REVOLVING CREDIT AGREEMENT
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS, ACCOUNTING TERMS, COMPUTATION OF TIME PERIODS,
AND RULES OF CONSTRUCTION.......................................1
Section 1.01. Definitions..................................................1
Section 1.02. Accounting Terms............................................13
Section 1.03. Computation of Time Periods.................................14
Section 1.04. Rules of Construction.......................................14
ARTICLE II. LOANS..........................................................14
Section 2.01. 364 Day Facility............................................14
Section 2.02. Bid Rate....................................................15
Section 2.03. All Loans...................................................16
Section 2.04. Notice and Manner of Borrowing for 364 Day Facility Loans...16
Section 2.05. Notice and Manner of Requesting Bid Loans...................16
Section 2.06. Interest Periods............................................17
Section 2.07. Interest....................................................18
Section 2.08. Fees........................................................19
Section 2.09. Notes.......................................................20
Section 2.10. Optional Prepayments........................................20
Section 2.11. Method of Payment...........................................21
Section 2.12. Use of Proceeds.............................................21
Section 2.13. Conversions or Continuations................................21
ARTICLE III. LETTERS OF CREDIT..............................................22
Section 3.01. Letters of Credit...........................................22
Section 3.02. Relationship Between This Agreement and Each Letter of
Credit Agreement............................................23
Section 3.03. Outstanding Letters of Credit...............................23
Section 3.04. Reimbursement Obligations on Letters of Credit..............23
ARTICLE IV. CONDITIONS PRECEDENT...........................................23
Section 4.01. Conditions Precedent to Initial Use of a Credit Facility
on and After the Closing Date...............................23
Section 4.02. Conditions Precedent to Each Credit Facility................25
Section 4.03. Deemed Representation.......................................25
ARTICLE V. REPRESENTATIONS AND WARRANTIES.................................25
Section 5.01. Incorporation, Good Standing and Due Qualification..........25
Section 5.02. Corporate Power and Authority; No Conflicts.................26
Section 5.03. Legally Enforceable Agreements..............................26
Section 5.04. Litigation..................................................26
Section 5.05. Financial Statements........................................26
Section 5.06. Ownership and Liens.........................................27
Section 5.07. Taxes.......................................................27
Section 5.08. ERISA.......................................................27
Section 5.09. Operation of Business.......................................27
Section 5.10. No Default on Outstanding Judgments or Orders...............27
Section 5.11. No Defaults on Other Agreements.............................28
Section 5.12. Labor Disputes and Acts of God..............................28
Section 5.13. Governmental Regulation.....................................28
Section 5.14. Environmental Protection....................................28
Section 5.15. Margin Securities...........................................28
ARTICLE VI. AFFIRMATIVE COVENANTS..........................................29
Section 6.01. Maintenance of Eligibility and Capitalization...............29
Section 6.02. Maintenance of Existence....................................29
Section 6.03. Maintenance of Properties...................................29
Section 6.04. Maintenance of Records......................................29
Section 6.05. Maintenance of Insurance....................................29
Section 6.06. Compliance with Laws........................................30
Section 6.07. Right of Inspection.........................................30
Section 6.08. Employee Benefit Plans......................................30
Section 6.09. Reporting Requirements......................................30
Section 6.10. Compliance With Environmental Laws..........................32
Section 6.11. Maintenance of Commodity Position...........................32
ARTICLE VII. NEGATIVE COVENANTS.............................................33
Section 7.01. Debt........................................................33
Section 7.02. Liens.......................................................33
Section 7.03. Fiscal Year.................................................35
Section 7.04. Sale of Assets..............................................35
Section 7.05. Mergers, Etc................................................36
Section 7.06. Change in Business..........................................36
Section 7.07. Investments.................................................36
Section 7.08. Contingent Liabilities......................................36
Section 7.09. Loans.......................................................36
Section 7.10. Transaction with Affiliates.................................37
Section 7.11. Patronage Refunds, Etc......................................37
ARTICLE VIII. FINANCIAL COVENANTS............................................37
Section 8.01. Consolidated Working Capital................................37
Section 8.02. Consolidated Members' and Patrons' Equity...................37
Section 8.03. Consolidated Funded Debt to Consolidated Members' and
Patrons' Equity.............................................37
ARTICLE IX. EVENTS OF DEFAULT..............................................38
Section 9.01. Events of Default...........................................38
Section 9.02. Remedies....................................................40
ARTICLE X. CHANGE IN CIRCUMSTANCES........................................41
Section 10.01. Additional Costs...........................................41
Section 10.02. Limitation on Types of Advances............................42
Section 10.03. Illegality.................................................43
Section 10.04. Treatment of Affected Loans................................43
Section 10.05. Certain Compensation.......................................43
Section 10.06. Capital Adequacy...........................................44
Section 10.07. Right of Substitution......................................44
ARTICLE XI. FACILITY AND SYNDICATION AGENTS................................45
Section 11.01. Appointment, Powers and Immunities of Facility Agents......45
Section 11.02. Reliance by Facility Agents................................45
Section 11.03. Defaults...................................................46
Section 11.04. Rights of Facility Agents as Banks.........................46
Section 11.05. Indemnification of Facility Agents.........................46
Section 11.06. Non-Reliance on Facility Agents and Syndication Agents
and Other Bank Parties.....................................47
Section 11.07. Failure of Facility Agents to Act..........................47
Section 11.08. Resignation or Removal of Facility Agents..................47
Section 11.09. Amendments Concerning Agency Function......................48
Section 11.10. Liability of Facility Agents...............................48
Section 11.11. Transfer of Agency Function................................48
Section 11.12. Notices to Administrative Agent............................48
Section 11.13. Reports....................................................49
Section 11.14. Withholding Taxes..........................................49
Section 11.15. Non-Receipt of Funds by Administrative Agent...............49
ARTICLE XII. MISCELLANEOUS..................................................50
Section 12.01. Amendments and Waivers.....................................50
Section 12.02. Usury......................................................50
Section 12.03. Expenses; Indemnification..................................51
Section 12.04. Assignment; Participation..................................51
Section 12.05. Notices....................................................53
Section 12.06. Setoff.....................................................53
Section 12.07. Jurisdiction; Immunities...................................54
Section 12.07. Jurisdiction; Immunities...................................54
Section 12.09. Counterparts...............................................54
Section 12.10. Exhibits and Schedules.....................................54
Section 12.11. Table of Contents; Headings................................55
Section 12.12. Severability...............................................55
Section 12.13. Integration................................................55
Section 12.14. Renewal of 364 Day Facilities..............................55
Section 12.15. Consents and Terminations..................................56
Section 12.16. Confidentiality............................................56
Section 12.17. Agreement in Writing.......................................56
Section 12.18. Jury Trial Waiver..........................................57
REVOLVING CREDIT AGREEMENT
dated as of November 1, 1996
among
HARVEST STATES COOPERATIVES,
as Borrower
BANQUE NATIONALE DE PARIS
BOATMEN'S NATIONAL BANK
CAISSE NATIONALE DE CREDIT AGRICOLE
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
FIRST BANK NATIONAL ASSOCIATION
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Banks
and
ST. ▇▇▇▇ BANK FOR COOPERATIVES,
as Syndication Agent and Bank
and
CoBANK, ACB,
as Syndication Agent, Administrative Agent, Bid Agent and Bank
REVOLVING CREDIT AGREEMENT dated as of November 1, 1996 among HARVEST
STATES COOPERATIVES a Minnesota cooperative corporation ("Borrower"), CoBANK,
ACB ("CoBank"), ST. ▇▇▇▇ BANK FOR COOPERATIVES ("St. ▇▇▇▇ Bank"), BANQUE
NATIONALE DE PARIS, BOATMEN'S NATIONAL BANK, CAISSE NATIONALE DE CREDIT
AGRICOLE, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH, DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, FIRST BANK
NATIONAL ASSOCIATION, ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, and each other lender which may hereafter execute and
deliver an Assignment and Assumption Agreement pursuant to Section 12.04 of this
Agreement (each a "Bank" and collectively, the "Banks"), CoBank, as
administrative agent for the Banks (in such capacity, together with its
successors in such capacity, "Administrative Agent"), CoBank, as syndication
agent for the Banks (in such capacity, together with its successors in such
capacity, "Syndication Agent"), St. ▇▇▇▇ Bank, as syndication agent for the
Banks (in such capacity, together with its successors in such capacity,
"Syndication Agent"), and CoBank, as bid agent for the Banks (in such capacity,
together with its successors in such capacity, "Bid Agent").
The parties to this Agreement hereby agree as follows:
ARTICLE I. DEFINITIONS, ACCOUNTING TERMS,
COMPUTATION OF TIME PERIODS, AND RULES OF CONSTRUCTION
SECTION 1.01. DEFINITIONS. As used in this Agreement the following
terms have the following meanings (terms defined in the singular to have a
correlative meaning when used in the plural and vice versa):
"364 Day Borrowing Notice" has the meaning specified in Section 2.04.
"364 Day Facility" means the 364 Day Facility Loans, the Bid Loans, and
Letters of Credit.
"364 Day Facility Advance" has the meaning specified in Section 2.01.
"364 Day Facility Commitment" means with respect to the Banks the
aggregate amount of the Individual 364 Day Facility Commitments of the Banks.
"364 Day Facility Loan" has the meaning specified in Section 2.01.
"364 Day Facility Maturity Date" means October 31, 1997 or such later
date as extended in accordance with the provisions of Section 12.14.
"364 Day Facility Note" has the meaning specified in Section 2.09.
"Additional Cost" has the meaning specified in Section 10.01.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's address as
set forth on the signature page of this Agreement, or such other address as
Administrative Agent may designate from time to time by written notice to
Borrower, each Bank and Bid Agent.
"Advance" means a 364 Day Facility Advance or Bid Advance, or any or
all of the foregoing, as the context may require.
"Affected Loan" has the meaning specified in Section 10.04.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is controlled by, or is under common control with such
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Agreement" means this Revolving Credit Agreement, as may be amended
from time to time.
"Annual Operating Budget" means the annual operating budget for
Borrower and its Subsidiaries in substantially the form of, and containing
substantially the same or similar information as set forth in, the Annual
Operating Budget (Business Plan) for Borrower and its Subsidiaries included in
the Confidential Information Memorandum dated September 6, 1996 delivered to the
Banks prior to the Closing Date.
"Applicable Lending Office" means, for each Bank and for each type of
Advance, the lending office of such Bank designated as such for such type of
Advance on its signature page hereof or in the applicable Assignment and
Assumption Agreement or such other office of such Bank as such Bank may from
time to time specify to Administrative Agent and Borrower as the office by which
its Advances of such type are to be made and maintained.
"Applicable Margin" means the margin specified as follows: (i) for the
First Availability Period, forty-five basis points (.45%); (ii) for the Second
Availability Period, a margin mutually acceptable to Borrower and the
Syndication Agents on or before July 31, 1997 if such day is a Banking Day, or
if such date is not a Banking Day, then the next preceding day that is a Banking
Day, (iii) for the Third Availability Period, a margin mutually acceptable to
Borrower and the Syndication Agents on or before July 31, 1998 if such day is a
Banking Day, or if such date is not a Banking Day, then the next preceding day
that is a Banking Day.
"Assignee" has the meaning specified in Section 12.04.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of Exhibit G, pursuant to which
a Bank assigns and an Assignee assumes rights and obligations in accordance with
Section 12.04.
"Bank" or "Banks" has the meaning specified in the preamble to this
Agreement.
"Bank Parties" means the Banks.
"Bank Party" means a Bank.
"Bank's Office" means in the case of each Bank the office of such Bank
designated on the signature page hereof, or as designated in the applicable
Assignment and Assumption Agreement or such other office as such Bank may from
time to time specify by notice to Borrower and each of the Facility Agents.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required by law to close in Denver, Colorado, Kansas City,
Missouri, Minneapolis, Minnesota or New York, New York, and (2) whenever such
day relates to a LIBOR Advance, an Interest Period with respect to a LIBOR
Advance, or notice with respect to any LIBOR Advance, a day on which dealings in
Dollar deposits are also carried on in the London interbank market.
"Base Advance" means any Advance when and to the extent the interest
rate for such Advance is determined in relation to the Base Rate.
"Base Loan" means any Loan when and to the extent the interest rate for
the Advances made as part of such Loan are determined in relation to the Base
Rate.
"Base Rate" means, for any day, that rate defined as the "prime rate"
as published from time to time in the Eastern Edition of THE WALL STREET JOURNAL
as the average base rate for corporate loans posted by at least seventy-five
percent (75%) of the United States thirty (30) largest commercial banks, or if
THE WALL STREET JOURNAL shall cease publication or cease publishing the "prime
rate" on a regular basis, such other regularly published average prime rate
applicable to such commercial banks as is acceptable to Administrative Agent in
its reasonable discretion with the consent of Borrower which will not be
unreasonably withheld.
"Bid Advance" has the meaning specified in Section 2.02.
"Bid Agent" has the meaning specified in the preamble.
"Bid Loan" has the meaning specified in Section 2.02.
"Bid Maturity Date" has the meaning specified in Section 2.05.
"Bid Note" has the meaning specified in Section 2.09.
"Bid Notice of Borrowing" has the meaning specified in Section 2.05.
"Bid Quote" has the meaning specified in Section 2.05.
"Bid Quote Request" has the meaning specified in Section 2.05.
"Bid Rate" means the annual rate of interest offered by a Bank in
response to a Bid Quote Request that is accepted by Borrower in accordance with
Section 2.05.
"Board of Governors" means the Board of Governors of the Federal
Reserve System.
"Borrower" has the meaning specified in the preamble.
"Borrower's Funding Account" means the following account: Norwest Bank
Minnesota, National Association ABA Number ▇▇▇▇▇▇▇▇▇, Beneficiary Account Number
44070, or such other account as may be designated by Borrower in a written
notice to each Facility Agent.
"Capital Lease" means any lease of property (whether real, personal or
mixed) by a Person which has been or should be , in accordance with GAAP,
reflected on the balance sheet of such Person as a capital lease.
"Cash Collateral" means a deposit by Borrower, made in immediately
available funds, to the cash investment service at Administrative Agent and the
execution of all documents and the taking of all steps required to give such
Administrative Agent, for the benefit of each of the Banks issuing a Letter of
Credit, a perfected first security interest in such investment.
"Closing Date" means November 1, 1996.
"CoBank" has the meaning specified in the preamble.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means the 364 Day Facility Commitment.
"Commitment Fee" has the meaning specified in Section 2.08.
"Consolidated Funded Debt" means at all times the Funded Debt of
Borrower and its Subsidiaries on a consolidated basis.
"Consolidated Members' and Patrons' Equity" means at any time the
amount of capital stock accounts plus (or minus in the case of a deficit) the
amount of surplus and retained earnings accounts of Borrower and its
Subsidiaries, on a consolidated basis determined at such time, provided that the
total amount of intangible assets of Borrower and its Subsidiaries (including,
without limitation, unamortized debt discount and expense, deferred charges and
good will) included therein shall not exceed $30,000,000; all as determined in
accordance with GAAP, but excluding therefrom any minority interests in any
Subsidiaries without duplication of deduction if already deducted in determining
retained earnings and surplus.
"Credit Facility" means any or all of the Loans and Letters of Credit.
"Current Assets" of any Person means at any time the aggregate amount
of assets of such Person which, in accordance with GAAP, may be properly
classified as current assets after deducting adequate reserves where proper all
determined at such time.
"Current Liabilities" of any Person means at any time (i) all Debt of
such Person due on demand or within one year from the date of determination
thereof; and (ii) all other items (including taxes accrued as estimated) which,
in accordance with GAAP, may be properly classified as current liabilities all
determined at such time.
"Debt" of any Person shall mean as of any time the same is to be
determined, the aggregate of (i) all liabilities, reserves and any other items
which would be classified as a liability on a balance sheet of such Person in
accordance with GAAP, (ii) all obligations of such Persons under Capital Leases,
(iii) all indebtedness and liabilities secured by any lien or any security
interest on any property or assets of such Person, whether or not the same would
be classified as a liability on a balance sheet of such Person but excluding all
general contingency reserves and reserves for deferred income taxes and
investment credit.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means, with respect to an amount of any Advance not paid
when due at maturity or earlier by reason of acceleration or otherwise, a rate
per annum equal to: (1) if such Advance is a Base Advance, a variable rate two
percent (2%) above the rate of interest then in effect thereon; (2) if such
Advance is a LIBOR Advance, a fixed rate two percent (2%) above the rate of
interest in effect thereon (including the Applicable Margin) at the time of
default until the end of the then current Interest Period therefor and,
thereafter, a variable rate two percent (2%) above the rate of interest for a
Base Advance; and (3) if such Advance is a Bid Advance, a fixed rate two percent
(2%) above the rate of interest in effect thereon at the time of default until
the applicable Bid Maturity Date and, thereafter, a variable rate two percent
(2%) above the rate of interest for a Base Advance.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any Law relating to pollution of the
environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of Hazardous Materials into the workplace, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person (1)
affecting or relating to Borrower's or any of its Subsidiaries' compliance with
any Environmental Law in connection with any activity or operations at any time
conducted by Borrower or such Subsidiary, (2) relating to the occurrence or
presence of or exposure to or possible or threatened or alleged occurrence or
presence of or exposure to Environmental Discharges or Hazardous Materials at
any of Borrower's or such Subsidiary's locations or facilities, including,
without limitation: (a) the existence of any contamination or possible or
threatened contamination at any such location or facility; and (b) remediation
of any Environmental Discharge or Hazardous Materials at any such location or
facility or any part thereof; and (3) any violation or alleged violation of any
applicable Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including any rules and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as Borrower or is under common control (within the
meaning of Section 414(c) of the Code) with Borrower, provided, however, that
for purposes of provisions herein concerning minimum funding obligations
(imposed under Section 412 of the Code or Section 302 of ERISA), the term "ERISA
Affiliate" shall also include any entity required to be aggregated with Borrower
under Section 414(m) or 414(o) of the Code.
