EXHIBIT 10.27
$300,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
January 10, 1995
among
Consolidated Freightways, Inc.
The Banks Listed Herein
ABN-AMRO Bank, N.V.,
Bank of America National Trust and Savings Association,
The First National Bank of Chicago
and
Morgan Guaranty Trust Company of New York,
as LC Issuing Banks
ABN-AMRO Bank, N.V.,
Bank of America National Trust and Savings Association
and
The First National Bank of Chicago,
as Co-Agents
and
Morgan Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. 1
SECTION 1.02. Accounting Terms and
Determinations. 16
SECTION 1.03. Types of Borrowings 17
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. 17
SECTION 2.02. Notice of Committed Borrowing. 18
SECTION 2.03. Money Market Borrowings. 19
SECTION 2.04. Notice to Banks; Funding of Loans 23
SECTION 2.05. Notes. 24
SECTION 2.06. Maturity of Loans. 25
SECTION 2.07. Interest Rates. 25
SECTION 2.08. Fees. 29
SECTION 2.09. Optional Termination or Reduction
of Commitments. 29
SECTION 2.10. Mandatory Termination of
Commitments. 30
SECTION 2.11. Optional Prepayments. 30
SECTION 2.12. General Provisions as to Payments.
30
SECTION 2.13. Funding Losses. 31
SECTION 2.14. Computation of Interest and Fees.
31
SECTION 2.15. Letters of Credit. 32
SECTION 2.16. Maximum Interest Rate. 39
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Effectiveness. 39
SECTION 3.02. Consequence of Effectiveness. 40
SECTION 3.03. Credit Extensions. 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power. 42
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention 42
SECTION 4.03. Binding Effect 42
SECTION 4.04. Financial Information. 42
SECTION 4.05. Litigation. 43
SECTION 4.06. Compliance with ERISA. 43
SECTION 4.07. Environmental Matters. 44
SECTION 4.08. Taxes. 44
SECTION 4.09. Subsidiaries. 45
SECTION 4.10. Not an Investment Company. 45
SECTION 4.11. Full Disclosure. 45
ARTICLE V
COVENANTS
SECTION 5.01. Information. 45
SECTION 5.02. Payment of Obligations. 48
SECTION 5.03. Maintenance of Property;
Insurance. 48
SECTION 5.04. Conduct of Business and Maintenance
of Existence. 49
SECTION 5.05. Compliance with Laws. 49
SECTION 5.06. Inspection of Property, Books and
Records. 49
SECTION 5.07. Debt. 50
SECTION 5.08. Minimum Consolidated Tangible Net
Worth. 50
SECTION 5.09. Negative Pledge 50
SECTION 5.10. Consolidations, Mergers and Sales
of Assets. 52
SECTION 5.11. Use of Proceeds. 53
SECTION 5.12. Fixed Charge Coverage. 53
SECTION 5.13. Transactions with Third Party
Affiliates and Emery
Subsidiaries. 53
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. 54
SECTION 6.02. Notice of Default. 57
SECTION 6.03. Cash Cover. 57
ARTICLE VII
THE AGENT AND THE CO-AGENTS
SECTION 7.01. Appointment and Authorization. 57
SECTION 7.02. Agent and Affiliates. 57
SECTION 7.03. Action by Agent. 58
SECTION 7.04. Consultation with Experts. 58
SECTION 7.05. Liability of Agent. 58
SECTION 7.06. Indemnification. 58
SECTION 7.07. Credit Decision. 59
SECTION 7.08. Successor Agent. 59
SECTION 7.09. Agent's Fee. 59
SECTION 7.10. Co-Agents. 59
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. 60
SECTION 8.02. Illegality. 60
SECTION 8.03. Increased Cost and Reduced Return. 61
SECTION 8.04. Taxes. 63
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. 65
SECTION 8.06. Substitution of Banks 65
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. 66
SECTION 9.02. No Waivers. 67
SECTION 9.03. Expenses; Indemnification. 67
SECTION 9.04. Sharing of Set-Offs. 68
SECTION 9.05. Amendments and Waivers. 69
SECTION 9.06. Successors and Assigns. 69
SECTION 9.07. Collateral. 71
SECTION 9.08. Governing Law; Submission to
Jurisdiction. 71
SECTION 9.09. Counterparts; Integration. 71
SECTION 9.10. WAIVER OF JURY TRIAL. 72
SECTION 9.11. Confidentiality. 72
AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of January 10, 1995 among
CONSOLIDATED FREIGHTWAYS, INC., the BANKS listed on the
signature pages hereof, ABN-AMRO BANK, N.V., BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, THE FIRST NATIONAL
BANK OF CHICAGO and MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as LC Issuing Banks, ABN-AMRO BANK, N.V., BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and THE FIRST
NATIONAL BANK OF CHICAGO, as Co-Agents, and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Agent.
