated, and retired employees of the Company.
Contributions to the Plan are made in accordance with the requirements of
ERISA and the recommendations of the Plan's actuary. On an ongoing basis, it
is estimated that there is no unfunded liability for the Plan. If the Company
were to terminate the Plan, the estimated unfunded liability for the Plan
(based on current interest rates) would be approximately $29 million.
SCHEDULE 10.02
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
LOUISIANA-PACIFIC CORPORATION
Address for notices:
Louisiana-Pacific Corporation
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer and CFO
Telephone: 503/▇▇▇-▇▇▇▇
Facsimile: 503/796-0319
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Address for notices:
Bank of America National Trust
and Savings Association
Agency Management Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: 415/▇▇▇-▇▇▇▇
Facsimile: 415/436-2700
Address for payments:
Bank of America National Trust
and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA # ▇▇▇-▇▇▇-▇▇▇ SF
Attn: Agency Management Services #5596
For credit to Bancontrol Account No. 12334-15135
Ref: Louisiana-Pacific Corporation
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
Address for Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
Credit Products #3838
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: 415/▇▇▇-▇▇▇▇
Facsimile: 415/622-4585
Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: 510/▇▇▇-▇▇▇▇
Facsimile: 510/675-7531
ABN AMRO BANK N.V.
Address for notices:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: 206/▇▇▇-▇▇▇▇
Facsimile: 206/682-5641
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 206/▇▇▇-▇▇▇▇
Facsimile: 206/682-5641
FIRST INTERSTATE BANK OF OREGON, N.A.
Address for notices:
Oregon Corporate Division
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Telephone: 503/▇▇▇-▇▇▇▇
Telex: 360118 ▇▇▇▇▇ PLT
Facsimile: 503/225-3162
Domestic and Offshore Lending Office:
Oregon Corporate Division
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Telephone: 503/▇▇▇-▇▇▇▇
Facsimile: 503/225-3162
ROYAL BANK OF CANADA
Address for notices:
Grand Cayman (North America No. 1) Branch
c/o New York Branch
Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Assistant Manager, Credit Administration
Telephone: 212/▇▇▇-▇▇▇▇
Facsimile: 212/428-2372
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Manager
Telephone: 213/▇▇▇-▇▇▇▇
Facsimile: 213/955-5350
Domestic and Offshore Lending Office:
Grand Cayman (North America No. 1) Branch
c/o New York Branch
Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
SOCIETE GENERALE
Address for notices:
▇ ▇▇▇▇▇▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: 415/▇▇▇-▇▇▇▇
Facsimile: 415/989-9922
Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇
Corporate Assistant
Telephone: 310/▇▇▇-▇▇▇▇
Facsimile: 310/203-0539
THE BANK OF NOVA SCOTIA
Address for notices:
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bloch
Relationship Manager
Telephone: 503/▇▇▇-▇▇▇▇
Facsimile: 503/222-5502
Domestic and Offshore Lending Office:
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bloch
Relationship Manager
Telephone: 503/▇▇▇-▇▇▇▇
Facsimile: 503/222-5502
THE CHASE MANHATTAN BANK, N.A.
Address for notices:
The Chase Manhattan Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Telephone: 212/▇▇▇-▇▇▇▇
Telex: 62910 CMB UW
Facsimile: 212/552-7773
Domestic and Offshore Lending Office:
2 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Facsimile: 212/552-4455
THE FIRST NATIONAL BANK OF CHICAGO
Address for notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Telephone: 213/▇▇▇-▇▇▇▇
Facsimile: 213/683-4949
Domestic and Offshore Lending Office:
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Customer Service Officer
Telephone: 312/▇▇▇-▇▇▇▇
Facsimile: 312/732-4840
UNITED STATES NATIONAL BANK OF OREGON
Address for notices:
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
(▇▇-▇)
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Telephone: 503/▇▇▇-▇▇▇▇
Facsimile: 503/275-5428
Domestic and Offshore Lending Office:
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
(PL-7)
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: 503/▇▇▇-▇▇▇▇
Facsimile: 503/275-4600
WACHOVIA BANK OF GEORGIA, N.A.
Address for notices:
First Wachovia Corporate Services
▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Banking Officer
Telephone: 404/▇▇▇-▇▇▇▇
Telex: 4611015
Facsimile: 404/332-6898
Domestic and Offshore Lending Office:
First Wachovia Corporate Services
▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: 404/▇▇▇-▇▇▇▇
Facsimile: 404/332-6898
▇▇▇▇▇ FARGO BANK, N.A.
Address for notices:
Corporate Banking Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Vice President
Telephone: 415/▇▇▇-▇▇▇▇
Telex: 184904 ▇▇▇▇▇ UT
Facsimile: 415/421-1352
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 415/▇▇▇-▇▇▇▇
Facsimile: 415/989-4319
EXHIBIT A
FORM OF NOTICE OF BORROWING
Date: ,
To: Bank of America National Trust and Savings Association as Agent
for the Banks and Designated Bidders parties to the Credit
Agreement dated as of February 16, 1996 (as extended, renewed,
supplemented, amended or restated from time to time, the
"Agreement") among Louisiana-Pacific Corporation, certain Banks
which are signatories thereto and Bank of America National Trust
and Savings Association, as agent for the Banks and Designated
Bidders (in such capacity, the "Agent")
Ladies and Gentlemen:
The undersigned, Louisiana-Pacific Corporation (the "Company"), refers
to the Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Sections [2.03]
[2.07] and 4.02 of the 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] [Offshore Rate] Committed Loans.]
or
[3. The Borrowing is to be comprised of a Swingline Loan.]
4. [If applicable:] The duration of the Interest Period for the
Offshore Rate Committed 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:
(a) the representations and warranties of the Company contained
in Article V (exclusive of Section 5.13) of the Agreement are true and
correct as though made on and as of such date;
(b) the financial statements most recently supplied to the Banks
under both subsections 6.07(a) and 6.07(b) have been prepared in
accordance with the provisions of such subsections as of the dates and
periods therein specified, and since such dates and periods there has
been no change in the Company's consolidated financial condition or
results of operations sufficient to impair the Company's ability to
repay the Loans in accordance with the terms of the Agreement, and
neither the Company nor any Subsidiary has any contingent obligations,
liabilities for taxes or other outstanding financial obligations which
are material in the aggregate to the Company, except as have been
disclosed in such financial statements, or as have been otherwise
previously disclosed to the Banks in writing;
(c) no Default or Event of Default exists or would result from
such proposed Borrowing; and
(d) the proposed Borrowing will not cause (i) the aggregate
principal amount of all outstanding Loans to exceed the combined
Commitments of the Banks, or (ii) the aggregate principal amount of all
outstanding Swingline Loans to exceed the Swingline Commitment.