"Event of Default" has the meaning specified in Section 9.01.
"Existing Credit Agreements" means (i) the Credit Agreement dated as of
October 29, 1993 among Borrower, ▇▇▇▇▇▇ Trust and Savings Bank as Agent and the
banks signatory to such Agreement, as amended and (ii) the Supplement to Master
Syndicated Loan Agreement dated as of January 3, 1995 and numbered ML015452(B)
among Borrower, CoBank and St. ▇▇▇▇ Bank, as amended.
"Facility Agents" means, collectively, Administrative Agent and Bid
Agent.
"Facility Fee" has the meaning specified in Section 2.08.
"Fees" means the Commitment Fee or the Facility Fee, or both, all as
the context may require.
"Fee Letter" means the fee letter dated August 20, 1996 from the
Syndication Agents, Administrative Agent and Bid Agent to Borrower.
"First Availability Period" means the period from the Closing Date
through October 30, 1997.
"Fiscal Year" means each period from June 1 to May 31.
"Funded Debt" means, with respect to any Person, at any time, all Debt
of such Person in each case maturing by its terms more than one year after the
date of creation thereof, or which is renewable or extendable at the option of
such Person for a period ending more than one year after the date of creation
thereof, and shall include Debt of such maturity created or assumed by such
Person either directly or indirectly, including obligations of such maturity
secured by liens upon property of such Person and upon which such Person
customarily pays the interest, and all obligations of such Person under Capital
Leases of such maturity, and the net present value of obligations under
Operating Leases as discounted by a rate which is 1.5% less than the Base Rate,
and all obligations to reimburse any Bank with respect to all Letters of Credit
which do not support long-term debt, with expiration dates in excess of one year
from the date of issuance thereof.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
"Good Faith Contest" means the contest of an item if (1) the item is
diligently contested in good faith by appropriate proceedings timely instituted,
(2) either the item is (a) bonded or (b) adequate reserves are established with
respect to the contested item if and to the extent required in accordance with
GAAP, (3) during the period of such contest, the enforcement of any contested
item is effectively stayed, and (4) the failure to pay or comply with the
contested item could not reasonably be expected to result in a Material Adverse
Change.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any applicable Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Individual 364 Day Facility Commitment" means, with respect to each
Bank, the commitment of such Bank to make 364 Day Facility Advances hereunder in
an amount set forth opposite such Bank's name on the signature page hereto, or
as designated in the applicable Assignment and Assumption Agreement, provided,
however, that the aggregate of all the Individual 364 Day Facility Commitments
shall at no time exceed the Total 364 Day Facility Commitment.
"Individual Letter of Credit Obligations" means, with respect to each
Bank, the total, without duplication, of (1) the aggregate undrawn face amount
of all outstanding Letters of Credit issued by such Bank, (2) the aggregate
amount of all unreimbursed obligations with respect to amounts paid under such
Letters of Credit and (3) the aggregate amount of all outstanding overdrafts
created to satisfy any of the foregoing obligations under (1) or (2) above.
"Individual Unused 364 Day Facility Commitment" means at any time for a
Bank, the amount (which in no event shall be less than zero) that is equal to
(1) the Individual 364 Day Facility Commitment minus (2) the total, without
duplication, of (a) the aggregate outstanding principal amount of 364 Day
Facility Advances made by such Bank, (b) the aggregate outstanding principal
amount of Bid Advances made by such Bank, (c) the aggregate Individual Letter of
Credit Obligations owed to such Bank, and (d) the principal amount of all 364
Day Facility Advances which such Bank is obligated to make as a result of
Borrower having furnished notice to the Bank pursuant to Section 2.04 hereof all
determined at such time.
"Interest Period" means with respect to any LIBOR Advance, the period
commencing on the date such Advance is made, converted from a Base Advance, or
continued, as the case may be, and ending, as Borrower may select pursuant to
Section 2.10 on the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, provided that each such Interest Period which
commences on the last Banking Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Banking Day of the appropriate calendar month.
"Investment" means, with respect to any Person, (1) any loan or advance
by such Person to any other Person, (2) the purchase or other acquisition by
such Person of any capital stock, obligations or securities of, or any capital
contribution to, or investment in, or the acquisition by such Person of all or
substantially all of the assets of, or any interest in, any other Person, (3)
the providing by such Person being the account party with respect to any
performance or standby letter of credit where the proceeds of such letter of
credit are to be used for the benefit of any other Person, (4) the agreement by
such Person to make funds available for the benefit of another Person to either
cover cost overruns incurred in connection with the construction of a project or
facility, or to fund a debt service reserve account, (5) the agreement by such
Person to assume, guarantee, endorse or otherwise be or become directly or
contingently responsible or liable for the obligations or Debts of any other
Person (other than by endorsement for collection in the ordinary course of
business), (6) an agreement to purchase any obligations, stocks, assets, goods
or services but excluding an agreement to purchase any assets, goods or services
entered into in the ordinary course of business, (7) an agreement to supply or
advance any funds, assets, goods or services, or (8) an agreement to maintain or
cause such Person to maintain a minimum working capital or net worth or
otherwise to assure the creditors of any Person against loss.
"Law" means any federal, state or local statute, law, rule, regulation,
ordinance, order, code, or policy, now or hereafter in effect, and any judicial
or administrative interpretation thereof by a Governmental Authority, including
any judicial or administrative order, consent decree or judgment.
"Letter of Credit" has the meaning specified in Section 3.01.
"Letter of Credit Agreement" means the application for a letter of
credit and/or reimbursement agreement entered into between Borrower and the
applicable Bank with regard to a Letter of Credit.
"LIBOR Advance" means any Advance when and to the extent the interest
rate therefor is determined by reference to the LIBOR Rate.
"LIBOR Base Rate" means a rate for deposits in Dollars, with a maturity
comparable to the selected LIBOR Interest Period, that appears on the display
designated as page "3750" of the Telerate Service (or such other page as may
replace the 3750 page of that service or such other service or services as may
be nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for Dollar deposits), determined as of 11:00 a.m.
(London time), two (2) Banking Days prior to the commencement of such Interest
Period.
"LIBOR Loan" means a Loan when and to the extent the interest rate for
the Advances made as part of such Loan are determined in relation to the LIBOR
Rate.
"LIBOR Rate" means, for each LIBOR Advance, the rate per annum (rounded
upwards, if necessary, to the nearest 1/10,000 of 1%) determined by
Administrative Agent to be equal to the quotient of (1) the LIBOR Base Rate for
such LIBOR Advance for such Interest Period divided by (2) one minus the LIBOR
Reserve Requirement for such Interest Period.
"LIBOR Reserve Requirement" means, for any LIBOR Advance, the average
actual rate at which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during the Interest Period for such
LIBOR Advance under Regulation D by member banks of the Federal Reserve System
in New York City with deposits exceeding One Billion Dollars ($1,000,000,000)
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, but without duplication, the LIBOR
Reserve Requirement shall also reflect any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against (1)
any category of liabilities which includes deposits by reference to which the
LIBOR Base Rate is to be determined as provided in the definition of LIBOR Base
Rate in Section 1.01 or (2) any category of extensions of credit or other assets
which include LIBOR Advances.
"Lien" means with respect to any asset any mortgage, deed of trust,
pledge, security interest, hypothecation, assignment for security purposes,
encumbrance, lien (statutory or other), or other security agreement or charge,
or encumbrance of any kind or nature whatsoever (including, without limitation,
any conditional sale, Capital Lease or other title retention agreement related
to such asset).
"Loan Documents" means each and every one of this Agreement, the Notes,
and the Letter of Credit Agreements.
"Loans" means the 364 Day Facility Loans, the Bid Loans or any or all
of the foregoing, all as the context may require.
"Material Adverse Change" means either (1) a material adverse change in
the status of the business, assets, liabilities, results of operations,
condition (financial or otherwise), property or prospects of the Borrower and
its Subsidiaries taken together, or (2) any event or occurrence of whatever
nature which could reasonably be expected to have a material adverse effect on
Borrower's ability to perform its obligations under the Loan Documents.
"Minimum Assignment" means, with respect to each Bank that is making an
assignment in accordance with the terms of Section 12.04, an assignment of
Commitments and Credit Facility with an aggregate principal or face amount of at
least Fifteen Million Dollars ($15,000,000) where such amount is determined by
aggregating each of the following assigned by such Bank: (1) Unused 364 Day
Facility Commitment, (2) the aggregate principal amount of the outstanding 364
Day Facility Advances, (3) the aggregate principal amount of Bid Advances, and
(4) Individual Letter of Credit Obligations.
"Minimum Hold" means, with respect to each Bank, Fifteen Million
Dollars ($15,000,000) of its Individual 364 Day Facility Commitment.
"Monthly Date" means the fifth Banking Day of each month occurring on
or after the Closing Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of
ERISA.
"Notes" means the 364 Day Facility Notes, or the Bid Notes, or any or
all of the foregoing, all as the context may require.
"Operating Lease" means any lease of property (whether real, personal
or mixed) by a Person under which such Person is lessee, other than a Capital
Lease.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning specified in Section 12.04.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Investments" means (1) marketable obligations issued or
unconditionally guaranteed by the United States of America, or issued by any
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date of acquisition
thereof, (2) certificates of deposit maturing within one year from the date of
acquisition thereof issued by (i) any Bank or (ii) any commercial bank with a
short term credit rating of either of the two highest short term credit ratings
provided by either S&P or Moody's, (3) commercial paper payable in the United
States of America in Dollars and rated as at any date of determination A-1 or
better (or comparably if the rating system is changed) by S&P or P-1 or better
(or comparably if the rating system is changed) by Moody's, (4) payments of
amounts required to satisfy patronage refunds or equity redemptions of Borrower
as determined by the Board of Directors of Borrower, (5) Investments in CoBank
and St. ▇▇▇▇ Bank, (6) Investments in cooperatives in which Borrower is a member
made in the ordinary course of Borrower's business, (7) marketable general
obligations of a state, a territory or a possession of the United States or any
political subdivision of any of the foregoing, or the District of Columbia,
unconditionally secured by the full faith and credit of such state, territory,
possession, political subdivision or district provided that such state,
territory, possession, political subdivision or district has general taxing
authority and the power to levy such taxes as may be required for the payment of
principal and interest thereof; provided that such obligations are rated in
either of the two top rating categories established by the national rating
agencies for such obligations, and (8) repurchase, reverse repurchase agreements
and security lending agreements collateralized by securities of the type
described in subsection (1) above, provided that Borrower or Subsidiary, as the
case may be, which is a party to such arrangement shall hold (individually or
through an agent) all securities relating thereto during the entire term of each
such arrangement.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority, limited liability company or other entity of whatever
nature.
"Plan" means any plan, agreement, arrangement or commitment which is an
employee benefit plan, as defined in Section 3(3) of ERISA, maintained by
Borrower or any Subsidiary or any ERISA Affiliate or with respect to which
Borrower or any Subsidiary or any ERISA Affiliate at any relevant time has any
liability or obligation to contribute.
"presence", when used in connection with any Environmental Discharge or
Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, encapsulation, disposal,
transportation, spill, discharge and release.
"Prohibited Transaction" means any transaction prohibited under Section
406 of ERISA or Section 4975 of the Code.
"Quarterly Date" means each May 31, August 30, November 30 and February
28.
"Regulation D" means Regulation D of the Board of Governors.
"Regulatory Change" means, with respect to any Bank, any change after
the date of this Agreement in United States federal, state, or municipal Laws or
foreign Laws or regulations (including Regulation D) or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks including such Bank of or under any United States federal, state,
or municipal Law or foreign Laws or regulations (whether or not having the force
of Law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or in the regulations thereunder.
"Requisite Banks" means at any time a minimum of four (4) Banks that
are providing at least eighty percent (80%) of the Total 364 Day Facility
Commitment.
"S&P" means Standard & Poor's Rating Group, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies.
"Second Availability Period" means October 31, 1997 through October 29,
1998, provided this Agreement has been extended pursuant to the provisions of
Section 12.14.
"Subsidiary" means, as to any Person, any corporation, partnership,
association or other business entity of which securities or other ownership
interests representing more than fifty percent (50%) of the ordinary voting
power, or more than fifty percent (50%) of general partnership interest at the
time is owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.
"Supermajority Banks" means at any time the Banks that are providing
one hundred percent (100%) of all Total 364 Day Facility Commitment.
"Syndication Agents" means, collectively, CoBank and St. ▇▇▇▇ Bank.
"Third Availability Period" means October 30, 1998 through October 28,
1999, provided this Agreement has been extended pursuant to the provisions of
Section 12.14.
"Total 364 Day Facility Commitment" means Five Hundred Fifty Million
Dollars ($550,000,000).
"Total Letter of Credit Obligations" means at any time an amount equal
to the sum, without duplication, of (1) the aggregate undrawn face amount of all
outstanding Letters of Credit, (2) the aggregate principal amount of all
unreimbursed obligations in respect of amounts paid under Letters of Credit and
(3) the aggregate amount of all outstanding overdrafts created to satisfy any of
the foregoing obligations under (1) or (2) above all determined at such time.
"Total Unused 364 Day Facility Commitment" means at any time, the
amount (which in no event shall be less than zero) that is equal to (1) the 364
Day Facility Commitment minus (2) the total, without duplication, of (a) the
aggregate outstanding principal amount of 364 Day Facility Advances, (b) the
aggregate outstanding principal amount of Bid Advances, (c) Total Letter of
Credit Obligations, and (d) the principal amount of all 364 Day Facility
Advances which the Banks are obligated to make as a result of Borrower having
furnished notice to the Banks pursuant to Section 2.04 hereof all determined at
such time.
SECTION 1.02. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. All accounting terms
which are defined herein with regard to the Borrower and its Subsidiaries shall
mean such accounting term determined on a consolidated basis in accordance with
GAAP for Borrower and each of its Subsidiaries. All financial data required to
be delivered hereunder shall be prepared in accordance with GAAP (except as
specified above and as otherwise provided in this Agreement).
SECTION 1.03. COMPUTATION OF TIME PERIODS. Except as otherwise provided
herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
SECTION 1.04. RULES OF CONSTRUCTION. When used in this Agreement: (1) a
reference to a Law includes any amendment or modification to such Law; (2) a
reference to a Person includes its permitted successors and permitted assigns
and a reference to a Person in a particular capacity excludes such Person in any
other capacity; (3) a reference to an agreement, instrument or document shall
include such agreement, instrument or document as the same may be amended,
modified or supplemented from time to time and, if applicable, as permitted by
the Loan Documents, and reference to any Note includes any note issued pursuant
hereto in extension or renewal thereof and in substitution or replacement
therefor; (4) reference to any gender includes each other gender; (5) the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; (6) unless the context indicates otherwise, reference to any
Article, Section, Schedule or Exhibit means such Article or Section hereof or
such Schedule or Exhibit hereto; and (7) the words "including" (and with
correlative meaning "include") means including, without limiting the generality
of any description preceding such term. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof. Any reference to Central time shall mean such time as in
effect in the United States of America.
ARTICLE II. LOANS
SECTION 2.01. 364 DAY FACILITY. Subject to the terms and conditions of
this Agreement, each of the Banks severally agrees to make loans (each loan made
by an individual Bank pursuant to this Section 2.01 a "364 Day Facility Advance"
and the total of all such loans made by all the Banks at the same time, the "364
Day Facility Loans") to Borrower from time to time during the period from the
Closing Date to the 364 Day Facility Maturity Date, provided that
(1) with respect to all Banks, the aggregate principal amount
of all 364 Day Facility Loans outstanding at any time does not exceed
the amount equal to (a) the Total 364 Day Facility Commitment, minus
(b) the aggregate principal amount of all Bid Loans outstanding at such
time, minus (c) the Total Letter of Credit Obligations all determined
at such time;
(2) with respect to each Bank, the aggregate principal amount
of such Bank's 364 Day Facility Advances outstanding at any time does
not exceed the amount equal to (a) such Bank's Individual 364 Day
Facility Commitment, minus (b) such Bank's Bid Advances outstanding at
such time, minus (c) such Bank's Individual Letter of Credit
Obligations all determined at such time.
Each 364 Day Facility Loan, with the specific exception of Advances
made pursuant to Section 3.04, will be made by the Banks ratably in proportion
to their then existing Individual Unused 364 Day Facility Commitments bears to
the total of all Banks' then existing Individual Unused 364 Day Facility
Commitments determined as of (1) in the case of LIBOR Loans, 12:00 noon (Central
Time) on the Banking Day Borrower delivers the 364 Day Borrowing Notice pursuant
to which Borrower requests such LIBOR Loan, and (2) in the case of Base Loans,
12:00 noon (Central Time) on the Banking Day Borrower delivers the 364 Day
Borrowing Notice pursuant to which Borrower requests such Base Loan.