WHEREAS, the Borrower, the banks referred to
therein and Morgan Guaranty Trust Company of New York, as
Agent for such banks, are parties to a Credit Agreement
dated as of July 30, 1993 under which both loans and letters
of credit are available to the Borrower on the terms and
conditions provided therein;
WHEREAS, the parties hereto desire to amend and
restate said Credit Agreement as provided in this Agreement
and, upon satisfaction of the conditions specified in
Section 3.01, said Credit Agreement will be so amended and
restated;
WHEREAS, in order to induce the Banks, the LC
Issuing Banks, the Co-Agents and the Agent to enter into
this Agreement, certain Subsidiaries of the Borrower are
willing to guaranty the obligations of the Borrower under
this Agreement and the Notes issued pursuant hereto; and
WHEREAS, the Banks are willing to make loans to
the Borrower and the LC Issuing Banks are willing to issue
letters of credit at the request of the Borrower on the
terms and conditions provided herein;
NOW, THEREFORE, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a
copy to the Borrower) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New
York in its capacity as agent for the Banks and the LC
Issuing Banks under the Financing Documents, and its
successors in such capacity.
"Aggregate Usage" means, at any time, the sum of
(i) the aggregate outstanding principal amount of the Loans
at such time plus (ii) the aggregate outstanding amount of
the LC Liabilities at such time.
"Agreement", when used with reference to this
Agreement, means this Amended and Restated Credit Agreement
dated as of January 10, 1995, as it may be amended from time
to time.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day.
"Base Rate Loan" means a Committed Loan to be made
by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or pursuant to
Article VIII.
"Base Rate Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which
is maintained or otherwise contributed to by any member of
the ERISA Group.
"Borrower" means Consolidated Freightways, Inc., a
Delaware corporation, and its successors.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a
Bank as a CD Loan in accordance with the applicable Notice
of Committed Borrowing.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"CD Reference Banks" means Bank of America
National Trust and Savings Association, The First National
Bank of Chicago and Morgan Guaranty Trust Company of New
York.
"Co-Agents" means ABN-AMRO Bank, N.V., Bank of
America National Trust and Savings Association and The First
National Bank of Chicago, in their capacities as co-agents
hereunder.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Section 2.09.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated Debt" means at any date the Debt of
the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis as of such date.
"Consolidated EBITDAR" means, for any period, the
sum of (i) the consolidated income before income taxes of
the Borrower and its Consolidated Subsidiaries for such
period plus (ii) to the extent deducted in determining such
consolidated income before income taxes, the sum of (A)
Consolidated Interest Expense, (B) depreciation and
amortization and (C) Consolidated Rental Expense.
"Consolidated Fixed Charges" means, for any
period, the sum of Consolidated Interest Expense and
Consolidated Rental Expense for such period.
"Consolidated Interest Expense" means, for any
period, the interest expense of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated
basis for such period.
"Consolidated Rental Expense" means, for any
period, the rental expense for operating leases of the
Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of
such date.