LOUISIANA-PACIFIC CORPORATION
By:
Title:
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: ,
To: Bank of America National Trust and Savings Association, as Agent for the
Banks and Designated Bidders parties to the Credit Agreement dated as of
February 16, 1996 (as extended, renewed, supplemented, amended or
restated from time to time, the "Agreement") among Louisiana-Pacific
Corporation, certain Banks which are signatories thereto and Bank of
America National Trust and Savings Association, as agent for the Banks
and Designated Bidders (in such capacity, the "Agent")
Ladies and Gentlemen:
The undersigned, Louisiana-Pacific Corporation (the "Company"), refers
to the Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.04 of
the Agreement, with respect to the [conversion] [continuation] of the
Committed Loans specified herein, that:
1. The Conversion/Continuation Date is , ______.
2. The aggregate amount of the Committed Loans to be [converted]
[continued] is $ .
3. The Committed Loans are to be [converted into] [continued as]
[Offshore Rate] [Base Rate] Committed Loans.
4. [If applicable:] The duration of the Interest Period for the
Committed Loans included in the [conversion] [continuation] shall be
months.
LOUISIANA-PACIFIC CORPORATION
By:
Title:
EXHIBIT C
LOUISIANA-PACIFIC CORPORATION
FORM OF COMPLIANCE CERTIFICATE
Financial
Statement Date: , ____
Reference is made to that certain Credit Agreement dated as of February
16, 1996 (as extended, renewed, supplemented, amended or restated from time to
time, the "Agreement") among Louisiana-Pacific Corporation, a Delaware
corporation (the "Company"), the several financial institutions from time to
time parties to the Agreement (the "Banks") and Bank of America National Trust
and Savings Association, as agent for the Banks and Designated Bidders (in
such capacity, the "Agent"). Unless otherwise defined herein, capitalized
terms used herein have the respective meanings assigned to them in the
Agreement.
The undersigned responsible officer of Louisiana-Pacific Corporation
hereby certifies as of the date hereof that he/she is the
of the Company and that, as such, he/she is authorized to execute and deliver
this Certificate to the Banks and the Agent on the behalf of the Company and
its consolidated Subsidiaries, and that:
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by subsection 6.07(a) of the
Agreement.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of
the unaudited consolidated summary balance sheets of the Company and its
Subsidiaries as of the end of the fiscal quarter ended __________, _____, and
(b) the related unaudited consolidated summary statements of income,
shareholders' equity, and cash flows for the period commencing on the first
day of such quarter and on the first day of the fiscal year and, in each case,
ending on the last day of such quarter. Such financial statements were
prepared in accordance with GAAP (subject only to ordinary, good faith year-
end audit adjustments, the summary nature of such statements, and the absence
of footnotes) and fairly present, in all material respects, the consolidated
financial position and results of operations of the Company and its
Subsidiaries.
or
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by subsection 6.07(b) of the
Agreement.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of
the audited consolidated balance sheets of the Company and its Subsidiaries as
at the end of the fiscal year ended _______________, _____ and (b) the related
consolidated statements of income, shareholders' equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, and (i) accompanied by the opinion of an
independent public accountant or accountants selected by the Company and
acceptable to the Majority Banks (the "Independent Auditor") which report
states that such consolidated financial statements are complete and correct
and have been prepared in accordance with GAAP, without qualification arising
out of the scope of the audit, and fairly present, in all material respects,
the consolidated financial position of the Company and its Subsidiaries for
the periods indicated and on a basis consistent with prior periods; and (ii)
further accompanied by the Independent Auditor's certificate that in the
course of making their audit they obtained no knowledge of any existing
unremedied Default or Event of Default by the Company under the Agreement, or
a statement by the Independent Auditor disclosing any such defaults if any are
found. Such financial statements were prepared in accordance with GAAP and
fairly present, in all material respects, the consolidated financial position
and results of operations of the Company and its Subsidiaries.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
the Company during the accounting period covered by the attached financial
statements.
3. To the best of the undersigned's knowledge, the Company, during
such period, has observed, performed or satisfied all of its covenants and
other agreements, and satisfied every condition in the Agreement to be
observed, performed or satisfied by the Company, and the undersigned has no
knowledge of any Default or Event of Default.
4. The following financial covenant analyses and information set
forth on Schedule 2 attached hereto are true and accurate on and as of the
date of this Certificate. Attached hereto as Schedule 3 is a statement from
the Independent Auditor that it has reviewed such analyses and information and
that they are true and correct.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
, .
LOUISIANA-PACIFIC CORPORATION
By:
Title:
Sequential
Exhibit Description of Exhibit Page Number
------- ---------------------- -----------
Date:
-------------, -----
For the fiscal quarter/year
ended
-------------, -----
SCHEDULE 2
to the Compliance Certificate
($ in 000's)(1)
Actual Required/Permitted
1. Section 7.01 Funded Debt to Net Worth Ratio.
the ratio of:
A. the sum of:
(i) indebtedness for
borrowed monies
------------
(ii) lease obligations for
payment of industrial
revenue and pollution
control bonds
------------
(iii) Purchase Money
Indebtedness
------------
(iv) prepayment deposits
for sales contracts
------------
(v) unfunded litigation
reserves
------------
= (i) + (ii) + (iii) +
(iv) + (v) =
------------
-----------------------
(1) All calculations on a consolidated basis and in accordance with GAAP.