SECTION 2.02. BID RATE. Subject to the terms and conditions of this
Agreement, including the procedures set forth in Section 2.05, each Bank may in
its sole discretion make loans (each loan made by a Bank pursuant to this
Section 2.02 a "Bid Advance" and the total of such loans made by the Banks the
"Bid Loans") to Borrower from time to time during the period from the Closing
Date to the 364 Day Facility Maturity Date, provided that
(1) with respect to all Banks, the aggregate principal amount
of all Bid Loans outstanding at any time does not exceed an amount
equal to (a) the Total 364 Day Facility Commitment, minus (b) the
aggregate principal amount of all outstanding 364 Day Facility Loans,
minus (c) the Total Letter of Credit Obligations all determined at such
time,
(2) with respect to each Bank, the aggregate principal amount
of such Bank's Bid Advances outstanding at any one time may, in the
sole discretion of each Bank, together with (a) the aggregate principal
amount of such Bank's 364 Day Facility Advances outstanding at such
time, and (b) such Bank's Individual Letter of Credit Obligations owed
to such Bank, exceed such Bank's Individual 364 Day Facility Commitment
all determined at such time.
In the case of Bid Loans, each Bid Quote Request shall be in an amount
at least equal to One Million Dollars ($1,000,000) and in integral multiples of
Five Hundred Thousand Dollars ($500,000), and each Bid Quote shall be in an
amount at least equal to Five Hundred Thousand Dollars ($500,000). Each Bid
Advance made by the applicable Bank will be in the amount of its bids that are
accepted by Borrower in accordance with Section 2.05.
In the case of Bid Loans, each Bid Quote Request for an interest rate
period of five Banking Days or less shall be directed to only CoBank and St.
▇▇▇▇ Bank and in addition to the limitations set forth above, the aggregate
principal outstanding of such Bid Loans shall not at any time exceed Thirty-Five
Million Dollars ($35,000,000).
SECTION 2.03. ALL LOANS. The failure of any Bank to make any requested
364 Day Facility Advance or Bid Advance to be made by it on the date specified
for such Advance shall not relieve any other Bank of its obligation (if any) to
make any Advance on such date, but no Bank shall be responsible for the failure
of any other Bank to make any such Advance to be made by such other Bank.
SECTION 2.04. NOTICE AND MANNER OF BORROWING FOR 364 DAY FACILITY
LOANS. Borrower shall give Administrative Agent prior written or telegraphic or
facsimile notice (effective upon receipt) of each request for a 364 Day Facility
Loan (1) in the case of a Base Loan, on or before 12:00 noon (Central time) on
the day of making such Base Loan, and (2) in the case of a LIBOR Loan, on or
before 12:00 noon (Central time) at least three (3) Banking Days prior to the
date of making such LIBOR Loan.
Each of the foregoing notices, substantially in the form of Exhibit C
("364 Day Borrowing Notice") must specify (1) the amount of such Loan, (2) the
proposed date of making such Loan, (3) whether the Loan will bear interest at
(a) the Base Rate minus twenty-five basis points (.25%) or (b) the LIBOR Rate
plus the Applicable Margin, and (4) in the case of a LIBOR Loan, the initial
Interest Period applicable thereto. Administrative Agent shall promptly notify
each Bank of each such 364 Day Borrowing Notice. Not later than 2:00 P.M.
(Central time) on the date of a 364 Day Facility Loan, each Bank will make
available to Administrative Agent at Administrative Agent's Office, in
immediately available funds, such Bank's share of such Loan. After
Administrative Agent's receipt of such funds, but not later than 3:00 P.M.
(Central time), and upon fulfillment of the applicable conditions set forth in
Article IV, Administrative Agent will make such Loan available to Borrower, in
immediately available funds, and will transmit such funds by wire transfer to
Borrower's Account.
SECTION 2.05. NOTICE AND MANNER OF REQUESTING BID LOANS. Borrower may
request offers from all of the Banks, acting severally and not jointly, to make
Bid Loans. Borrower shall give Bid Agent written or telegraphic or facsimile
notice (effective upon receipt), substantially in the form of Exhibit D (a "Bid
Quote Request"), of a proposed Bid Loan on or before 9:00 A.M. (Central time) on
the date of the proposed Bid Loan. Promptly after receipt of a Bid Quote
Request, Bid Agent shall send to all of the Banks by telegraphic or facsimile
transmissions a copy of such Bid Quote Request.
Each Bid Quote Request must specify (1) the total amount of such
requested Bid Loans, (2) the individual amount of each requested Bid Loan with a
different proposed Bid Maturity Date, (3) the proposed date of making such Bid
Loan, and (4) the proposed maturity dates which must be Banking Days ("Bid
Maturity Date") for such Bid Loans. Borrower may request offers to make more
than one Bid Loan, each with a different Bid Maturity Date, in a single Bid
Quote Request.
Each Bank may, in its sole discretion, submit to Bid Agent a written
quote, substantially in the form of Exhibit E (a "Bid Quote"), containing an
offer or offers to make Bid Advances in response to any Bid Quote Request (and
may elect to bid with respect to any or all Bid Loans with different Bid
Maturity Dates specified in the Bid Quote Request), provided, however, each Bank
is limited to one Bid Quote submission per day (which may cover more than one
Bid Maturity Date). Each Bid Quote for CoBank and/or St. ▇▇▇▇ Bank will be
submitted by CoBank. Each Bid Quote by a Bank (other than Bid Agent acting in
its capacity as a Bank) must be submitted to Bid Agent by facsimile not later
than 10:30 A.M. (Central time) on the proposed date of making the proposed Bid
Loan. Each Bid Quote made by Bid Agent in its capacity as a Bank must be
finalized not later than 10:15 A.M. (Central time) on the proposed date of
making the proposed Bid Loan and forwarded to Borrower. Each Bid Quote so made
shall be irrevocable. A Bid Quote may set forth offers for up to five (5)
separate Bid Rates for each of the applicable Bid Advances, provided that each
Bid Quote shall specify the aggregate principal amount of Bid Advances for all
Bid Maturity Dates that the Bank submitting such Bid Quote is willing to make at
the specified Bid Rates pursuant to such Bid Quote. Bid Agent shall disregard a
Bid Quote if it (1) is not substantially in conformity with Exhibit E, (2)
contains qualifying or conditional language, (3) proposes terms other than or in
addition to those set forth in the applicable Bid Quote Request, or (4) arrives
after the applicable time set forth in this Section. Promptly after 10:30 A.M.
(Central time), Bid Agent shall advise Borrower of the terms of each Bid Quote
received by Bid Agent.
Not later than 12:00 noon (Central time) on the proposed date for
making a Bid Loan, Borrower shall notify Bid Agent of its acceptance or
non-acceptance of the offers submitted to Bid Agent pursuant to this Section,
and Bid Agent shall provide notice to Administrative Agent of the offers
accepted by Borrower and the terms thereof. In the case of acceptance, such
notice, which shall be in the form of Exhibit F (a "Bid Notice of Borrowing"),
shall specify the aggregate principal amount of offers for each of the Bid
Advances that are accepted. Regardless of the amounts or interest rates bid by
any Bank, Borrower may accept any Bid Quote in whole or in part, provided that
(1) the aggregate principal amount of Bid Loans may not exceed the applicable
amount set forth in the related Bid Quote Request, and (2) Borrower may not
accept any offer that fails to comply with this Section. Promptly after receipt
of a Bid Notice of Borrowing, Bid Agent shall send to the applicable Bank by
telegraphic or facsimile transmission a copy of such Bid Notice of Borrowing.
Not later than 2:00 P.M. (Central time) on the date of making each Bid
Loan, each Bank that is to make a Bid Advance will make available to
Administrative Agent at Administrative Agent's Office, in immediately available
funds, its Bid Advance. After Administrative Agent's receipt of such funds, but
not later than 3:00 P.M. (Central time), and upon fulfillment of the applicable
conditions set forth in Article IV, Administrative Agent will make such Advances
available to Borrower, in immediately available funds, and will transmit such
funds by wire transfer to Borrower's Account.
SECTION 2.06. INTEREST PERIODS. In the case of each LIBOR Loan,
Borrower shall select an Interest Period of any duration in accordance with the
definition of Interest Period in Section 1.01, subject to the following
limitations, (1) for each 364 Day Facility Advance, no Interest Period may
extend beyond the 364 Day Facility Maturity Date, (2) no Interest Period shall
have a duration of less than one (1) month, and if any such proposed Interest
Period would otherwise be for a shorter period, such Interest Period shall not
be available, and (3) if an Interest Period would end on a day which is not a
Banking Day, such Interest Period shall be extended to the next Banking Day,
unless, such Banking Day would fall in the next calendar month, in which event
such Interest Period shall end on the immediately preceding Banking Day.
Notwithstanding anything herein to the contrary, each LIBOR Loan shall
be in an amount at least equal to One Million Dollars ($1,000,000) and in
integral multiples of Five Hundred Thousand Dollars ($500,000) (LIBOR Loans
having different Interest Periods at the same time hereunder to be deemed
separate Loans for purposes of the foregoing, one for each Interest Period).
Notwithstanding anything herein to the contrary, no Bank will be
required to have with respect to such Bank's share of the 364 Day Facility Loans
more than fifteen (15) different Interest Periods outstanding at any time.
SECTION 2.07. INTEREST. Borrower shall pay interest to the
Administrative Agent for the account of each Bank on the outstanding and unpaid
principal amount of such Bank's Advances, at a rate per annum as follows (1) for
a Base Advance at a rate equal to the Base Rate minus twenty-five basis points
(.25%), (2) for a LIBOR Advance at a rate equal to the LIBOR Rate plus the
Applicable Margin, and (3) for a Bid Advance at a rate per annum equal to the
Bid Rate set forth in the Bid Quote for such Bid Advance accepted by Borrower in
its Bid Notice of Borrowing. Any principal amount not paid when due (at
maturity, by acceleration or otherwise) shall, after written notice to Borrower
by the Administrative Agent, bear interest thereafter, payable on demand, at the
applicable Default Rate. The Administrative Agent will distribute such interest
paid by Borrower to each Bank under items (1) and (2) above ratably in
proportion of such Bank's 364 Day Facility Advances then outstanding bears to
the aggregate amount of all 364 Day Facility Advances and with respect to item
(3) above, ratably in proportion of such individual Bid Advances made by such
Bank then outstanding bears to the aggregate principal amount of all Bid
Advances then outstanding. All unreimbursed obligations with respect to payments
made by an issuing Bank under a Letter of Credit shall bear interest, payable on
demand, at the Base Rate plus the Default Rate.
The interest rate on each Base Advance shall change when the Base Rate
changes. Interest on each Advance shall not exceed the maximum amount permitted
under applicable Law and shall be calculated on the basis of a year of three
hundred sixty (360) days for the actual number of days elapsed.
Accrued interest shall be due and payable in arrears (1) for each Base
Loan, on each Monthly Date, commencing with the first such date after making
such Loan, (2) for each LIBOR Loan, on the last day of the Interest Period with
respect thereto and, in the case of an Interest Period greater than three
months, at three month intervals after the first day of such Interest Period,
(3) for each Bid Advance, on the applicable Bid Maturity Date, and, in the case
of a Bid Advance with a period from the date of making the Bid Loan to a Bid
Maturity Date of greater than 90 days, at 90 day intervals after the first day
of making such Bid Advance, and (4) interest accruing at the Default Rate shall
be due and payable on demand.
Administrative Agent shall provide to Borrower three days prior to the
date interest is due and payable to Administrative Agent written notice of the
amount of interest to be due and payable. Failure of Administrative Agent to
provide such prior written notice, however, shall not affect Borrower's
obligation to make such interest payments when due.
SECTION 2.08. FEES. Borrower agrees to pay to each Bank an annual
facility fee ("Facility Fee") in an amount equal to five basis points (.05%) per
annum on the amount of such Bank's Individual 364 Day Facility Commitment
payable in quarterly installments, on the fifth Banking Day after each Quarterly
Date, commencing on November 30, 1996, and on the 364 Day Facility Maturity
Date.
Borrower agrees to pay to each Bank a commitment fee ("Commitment Fee")
in an amount equal to seven and one half basis points (.075%) per annum on the
average daily Individual Unused 364 Day Facility Commitment of such Bank,
payable in arrears, and based on a year of three hundred sixty (360) days for
the actual number of days elapsed, on the fifth Banking Day after each Quarterly
Date and on the 364 Day Facility Maturity Date. In the event a Bank elects to
make Bid Advances in an amount that exceeds its Individual 364 Day Facility
Commitment pursuant to the provisions of Section 2.02, then the Commitment Fee
for each other Bank that has an Individual Unused 364 Day Facility Commitment
shall be calculated as follows:
(1) The total Commitment Fee shall be calculated by
multiplying the average daily Total Unused 364 Day Facility Commitment,
after giving effect to such excess Advance(s), by seven and one half
basis points (.075%) per annum.
(2) The portion of the Commitment Fee calculated under (1)
above that is payable to a Bank shall be determined by (i) dividing the
actual average daily Individual Unused 364 Day Facility Commitment of
such Bank by the sum of the average daily Individual Unused 364 Day
Facility Commitments of all Banks and then (ii) multiplying the
quotient by the amount of all excess Bid Advances. The end result is
subtracted from such Bank's actual average daily Individual Unused 364
Day Facility Commitment and divided by the average daily Total Unused
364 Day Facility Commitment and then multiplied by the Commitment Fee
calculated under (1) above.
Administrative Agent shall provide to Borrower promptly after each
Quarterly Date written notice of the amount of the Commitment Fee and Facility
Fee due to it to be due and payable on the fifth Banking Day after such
Quarterly Date. Failure of Administrative Agent to provide such written notice,
however, shall not affect Borrower's obligation to pay such Fees.
Borrower agrees to pay to the Facility Agents and the Syndication
Agents the fees set forth in the Fee Letter.
SECTION 2.09. NOTES. All 364 Day Facility Advances made by each Bank
shall be evidenced by, and repaid with interest in accordance with, a single
promissory note of Borrower in substantially the form of Exhibit A duly
completed, in the stated maximum principal amount equal to such Bank's
Individual 364 Day Facility Commitment, dated the date such Bank becomes a Bank,
payable to such Bank for the account of its Applicable Lending Office, and
maturing as to principal on the 364 Day Facility Maturity Date (each a "364 Day
Facility Note" and collectively, the "364 Day Facility Notes").
All Bid Advances made by any Bank shall be evidenced by, and repaid
with interest in accordance with, a single promissory note in substantially the
form of Exhibit B duly completed, dated the date such Bank becomes a Bank,
payable to such Bank for the account of its Applicable Lending Office, and each
Bid Advance will mature as to principal on the applicable Bid Loan Maturity Date
(each a "Bid Note" and collectively, the "Bid Notes").
Each Bank shall record on its books and records the amount of each
Advance and any unreimbursed obligations to such Bank with respect to payments
by such Bank under Letters of Credit issued by such Bank made by it hereunder,
the rate and interest period applicable thereto, all payments of principal and
interest, and the principal balance from time to time outstanding. The Bank's
record thereof shall be prima facie evidence as to all such amounts and shall be
binding on Borrower absent manifest error. Notwithstanding the foregoing,
Borrower will never be required to pay as principal more than the principal
amount of the Loans made by the Banks and any unreimbursed obligations to such
Bank with respect to payments by such Bank under Letters of Credit issued by
such Bank.
SECTION 2.10. OPTIONAL PREPAYMENTS. Borrower may prepay any LIBOR Loans
upon giving Administrative Agent prior written or telegraphic or facsimile
notice (effective upon receipt) no later than 3:00 P.M. (Central time) three
Banking Days prior to the date of such prepayment. Promptly after receipt of
such notice of prepayment, Administrative Agent will notify the applicable Banks
with regard to such notice.
Each such prepayment of the Loans may be made in whole or in part and
will be made with accrued interest to the date of such prepayment on the amount
prepaid, provided that (1) each partial prepayment shall be in a principal
amount of not less than One Million Dollars ($1,000,000) and integral multiples
of Five Hundred Thousand Dollars ($500,000), (2) unless Borrower pays
compensation in accordance with Section 10.05, LIBOR Loans may only be prepaid
on the last day of the Interest Period for such Loan, and (3) Bid Loans may not
be prepaid. In addition, each such prepayment of the Loans shall be paid to the
Banks ratably based upon the amount each such Bank's outstanding Advances bears
to such Loans then outstanding.
SECTION 2.11. METHOD OF PAYMENT. Borrower shall make each payment under
this Agreement and under each Note not later than 2:00 P.M. (Central time) on
the date when due in Dollars in immediately available funds in the case of 364
Day Facility Loans and Bid Loans, to Administrative Agent at Administrative
Agent's Office for the account of the Applicable Lending Office of each Bank
entitled to receive all or a portion of such payment. Administrative Agent will
promptly thereafter cause to be disbursed such payments of principal and
interest under this Section in like funds to the Banks entitled to receive all
or a portion of such payment.
Borrower hereby authorizes each Bank, if and to the extent payment of
the Loans or interest thereon, or any Fees are not made when due under this
Agreement or under the Notes, to charge from time to time against any account it
maintains with such Bank any such amount so due to such Bank and/or any or all
of the other Banks.
Except to the extent provided in this Agreement, whenever any payment
to be made under this Agreement or under the Notes shall be stated to be due on
any day other than a Banking Day, such payment shall be made on the next
succeeding Banking Day, and such extension of time shall in such case be
included in the computation of the payment of interest and the Commitment Fees.