"Consolidated Tangible Net Worth" means at any
date the consolidated shareholders' equity of the Borrower
and its Consolidated Subsidiaries less their consolidated
Intangible Assets, all determined as of such date. For
purposes of this definition, "Intangible Assets" means the
amount (to the extent reflected in determining such
consolidated shareholders' equity) of (i) all write-ups
(other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of
such business) subsequent to September 30, 1994 in the book
value of any asset owned by the Borrower or a Consolidated
Subsidiary, (ii) all equity investments in Persons which are
not Subsidiaries (except investments in publicly traded
marketable equity securities) and (iii) all unamortized debt
discount and expense, goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or
developmental expenses and other intangible assets (it being
understood that unamortized deferred charges and deferred
income tax assets are not deemed to be intangible assets for
purposes hereof).
"Credit Extension" means the making of a Loan or
the issuance or extension of a Letter of Credit.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized
in accordance with generally accepted accounting principles,
(v) all obligations of such Person to reimburse banks for
drawings under letters of credit or payments with respect to
bankers' acceptances, which obligations remain unpaid for
more than three Domestic Business Days after they become
due, or, if later, after such Person is notified of the due
date thereof, (vi) all obligations of the types referred to
in clauses (i) to (v), inclusive, of this definition which
are secured by a Lien on any asset of such Person, whether
or not such obligations are otherwise obligations of such
Person, and (vii) all obligations of others of the types
referred to in clauses (i) to (v), inclusive, of this
definition which are Guaranteed by such Person.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized by law to close; provided that,
when used in Section 2.15 with reference to any LC Issuing
Bank, the term "Domestic Business Day" shall not include any
day on which commercial banks are authorized to close in the
jurisdiction where the LC Office of such LC Issuing Bank is
located.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as
its Domestic Lending Office by notice to the Borrower and
the Agent; provided that any Bank may so designate separate
Domestic Lending Offices for its Base Rate Loans, on the one
hand, and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Emery Group" means Emery Air Freight Corporation,
a Delaware corporation, Emery Worldwide Airlines, Inc., a
Nevada corporation, and each Subsidiary directly or
indirectly owned by either of such corporations.
"Emery Subsidiary" means any Subsidiary which is
included in the Emery Group.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental
restrictions relating to the environment, the effect of the
environment on human health or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Substances
or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport
or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary
and all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section
414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to
each Bank, its office, branch or affiliate located at
its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or
affiliate of such Bank as it may hereafter designate as its
Euro-Dollar Lending Office by notice to the Borrower and the
Agent.
"Euro-Dollar Loan" means a Committed Loan to be
made by a Bank as a Euro-Dollar Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
"Euro-Dollar Reference Banks" means the principal
London offices of ABN-AMRO Bank, N.V., The First National
Bank of Chicago and Morgan Guaranty Trust Company of New
York.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
"Event of Default" has the meaning set forth in
Section 6.01.
"Existing Agreement" means the Credit Agreement
dated as of July 30, 1993 among the Borrower, the banks
referred to therein, and Morgan Guaranty Trust Company of
New York, as Agent, as in effect from time to time prior to
the Effective Date.
"Existing Bank" means a "Bank" (as such term is
defined in the Existing Agreement) that is a party to the
Existing Agreement immediately prior to the Effective Date.
"Existing Letters of Credit" means the letters of
credit issued on or before the Effective Date and listed in
Exhibit K hereto.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions
as determined by the Agent.
"Financing Documents" means this Agreement, the
Subsidiary Guaranty Agreement and the Notes.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person and,
without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such
Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has
a corresponding meaning.
"Hazardous Substances" means any toxic,
radioactive, caustic or otherwise hazardous substance,
including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Insignificant Subsidiaries" means Subsidiaries
which, if aggregated and considered as a single Subsidiary,
would not have total assets, shareholders' equity or
revenues in excess of 10% of the consolidated total assets,
consolidated shareholders' equity or consolidated revenues,
respectively, of the Borrower and its Consolidated
Subsidiaries, all calculated at the date of the most recent
financial statements delivered to the Banks pursuant to
Section 5.01 or, in the case of revenues, for the twelve
calendar months then ended.