Sequential
Exhibit Description of Exhibit Page Number
------- ---------------------- -----------
B. Net Worth:
the sum of:
(i) capital accounts
------------
(ii) debt subordinated to
the Loans and other
sums now or hereafter
owed to the Agent or
the Banks or
Designated Bidders
with respect to the
Loans or otherwise
under the Agreement or
the Notes by
arrangements or
agreements in form and
substance satisfactory
to the Majority Banks
------------
= (i) + (ii) + (iii) =
------------
= A = Not to exceed 1:00 to 1:00
B ------------
------------
2. Interest Coverage Ratio.
the ratio of:
A. the sum of:
(i) (a) net income (or net
loss) for the four
quarter fiscal period
then ended ------------
less
(b) extraordinary
losses or gains and
the cumulative effect
of changes in
accounting principles
------------
(a) - (b) =
------------
(ii) interest expense to
the extent included in
determining net income
(or net loss) for the
four quarter fiscal
period then ended
------------
= (i) + (ii) + (iii) =
------------
B. interest expense (including
capitalized interest) for
the four quarter fiscal
period then ended
------------
= A =
B
------------
------------
EXHIBIT D-1
February ____, 1996
To the Banks and the Agent referred to below
c/o Bank of America National Trust
and Savings Association, as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Subject: Credit Agreement ("Agreement"), dated as of February 16,
1996, among Louisiana-Pacific Corporation ("Company"),
the banks named on the signature pages of the Agreement
("Banks"), and Bank of America National Trust and Savings
Association as agent for Banks ("Agent")
Ladies and Gentlemen:
We have acted as counsel for Company in connection with the
transactions contemplated by the Agreement. This opinion is being
delivered to you pursuant to Section 4.01(b) of the Agreement. All
capitalized terms used herein and not otherwise defined herein shall have
the same meanings as in the Agreement.
In connection with this opinion, we have examined and relied
upon the Agreement (as to factual matters) and such records, documents,
certificates of public officials and officers of Company (without
independent verification by us of the assertions made therein), made such
inquiries of officers of Company and considered such questions of law as
we have deemed necessary for the purpose of rendering the opinions set
forth herein. We have assumed the genuineness of all signatures, other
than those of Company on the Agreement, of all persons executing
agreements, instruments, or documents examined or relied upon by us. We
have assumed the authenticity of all documents submitted to us as
originals and the conformity to authentic original documents of all
documents submitted to us as certified, conformed, or photostatic copies.
We have assumed the due execution and delivery pursuant to due
authorization by Banks and Agent of the Agreement and all other
instruments and agreements required thereunder (collectively,
"Transaction Documents"), and that each of Banks and Agent have the power
to enter into and perform their respective obligations under the
Transaction Documents.
Whenever our opinion herein is indicated to be based on our
knowledge, it is intended to signify the actual knowledge after due
inquiry of the attorneys of Miller, Nash, Wiener, Hager & ▇▇▇▇▇▇▇ who
have provided legal services in connection with the transactions
contemplated by the Agreement (specifically, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇).
With respect to the opinions expressed herein, the rights and
obligations under the Transaction Documents and the enforceability
thereof are subject to:
(i) limitations imposed by bankruptcy, insolvency,
reorganization, and other similar laws and related court
decisions of general applicability relating to or affecting
creditors' rights generally;
(ii) limitations on the availability of equitable
remedies;
(iii) the effect of judicial decisions which have held
that certain provisions are unenforceable where the
enforcement would violate an implied covenant of good faith
and fair dealing or would be commercially unreasonable or
where the breach is not material;
(iv) limitations on the enforceability of provisions
expressly or by implication waiving broadly or vaguely stated
rights, or waiving rights granted by law where such waivers
are against public policy, or cannot be waived by consent;
(v) limitations on the enforceability of provisions
that rights or remedies are not exclusive, that every right or
remedy is cumulative, or that the election of a particular
remedy or remedies does not preclude recourse to one or more
other remedies;
(vi) limitations on the enforceability of provisions
providing that a Transaction Document may be amended or waived
only in writing to the extent that the parties have orally
agreed to modify provisions of a Transaction Document; and
(vii) limitations on the enforceability of provisions
providing for a party to be indemnified with respect to its
own unlawful conduct, negligence, recklessness, or willful
misconduct, or otherwise in a manner contrary to public
policy.
In rendering the opinions herein, we are acting only as
members of the Bar of the state of Oregon and are not expressing our
views as to the laws, rules, and regulations of any jurisdiction other
than the laws, rules, and regulations of the state of Oregon, the
corporate laws, rules, and regulations of the State of Delaware, and
United States federal law, rules, and regulations. Our opinion as to any
document or instrument governed by the laws of any other jurisdiction is
limited to the extent that such document or instrument would be governed
by the laws of the state of Oregon.
Based upon and subject to the foregoing and any other
qualifications stated herein, we are of the opinion that:
1. Company is a corporation duly organized and
existing under the laws of Delaware.
2. The execution, delivery, and performance by
Company of the Agreement and any instrument or agreement
required thereunder are within Company's powers, have
been duly authorized, and are not in conflict with the
terms of the certificate of incorporation or bylaws of
Company, or to our knowledge any material instrument or
agreement to which Company is a party or by which Company
is bound or affected.
3. No approval, consent, or other action by, or
notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery, and
performance by Company of the Agreement or any instrument
or agreement required thereunder.
4. There is no law, rule, or regulation
applicable to Company nor, to our knowledge, is there any
judgment, decree or order of any court or governmental
authority binding on Company or any Subsidiary, which
would be contravened by the execution, delivery, or
performance by Company of the Agreement or any instrument
or agreement required thereunder.
5. The Agreement has been duly executed and
delivered by Company and is, and each of the Notes when
duly executed and delivered will be, a legal, valid, and
binding agreement of Company, enforceable against Company
in accordance with its terms.
6. Except as disclosed in reports filed by
Company with the Securities and Exchange Commission or as
set forth on Exhibit A attached hereto, to our knowledge,
there are no suits, proceedings, claims, or disputes
pending or threatened against or affecting Company or any
Subsidiary or their respective properties, the adverse
determination of which might materially adversely affect
Company's consolidated financial condition or operations
or materially impair Company's ability to perform its
obligations under the Agreement or under any instrument
or agreement required thereunder.
7. The execution, delivery, and performance of
the Agreement and any instrument or agreement required
thereunder will not conflict with or contravene any of
Regulations G, T, U and X promulgated by the Board of
Governors of the Federal Reserve System.
8. None of the Company, any Person controlling
the Company, or any Subsidiary, is an "investment
company" within the meaning of the Investment Company Act
of 1940.