SECTION 2.12. USE OF PROCEEDS. The proceeds of the Loans will be used
by Borrower for general corporate purposes. Borrower will not, directly or
indirectly, use any part of such proceeds for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U of the Board of
Governors or to extend credit to any Person for the purpose of purchasing or
carrying any such margin stock.
SECTION 2.13. CONVERSIONS OR CONTINUATIONS. Provided that no Default or
Event of Default has occurred and is continuing, Borrower shall have the right
to convert all or a part of one type of Loan into another type of Loan or to
continue all or any part of a LIBOR Loan, at any time or from time to time,
provided that (1) Borrower shall give Administrative Agent and each Bank (a)
notice of each such conversion into a Base Loan by no later than 12:00 noon
(Central time) on the date of such conversion and (b) notice of each conversion
into and continuation of a LIBOR Loan by no later than 12:00 noon (Central time)
three Banking Days prior to such conversion or continuation, (2) LIBOR Loans may
be converted or continued only on the last day of an Interest Period for such
Loans, and (3) after giving effect to such continuation or conversion the
minimum principal amount of the outstanding LIBOR Loans with the same Interest
Period will be One Million Dollars ($1,000,000) and integral multiples of Five
Hundred Thousand Dollars ($500,000). All notices given under this Section shall
be irrevocable.
Each such notice of conversion or continuation shall specify the Loan
to be converted or continued and the amount thereof and the date of conversion
or continuation (which shall be a Banking Day) and, in respect of a LIBOR Loan,
the duration of an Interest Period. Each such notice of the duration of an
Interest Period shall specify the LIBOR Loan to which such Interest Period is to
relate. In the event that Borrower fails to select the type of Loan, or the
duration of any Interest Period for any LIBOR Loan, within the time period and
otherwise as provided in this Section, such Loan (if outstanding as a LIBOR
Loan) will be automatically converted into a Base Loan on the last day of the
then current Interest Period for such LIBOR Loan.
ARTICLE III. LETTERS OF CREDIT
SECTION 3.01. LETTERS OF CREDIT. Any Bank may, in its sole discretion,
issue for the account of Borrower either (1) a documentary letter of credit or
(2) a standby letter of credit, in each case with an expiration date of three
hundred sixty-four (364) days or less (without regard to any renewal provisions
thereof) from the date of issuance of such letter of credit (each of the letters
of credit under (1) and (2), a "Letter of Credit") on terms and conditions
agreed to by such Bank and Borrower from time to time during the period from the
Closing Date to the 364 Day Facility Maturity Date, provided, that
(1) with regard to all Banks, at no time will the outstanding
Total Letter of Credit Obligations exceed the lesser of (a) Fifty
Million Dollars ($50,000,000), or (b) an amount equal to (i) the Total
364 Day Facility Commitment, minus (ii) the aggregate principal amount
of all outstanding 364 Day Facility Loans, minus (iii) the aggregate
principal amount of all outstanding Bid Loans, minus (iv) the aggregate
principal amount of all unreimbursed obligations in respect to amounts
paid under such Letters of Credit all determined at such time, and
(2) with respect to each Bank, no Letter of Credit may be
issued unless there is sufficient Individual Unused 364 Day Facility
Commitment of such Bank to cover the requested Letter of Credit.
Outstanding Individual Letter of Credit Obligations of a Bank shall not
be affected if such Bank elects to offer a Bid Advance in excess of its
Individual 364 Day Facility Commitment pursuant to Section 2.02(2).
The terms and conditions relating to each Letter of Credit will be set
forth in a Letter of Credit Agreement, and such Letter of Credit Agreement will
provide that all draws under such Letter of Credit will be reimbursed at the
time of such draw. The expiration date of a Letter of Credit may be after the
364 Day Facility Maturity Date. Each Letter of Credit will be an obligation of
the Bank issuing such Letter of Credit and the other Banks are not required to
purchase participations in such Letter of Credit. Prior to the issuance of each
Letter of Credit, the Bank proposing to issue such Letter of Credit will confirm
with Administrative Agent that such Letter of Credit will not exceed the
limitations set forth in this Section.
SECTION 3.02. RELATIONSHIP BETWEEN THIS AGREEMENT AND EACH LETTER OF
CREDIT AGREEMENT. Each Bank agrees that to the extent its Letter of Credit
Agreement (including with respect to any Letters of Credit listed on Schedule
3.03) contains (1) representations and warranties, covenants or events of
default covering substantially the same matters or items that are covered by the
representations and warranties, covenants or Events of Default set forth in this
Agreement, or (2) any of the items covered by Section 12.07 of this Agreement,
such as jurisdiction, service of process, waivers of immunity and so forth, that
in all such cases the terms of this Agreement supersede such provisions and the
terms of this Agreement are controlling. In addition, each Bank and Borrower
agree that the reimbursement obligation on all Letters of Credit are not, and
will not be, secured by a Lien on any assets of Borrower or any Subsidiary,
except for Liens permitted under Section 7.02.
SECTION 3.03. OUTSTANDING LETTERS OF CREDIT. Borrower and each Bank
agrees that all letters of credit previously issued by such Bank for the account
of Borrower which remain outstanding as of the Closing Date, all of which are
set forth in Schedule 3.03, will automatically as of such Date be deemed to be
Letters of Credit, as set forth in such Schedule, and, except for previously
agreed upon fees and expenses, as such, all such Letters of Credit will be
subject to the terms of this Agreement.
SECTION 3.04. REIMBURSEMENT OBLIGATIONS ON LETTERS OF CREDIT. Borrower
and each Bank agree that all reimbursement obligations of Borrower in respect to
amounts paid under a Letter of Credit will immediately and automatically be
satisfied by such Bank's making a 364 Day Facility Advance and that all such 364
Day Facility Advances shall in the amount of such payments bear interest at the
interest rate for a Base Advance under Section 2.07 and that Borrower hereby
irrevocably authorizes such Bank to make such Advance(s) without the receipt of
any notice or request of Borrower.
ARTICLE IV. CONDITIONS PRECEDENT
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL USE OF A CREDIT FACILITY
ON AND AFTER THE SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL USE OF A CREDIT
FACILITY ON AND AFTER THE CLOSING DATE. The obligations of the Banks on or after
the Closing Date to make a 364 Day Facility Loan or, the ability of Borrower to
request either a Letter of Credit or a Bid Request is subject to the condition
precedent that the Banks shall have received on or before the Closing Date each
of the following documents, in form and substance satisfactory to the
Syndication Agents and their counsel, and each of the following requirements
shall have been fulfilled:
(1) Evidence of Due Organization and all Corporate Actions by
Borrower. A certificate of the Secretary or Assistant Secretary of
Borrower, dated the Closing Date, attesting to the certificate of
incorporation of Borrower and all amendments thereto, to the by-laws
and all amendments thereto of Borrower, and to all corporate actions
taken by Borrower, including resolutions of its board of directors,
authorizing the execution, delivery and performance of the Loan
Documents, and each other document to be delivered pursuant to the Loan
Documents;
(2) Incumbency and Signature Certificate of Borrower. A
certificate of the Secretary or Assistant Secretary of Borrower, dated
the Closing Date, certifying the names and true signatures of the
officers of Borrower authorized to sign the Loan Documents, and the
other documents to be delivered pursuant to the Loan Documents;
(3) Good Standing Certificate of Borrower. A certificate,
dated within ten (10) Banking Days of the Closing Date, from the
Secretary of State (or other appropriate official) of the jurisdiction
of incorporation of Borrower certifying as to the due incorporation and
good standing of Borrower;
(4) Notes. For each of the Banks each of its Notes, properly
completed and duly executed by Borrower;
(5) Opinion of Counsel for Borrower. Favorable opinion of
in-house counsel for Borrower addressed to the Banks, dated the Closing
Date;
(6) Payment of Fees. Payment in full to the Facility Agents
and the Syndication Agents of all fees required to be paid as of such
date to each of the Facility Agents and the Syndication Agents pursuant
to the terms of the Fee Letter, and payment in full of all other fees
or expenses required to be paid as of such date in accordance with the
Loan Documents;
(7) Officer's Certificate. The following statements shall be
true and Administrative Agent shall have received a certificate signed
by a duly authorized officer of Borrower dated the Closing Date stating
that:
(a) The representations and warranties contained in
this Agreement are, as of the Closing Date, as though made on
and as of such Date, correct in all material respects; and
(b) No Default or Event of Default has occurred and
is continuing;
(8) Cancellation of Existing Credit Agreements. Termination of
the Existing Credit Agreements and repayment in full of all loans
outstanding under and as defined in such agreements; and
(9) Additional Documentation. Such other approvals, opinions
or documents as any Bank Party may reasonably request.
SECTION 4.02. CONDITIONS PRECEDENT TO EACH CREDIT FACILITY. The
obligations of the Banks to make each 364 Day Facility Loan after the Closing
Date or, the ability of Borrower to request after the Closing Date either a
Letter of Credit or a Bid Request, shall be subject to the further conditions
precedent that on the date of providing such Credit Facility or request:
(1) Representations and Warranties; No Defaults or Events of
Default. The following statements shall be true:
(a) all the representations and warranties contained
in this Agreement and in each of the other Loan Documents are,
as of the date of providing such Credit Facility, as though
made on and as of such date, correct in all material respects;
and
(b) no Default or Event of Default has occurred and
is continuing.
(2) Additional Documentation. Administrative Agent shall have
received such other approvals, opinions or documents as any Bank Party
may reasonably request.
SECTION 4.03. DEEMED REPRESENTATION. Each request for a Credit Facility
and acceptance by Borrower of any proceeds of such Loan or the issuance,
extension or increase in the face amount of any Letter of Credit, as the case
may be, shall constitute a representation and warranty by Borrower that the
statements contained in Section 4.02(1) are true and correct both on the date of
such notice and as of the date of the providing of such Loan or issuance or
amendment of such Letter of Credit, as the case may be.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
SECTION 5.01. INCORPORATION, GOOD STANDING AND DUE QUALIFICATION.
Borrower and each Subsidiary is duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation, has the corporate power and authority to own its assets and to
transact the business in which it is now engaged or proposed to be engaged, and
is duly qualified as a foreign corporation or entity and in good standing under
the laws of each other jurisdiction in which such qualification is required,
except to the extent that its failure to be so qualified has not, and could not
reasonably be expected to, result in a Material Adverse Change.
SECTION 5.02. CORPORATE POWER AND AUTHORITY; NO CONFLICTS. The
execution, delivery and performance by Borrower of the Loan Documents to which
it is a party have been duly authorized by all necessary corporate action and do
not and will not: (1) require any consent or approval of its stockholders which
has not been obtained; (2) contravene its certificate of incorporation or
by-laws; (3) violate any provision of, or require any filing, registration,
consent or approval under, any Law (including, without limitation, Regulations
G, T, U and X of the Board of Governors), order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
Borrower or any Subsidiary; (4) result in a breach of or constitute a default
under or, except for any obtained, require any consent under any indenture or
loan or credit agreement or any other agreement, lease or instrument to which
Borrower or any Subsidiary is a party or by which it or its properties may be
bound or affected; (5) except as contemplated by this Agreement, result in, or
require, the creation or imposition of any Lien upon or with respect to any of
the properties now owned or hereafter acquired by Borrower or any Subsidiary; or
(6) cause Borrower or any Subsidiary to be in default under any such Law, order,
writ, judgment, injunction, decree, determination or award or any such
indenture, agreement, lease or instrument (upon obtaining all consents which
have been obtained on or before the date hereof).
SECTION 5.03. LEGALLY ENFORCEABLE AGREEMENTS. This Agreement and each
of the other Loan Documents constitute the legal, valid and binding obligations
of Borrower enforceable in accordance with their terms, except to the extent
that such enforcement may be limited by applicable bankruptcy, insolvency, and
other laws affecting creditors' rights generally.
SECTION 5.04. LITIGATION. Except as specified on Schedule 5.04, there
are no actions, suits or proceedings (private or governmental) pending or, to
the knowledge of Borrower, threatened, against or affecting Borrower or any
Subsidiary before any Governmental Authority or arbitrator, which have resulted
in, or could be reasonably expected to result in, in any one case or in the
aggregate, a Material Adverse Change.
SECTION 5.05. FINANCIAL STATEMENTS. The consolidated balance sheet of
Borrower and its Subsidiaries as of May 31, 1996, and the related consolidated
statements of operations, cash flows and consolidated statements of capital
shares and equities for the Fiscal Year then ended, and the accompanying
footnotes, together with the unqualified opinion thereon, dated August 19, 1996
of Deloitte & Touche LLP, independent certified public accountants, copies of
which have been furnished to the Banks, fairly present in all material respects
the consolidated financial condition of Borrower and its Subsidiaries as at such
dates and the results of the consolidated operations of Borrower and its
Subsidiaries for the periods covered by such statements, all in accordance with
GAAP consistently applied.
Since May 31, 1996, there has been no Material Adverse Change.
As of the Closing Date, there are no liabilities of Borrower or any of
its Subsidiaries, fixed or contingent, which are material but are not reflected
in the financial statements of Borrower and its Subsidiaries referred to above
or referred to in the notes thereto, other than liabilities arising in the
ordinary course of business since May 31, 1996. No information, exhibit, or
report furnished by Borrower or any of its Subsidiaries to either or both
Facility Agents or Syndication Agents in connection with the negotiation of this
Agreement contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
materially misleading in light of the circumstances in which they were made and
taken together with the other information, exhibits and reports furnished to the
Bank Parties.
SECTION 5.06. OWNERSHIP AND LIENS. Borrower and each Subsidiary have
good and marketable title to, or valid leasehold interests in, all of their
material properties and assets, real and personal, including the properties and
assets and leasehold interests reflected in the financial statements of the
Borrower and its Subsidiaries referred to in Section 5.05, except (1) any
properties or assets disposed of in the ordinary course of business, and (2) for
minor defects in title and minor encumbrances not in any case materially
detracting from the value or use of the assets affected thereby; and none of the
properties and assets owned by Borrower or any Subsidiary and none of their
leasehold interests are subject to any Lien, except as may be permitted under
this Agreement.
SECTION 5.07. TAXES. Borrower and each Subsidiary have filed all tax
returns (federal, state and local) required to be filed (or obtained extensions
with respect thereto) and have paid all taxes, assessments and governmental
charges and levies thereon prior to the time they are delinquent, including
interest and penalties, except (1) to the extent they are the subject of a Good
Faith Contest and (2) as otherwise disclosed in Schedule 5.07.
SECTION 5.08. ERISA. The Borrower and its Subsidiaries are in
compliance in all material respects with ERISA, to the extent applicable to
them, and have received no notice to the contrary from the PBGC or any other
governmental entity or agency.
SECTION 5.09. OPERATION OF BUSINESS. Borrower and each Subsidiary
possess all licenses, permits, franchises, and trade names, or rights thereto,
to conduct their respective businesses substantially as now conducted and as
presently proposed to be conducted, and Borrower and each Subsidiary are not in
violation of any valid rights of others with respect to any of the foregoing,
except to the extent such lack of possession or violation has not resulted in,
and could not reasonably be expected to result in, a Material Adverse Change.
SECTION 5.10. NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS. Borrower
and each Subsidiary have satisfied all judgments and Borrower and each
Subsidiary are not in default with respect to any judgment, writ, injunction,
decree, rule or regulation of any court, arbitrator or federal, state, municipal
or other Governmental Authority, commission, board, bureau, agency or
instrumentality, domestic or foreign, except to the extent such failure to
satisfy any or all such judgments or to be in such a default has not resulted
in, and could not reasonably be expected to result in, a Material Adverse
Change.
SECTION 5.11. NO DEFAULTS ON OTHER AGREEMENTS. Neither Borrower nor any
Subsidiary is a party to any indenture, loan or credit agreement or any lease or
other agreement or instrument or subject to any certificate of incorporation or
corporate restriction which has resulted in, or could reasonably be expected to
result in, a Material Adverse Change. Neither Borrower nor any Subsidiary is in
default in any respect in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any agreement or
instrument where such failure to perform, observe or fulfill has resulted in, or
could reasonably be expected to result in, a Material Adverse Change.
SECTION 5.12. LABOR DISPUTES AND ACTS OF GOD. Neither the business nor
the properties of Borrower or any Subsidiary are currently affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) which has resulted in, or could reasonably
be expected to result in, a Material Adverse Change.
SECTION 5.13. GOVERNMENTAL REGULATION. Neither Borrower nor any
Subsidiary is subject to regulation under the Public Utility Holding Company Act
of 1935, the Investment Company Act of 1940, the Interstate Commerce Act, the
Federal Power Act or any statute or regulation, in each case, limiting its
ability to incur indebtedness for money borrowed as contemplated hereby.
SECTION 5.14. ENVIRONMENTAL PROTECTION. Except as set forth on Schedule
5.14, Borrower and each Subsidiary have obtained all permits, licenses and other
authorizations which are required under all applicable Environmental Laws,
except to the extent failure to have any such permit, license or authorization
could not reasonably be expected to result in a Material Adverse Change. Except
as set forth on Schedule 5.14, Borrower and each Subsidiary are in compliance
with all Environmental Laws and the terms and conditions of the required
permits, licenses and authorizations, and are also in compliance with all other
limitations, restrictions, obligations, schedules and timetables contained in
those Laws or contained in any plan, order, decree, judgment, injunction, notice
or demand letter issued, entered, promulgated or approved thereunder, except to
the extent, in each case, failure to comply has not resulted in, and could not
reasonably be expected to result in, a Material Adverse Change.
SECTION 5.15. MARGIN SECURITIES. No more than twenty-five percent (25%)
of the value of the assets subject to Section 7.02 consists of "margin
securities" as that term is defined in Regulations G and U of the Board of
Governors of the Federal Reserve System.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or any Individual
Letter of Credit Obligation shall remain outstanding or any Bank shall have any
Individual 364 Day Facility Commitment hereunder or any other amount is owing by
Borrower to any Bank Party hereunder or under any other Loan Document, Borrower
shall:
SECTION 6.01. MAINTENANCE OF ELIGIBILITY AND CAPITALIZATION. Preserve
and maintain its status as an entity eligible to borrow from CoBank and St. ▇▇▇▇
Bank; and for each Advance made by CoBank and St. ▇▇▇▇ Bank purchase such equity
in CoBank and St. ▇▇▇▇ Bank as CoBank and St. ▇▇▇▇ Bank may from time to time
require in accordance with CoBank's or St. ▇▇▇▇ Bank's bylaws and capital plan.
Borrower hereby acknowledges receipt prior to the execution of this Agreement of
a written description of the terms and conditions under which equity in CoBank
or St. ▇▇▇▇ Bank is issued. CoBank and St. ▇▇▇▇ Bank reserve the right to sell
participations under the provisions of Section 12.04 on a non-patronage basis.
SECTION 6.02. MAINTENANCE OF EXISTENCE. Preserve and maintain, and
cause each Subsidiary to preserve and maintain, its corporate or other entity
existence and good standing in the jurisdiction of its incorporation or
formation, and qualify and remain qualified as a foreign corporation or entity
in each jurisdiction in which such qualification is required except (1) where
the failure to so qualify has not and could not reasonably be expected to result
in a Material Adverse Change, and (2) for any mergers permitted under Section
7.05.
SECTION 6.03. MAINTENANCE OF PROPERTIES. Maintain, keep and preserve,
and cause each Subsidiary to maintain, keep and preserve, all of its material
properties (tangible and intangible) necessary or used in the proper conduct of
its business in good working order and condition, ordinary wear and tear
excepted, and shall cause to be made all repairs, renewals, replacements,
betterments and improvements thereof, all as in the sole judgment of Borrower
may be reasonably necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 6.04. MAINTENANCE OF RECORDS. Keep, and cause each of its
Subsidiaries to keep, adequate records and books of account, in which complete
entries will be made in accordance with GAAP, reflecting all of its and their
financial transactions.
SECTION 6.05. MAINTENANCE OF INSURANCE. Maintain, and cause each
Subsidiary to maintain, insurance with financially sound and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in the same or a similar business and similarly
situated, provided, however, that Borrower may, to the extent permitted by Law,
provide for appropriate self-insurance with respect to worker's compensation. At
the request of Administrative Agent, copies of all policies (or such other proof
of compliance with this Section 6.05 as may be reasonably satisfactory) shall be
delivered to the Banks.
SECTION 6.06. COMPLIANCE WITH LAWS. Comply in all material respects,
and cause each Subsidiary to comply in all material respects, with all
applicable Laws, such compliance to include, without limitation, paying before
the same become delinquent all taxes, assessments and governmental charges
imposed upon it or upon its property, unless such failure to comply is the
subject of a Good Faith Contest.
SECTION 6.07. RIGHT OF INSPECTION. At any time and from time to time
during normal business hours and upon reasonable notice to Borrower, permit, and
cause its Subsidiaries to permit, any Bank Party or any agent or representative
thereof, to examine and make copies and abstracts from the financial records and
books of account of, and visit the properties of, Borrower and any Subsidiary,
and to discuss the affairs, finances and accounts of Borrower and any Subsidiary
with any of their respective officers and directors and independent accountants,
provided, that, in the case of each meeting with the independent accountants
Borrower is given an opportunity to have a representative present at such
meeting.
SECTION 6.08. EMPLOYEE BENEFIT PLANS. Make or cause to be made, and
cause each Subsidiary to make or cause to be made, all payments or contributions
to all Plans covered by Title IV of ERISA, which are necessary to enable those
Plans to continuously meet all minimum funding standards or requirements.
SECTION 6.09. REPORTING REQUIREMENTS. Furnish directly to
Administrative Agent:
(1) BORROWER'S MONTHLY FINANCIAL STATEMENTS. As soon as
available and in any event within forty-five (45) days after the end of
each month (except for the last such month in each fiscal year of
Borrower), one copy of the consolidated balance sheet, the consolidated
summary of earnings, consolidated statement of cash flow of the
Borrower and its Subsidiaries, all for such monthly period and the year
to date of the Borrower and its Subsidiaries, and for the corresponding
periods of the preceding fiscal year, all in reasonable detail,
prepared by the Borrower in conformance with GAAP consistently applied
and certified to by the Borrower's Group Vice President-Finance, or
other officer of Borrower acceptable to the Administrative Agent
(subject to normal year end adjustments); and
(2) BORROWER'S ANNUAL AUDIT. As soon as available and in any
event within 120 days after the close of each fiscal year of Borrower,
one copy of the audit report for such year and accompanying
consolidated financial statements (including all footnotes thereto),
including a consolidated balance sheet, a consolidated statement of
earnings, a consolidated statement of capital, and a consolidated
statement of cash flow for the Borrower and its Subsidiaries, showing
in comparative form the figures for the previous year, all in
reasonable detail, prepared in conformance with GAAP consistently
applied and certified without qualification by Deloitte & Touche LLP,
or other independent public accountants of nationally recognized
standing selected by the Borrower and satisfactory to the
Administrative Agent, and to be accompanied by a copy of the management
letter of such accountants addressed to the board of directors of
Borrower related to such annual audit; and
(3) CERTIFICATE OF NO DEFAULT. At the time of the delivery of
each of the financial statements referred to under (1) and (2) of this
Section 6.09, a certificate of the Group Vice President, Finance of
Borrower (a) certifying that no Default or Event of Default has
occurred and is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof and
the action which is proposed to be taken with respect thereto, and (b)
with computations demonstrating compliance with Sections 7.01(e), 7.08
and 7.11 as well as the financial covenants contained in Article VIII.
(4) NOTICE OF LITIGATION. Promptly after the commencement
thereof, notice of all actions, suits, arbitration and any other
proceedings before any Governmental Authority, affecting Borrower or
any Subsidiary which, if determined adversely to Borrower or any
Subsidiary, could reasonably be expected to require Borrower or any
Subsidiary to have to pay or deliver assets having a value of Five
Million Dollars ($5,000,000) or more (whether or not the claim is
covered by insurance) or could reasonably be expected to result in a
Material Adverse Change.
(5) NOTICES OF DEFAULTS AND EVENTS OF DEFAULT. As soon as
possible and in any event within three (3) days after the occurrence of
each Default or Event of Default, a written notice setting forth the
details of such Default or Event of Default and the action which is
proposed to be taken by Borrower and the Subsidiaries with respect
thereto.
(6) ERISA REPORTS. As soon as possible and in any event within
twenty (20) days after Borrower or any Subsidiary knows or has reason
to know that any Reportable Event or Prohibited Transaction has
occurred with respect to any Plan or that the PBGC or Borrower or any
Subsidiary has instituted or will institute proceedings under Title IV
of ERISA to terminate any Plan, or that Borrower, any Subsidiary or any
ERISA Affiliate has completely or partially withdrawn from a
Multiemployer Plan, or that a Plan which is a Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA) or is
terminating, Borrower or such Subsidiary will deliver to each of the
Banks a certificate of the Group Vice President-Finance of Borrower or
such Subsidiary setting forth details as to such Reportable Event or
Prohibited Transaction or Plan termination or withdrawal or
reorganization or insolvency and the action Borrower or such Subsidiary
proposes to take with respect thereto, provided, however, that
notwithstanding the foregoing, no reporting is required under this
subsection (6) unless the matter(s), individually or in the aggregate,
result, or could be reasonably expected to result, in aggregate
obligations or liabilities of Borrower and/or the Subsidiaries in
excess of One Million Dollars ($1,000,000).
(7) ANNUAL BUDGET. Promptly upon becoming available and in any
event within ninety (90) days after each Fiscal Year end, a copy of the
Annual Operating Budget for the next succeeding Fiscal Year approved by
Borrower's board of directors, together with the assumptions and
projections on which such budget is based and a copy of forecasts of
operations and capital expenditures (including investments) and a
projection of cash flow by months for each fiscal year. In addition, if
any material changes are made to such budget or projections or
forecasts during the year, then Borrower will furnish copies to the
Administrative Agent of any such changes promptly after such changes
have been approved.
(8) MATERIAL ADVERSE CHANGE. As soon as possible and in any
event within five (5) days after the occurrence of any event or
circumstance which could reasonably be expected to result in or has
resulted in a Material Adverse Change, written notice thereof.
(9) ENVIRONMENTAL NOTICES. As soon as possible and in any
event within five (5) days after receipt, copies of all Environmental
Notices received by Borrower or any Subsidiary which indicate a
potential liability of Five Million Dollars ($5,000,000) or more for
Borrower and all its Subsidiaries taken together or which could
reasonably be expected to result in or has resulted in a Material
Adverse Change.
(10) GENERAL INFORMATION. With reasonable promptness, such
other information respecting the condition or operations, financial or
otherwise, of Borrower or any Subsidiary as any Bank Party may from
time to time reasonably request.
SECTION 6.10. COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause
each of its Subsidiaries to comply, in all respects with all applicable
Environmental Laws, where the failure to comply could reasonably be expected to
result in a Material Adverse Change, except where the failure to comply is the
subject of a Good Faith Contest, and promptly pay or cause to be paid all costs
and expenses incurred in connection with such compliance.
SECTION 6.11. MAINTENANCE OF COMMODITY POSITION. Protect its commodity
inventory holdings or commitments to buy or sell commodities against adverse
price movements, including the taking of equal and opposite positions in the
cash and futures markets, to minimize losses and protect margins in commodity
production, storage, processing and marketing as is recognized as financially
sound and reputable by prudent business persons in the commodity business.
ARTICLE VII. NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid or any Individual
Letter of Credit Obligation shall remain outstanding or any Bank shall have any
Individual 364 Day Facility Commitment hereunder or any other amount is owing by
Borrower to any Bank Party hereunder or under any other Loan Document, Borrower
shall not and shall not permit any of its Subsidiaries to:
SECTION 7.01. DEBT. Create, incur, assume, or allow to exist, directly
or indirectly, any Debt or liability for borrowed money or for the deferred
purchase price of property or services, except for: (a) indebtedness of Borrower
arising under this Agreement and the other Loan Documents; (b) trade payables
arising in the ordinary course of business; (c) Capital Leases in existence from
time to time, (d) current operating liabilities (other than for borrowed money)
incurred in the ordinary course of business; (e) unsecured indebtedness of
Borrower and its Subsidiaries arising under uncommitted lines of credit;
provided that the maximum principal amount that may be outstanding at any one
time shall not exceed $15,000,000, (f) indebtedness of Borrower and its
Subsidiaries on the date hereof as set forth in Schedule 7.01 attached hereto,
(g) unsecured long-term indebtedness of Borrower and its Subsidiaries, (h)
documentary and standby letters of credit issued at the request of Borrower or
any Subsidiary by a financial institution other than a Bank, provided the
aggregate principal amount outstanding under such letters of credit together
with the principal outstanding under Letters of Credit do not exceed $50,000,000
and provided further that the aggregate principal amount outstanding under such
letters of credit together with all Advances, principal outstanding under
Letters of Credit and unreimbursed obligations to Banks with respect to payments
made by such Banks under Letters of Credit shall not exceed the Commitment and
(i) such other indebtedness agreed upon in writing between Borrower and the Bank
Parties.
SECTION 7.02. LIENS. Create, incur, assume or suffer to exist any Lien,
upon or with respect to any of its real or personal properties (including,
without limitation, leasehold interests, leasehold improvements and any other
interest in real property or fixtures), now owned or hereafter acquired, except:
(1) Liens for taxes or assessments or other charges or levies
of any Governmental Authority, that are not delinquent or if delinquent
(i) are the subject of a Good Faith Contest but in no event past the
time when a penalty would be incurred, and (ii) the aggregate amount of
liabilities so secured (including interest and penalties) does not
exceed $10,000,000 at any one time outstanding;
(2) Liens imposed by Law, such as mechanic's, worker's,
repairman's, miner's, agister's, attorney's, materialmen's, landlord's,
warehousemen's and carrier's Liens and other similar Liens which are
securing obligations incurred in the ordinary course of business for
sums not yet due and payable or if due and payable which are the
subject of a Good Faith Contest;
(3) Liens under worker's compensation, unemployment insurance,
social security or similar legislation (other than ERISA), or to secure
payments of premiums for insurance purchased in the ordinary course of
business, or to secure the performance of tenders, statutory
obligations, surety and appearance bonds and bids, bonds for release of
an attachment, stay of execution or injunction, leases, government
contracts, performance and return-of-money bonds and other similar
obligations, all of which are incurred in the ordinary course of
business and not in connection with the borrowing of money;
(4) any attachment or judgment Lien, the time for appeal or
petition for rehearing of which shall not have expired or in respect of
which Borrower or the Subsidiary is protected in all material respects
by insurance or for the payment of which adequate reserves have been
provided, provided, that the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are the
subject of a Good Faith Contest, and provided further that the
aggregate amount of liabilities of Borrower and its Subsidiaries so
secured (including interest and penalties) shall not be in excess of
$5,000,000 at any one time outstanding;
(5) easements, rights-of-way, restrictions, encroachments,
covenants, servitudes, zoning and other similar encumbrances which, in
the aggregate, do not materially interfere with the occupation, use and
enjoyment by Borrower or any Subsidiary of the property or assets
encumbered thereby in the normal course of its business or materially
impair the value of the property subject thereto;
(6) Liens arising in the ordinary course of business and
created in connection with amounts on deposit in charge card and like
accounts (such as Visa or MasterCard);
(7) Liens on land, buildings and equipment existing at the
time of their acquisition or Liens to secure the payment of all or any
part of the purchase price of such land, buildings or equipment or to
secure Funded Debt incurred prior to, at the time of, or within 180
days after the acquisition of such property for the purpose of
financing all or any part of the purchase price thereof, provided that
any such Liens shall not encumber any other property of Borrower or its
Subsidiaries;
(8) Liens assumed in connection with permitted mergers and
acquisitions, but only to the extent that such Liens shall secure only
Funded Debt and shall not encumber any other property of Borrower or
any Subsidiary;
(9) Liens on financed property created or incurred in
connection with leases, mortgages, conditional sales contracts,
security interests or arrangements for the retention of title entered
into by Borrower or any of its Subsidiaries to secure "industrial
revenue bonds" as defined in Section 103(b)(2) of the Code and treated
as obligations described in legislation similar to the provisions of
said Sections of the Code enacted in any State of the United States or
Puerto Rico, which are issued to finance property useful and intended
to be used in carrying on the business of Borrower or any of its
Subsidiaries, provided that upon creation of any such Lien Borrower or
such Subsidiary shall incur Funded Debt secured thereby in conformity
with the provisions of Section 8.03 hereof;
(10) Liens related to Letters of Credit, provided such Liens
attach only to property financed through such Letters of Credit;
(11) Cash Collateral provided to Administrative Agent for the
benefit of the Banks to secure Letters of Credit as provided for under
Section 9.02;
(12) Liens on property or assets of a Subsidiary to secure
Debt of such Subsidiary to Borrower or another Subsidiary;
(13) Liens of CoBank, St. ▇▇▇▇ Bank and other cooperatives,
respectively, on Investments by Borrower in the stock, participation
certificates, or allocated reserves of CoBank, St. ▇▇▇▇ Bank or other
cooperatives, respectively, owned by Borrower;
(14) all precautionary filings of financing statements under
the Uniform Commercial Code which cover property that is made available
to or used by Borrower or any Subsidiary pursuant to the terms of an
Operating Lease or Capital Lease;
SECTION 7.03. FISCAL YEAR. Change its Fiscal Year to a period other
than its Fiscal Year in effect on the Closing Date.
SECTION 7.04. SALE OF ASSETS. Sell, lease, assign, transfer or
otherwise dispose of any material part of its now owned or hereafter acquired
assets, except: (1) the sale of inventory, equipment and fixtures disposed of in
the ordinary course of business, (2) the sale or other disposition of assets no
longer necessary or useful for the conduct of its business. For purposes of this
Section, "material part" shall mean 5% or more of the lesser of the book value
or the market value of the assets of Borrower at the time of such sale, lease,
assignment, transfer or other disposition.
SECTION 7.05. MERGERS, ETC. Merge or consolidate with, or sell, assign,
lease or otherwise dispose of (whether in one transaction or in a series of
related transactions) all or substantially all of its assets (whether now owned
or hereafter acquired) to, any Person, or acquire all or substantially all of
the assets or the business of any Person (or enter into any agreement to do any
of the foregoing); however, that the foregoing shall not prevent any
consolidation or merger if after giving affect thereto:
(1) The book value of Borrower and its Subsidiaries does not
increase due to all such mergers, consolidations or acquisitions by an
aggregate amount in excess of $25,000,000 in any fiscal year of
Borrower;
(2) The Borrower is the surviving entity; and
(3) No Event of Default or Default shall have occurred and be
continuing.
SECTION 7.06. CHANGE IN BUSINESS. Engage in any material respects in
any business activity or operations which are substantially different from or
unrelated to its present business activities or operations.