The information set forth herein is as of the date hereof.
We assume no obligation to advise you of changes which may thereafter be
brought to our attention.
This opinion is solely for the use of Agent, Banks,
Designated Bidders, Assignees, and Participants in connection with the
transactions contemplated by the Agreement and may not be used or relied
upon for any other purpose.
Very truly yours,
MILLER, NASH, WIENER, HAGER & ▇▇▇▇▇▇▇
EXHIBIT A
Certain Litigation Matters
In January 1996, an action entitled International Paper
Company v. ▇▇▇▇ ▇. ▇▇▇▇▇ and Louisiana-Pacific Corporation was instituted
in the United States District Court for the Southern District of New York
claiming that ▇▇. ▇▇▇▇▇'▇ employment as chief executive officer of the
Company violated the terms of a previous employment agreement with the
plaintiff. The complaint seeks an injunction prohibiting ▇▇. ▇▇▇▇▇ from
continuing his employment with the Company for 18 months and other
relief.
In January 1996, the Company received a notice of suspension
from the United States Environmental Protection Agency ("EPA") stating
that, because of criminal proceedings pending against the Company in
Colorado, agencies of the federal government would be prohibited from
purchasing from the Company's Northern Division. Under recently revised
regulations of the United States Department of Agriculture, such action
may also have the effect of barring the Company's Northern Division from
purchasing timber from the United States Forest Service. The Company is
seeking to overturn or modify the EPA action.
In January 1996, an action entitled Stewart v. Louisiana-
Pacific Corporation was instituted in the United States District Court
for the District of Colorado. Plaintiff seeks to represent a purported
class consisting generally of owners and purchasers of buildings in which
the Company's OSB panels are used for flooring, subflooring, or
underlayment. The complaint seeks damages in an unspecified amount and
equitable relief by reason of alleged fraud, misrepresentation,
negligence, breach of warranty, and deceptive trade practices related to
alleged improprieties in testing, certification, and marketing of OSB
structure panels and alleged premature deterioration of OSB panels.
EXHIBIT D-2
February 16, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association, as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Banks listed on Schedule A attached hereto
Re: Louisiana-Pacific Corporation Credit Agreement
Mesdames and Gentlemen:
We have acted as special California counsel for Bank of America National
Trust and Savings Association, as agent (the "Agent") under the Credit
Agreement (the "Agreement") dated as of February 16, 1996 among Louisiana-
Pacific Corporation (the "Company"), the Agent, and the Banks listed on
Schedule A attached hereto. This opinion is furnished to you pursuant to
Section 4.01(b)(ii) of the Agreement.
We have examined an original or a copy of the Agreement and the form of
the Notes (collectively, the "Documents"). Unless otherwise defined herein,
terms defined in the Agreement shall have the same meanings herein.
In addition, we have examined such records, documents, and certificates
of public officials and considered such questions of law as we have deemed
necessary for the purpose of rendering the opinions set forth herein.
We have assumed the genuineness of all signatures and the authenticity
of all items submitted to us as originals and the conformity with originals of
all items submitted to us as copies. In making our examination of the
Documents, we have assumed that each party to the Documents (including each
Assignee becoming a Bank or Designated Bidder hereafter) has the power and
authority to execute and deliver, and to perform and observe the provisions
of, the Documents and has duly authorized, executed and delivered the
Documents. We have also assumed that the Documents constitute the legal,
valid and binding obligation of each party to the Documents (including each
Assignee becoming a Bank or Designated Bidder hereafter) other than the
Company.
We have assumed that each of the Banks and Designated Bidders (including
each Assignee becoming a Bank or Designated Bidder hereafter) is an exempt
lender under the California usury law.
We call your attention to the arbitration provision of the Agreement and
to the existence of differences between the arbitral and judicial processes.
We have based our opinion upon an assessment of legal authorities which would
be applicable in judicial proceedings.
Based upon and subject to the exceptions and qualifications set forth
herein, we are of the opinion that the Agreement constitutes, and each Note
when duly executed and delivered by the Company will constitute, a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms.
The opinion expressed herein is subject to the following further
qualifications and exceptions:
(1) The effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally,
including, without limitation, laws relating to fraudulent
transfers or conveyances, preferences and equitable
subordination.
(2) Limitations imposed by general principles of equity
upon the availability of equitable remedies or the enforcement
of provisions of the Documents; and the effect of judicial
decisions which have held that certain provisions are
unenforceable where their enforcement would violate the implied
covenant of good faith and fair dealing, or would be
commercially unreasonable.
(3) We express no opinion as to the effect on the
opinions expressed herein of (a) the compliance or non-
compliance of any party to the Documents (including each
Assignee becoming a Bank or Designated Bidder hereafter) with
any laws or regulations applicable to it, or (b) the legal or
regulatory status or the nature of the business of any such
party.
(4) The enforceability of provisions of the Documents
providing for indemnification or contribution, to the extent
such indemnification or contribution is against public policy.
(5) The enforceability of provisions of the Documents
providing for arbitration of disputes to the extent that
arbitration of a particular dispute would be against public
policy.
(6) The enforceability of provisions of the Documents
which purport to establish evidentiary standards or to make
determinations conclusive.
(7) The enforceability of provisions of the Documents
that establish the circumstances under which rights of set-off
may be exercised.
(8) The effect of judicial decisions which may permit
the introduction of extrinsic evidence to modify the terms or
the interpretation of the Documents.
(9) The effect of California law which provides that
where a contract permits one party to the contract to recover
attorney's fees, the prevailing party in any action to enforce
any provision of the contract shall be entitled to recover its
reasonable attorney's fees notwithstanding the absence of a
written agreement to such effect.
(10) The enforceability of certain provisions of the
Documents expressly or by implication waiving broadly or
vaguely stated rights, or waiving rights granted by law where
such waivers are against public policy.
(11) The enforceability of provisions of the Documents
providing that rights or remedies are not exclusive, that every
right or remedy is cumulative, or that the election of a
particular remedy or remedies does not preclude recourse to one
or more other remedies.
(12) The enforceability of a requirement that provisions
of the documents may only be modified in writing to the extent
that an oral agreement has been executed modifying provisions
of the Documents.