SECTION 7.07. INVESTMENTS. In any fiscal year of Borrower make, or
suffer to exist, any Investment except (1) Permitted Investments, (2)
Investments in Subsidiaries, (3) Investments permitted under Sections 7.05, 7.09
and 7.10 and (4) Investments that are not Permitted Investments in an aggregate
amount not exceeding $5,000,000 for each Fiscal Year of Borrower.
SECTION 7.08. CONTINGENT LIABILITIES. Assume, guarantee, become liable
as a surety, endorse, contingently agree to purchase, or otherwise be or become
liable, directly or indirectly (including, but not limited to, by means of a
maintenance agreement, an asset or stock purchase agreement, or any other
agreement designed to ensure any creditor against loss), for or on account of
the obligation of any Person, except (1) by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of the Borrower's or any Subsidiary's business, (2) guarantees made from
time to time by Borrower and its Subsidiaries in the ordinary course of their
respective businesses; provided, however, that the aggregate amount of all
indebtedness guaranteed under Subsection (2) shall not exceed $100,000,000 in
the aggregate.
SECTION 7.09. LOANS. Lend or advance money, credit, or property to any
Person, except for (1) loans to Subsidiaries, (2) trade credit extended in the
ordinary course of business, (3) loans made by Borrower to its members on open
account maintained by such members with Borrower or made by Borrower to its
members pursuant to its Affiliate Financing CoBank Participation Program;
provided that the aggregate principal amount of all such loans outstanding at
any time shall not exceed $150,000,000 and (4) loans made by Fin-Ag, Inc. to
agricultural producers, provided that the aggregate principal amount of all such
loans outstanding at any time shall not exceed $35,000,000.
SECTION 7.10. TRANSACTION WITH AFFILIATES. Enter into any transaction,
including, without limitation, the purchase, sale, lease or exchange of any
property, or the rendering of any service, with any Affiliate of Borrower or a
Subsidiary except in the ordinary course of and pursuant to the reasonable
requirements of Borrower and its Subsidiaries business and upon fair and
reasonable terms which are not materially less favorable to Borrower than would
be obtained in a comparable arm's-length transaction with a Person not an
Affiliate of Borrower or a Subsidiary.
SECTION 7.11. PATRONAGE REFUNDS, ETC. In any fiscal year (1) declare or
pay any cash patronage refunds to patrons or members which in the aggregate
exceed 20% of Borrower's consolidated net patronage income for the Fiscal Year
of Borrower preceding the Fiscal Year in which such patronage refunds are to be
paid or (2) directly or indirectly redeem or otherwise retire its equity or (3)
make any cash distributions of any kind or character in respect of its equity
unless (i) at the time of taking such action no Event of Default or Default
exists hereunder and (ii) after giving effect thereto no Event of Default or
Default would exist hereunder.
ARTICLE VIII. FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid or any Individual
Letter of Credit Obligation shall remain outstanding or any Bank shall have any
Individual 364 Day Facility Commitment hereunder or any other amount is owing by
Borrower to any Bank Party hereunder or under any other Loan Document:
SECTION 8.01. CONSOLIDATED WORKING CAPITAL. Borrower and its
Subsidiaries shall have at all times an excess of Current Assets over Current
Liabilities on a consolidated basis of not less than One Hundred Million Dollars
($100,000,000).
SECTION 8.02. CONSOLIDATED MEMBERS' AND PATRONS' EQUITY. Borrower and
its Subsidiaries shall have at all times Consolidated Members' and Patrons'
Equity in an amount not less than Two Hundred Seventy-Five Million Dollars
($275,000,000).
SECTION 8.03. CONSOLIDATED FUNDED DEBT TO CONSOLIDATED MEMBERS' AND
PATRONS' EQUITY. Borrower and its Subsidiaries shall not permit the ratio of
Consolidated Funded Debt of Borrower and its Subsidiaries to Consolidated
Members' and Patrons' Equity to exceed at any time .80 to 1.00.
ARTICLE IX. EVENTS OF DEFAULT EVENTS OF DEFAULT
SECTION 9.01. EVENTS OF DEFAULT. Any of the following events shall be
an "Event of Default":
(1) PAYMENT DEFAULT. Failure by Borrower to make any payment
required to be made hereunder or under any other Loan Document when
due; or
(2) REPRESENTATIONS AND WARRANTIES. Any representation or
warranty made by Borrower herein or in any agreement, certificate or
document related hereto or furnished in connection herewith, shall
prove to have been false or misleading in any material respect on or as
of the date made; or
(3) CERTAIN AFFIRMATIVE COVENANTS. Failure by Borrower to
perform or comply with any covenant set forth in Sections 6.03 through
6.07, and 6.09 (other than Sections 6.09(5), (6), (9) and (10)) and
6.10 hereof and such failure continues for 15 days after written notice
thereof shall have been delivered to Borrower by any Bank; or
(4) OTHER COVENANTS AND AGREEMENTS. Borrower shall fail to
perform or comply with any other covenant or agreement contained
herein, including any covenant excluded in (3) above, provided,
however, the provisions of this Subsection (4) notwithstanding, it
shall be an Event of Default if Borrower shall fail to comply with the
provisions of Sections 7.01 and/or 7.02 and such failure is in excess
of $5,000,000 or if such failure is equal to or less than $5,000,000
and such failure is not cured within five (5) Banking Days after such
failure is discovered by Borrower's Group Vice President, Finance; and
provided further, the provisions of this Subsection (4)
notwithstanding, it shall be an Event of Default if Borrower and its
Subsidiaries shall fail to maintain compliance with the working capital
requirements of Section 8.01, and such failure continues beyond the
date financial statements are provided under Subsections 6.09(1) and
(2); or
(5) CROSS-DEFAULT. Borrower shall, after any applicable grace
period, breach or be in default under the terms of any other Loan
Document or of any other agreement between Borrower and any Bank; or
(6) OTHER DEBT. Borrower or any Subsidiary shall: (a) fail to
pay all or any portion of a Debt (other than the payment obligations
described in (1) above) of Borrower or any Subsidiary when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise) where the aggregate amount of all such Debt is equal to or
in excess of Five Million Dollars ($5,000,000) except for the failure
to pay such Debt where (i) such Debt constitutes trade obligations, and
(ii) such failure to pay is subject to a Good Faith Contest; or (b)
fail to perform or observe any term, covenant or condition on its part
to be performed or observed under any agreement or instrument relating
to any such Debt included in clause (a) above, when required to be
performed or observed, and such failure shall not be waived and shall
continue after the applicable grace period, if any, if the effect of
such failure to perform or observe is to accelerate, or to permit the
acceleration of, after the giving of notice or the lapse of time, or
both, the maturity of such Debt; or any such Debt included in clause
(a) above shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment or
voluntary prepayment), prior to the stated maturity thereof, unless
such failure is subject to a Good Faith Contest; or
(7) LEASES. Borrower or any Subsidiary shall fail to pay or to
perform any obligations of Five Million Dollars ($5,000,000) or more
under or with respect to any material lease of goods (except to the
extent that the existence of any such default is subject to a Good
Faith Contest); or
(8) MATERIAL ADVERSE CHANGE. The Requisite Banks shall have
determined that an event or circumstance constituting a Material
Adverse Change has occurred; or
(9) ERISA. Any reportable event (as defined in ERISA) which
constitutes grounds for the termination of any Plan, or for the
appointment of a trustee to administer or liquidate any such Plan,
shall have occurred and be continuing 30 days after written notice to
such effect shall have been given to Borrower by any Bank; or any such
Plan shall be terminated; or a trustee shall be appointed; or the PBGC
shall institute proceedings to terminate any such Plan; or
(10) BANKRUPTCY, ETC. Borrower or any of its Subsidiaries: (a)
shall generally not, or be unable to, or shall admit in writing its
inability to, pay its debts as such debts become due; (b) shall make an
assignment for the benefit of creditors, petition or apply to any
tribunal for the appointment of a custodian, receiver or trustee for it
or a substantial part of its assets; (c) shall commence any proceeding
under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect; (d) shall have had any such
petition or application filed involuntarily against it; and with
respect to proceedings for dissolution or liquidation in which an
adjudication or appointment is made or order for relief is entered and
continues unstayed for a period of sixty (60) days or more; or shall be
the subject of any such proceeding under which its assets may be
subject to seizure, forfeiture or divestiture; or (e) by any act or
omission shall indicate its consent to, approval of or acquiescence in
any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any
substantial part of its property.
SECTION 9.02. REMEDIES. If any Event of Default shall occur and be
continuing, Administrative Agent shall, upon request of the Requisite Banks, by
notice to Borrower (1) declare the Commitments to be terminated, whereupon the
same shall forthwith terminate, (2) declare the outstanding Notes, all interest
thereon, and all other amounts payable under this Agreement and any other Loan
Document to be forthwith due and payable, whereupon the Notes, all such
interest, and all such amounts due under this Agreement and under any other Loan
Document shall become and be forthwith due and payable, without presentment,
demand, protest, or further notice of any kind, all of which are hereby
expressly waived by Borrower, (3) require Borrower to provide Cash Collateral to
Administrative Agent for the benefit of the Banks that have issued a Letter of
Credit that is outstanding in an amount up to the aggregate undrawn face amount
of all outstanding Letters of Credit, (4) exercise any remedies provided in any
of the Loan Documents, and/or (5) exercise any rights and remedies provided by
Law, provided, however, that upon the occurrence of an Event of Default referred
to in Section 9.01(10), the Commitment shall automatically terminate and the
outstanding Notes, and any other amounts payable under this Agreement or any of
the other Loan Documents, and all interest on any of the foregoing, shall be
forthwith due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by Borrower The parties
hereto agree that all payments on Loans, unreimbursed obligations with respect
to payments made under Letters of Credit after the occurrence of an Event of
Default and the principal amount of all Letters of Credit that are outstanding
and that have not been provided with Cash Collateral under (3) above will be
applied ratably based upon the percentage which the aggregate amount of all
Advances by such Bank then outstanding, unreimbursed obligations then
outstanding to such Bank with respect to payments by such Bank under such
Letters of Credit issued by such Bank and that have not been provided with Cash
Collateral under (3) above bears to the aggregate amount of all Advances to the
Banks then outstanding, unreimbursed obligations with respect to payments by
Banks under Letters of Credit owed to all Banks and that have not been provided
with Cash Collateral under (3) above. In addition, the parties hereto also agree
that all Cash Collateral held on Letters of Credit that expire undrawn or on
which the reimbursement obligation is paid will be applied to all the Loans as
provided in the prior sentence.
At any time after the principal of, and interest accrued on, any or all
of the Notes are declared due and payable, the Supermajority Banks, by written
notice to Borrower, may, in their sole and complete discretion, rescind and
annul any such declaration and its consequences if (1) Borrower has paid all
overdue interest on the Notes and the principal of any Notes which have become
due otherwise than by reason of such declaration, and at a rate or rates per
annum from time to time equal to the Default Rate(s), (2) all Events of Default
and Defaults, other than nonpayment of amounts which have become due solely by
reason of such declaration, have been cured or waived, and (3) no judgment or
decree has been entered for the payment of any monies due pursuant to the Notes
or this Agreement; but no such rescission and annulment shall extend to or
affect any subsequent Event of Default or Default or impair any right consequent
thereon.
ARTICLE X. CHANGE IN CIRCUMSTANCES
SECTION 10.01. ADDITIONAL COSTS. Borrower shall pay directly to each
Bank within ten (10) days of a request for payment under this Section (which
request shall be accompanied by a statement setting forth the basis for the
request), such amounts as such Bank may determine to be necessary to compensate
it for any increased costs which such Bank determines are attributable to its
making or maintaining any LIBOR Advance, or its obligation to convert any Base
Advance to a LIBOR Advance hereunder, or any reduction in any amount receivable
by such Bank hereunder in respect of any of such LIBOR Advances or such
obligation (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or the Notes in respect of any of such
LIBOR Advances (other than changes in the rate of income tax imposed on
such Bank or its Applicable Lending Office by the jurisdiction in which
such Bank has its principal office or such Applicable Lending Office);
(2) imposes or modifies or deems applicable any reserve,
special deposit, deposit insurance or assessment, minimum capital,
capital ratio or similar requirements relating to any extensions of
credit of the type specified herein or other assets of, or any deposits
with or other liabilities of, such Bank (including any LIBOR Advances
or any deposits referred to in the definition of "LIBOR Rate" in
Section 1.01 hereof), or any Individual 364 Day Facility Commitment of
a Bank; or
(3) imposes any other condition affecting this Agreement or
the Notes (or any of such extensions of credit or liabilities).
Without limiting the effect of the provisions of the first paragraph of
this Section, in the event that, by reason of any Regulatory Change, any Bank
either (1) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the LIBOR Rate is
determined as provided in this Agreement or a category of extensions of credit
or other assets of such Bank which includes loans based on the LIBOR Rate or (2)
becomes subject to restrictions on the amount of such a category of liabilities
or assets which it may hold, then, if such Bank so elects by notice to Borrower
(with a copy to Administrative Agent), the obligation of such Bank to make or
continue, or to convert Base Advances into, LIBOR Advances, as the case may be,
shall be suspended until such Regulatory Change ceases to be in effect (in which
case the provisions of Section 10.04 hereof shall be applicable).
Determinations and allocations by such Bank for purposes of this
Section of the effect of any Regulatory Change pursuant to this Section, on its
costs or rate of return of maintaining the Advances or on amounts receivable by
it in respect of the Advances, and the amounts required to compensate such Bank
under this Section, shall be conclusive absent manifest error. However, to the
extent Additional Costs relate to a Bank's loans in general and not specifically
to a Loan hereunder, such Bank shall use reasonable averaging and attribution
methods. In addition, each Bank agrees that, as promptly as practical after it
becomes aware of the occurrence of an event or the existence of a condition that
would entitle it to exercise its rights under this Section, it will use
commercially reasonable efforts to make, fund or maintain the affected Advance
through another lending office of such Bank if (a) as a result thereof the
additional money that would otherwise be required to be paid in respect of such
Advance could be reduced and (b) the making, funding or maintaining of such
Advance through such other lending office would not adversely affect such
Advance or such Bank. Finally, if a Bank is to require Borrower to pay
Additional Costs under this Section then such Bank must make a demand on
Borrower to pay such Additional Costs within ninety (90) days of the later of
(1) the date on which such Additional Costs are actually incurred by such Bank,
or (2) the date on which such Bank knows, or should have known, that such
Additional Costs have been incurred by such Bank.
SECTION 10.02. LIMITATION ON TYPES OF ADVANCES. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of the LIBOR Rate
for any Interest Period:
(1) Administrative Agent determines (which determination shall
be conclusive) that quotations of interest rates in the definition of
"LIBOR Rate" in Section 1.01 hereof are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining rates of interest for LIBOR Loans as provided in this
Agreement; or
(2) any Bank determines (which determination shall be
conclusive) that the relevant rates of interest referred to in the
definition of "LIBOR Rate" in Section 1.01 hereof upon the basis of
which the rate of interest for LIBOR Loans for such Interest Period is
to be determined do not adequately cover the cost to the Banks of
making or maintaining such LIBOR Loans for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, in the case of subsection (1) above, the
Banks, and in the case of subsection (2) above, the Bank that makes the
determination, shall be under no obligation to make LIBOR Loans, convert Base
Loans into LIBOR Loans, or continue LIBOR Loans, and Borrower shall, on the last
day(s) of the then current applicable Interest Period(s) for the outstanding
LIBOR Loans, either prepay such LIBOR Loans or convert such LIBOR Loans into a
Base Loan in accordance with Section 2.13.
SECTION 10.03. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain LIBOR Loans hereunder
or convert Base Loans into LIBOR Loans, then such Bank shall promptly notify
Administrative Agent and Borrower thereof and such Bank's obligation to make or
continue, or to convert Base Loans into, LIBOR Loans shall be suspended until
such time as such Bank may again make and maintain LIBOR Loans (in which case
the provisions of Section 10.04 hereof shall be applicable).
SECTION 10.04. TREATMENT OF AFFECTED LOANS. If the obligations of any
Bank to make or continue LIBOR Loans, or to convert Base Loans into LIBOR Loans,
are suspended pursuant to Section 10.02 or 10.03 hereof (all LIBOR Loans so
affected being herein called "Affected Loans"), such Bank's Affected Loans shall
be automatically converted into Base Loans on the last day(s) of the then
current Interest Period(s) for the Affected Loans (or, in the case of a
conversion required by Section 10.02 or 10.03, on such earlier date as such Bank
may specify to Borrower).
To the extent that such Bank's Affected Loans have been so converted,
all payments and prepayments of principal which would otherwise be applied to
such Bank's Affected Loans shall be applied instead to its Base Loans. All Loans
which would otherwise be made or continued by such Bank as LIBOR Loans shall be
made or continued instead as Base Loans, and all Base Loans of such Bank which
would otherwise be converted into LIBOR Loans shall remain as Base Loans.
SECTION 10.05. CERTAIN COMPENSATION. Borrower shall pay to each Bank on
demand the amount specified below to compensate it for any loss, cost or expense
which such Bank determines is attributable to:
(1) any payment or prepayment of a LIBOR Advance made to such
Bank on a date other than the last day of an Interest Period for such
Advance whether by reason of acceleration or otherwise;
(2) any failure by Borrower for any reason to borrow, convert
or continue a LIBOR Loan to be made, converted or continued by such
Bank on the date specified therefor in the relevant notice issued by
Borrower (except for any default by any Bank Party); or
(3) any payment or prepayment, whether by reason of
acceleration or otherwise, of a Bid Advance, or any failure by Borrower
for any reason (after acceptance thereof) to borrow, on the date
specified therefor for a Bid Advance.
Such payment to such Bank shall be in an amount which would result in
such Bank being made whole (on a present value basis) for the actual or imputed
funding losses (including, without limitation, any loss, cost or expense
incurred by reason of obtaining, liquidating or employing deposits or other
funds acquired by such Bank to fund or maintain such LIBOR Advance or Bid
Advance) incurred by such Bank as a result thereof. A determination of a Bank as
to the amounts payable pursuant to this Section shall be conclusive absent
manifest error.
SECTION 10.06. CAPITAL ADEQUACY. If any Bank shall have determined
that, after the date hereof, the adoption of any applicable Law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or the compliance of such Bank with, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations hereunder to a level below
that which such Bank (or its Parent) could have achieved but for such adoption,
change, or compliance (taking into consideration its policies with respect to
capital adequacy existing on the date of this Agreement) by an amount deemed by
such Bank to be material, then from time to time, within fifteen (15) days after
demand by such Bank (with a copy to Administrative Agent), Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction. A certificate of any Bank claiming compensation
under this Section, setting forth in reasonable detail the basis therefor, shall
be conclusive in the absence of manifest error.
However, to the extent capital costs relate to a Bank's loans in
general and not specifically to a Loan hereunder, such Bank shall use reasonable
averaging and attribution methods. In addition, each Bank agrees that, as
promptly as practical after it becomes aware of the occurrence of an event or
the existence of a condition that would entitle it to exercise its rights under
this Section, it will use commercially reasonable efforts to make, fund or
maintain the affected Advances through another lending office of such Bank if
(1) as a result thereof the additional money that would otherwise be required to
be paid in respect of such Advances would be reduced, and (2) the making,
funding or maintaining of such Advances through such other lending office would
not adversely affect such Advances or such Bank. Finally, if a Bank is to
require Borrower to make payments under this Section then Bank must make a
demand on Borrower to make such payment within ninety (90) days of the later of
(1) the date on which such capital costs are actually incurred by such Bank, or
(2) the date on which such Bank knows, or should have known, that such capital
costs have been incurred by such Bank.
SECTION 10.07. RIGHT OF SUBSTITUTION. Borrower and the Banks agree that
if (1) a Bank requests compensation pursuant to Section 10.01 or Section 10.06
or (2) Section 10.03 applies, Borrower shall have the right to substitute a bank
to replace the Bank in question, provided, that, (1) all the terms and
requirements of Section 12.04 are complied with, (2) Borrower compensates the
Bank being removed for the losses, costs and expenses incurred by such Bank as a
result of such substitution, which shall be limited to the costs and expenses of
substituting the new bank as the issuer of all Letters of Credit issued by the
Bank to be replaced, and payment to the replaced Bank of compensation in
accordance with Section 10.05 as if all Loans transferred to the new bank by the
replaced Bank were prepaid on the date of such assignment and the payment of the
principal and interest owed to such replaced Bank.
ARTICLE XI. FACILITY AND SYNDICATION AGENTS
SECTION 11.01. APPOINTMENT, POWERS AND IMMUNITIES OF FACILITY AGENTS.
Each Bank hereby irrevocably appoints and authorizes each Facility Agent to act
as its agent hereunder and under any other Loan Document with such powers as are
specifically delegated to such Facility Agent by the terms of this Agreement and
any other Loan Document, together with such other powers as are reasonably
incidental thereto. Neither Facility Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and any
other Loan Document, and shall not by reason of this Agreement be a trustee or
fiduciary for any Bank Party. Neither Facility Agent shall be responsible to any
Bank Party for any recitals, statements, representations or warranties made by
Borrower or any Subsidiary or any officer or official of Borrower or any
Subsidiary or any other Person contained in this Agreement or any other Loan
Document, or in any certificate or other document or instrument referred to or
provided for in, or received by any of them under, this Agreement or any other
Loan Document, or for the value, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
any other document or instrument referred to or provided for herein or therein,
or for any failure by Borrower or any Subsidiary to perform any of its
obligations hereunder or thereunder. Either Facility Agent may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. Neither
Facility Agent nor any of their respective directors, officers, employees or
agents shall be liable or responsible for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith, except for its or their own gross negligence or willful
misconduct. Borrower shall pay any fee agreed to by Borrower and such Facility
Agent with respect to such Facility Agent's services hereunder.
SECTION 11.02. RELIANCE BY FACILITY AGENTS. Each Facility Agent shall
be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, facsimile, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by such
Facility Agent. Each Facility Agent may deem and treat each Bank as the holder
of the Advances made by it and Letters of Credit issued by it for all purposes
hereof unless and until a notice of the assignment or transfer thereof
satisfactory to such Facility Agent signed by such Bank shall have been
furnished to such Facility Agent, but neither Facility Agent shall be required
to deal with any Person who has acquired a participation in any Loan or a Letter
of Credit from a Bank. As to any matters not expressly provided for by this
Agreement or any other Loan Document, each Facility Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in accordance
with instructions signed by the Requisite Banks or Supermajority Banks, as the
case may be, and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks and both Facility Agents and any other holder of all
or any portion of any Loan or the issuer of any Letter of Credit.
SECTION 11.03. DEFAULTS. Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or Event of Default unless
Administrative Agent has received notice from a Bank or Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that Administrative Agent receives such a Notice of
Default, Administrative Agent shall give prompt notice thereof to the Banks.
Administrative Agent shall take such action with respect to such Default or
Event of Default which is continuing as shall be directed by the Requisite Banks
or Supermajority Banks, as the case may be; provided that, unless and until
Administrative Agent shall have received such directions, Administrative Agent
may take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest of
the Banks; and provided further that Administrative Agent shall not be required
to take any such action which it determines to be contrary to Law or this
Agreement or any other Loan Documents.
SECTION 11.04. RIGHTS OF FACILITY AGENTS AS BANKS. With respect to its
Individual 364 Day Facility Commitment and the Advances and Letters of Credit
provided by it, each Facility Agent in its capacity as a Bank hereunder shall
have the same rights and powers hereunder as any other Bank and may exercise the
same as though it were not acting as a Facility Agent, and the term "Bank" or
"Banks" shall, unless the context otherwise indicates, include each Facility
Agent in its capacity as a Bank. Both Facility Agents and their respective
Affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to (on a secured or unsecured basis), and generally engage in
any kind of banking, trust or other business with Borrower or any of its
Subsidiaries or any of their Affiliates as if it were not acting as a Facility
Agent, and both Facility Agents may accept fees and other consideration from
Borrower or any of its Subsidiaries for services in connection with this
Agreement or otherwise without having to account for the same to any Bank.
SECTION 11.05. INDEMNIFICATION OF FACILITY AGENTS. Each Bank agrees to
indemnify each Facility Agent (to the extent not reimbursed under Section 12.03
or under the applicable provisions of any other Loan Document, but without
limiting the obligations of Borrower under Section 12.03 or such provisions),
for its proportionate share (based upon each Bank's Individual 364 Day Facility
Commitment to the Total 364 Day Facility Commitment) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against either or both Facility Agents in any way
relating to or arising out of this Agreement or any other Loan Document, or any
other documents contemplated by or referred to herein or therein, or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses which Borrower is obligated to pay under Section 12.03) or
under the applicable provisions of any other Loan Document or the enforcement of
any of the terms hereof or thereof or of any such other documents or
instruments; provided that no Bank shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of such
Facility Agent or its directors, officers, employees or agents.
SECTION 11.06. NON-RELIANCE ON FACILITY AGENTS AND SYNDICATION AGENTS
AND OTHER BANK SECTION 11.06. NON-RELIANCE ON FACILITY AGENTS AND SYNDICATION
AGENTS AND OTHER BANK PARTIES. Each Bank agrees that it has, independently and
without reliance on either Facility Agent, either Syndication Agent, any other
Bank, Letter of Credit Bank, or any other Bank Party, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of Borrower and its Subsidiaries and the decision to enter into this
Agreement and the other Loan Documents and that it will, independently and
without reliance upon either Facility Agent, either Syndication Agent, any other
Bank, or any other Bank Party, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or any other Loan
Document. None of the Facility Agents or Syndication Agents shall be required to
keep itself informed as to the performance or observance by Borrower or any of
its Subsidiaries of this Agreement or any other Loan Document or any other
document referred to or provided for herein or therein or to inspect the
properties or books of Borrower or any Subsidiary (or any of their Affiliates).
Neither Facility Agent shall be required to file this Agreement or any other
Loan Document or any document or instrument referred to herein or therein, for
record or give notice of this Agreement or any other Loan Document or any
document or instrument referred to herein or therein, to anyone. Each of the
Banks acknowledges and agrees that the Syndication Agents only have the duties
and responsibilities explicitly set forth in the Loan Documents.
SECTION 11.07. FAILURE OF FACILITY AGENTS TO ACT. Except for action
expressly required of the applicable Facility Agent hereunder, each Facility
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have received further assurances (which may include
Cash Collateral) of the indemnification obligations of the Banks under Section
11.05 in respect of any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
SECTION 11.08. RESIGNATION OR REMOVAL OF FACILITY AGENTS. Subject to
the appointment and acceptance of a successor Administrative Agent or Bid Agent,
as the case may be, as provided below, either Facility Agent may resign at any
time by giving written notice thereof to the Banks, Borrower, and the
Syndication Agents, and either Facility Agent may be removed at any time with or
without cause by a vote of at least 75% in number of the Banks and Bid Agent may
be removed at any time with or without cause by Borrower; provided that Borrower
and each other Bank Party shall be promptly notified thereof. Upon any such
resignation or removal, the Requisite Banks shall have the right to appoint a
successor Facility Agent which must be located in the United States of America.
If no successor Facility Agent shall have been so appointed by the Requisite
Banks and shall have accepted such appointment within thirty (30) days after the
retiring Facility Agent's giving of notice of resignation or the Requisite
Banks' or Borrower's removal of such retiring Facility Agent, then such retiring
Facility Agent may, on behalf of the Banks, appoint a successor Facility Agent
which must be located in the United States of America. The Requisite Banks or
the retiring Facility Agent, as the case may be, shall upon the appointment of a
successor Facility Agent promptly so notify Borrower and each other Bank Party.
Upon the acceptance of any appointment as Administrative Agent or Bid Agent
hereunder by a successor Administrative Agent or Bid Agent, as the case may be,
such successor Administrative Agent or Bid Agent, as the case may be, shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent or Bid Agent, as the case may
be, and the retiring Administrative Agent or Bid Agent, as the case may be,
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's or Bid Agent's, as the case may be, resignation
or removal hereunder as Administrative Agent or Bid Agent, as the case may be,
the provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent or Bid Agent, as the case may be.
SECTION 11.09. AMENDMENTS CONCERNING AGENCY FUNCTION. Neither Facility
Agent shall be bound by any waiver, amendment, supplement or modification of
this Agreement or any other Loan Document which affects its duties hereunder or
thereunder unless it shall have given its prior written consent thereto.
SECTION 11.10. LIABILITY OF FACILITY AGENTS. Neither Facility Agent
shall have any liabilities or responsibilities to Borrower or any Subsidiary or
any of their Affiliates on account of the failure of any Bank to perform its
obligations hereunder or to any Bank on account of the failure of Borrower or
any Subsidiary or any of their Affiliates to perform their respective
obligations hereunder or under any other Loan Document.
SECTION 11.11. TRANSFER OF AGENCY FUNCTION. Without the consent of
Borrower or any Bank Party, either Facility Agent may at any time or from time
to time transfer its functions as Administrative Agent or Bid Agent, as the case
may be, hereunder to any of its offices located in the United States of America,
provided that such Facility Agent shall promptly notify Borrower and each Bank
Party.
SECTION 11.12. NOTICES TO ADMINISTRATIVE AGENT. On or prior to 2:30
p.m. (Central time) on each Banking Day each Bank, will notify Administrative
Agent of each Letter of Credit issued by such Bank on such Day, and all payments
on, reimbursements made to such Bank, or terminations of Letters of Credit on
such Day.
SECTION 11.13. REPORTS. Promptly upon receipt of any information
provided to Administrative Agent under Section 6.09, Administrative Agent will
provide such information to each of the Banks. Within fifteen (15) days of the
end of each month Administrative Agent will send to Borrower and each Bank a
report for the prior month indicating as of the end of such month all Credit
Facility provided by such Bank.
SECTION 11.14. WITHHOLDING TAXES. Each Bank represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to Administrative Agent and to Borrower
such forms, certifications, statements and other documents as Administrative
Agent or Borrower may request from time to time to evidence such Bank's
exemption from the withholding of any tax imposed by any jurisdiction or to
enable Administrative Agent or Borrower, as the case may be, to comply with any
applicable Laws or regulations relating thereto. Without limiting the effect of
the foregoing, if any Bank is not created or organized under the Laws of the
United States of America or any state thereof, such Bank will furnish to
Administrative Agent and Borrower Form 4224 or Form 1001 of the Internal Revenue
Service, or such other forms, certifications, statements or documents, duly
executed and completed by such Bank, as evidence of such Bank's exemption from
the withholding of United States tax with respect thereto. Notwithstanding
anything herein to the contrary, Borrower shall not be obligated to make any
payments hereunder to such Bank in respect of any Advance and reimbursements of
Letters of Credit until such Bank shall have furnished to Administrative Agent
and Borrower the requested form, certification, statement or document.
SECTION 11.15. NON-RECEIPT OF FUNDS BY ADMINISTRATIVE AGENT. Unless
Administrative Agent shall have received notice from a Bank prior to the date on
which such Bank is to provide funds to Administrative Agent for an Advance to be
made by such Bank that such Bank will not make available to Administrative Agent
such funds, Administrative Agent may assume that such Bank has made such funds
available to Administrative Agent on the date of such Advance in accordance with
the terms of this Agreement and Administrative Agent in its sole discretion may,
but shall not be obligated to, in reliance upon such assumption, make available
to Borrower on such date a corresponding amount. If and to the extent such Bank
shall not have made such funds available to Administrative Agent, such Bank
agrees to repay Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to Borrower until the date such amount is repaid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three (3) Banking Days and thereafter at
the Base Rate. If such Bank shall repay to Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Advance
for purposes of this Agreement. If such Bank does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Borrower, and Borrower shall immediately pay such
corresponding amount to Administrative Agent with the interest thereon, for each
day from the date such amount is made available to Borrower until the date such
amount is repaid to Administrative Agent, at the rate of interest applicable at
the time to such proposed Advance.
Unless Administrative Agent shall have received notice from Borrower
prior to the date on which any payment is due to any Bank hereunder that
Borrower will not make such payment in full, Administrative Agent may assume
that Borrower has made such payment in full to Administrative Agent on such date
and Administrative Agent in its sole discretion may, but shall not be obligated
to, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent Borrower shall not have so made such payment in full to Administrative
Agent, each Bank shall repay to Administrative Agent forthwith on demand such
amount distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to Administrative Agent at the customary rate set by
Administrative Agent for the correction of errors among banks for three (3)
Banking Days and thereafter at the Base Rate.
ARTICLE XII. MISCELLANEOUS
SECTION 12.01. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, nor consent to any
departure by Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Facility Agents, the Syndication Agents
and the Requisite Banks, and, in the case of the waiver provided for under the
second paragraph of Section 9.02, the Supermajority Banks, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given, provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all Supermajority Banks, do any of the
following: (1) increase the Commitment; (2) reduce the principal of, or interest
on, the Notes or the Fees; (3) postpone the date fixed for the payment of
principal of, or interest on, the Notes or such Fees or any other amount due
hereunder or under any other Loan Document, or, except as specifically provided
for under Section 9.02 with regard to a waiver by the Supermajority Banks, waive
any default in the payment of principal, interest, reimbursement obligations, or
any other amount due hereunder or under any other Loan Document; (4) change the
definition of "Requisite Banks", (5) change the definition of "Supermajority
Banks", or (6) amend this Section. No failure on the part of Administrative
Agent or any Bank or any other Bank Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by Law. No Individual 364 Day Facility Commitment of a Bank may be
increased or decreased without the written consent of such Bank.
SECTION 12.02. USURY. Anything herein to the contrary notwithstanding,
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of Law applicable to a Bank
limiting rates of interest which may be charged or collected by such Bank.
SECTION 12.03. EXPENSES; INDEMNIFICATION. Borrower agrees to reimburse
each of the Facility Agents and the Syndication Agents, on demand for all costs,
expenses, and charges (including, without limitation, all reasonable fees and
charges of external legal counsel for either Syndication Agent) incurred by such
Facility Agents and Syndication Agents, in connection with the preparation of
the Loan Documents. Borrower agrees to reimburse Administrative Agent, Bid Agent
and each of the Banks on demand for all costs, expenses, and charges (including,
without limitation, all fees and charges of external legal counsel for
Administrative Agent, Bid Agent and each Bank) incurred by Administrative Agent,
Bid Agent or any Bank in connection with compliance with any of the Loan
Documents, or enforcement of this Agreement, the Notes, the Letters of Credit,
or any other Loan Document. In addition to the foregoing, Borrower agrees to
reimburse Administrative Agent and Bid Agent on demand for all fees and charges
of external legal counsel for Administrative Agent or Bid Agent, as the case may
be, incurred in connection with the administration of this Agreement (including,
without limitation, the preparation of any amendments hereto or to the other
Loan Documents or any consents furnished hereunder or under the other Loan
Documents, but excluding any costs incurred in connection with any participation
or assignment by a Bank). Borrower agrees to and hereby does indemnify each Bank
Party and their respective directors, officers, employees and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to this Agreement or
any of the Loan Documents or to any actual or proposed use by Borrower of the
proceeds of the Loans or use of the Letters of Credit or to any violation or
alleged violation of any Environmental Law by Borrower or any Subsidiary,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified or its directors, officers, employees or agents).