(13) The enforceability of provisions of the Documents
imposing or which are construed as effectively imposing
penalties or forfeitures.
We express no opinion as to matters governed by any laws other than the
substantive laws of the State of California (without reference to its
choice-of-law rules).
This opinion is solely for your benefit and may not be relied upon by
any other person other than Assignees becoming Banks or Designated Bidders
hereafter, nor may copies be delivered to any person other than Participants,
Assignees, and your professional advisors and regulatory authorities, in each
case without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
SCHEDULE A
Bank of America National Trust and Savings Association
ABN AMRO Bank N.V.
First Interstate Bank of Oregon, N.A.
Royal Bank of Canada
Societe Generale
The Bank of Nova Scotia
The Chase Manhattan Bank, N.A.
The First National Bank of Chicago
United States National Bank of Oregon
Wachovia Bank of Georgia, ▇.▇.
▇▇▇▇▇ Fargo Bank, N.A.
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT
(this "Assignment and Acceptance") dated as of __________, _____ is made
between ______________________________ (the "Assignor") and
__________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that
certain Credit Agreement dated as of February 16, 1996 (as extended, renewed,
supplemented, amended or restated, the "Agreement") among Louisiana-Pacific
Corporation, a Delaware corporation (the "Company"), the several financial
institutions from time to time party thereto (including the Assignor, the
"Banks"), and Bank of America National Trust and Savings Association, as agent
for the Banks and the Designated Bidders (the "Agent"). Any terms defined in
the Agreement and not defined in this Assignment and Acceptance are used
herein as defined in the Agreement;
WHEREAS, as provided under the Agreement,
the Assignor has committed to making committed loans (the "Committed Loans")
to the Company in an aggregate amount not to exceed $__________ (the
"Commitment") and has agreed to offer to provide the Company with Bid Loans
from time to time in the Assignor's sole discretion;
WHEREAS, [the Assignor has made Committed
Loans in the aggregate principal amount of $__________ to the Company [, and
Bid Loans in the aggregate principal amount of $___________] to the Company]
[no Committed Loans are outstanding under the Agreement] [no Bid Loans are
outstanding under the Agreement]; and
WHEREAS, the Assignor wishes to assign to
the Assignee [part of the] [all] rights and obligations of the Assignor under
the Agreement in respect of [(i)] its Commitment [,together with a
corresponding portion of each of its outstanding Committed Loans,] in an
amount equal to $__________ (the "Assigned Amount"), [and (ii) its outstanding
Bid Loans in an amount equal to $_____________,] in each case on the terms and
subject to the conditions set forth herein and the Assignee wishes to accept
assignment of such rights and to assume such obligations from the Assignor on
such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements contained herein, the parties hereto agree
as follows:
1.Assignment and Acceptance.
(a)Subject to the terms and conditions of
this Assignment and Acceptance, (i) the Assignor hereby sells, transfers and
assigns to the Assignee, and (ii) the Assignee hereby purchases, assumes and
undertakes from the Assignor, without recourse and without representation or
warranty (except as provided in this Assignment and Acceptance) __% (the
"Assignee's Percentage Share") of (A) the Commitment [and the Committed Loans]
of the Assignor, [and] (B) [$__________ in principal amount of outstanding Bid
Loans, and (C)] all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Agreement and the
documents and instruments given by the Company in connection therewith.
[If appropriate, add paragraph specifying
payment to Assignor by Assignee of outstanding principal of, accrued interest
on, and fees with respect to, Committed Loans and Bid Loans assigned.]
(b)With effect on and after the Effective
Date (as defined in Section 5 hereof), the Assignee shall be a party to the
Agreement and succeed to all of the rights and be obligated to perform all of
the obligations of a Bank under the Agreement, including the requirements
concerning confidentiality and the payment of indemnification, with a
Commitment in an amount equal to the Assigned Amount. The Assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Agreement are required to be performed by it as a
Bank. It is the intent of the parties hereto that the Commitment of the
Assignor shall, as of the Effective Date, be reduced by an amount equal to the
Assigned Amount and the Assignor shall relinquish its rights and be released
from its obligations under the Agreement to the extent such obligations have
been assumed by the Assignee; provided, however, the Assignor shall not
relinquish its rights under Sections 10.04 and 10.05 of the Agreement to the
extent such rights relate to the time prior to the Effective Date.
(c)After giving effect to the assignment
and assumption set forth herein, on the Effective Date the Assignee's
Commitment will be $__________.
(d)After giving effect to the assignment
and assumption set forth herein, on the Effective Date the Assignor's
Commitment will be $__________.
2.Payments.
(a)As consideration for the sale,
assignment and transfer contemplated in Section 1 hereof, the Assignee shall
pay to the Assignor on the Effective Date in immediately available funds an
amount equal to $__________, in respect of the Assignee's Percentage Share of
the principal amount of all Committed Loans of the Assignor [and $___________
in respect of the principal amount of Bid Loans previously made, and currently
owed, by the Company to the Assignor under the Credit Agreement and
outstanding on the Effective Date].
(b)The [Assignor] [Assignee] further
agrees to pay to the Agent a processing fee in the amount specified in
subsection 10.08(a) of the Agreement.
3.Reallocation of Payments.
Any interest, fees and other payments
accrued to the Effective Date with respect to the Commitment[,] [Bid Loans,]
[and] Committed Loans of the Assignor shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount [and Bid Loans assigned
hereunder] shall be for the account of the Assignee. Each of the Assignor and
the Assignee agrees that it will hold in trust for the other party any
interest, fees and other amounts which it may receive to which the other party
is entitled pursuant to the two preceding sentences and pay to the other party
any such amounts which it may receive promptly upon receipt.
4.Independent Credit Decision.
The Assignee (a) acknowledges that it has
received a copy of the Agreement and the Schedules and Exhibits thereto,
together with copies of the most recent financial statements referred to in
Section 6.07 of the Agreement, and such other documents and information as it
has deemed appropriate to make its own credit and legal analysis and decision
to enter into this Assignment and Acceptance; and (b) agrees that it will,
independently and without reliance upon the Assignor, the 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 Agreement.
5.Effective Date; Notices.