Borrower, each of the Banks and Administrative Agent agree that the
cost of each wire transfer to be made by each such Person pursuant to the terms
of this Agreement will be borne by the Person making such transfer.
The obligations of Borrower under this Section shall survive the
repayment of the Loans, the reimbursement of all Letters of Credit, and payment
of all amounts due under or in connection with any of the Loan Documents and the
termination of the Commitments.
SECTION 12.04. ASSIGNMENT; PARTICIPATION. This Agreement shall be
binding upon, and shall inure to the benefit of, Borrower, Administrative Agent,
Bid Agent, Syndication Agents and Banks and their respective successors and
permitted assigns. Borrower may not assign or transfer its rights or obligations
hereunder. With the consent of Borrower (which consent shall not be unreasonably
withheld or delayed), any Bank may at any time grant to one or more banks or
other financial institutions (each a "Participant") participating interests in
its portion of the Loans, and its Letters of Credit; provided, however, that at
all times the selling Bank must retain for its own account an amount of its
Individual 364 Day Facility Commitment equal to or greater than its Minimum
Hold. In no event shall a Participant constitute a Bank for purposes hereof. In
the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to Borrower and Administrative Agent,
such Bank shall remain responsible for the performance of its obligations
hereunder, and Borrower and the Facility Agents shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations hereunder. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of Borrower hereunder and under
any other Loan Document including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document, provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement described in the proviso in Section 12.01 without the consent of the
Participant.
Any Bank may at any time assign to one or more banks or insurance
companies, investment banks or other financial institutions (each an "Assignee")
all, or a part (which are required to be proportional between the 364 Day
Facility Commitment and the 364 Day Facility Loans (other than the Bid Loans) of
its rights and obligations under this Agreement and its Notes, and such Assignee
shall assume rights and obligations, pursuant to an Assignment and Assumption
Agreement executed by such Assignee and such Bank, with and subject to the
consent of each of the Syndication Agents and Borrower (which consent shall not
be unreasonably withheld or delayed) provided, that, if the Assignee of any Bank
is an Affiliate of such Bank, neither the consent of the Syndication Agents nor
the consent of Borrower shall be required for such assignment; provided that, in
each case, (1) the Commitments and Credit Facility assigned are equal to or
greater than the Minimum Assignment, (2) during the period from the Closing Date
to, but not including, October 31, 1997 and at all times thereafter that the
assigning Bank is providing an Individual 364 Day Facility Commitment, the
Commitments and Credit Facility retained by the assigning Bank are equal to or
greater than its Minimum Hold, and (3) the assigning Bank or Assignee shall pay
Administrative Agent a processing and recordation fee of Two Thousand Five
Hundred Dollars ($2,500) for each assignment. The Bank making the assignment and
the Assignee will make whatever arrangement they decide to with regard to the
outstanding Letters of Credit of the Bank making the assignment. If the
assigning Bank continues to be the issuer of any Letters of Credit then it shall
remain a Bank under this Agreement with regard to such Letters of Credit. Upon
execution and delivery of such instrument and payment by such Assignee to the
Bank of an amount equal to the purchase price agreed between the Bank and such
Assignee, such Assignee shall be a Bank Party to this Agreement and shall have
all the rights and obligations of a Bank with respect to the Individual 364 Day
Facility Commitment as set forth in such Assignment and Assumption Agreement,
and the assigning Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this paragraph, a
new Note or Notes shall be issued by Borrower. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 11.14.
Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
Borrower agrees to provide all assistance reasonably requested by a
Bank to enable such Bank either to sell participations in or make assignments of
its portion of the Loans and Letters of Credit as permitted by this Section.
SECTION 12.05. NOTICES. Unless the party to be notified otherwise
notifies each other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to each of the
Facility Agents and each of the Syndication Agents by telephone, confirmed by
telex, facsimile, or other writing, and to the Banks and to Borrower by ordinary
mail, facsimile or telex addressed to such party at its address on the signature
page of this Agreement. Notices shall be effective: (1) if given by mail, upon
receipt; and (2) if given by telex or facsimile, when the telex or facsimile is
transmitted to the telex or facsimile number as aforesaid; provided that notices
to each of the Facility Agents and the Banks shall be effective upon receipt.
SECTION 12.06. SETOFF. Borrower agrees that, in addition to (and
without limitation of) any right of setoff, bankers' lien or counterclaim a Bank
may otherwise have, each Bank shall be entitled, at its option, to offset
balances (general or special, time or demand, provisional or final) held by it
for the account of Borrower at any of such Bank's offices, in Dollars or in any
other currency, against any amount payable by Borrower to such Bank under this
Agreement or such Bank's Notes, or any other Loan Document which is not paid
when due (regardless of whether such balances are then due to Borrower), in
which case such Bank shall promptly notify Borrower and Administrative Agent
thereof; provided that such Bank's failure to give such notice shall not affect
the validity thereof. Each Bank agrees that to the extent any such payment is
received by it as the result of a set-off or otherwise and such payment results
in such Bank receiving a greater payment than it would have been entitled to,
had the total amount of such payment been paid to each of the Banks, then such
Bank shall immediately purchase for cash from the other Banks participations
sufficient in amount so that such payment shall effectively be shared pro rata
with the other Banks in accordance with the amount, and to the extent, of their
respective interests in all the Loans and Letters of Credit, provided, however,
that if all or any portion of such payment is thereafter recovered from such
Bank at any time, the purchase shall be rescinded and the purchase price
returned to the extent of such recovery, but without interest or other return
thereon.
SECTION 12.07. JURISDICTION; IMMUNITIES. Borrower hereby irrevocably
submits to the jurisdiction of any Minnesota State or United States Federal
court sitting in Minneapolis, MN over any action or proceeding arising out of or
relating to this Agreement, the Notes, the Letters of Credit, or any other Loan
Document, and Borrower hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such Minnesota State or
Federal court. Borrower irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process to Borrower at its address specified in Section 12.05. Borrower agrees,
to the extent permitted by law, that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Borrower further
waives any objection to venue in such State and any objection to an action or
proceeding in such State on the basis of forum non convenience. Borrower agrees
that any action or proceeding brought against any Bank Party shall be brought
only in Minnesota State or United States Federal court sitting in Minneapolis,
Minnesota.
Nothing in this Section shall affect the right of any Bank Party to
serve legal process in any other manner permitted by Law or affect the right of
any Bank Party to bring any action or proceeding against Borrower or its
property in the courts of any other jurisdiction.
To the extent that Borrower has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether from service
or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, Borrower hereby
irrevocably waives, to the extent permitted by law, such immunity in respect of
its obligations under this Agreement, the Notes, the Letters or Credit, and any
other Loan Document.
SECTION 12.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive Laws (other than conflict of laws)
of the State of Minnesota applicable to agreements made and to be performed
entirely within such State.
SECTION 12.09. COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by all of
the parties hereto.
SECTION 12.10. EXHIBITS AND SCHEDULES. The Exhibits and Schedules are a
part of this Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require.
SECTION 12.11. TABLE OF CONTENTS; HEADINGS. The headings in the Table
of Contents and in this Agreement are for reference only, and shall not affect
the interpretation or construction of this Agreement.
SECTION 12.12. SEVERABILITY. If any word, phrase, sentence, paragraph,
provision or section of this Agreement shall be held, declared, pronounced or
rendered invalid, void, unenforceable or inoperative for any reason by any court
of competent jurisdiction, Governmental Authority, statute or otherwise, such
holding, declaration, pronouncement or rendering shall not adversely affect any
other word, phrase, sentence, paragraph, provision or section of this Agreement,
which shall otherwise remain in full force and effect and be enforced in
accordance with its terms.
SECTION 12.13. INTEGRATION. The Loan Documents set forth the entire
agreement among the parties hereto relating to the transactions contemplated
thereby and, except with regard to the Fee Letters, supersede any prior oral or
written statements or agreements with respect to such transactions.
SECTION 12.14. RENEWAL OF 364 DAY FACILITIES. On or before July 31,
1997 and July 31, 1998 (or the next preceding Banking Day if such dates(s) is
not a Banking Day), the Syndication Agents and Borrower will mutually agree to
and the Syndication Agents will advise each of the Banks of the Applicable
Margin and the applicable interest spread related to Base Advances that will
apply to the 364 Day Facility Loans if the 364 Day Facility is extended for an
additional 364 Days after its then effective 364 Day Facility Maturity Date. On
or before each such date, Borrower shall have the right to cancel the Commitment
effective on the 364 Day Facility Maturity Date by giving written notice thereof
to the Administrative Agent. Each Bank may determine, in its sole discretion,
whether to agree to such renewal and shall give notice to Administrative Agent
(which shall promptly send a copy of such notice to Borrower) on or before
September 15, 1997 or September 15, 1998, respectively, of such determination,
provided, that, the failure of a Bank to give such notice of determination shall
be deemed to be a rejection of such extension by such Bank. If Banks providing
one hundred percent (100%) of the Commitment approve of such renewal, then the
364 Day Facility Maturity Date will be extended for an additional 364 days as of
the then effective 364 Day Facility Maturity Date. If Banks providing between
(but not including) seventy-five percent (75%) and one hundred percent (100%) of
the Commitment approve of such renewal, then the 364 Day Facility Maturity Date
will be extended for an additional 364 days as of the then effective 364 Day
Facility Maturity Date but the Commitment during such period will be reduced to
an amount equal to the total of (1) the aggregate of all Individual 364 Day
Facility Commitments of the Banks renewing such Commitments plus (2) the
aggregate of all Individual 364 Day Facility Commitments assigned from a
non-renewing Bank to an Assignee in accordance with Section 12.04 that agrees to
such extension of the 364 Day Facility Maturity Date, plus (3) the aggregate of
all Individual 364 Day Facility Commitments to be provided by other banks or
financial institutions that become effective as of the requested renewal date
for such Facility. A Bank that does not approve of such renewal will not have an
Individual 364 Day Facility Commitment as of the date of renewal of the 364 Day
Facility. In the event less than 100% of the Commitment is renewed pursuant to
this Section, then the Syndication Agents will utilize their best efforts to
obtain replacement commitments prior to the effective date of the renewal. If
Banks providing seventy-five percent (75%) or less of the Commitment approve of
such renewal, then the 364 Day Facility will terminate on its scheduled 364 Day
Facility Maturity Date.
SECTION 12.15. CONSENTS AND TERMINATIONS. Each Bank that is a party to
this Agreement hereby consents, to the extent required under any agreement
between the Bank and Borrower, to Borrower entering into this Agreement and
obtaining the Credit Facility provided under this Agreement. Borrower and each
Bank that is a party to the Existing Credit Agreement acknowledge that the
Existing Credit Agreement expired on October 26, 1996.
SECTION 12.16. CONFIDENTIALITY. Each Bank Party shall maintain the
confidential nature of, and shall not use or disclose, any of Borrower's
financial information, confidential information or trade secrets without first
obtaining Borrower's written consent. Nothing in this Section shall require any
Bank Party to obtain the consent after there is an Event of Default. The
obligations of the Bank Parties shall in no event apply to: (1) providing
information about Borrower to any financial institution contemplated in Section
12.04 or to such Bank Party's parent holding company or any of such Bank Party's
Affiliates; (2) any situation in which any Bank Party is required by Law or
required by any Governmental Authority to disclose information; (3) providing
information to counsel to any Bank Party in connection with the transactions
contemplated by the Loan Documents; (4) providing information to independent
auditors retained by the Banks; (5) any information that is in or becomes part
of the public domain otherwise than through a wrongful act of such Bank Party or
any of its employees or agents thereof; (6) any information that is in the
possession of any Bank Party prior to receipt thereof from Borrower or any other
Person known to such Bank Party to be acting on behalf of Borrower; (7) any
information that is independently developed by any Bank Party; and (8) any
information that is disclosed to any Bank Party by a third party that has no
obligation of confidentiality with respect to the information disclosed. A
Bank's confidentiality requirements continue after it is no longer a Bank under
this Agreement.
SECTION 12.17. AGREEMENT IN WRITING.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (CREDITORS) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
THIS AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS BETWEEN HARVEST
STATES COOPERATIVES AND THE BANKS AND SYNDICATION AGENTS LISTED BELOW, IS THE
FINAL EXPRESSION OF THE AGREEMENT BETWEEN SUCH PARTIES. THE LOAN DOCUMENTS MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR OR CONTEMPORANEOUS ORAL CREDIT
AGREEMENTS OR PRIOR WRITTEN CREDIT AGREEMENTS BETWEEN SUCH PARTIES RELATING TO
THE SUBJECT MATTER HEREOF. ANY ADDITIONAL TERMS OF THE LOAN DOCUMENTS BETWEEN
SUCH PARTIES ARE SET FORTH BELOW.
THERE ARE NO SUCH ORAL AGREEMENTS BETWEEN SUCH PARTIES.
SECTION 12.18. JURY TRIAL WAIVER. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR OTHER LOAN DOCUMENT
TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
HARVEST STATES COOPERATIVES
By: /s/ ▇.▇. ▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇
Title: Group Vice President - Finance
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
CoBANK, ACB,
as Syndication Agent, Administrative
Agent, Bid Agent and Bank
Commitments:
364-Day Facility
Commitment: $277,000,000
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 3720469
Answerback: COBANK
Bank's National Office:
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payment Instructions:
Bank Name: CoBank, ACB
ABA No. ▇▇▇▇-▇▇▇▇-▇
Account Name: CoBank, ACB
Account No.: Harvest States SYND
Reference: Acct. #: 22274433
ST. ▇▇▇▇ BANK FOR COOPERATIVES,
as Syndication Agent, and Bank
Commitments:
364-Day Facility
Commitment: $123,000,000
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Payment Instructions:
Bank Name: St. ▇▇▇▇ Bank
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: ST BK COOPS
Account No.: 271929
Reference: Acct. #: Harvest States
BANQUE NATIONALE DE PARIS,
as Bank
Commitments: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Du Bolage
364-Day Facility Title: EVP and General Manager
Commitment: $20,000,000
By: _____________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: _____________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 82995
Answerback: BNPCH
Bank's Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Payment Instructions:
Bank Name: Banque Nationale de Paris -
New York
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: Banque Nationale de Paris -
Chicago
Account No.: 14119400189
Reference: Acct. #: HARVEST STATES
BOATMEN'S NATIONAL BANK,
as Bank
Commitments:
364-Day Facility
Commitment: $15,000,000
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Payment Instructions:
Bank Name: Boatmen's Natl Bk
ABA No. 101 000 035
Account Name: Comml Loan Ops
Account No.: 112180-1000
Reference: Acct. #: Harvest States
CAISSE NATIONALE DE CREDIT AGRICOLE,
as Bank
Commitments:
364-Day Facility
Commitment: $20,000,000
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Payment Instructions:
Bank Name: ▇▇▇▇▇▇ Guaranty Tr. Co., NY
ABA No. 021 000 238
Account Name: CNCA Chicago Branch
Account No.: 630 00 205
Reference: Acct. #: Harvest States
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Bank
Commitments:
364-Day Facility
Commitment: $20,000,000
By: /s/ Ot ▇▇▇▇▇
Name: Ot ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 424337
Answerback: RABONY
Bank's Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Payment Instructions:
Bank Name: BANK OF NEW YORK
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: RABOBANK NEDERLAND
Account No.: ▇▇▇-▇▇▇▇-▇▇▇
Reference: Acct. #: Harvest States
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
as Bank
Commitments:
364-Day Facility
Commitment: $15,000,000
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Payment Instructions:
Bank Name: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇
Account Name: DG BANK
Account No.: N/A
Reference: Acct. #: Harvest States
FIRST BANK NATIONAL ASSOCIATION,
as Bank
Commitments:
364-Day Facility
Commitment: $20,000,000
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Payment Instructions:
Bank Name: First Bank National
Association
ABA No. 091 0000 22
Account Name: Commercial Loan Operations
Account No.: 30000472160600
Reference: Acct. #: Harvest States
3597573000
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
as Bank
Commitments:
364-Day Facility
Commitment: $25,000,000
By: _____________________________________
Name:
Title:
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Applicable Lending Office for Base and
LIBOR Advances:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇▇▇ ▇▇▇▇▇▇▇)
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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Payment Instructions:
Bank Name: ▇▇▇▇▇▇ Trust and Savings Bank
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: Credit Services
Operations Division
Account No.: ▇▇▇-▇▇▇-▇
Reference: Acct. #: Harvest States
Cooperatives
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Bank
Commitments:
364-Day Facility
Commitment: $15,000,000
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Applicable Lending Office for Base and
LIBOR Advances:
Sixth and Marquette
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Address for Notices:
Sixth and Marquette
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: ________________
Answerback: _____________
Bank's Office:
Sixth and Marquette
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Payment Instructions:
Bank Name: Norwest Bank Minnesota, N.A.
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: Commercial Loan
Clearing Acct
Account No.: 840-165
Reference: Acct. #: Harvest States
Cooperatives