(a)As between the Assignor and the
Assignee, the effective date for this Assignment and Acceptance shall be
__________, _____ (the "Effective Date"); provided that the following
conditions precedent have been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the Agent required for
an effective assignment of the Assigned Amount by the Assignor to the Assignee
under Section 10.08(a) of the Agreement shall have been duly obtained and
shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Assignment and Acceptance;
(iv) the Assignee shall have complied with
subsection 9.10(a) of the Agreement (if applicable); and
(v) the processing fee referred to in Section 2(b) hereof
and in Section 10.08(a) of the Agreement shall have been paid to the Agent.
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Agent for
acknowledgment by the Agent, a Notice of Assignment in the form attached
hereto as Schedule 1.
6. Agent.
[(a)] The Assignee hereby appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Agreement as are delegated to the Agent by the Banks pursuant to the terms of
the Agreement.
[INCLUDE ONLY IF ASSIGNOR IS AGENT: (b) The Assignee shall assume no duties
or obligations held by the Assignor in its capacity as Agent under the
Agreement.]
7. Withholding Tax.
The Assignee (a) represents and warrants to the Assignor, the Agent and
the Company that under applicable law and treaties no tax will be required to
be withheld by the Assignor with respect to any payments to be made to the
Assignee hereunder, (b) agrees to furnish (if it is organized under the laws
of any jurisdiction other than the United States or any State thereof) to the
Agent and the Company prior to the time that the Agent or the Company is
required to make any payment of principal, interest or fees hereunder,
duplicate executed originals of either U.S. Internal Revenue Service Form 4224
or U.S. Internal Revenue Service Form 1001 (wherein the Assignee claims
entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments hereunder)
and agrees to provide new Forms 4224 or 1001 upon the expiration of any
previously delivered form or comparable statements in accordance with
applicable U.S. law and regulations and amendments thereto, duly executed and
completed by the Assignee, and (c) agrees to comply with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim;
(ii) it is duly organized and existing and it has the full power and authority
to take, and has taken, all action necessary to execute and deliver this
Assignment and Acceptance and any other documents required or permitted to be
executed or delivered by it in connection with this Assignment and Acceptance
and to fulfill its obligations hereunder; (iii) except for the notice required
by Section 5(b) hereof, no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assignment
and Acceptance, and apart from any agreements or undertakings or filings
required by the Agreement, no further action by, or notice to, or filing with,
any Person is required of it for such execution, delivery or performance; and
(iv) this Assignment and Acceptance has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the Assignor,
enforceable against the Assignor in accordance with the terms hereof, subject,
as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors' rights
and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes
no responsibility with respect to, the solvency, financial condition or
statements of the Company, or the performance or observance by the Company of
any of its respective obligations under the Agreement or any other instrument
or document furnished in connection therewith.
(c) The Assignee 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 Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) except for the notice required by
Section 5(b) hereof, no notices to, or consents, authorizations or approvals
of, any Person are required (other than any already given or obtained) for its
due execution, delivery and performance of this Assignment and Acceptance; and
apart from any agreements or undertakings or filings required by the
Agreement, no further action by, or notice to, or filing with, any Person is
required of it for such execution, delivery or performance; (iii) this
Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee,
enforceable against the Assignee in accordance with the terms hereof, subject,
as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors' rights
and to general equitable principles; and (iv) it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby 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, including the delivery of any notices or other
documents or instruments to the Company or the Agent, which may be required in
connection with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment
and Acceptance shall be in writing and signed by the parties hereto. No
failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-
off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. The Assignor
and the Assignee each irrevocably submit to the non-exclusive jurisdiction of
any State or Federal court sitting in California over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agree that all claims in respect of such action or proceeding may
be heard and determined in such California State or Federal court. Each party
to this Assignment and Acceptance hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE AGREEMENT, ANY RELATED
DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR
STATEMENTS (WHETHER ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not inconsistent
with the Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By:
Title:
By:
Title:
Address:
[ASSIGNEE]
By:
Title:
By:
Title:
Address:
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, _____
Bank of America National Trust
and Savings Association, as Agent
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Attn: Agency Management Services #▇▇▇▇
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Ladies and Gentlemen:
We refer to the Credit Agreement dated as of February 16, 1996 (as
extended, renewed, supplemented, amended or restated from time to time, the
"Agreement") among Louisiana-Pacific Corporation (the "Company"), the Banks
referred to therein and Bank of America National Trust and Savings Association
and as agent for the Banks and the Designated Bidders (the "Agent"). Terms
defined in the Agreement are used herein as therein defined.
1. We hereby give you notice of, and request your consent to(1), the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in and
to the Agreement (including, without limitation, the right, title and interest
of the Assignor in and to the Commitment of the Assignor [and all outstanding
Committed Loans made by the Assignor]) [and $________ of outstanding Bid Loans
made by the Assignor thereunder], pursuant to the Assignment and Acceptance
Agreement attached hereto (the "Assignment and Acceptance"). Before giving
effect to such assignment the Assignor's Commitment is $ ___________ [, and
the aggregate amount of its outstanding Committed Loans is $_____________ [and
Bid Loans is $______________]]. After giving effect to such assignment the
Assignor's Commitment is $ ___________ [, and the aggregate amount of its
outstanding Committed Loans is $_____________ [and Bid Loans is
$______________]], and the Assignee's Commitment is $ ___________ [, and the
aggregate amount of its outstanding Committed Loans is $_____________ [and Bid
Loans is $______________]].
2. The Assignee agrees that, upon receiving the consent of the Agent
and, if applicable, the Company, to such assignment, the Assignee will be
bound by the terms of the Agreement as fully and to the same extent as if the
Assignee were the Bank originally holding such interest in the Agreement.
3. The following administrative details apply to the Assignee:
_____________________________
(1) See Section 10.08 of the Credit Agreement regarding circumstances under
which Company consent is required.
(A) Notice Address:
Assignee name: __________________________
Address: _______________________________
_______________________________
_______________________________
Attention: _____________________________
Telephone: (___) _______________________
Telecopier: (___) ______________________
Telex (Answerback): ____________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
Title:
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
By:
Title:
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
LOUISIANA-PACIFIC CORPORATION
By:
Title: __________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: __________________________
Vice President
EXHIBIT F
FORM OF INVITATION FOR COMPETITIVE BIDS
Via Facsimile
To the Banks [and Designated Bidders] Listed on Schedule A attached hereto:
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of February
16, 1996 (as extended, renewed, supplemented, amended or restated from time to
time, the "Agreement"), among Louisiana-Pacific Corporation (the "Company"),
the Banks party thereto, and Bank of America National Trust and Savings
Association, as Agent for the Banks and the Designated Bidders (the "Agent").
Capitalized terms used herein have the meanings specified in the Agreement.
Pursuant to subsection 2.06(b) of the Agreement, you are hereby invited
to submit offers to make Bid Loans to the Company based on the following
specifications:
1. The Business Day of the proposed Bid Borrowing is
_______________, ____.
2. The aggregate amount of the proposed Bid Borrowing is
$___________________.
3. The proposed Bid Borrowing to be made pursuant to Section 2.06
shall be comprised of [LIBOR] [Absolute Rate] Bid Loans.
4. The duration of the Interest Period[s] for the Bid Loans comprised
in the Borrowing shall be _____________, [_________________] [and
___________________].
5. [if applicable] The Interest Payment Date[s] for the Bid Loans
comprised in the Borrowing shall be _____________,
[_________________] [and ___________________].
All Competitive Bids must be in the form of Exhibit H to the Agreement
and must be received by the Agent no later than 6:30 a.m. (or, in the case of
a Competitive Bid by the Agent or an affiliate of the Agent in the capacity of
a Bank or Designated Bidder, 6:15 a.m.) (San Francisco time) on
______________, ____.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _____________________________
Vice President
Schedule A
List of Banks [and Designated Bidders]
Bank of America National Trust
and Savings Association, as a Bank
Facsimile: (415) 622-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
EXHIBIT G
FORM OF COMPETITIVE BID REQUEST
________________, ____
Bank of America National Trust
and Savings Association, as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Management Services #5596
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of February 16, 1996
(as extended, renewed, supplemented, amended or restated from time to time,
the "Agreement"), by and among Louisiana-Pacific Corporation (the "Company"),
the Banks party thereto, and Bank of America National Trust and Savings
Association, as Agent for the Banks and the Designated Bidders (the "Agent").
Capitalized terms used herein have the meanings specified in the Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section 2.06
of the Agreement as follows:
(i) The Business Day of the proposed Bid Borrowing is ______________,
____.
(ii) The aggregate amount of the proposed Bid Borrowing is
$___________________.
(iii) The proposed Bid Borrowing to be made pursuant to Section 2.06
shall be comprised of [LIBOR] [Absolute Rate] Bid Loans.
(iv) The Interest Period[s] for the Bid Loans comprised in the
Borrowing shall be __________________, [____________________] and
[______________________].
(v) [if applicable] The Interest Payment Date[s] for the Bid Loans
comprised in the Borrowing shall be _____________, [_________________] [and
___________________].
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:
(a) the representations and warranties of the Company contained
in Article V (exclusive of Section 5.13) of the Agreement are true and
correct as though made on and as of such date;
(b) the financial statements most recently supplied to the Banks
under both subsections 6.07(a) and 6.07(b) have been prepared in
accordance with the provisions of such subsections as of the dates and
periods therein specified, and since such dates and periods there has
been no change in the Company's consolidated financial condition or
results of operations sufficient to impair the Company's ability to
repay the Loans in accordance with the terms of the Agreement, and
neither the Company nor any Subsidiary has any contingent obligations,
liabilities for taxes or other outstanding financial obligations which
are material in the aggregate to the Company, except as have been
disclosed in such financial statements, or as have been otherwise
previously disclosed to the Banks in writing;
(c) no Default or Event of Default exists or would result from
such proposed Borrowing; and
(d) the proposed Borrowing will not cause the aggregate principal
amount of all outstanding Loans to exceed the combined Commitments of
the Banks.
LOUISIANA-PACIFIC CORPORATION
By: _________________________
Title: ______________________
EXHIBIT H
FORM OF COMPETITIVE BID
________________, ____
Bank of America National Trust
and Savings Association, as Agent
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Management Services #5596
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of February 16, 1996
(as amended from time to time, the "Agreement") by and among Louisiana-Pacific
Corporation (the "Company"), the Banks party thereto, and Bank of America
National Trust and Savings Association, as Agent for the Banks and the
Designated Bidders (the "Agent"). Capitalized terms used herein have the
meanings specified in the Agreement.
In response to the Competitive Bid Request of the Company dated
_____________, ____ and in accordance with subsection 2.06(c)(ii) of the
Agreement, the undersigned Bank offers to make [a] Bid Loan[s] thereunder in
the following principal amount[s] at the following interest rates for the
following Interest Period[s] [with the following Interest Payment Date[s]]:
Date of Borrowing:
---------------, ---
Principal [Principal [Principal
Amount $ Amount $ ] Amount $ ]
---------- ---------- ----------
Interest: Interest: Interest:
[Absolute [Absolute [Absolute
Rate %, %, %] Rate %, %, %] Rate %, %, %]
-- -- -- -- -- -- -- -- --
[Libor Bid Margin [Libor Bid Margin [Libor Bid Margin
+/- %, +/- %, +/- %, +/- %, +/- %, +/- %,
-- -- -- -- -- --
+/- %] +/- %] +/- %]
-- -- --
Interest Interest Interest
Period Period Period
---------- ---------- ----------
[Interest Payment [Interest Payment [Interest Payment
Date[s] ] Date[s] ] Date[s] ]
---------- ---------- ----------
[NAME OF BANK OR DESIGNATED BIDDER]
By:
-------------------------------
Title:
----------------------------
EXHIBIT I
FORM OF COMMITTED LOAN NOTE
$ _____________, ____
San Francisco, California
FOR VALUE RECEIVED, the undersigned, Louisiana-Pacific
Corporation, a Delaware corporation (the "Company"), hereby promises to
pay to the order of (the "Bank") [(i)] the principal
sum of Dollars ($ ) or, if less, the aggregate
unpaid principal amount of all Committed Loans made by the Bank to the
Company pursuant to the Credit Agreement, dated as of February 16, 1996
(such Agreement, as it may be extended, renewed, supplemented, amended or
restated from time to time, being hereinafter called the "Agreement"),
among the Company, the Bank, the other banks parties thereto and Bank of
America National Trust and Savings Association, as Agent for the Banks
and the Designated Bidders [, together with (ii) the principal amount of
any outstanding Swingline Loans made by the Bank as Swingline Bank, in
each case(1)], on the dates and in the amounts provided in the Agreement.
The Company further promises to pay interest on the unpaid principal
amount of the Committed Loans [and Swingline Loans] evidenced hereby from
time to time at the rates, on the dates, and otherwise as provided in the
Agreement.
The Bank is authorized to endorse the amount and the date on
which each Committed Loan [or Swingline 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 endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the Agreement and this Committed Loan Note (the "Note").
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Agreement, which 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 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 laws of the State of California applicable to contracts made and to
be performed entirely within such State.
LOUISIANA-PACIFIC CORPORATION
By:
Title:
____________________________
Schedule A to Note
BASE RATE COMMITTED LOANS AND REPAYMENT OF BASE
RATE COMMITTED LOANS [AND SWINGLINE LOANS]
(2) (3) (4)
Amount Maturity Amount of
of Base Date of Base Rate
Rate Com- Base Rate Committed
mitted Loan Committed Loan Loan [or
(1) [or Swing- [or Swing- Swingline Notation
Date line Loan ] line Loan] Loan] Repaid Made By
Schedule B to Note
OFFSHORE RATE COMMITTED LOANS AND REPAYMENT OF
OFFSHORE RATE COMMITTED LOANS
(2) (3) (4)
Amount of Maturity Date Amount of
Offshore of Offshore Offshore Rate (5)
(1) Rate Commit- Rate Commit- Loan Commit- Notation
Date ▇▇▇ Loan ▇▇▇ Loan ▇▇▇ Repaid Made By
EXHIBIT J
FORM OF BID LOAN NOTE
________________, ____ San Francisco, California
FOR VALUE RECEIVED, the undersigned, Louisiana-Pacific
Corporation, a Delaware corporation (the "Company"), hereby promises to
pay to the order of (the "Bid Loan Lender") the
aggregate unpaid principal amount of all Bid Loans made by the Bid Loan
Lender to the Company pursuant to the Credit Agreement, dated as of
February 16, 1996 (such Agreement, as it may be extended, renewed,
supplemented, amended or restated from time to time, being hereinafter
called the "Agreement"), among the Company, the Bid Loan Lender, the
other banks parties thereto and Bank of America National Trust and
Savings Association, as Agent for the Banks and the Designated Bidders,
on the dates and in the amounts provided in the Agreement. The Company
further promises to pay interest on the unpaid principal amount of the
Bid Loans evidenced hereby from time to time at the rates, on the dates,
and otherwise as provided in the Agreement.
The Bid Loan Lender is authorized to endorse the amount and
the date on which each Bid 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
endorse such information on such schedule or continuation thereof shall
not in any manner affect any obligation of the Company under the
Agreement and this Bid Loan Note (the "Note").
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Agreement, which 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 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 laws of the State of California applicable to contracts made and to
be performed entirely within such State.
LOUISIANA-PACIFIC CORPORATION
By:
Title:
Schedule A to Note
ABSOLUTE RATE BID LOANS AND REPAYMENT OF
ABSOLUTE RATE BID LOANS
(2) (3) (4)
Amount of Maturity Date Amount of (5)
(1) Absolute Rate of Absolute Absolute Rate Notation
Date Bid Loan Rate Bid Loan Loan Bid Repaid Made By
Schedule B to Note
LIBOR BID LOANS AND REPAYMENT OF
LIBOR BID LOANS
(2) (3) (4)
Amount of Maturity Date Amount of (5)
(1) LIBOR of LIBOR LIBOR Bid Notation
Date Bid Loan Bid Loan Loan Repaid Made By
EXHIBIT K
DESIGNATION AGREEMENT
Date: ______________, ____
Reference is made to the Credit Agreement dated as of February
16, 1996 (as extended, renewed, supplemented, amended or restated from
time to time, the "Agreement") among Louisiana-Pacific Corporation, a
Delaware corporation (the Company"), the Banks (as such term is defined in
the Agreement) and Bank of America National Trust and Savings Association,
as Agent for the Banks and the Designated Bidders (the "Agent"). Terms
defined in the Agreement are used herein with the same meaning.
________________________________ (the "Designator") and
___________________ (the "Designee") hereby agree as follows:
1. The Designator hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Bid
Loans pursuant to Section 2.06 of the Agreement.
2. The Designator makes no representation or warranty and
assumes no responsibility with respect to (i) any statements, warranties
or representations made in or in connection with the Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Agreement or any other instrument or document furnished
pursuant thereto and (ii) the financial condition of the Company or the
performance or observance by the Company of any of its obligations under
the Agreement or any other instrument or document furnished pursuant
thereto.
3. The Designee (i) confirms that it has received a copy of
the Agreement, together with copies of the financial statements referred
to in Section [5.13] [6.07] thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Designation Agreement; (ii) agrees that it
will, independently and without reliance upon the Agent, the Designator or
any other Bank or Designated Bidder and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Agreement;
(iii) confirms that it is an entity qualified to be a Designated Bidder;
(iv) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Agreement as are delegated to
the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Agreement are required to be performed by it as a Designated Bidder;
and (vi) specifies as its Lending Office with respect to Bid Loans (and
address for notices) the office(s) set forth beneath its name on the
signature page hereof.
4. Following the execution of this Designation Agreement by
the Designator and its Designee, it will be delivered to the Agent for
acceptance by the Agent. The effective date of this Designation Agreement
shall be the date of acceptance thereof by the Agent, unless otherwise
specified on the signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, the Designee shall be a party to the Agreement as a
"Designated Bidder" with a right to make Bid Loans pursuant to Section
2.06 of the Agreement and the rights and obligations of a Designated
Bidder related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this
Designation Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
Effective Date*:
________________, ____ [NAME OF DESIGNATOR]
By: _________________________
Title: ______________________
[NAME OF DESIGNEE]
By: _________________________
Title: ______________________
Lending Office (and
address for notices)
[Address]
Accepted this ___ day
of ____________, ____
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: ___________________
Vice President
___________________
* This date should be no earlier than the date of acceptance by the
Agent.