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
(2) with respect to each CD Borrowing, the period
commencing on the date of such Borrowing and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
(4) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending
one week, two weeks, three weeks or any whole number of
months thereafter, as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date; and
(5) with respect to each Money Market Absolute Rate
Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter (but not
less than seven days) as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution,
loan or otherwise.
"LC Issuing Bank" means ABN-AMRO Bank, N.V., Bank
of America National Trust and Savings Association, The First
National Bank of Chicago and Morgan Guaranty Trust Company
of New York, in their capacities as issuers of Letters of
Credit.
"LC Liabilities" means, at any time, the sum,
without duplication, of (i) the aggregate amount available
for drawing under all Letters of Credit outstanding at such
time plus (ii) the aggregate unpaid amount at such time of
all Reimbursement Obligations in respect of previous
drawings made under Letters of Credit.
"LC Office" means, with respect to each LC Issuing
Bank, the office at which it books the Letters of Credit
issued by it hereunder.
"LC Payment Date" has the meaning set forth in
Section 2.15(f).
"LC Reimbursement Date" means, with respect to any
Letter of Credit, an LC Payment Date applicable to such
Letter of Credit, or, if later, the Domestic Business Day
next succeeding the Domestic Business Day on which the Agent
shall have notified the Borrower of such LC Payment Date and
of the amount payable by the LC Issuing Bank under such
Letter of Credit on such LC Payment Date.
"Letter of Credit" means (i) any Existing Letter
of Credit and (ii) any financial stand-by letter of credit
(including without limitation a Workers' Compensation Letter
of Credit) issued hereunder after the Effective Date.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
"Lien" means (i) with respect to any asset
(including without limitation any account receivable), any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a
security interest, in respect of such asset and (ii) with
respect to any account receivable, any sale of such account
receivable. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed (x) to own
subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset and (y) not to
own subject to a Lien any asset which it leases under a
lease that is classified as an operating lease under
generally accepted accounting principles.
"Loan" means a Domestic Loan, a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans,
Euro-Dollar Loans or Money Market Loans or any combination
of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Commitments" means commitments to extend
credit which, if extended, would constitute Debt of the
Borrower and/or one or more of its Subsidiaries in an
aggregate amount exceeding $25,000,000. For purposes of
this definition, any commitment for less than $1,000,000
shall be excluded, but commitments arising from one or more
related or unrelated transactions shall be aggregated if
each such commitment is for $1,000,000 or more.
"Material Debt" means Debt (other than the Notes)
of the Borrower and/or one or more of its Subsidiaries in an
aggregate outstanding principal amount exceeding
$25,000,000. For purposes of this definition, if the Debt
arising from any single transaction has an outstanding
principal amount less than $1,000,000, it shall be excluded,
but Debts arising from one or more related or unrelated
transactions shall be aggregated if the Debt arising from
each such transaction has an outstanding principal amount of
$1,000,000 or more.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$25,000,000.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from
time to time by notice to the Borrower and the Agent
designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case
all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to Section
8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make
contributions or has within the preceding five plan years
made contributions, including for these purposes any Person
which ceased to be a member of the ERISA Group during such
five year period.
"Non-Emery Subsidiary" means any Subsidiary that
is not an Emery Subsidiary.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
"Obligor" means each of the Borrower and the
Subsidiary Guarantors, and "Obligors" means all of the
foregoing.
"Outstanding Credit Exposure" means, as to any
Bank at any time, the sum of (i) the aggregate principal
amount of its Loans outstanding at such time plus (ii) its
Outstanding LC Exposure at such time.
"Outstanding LC Exposure" means, as to any Bank at
any time, an amount equal to its Percentage of the LC
Liabilities at such time.
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Percentage" means, with respect to each Bank, the
percentage that such Bank's Commitment constitutes of the
aggregate amount of the Commitments.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of
the ERISA Group.
"Pricing Schedule" means the Pricing Schedule
attached hereto.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing
which, after application of the proceeds thereof, results in
no net increase in the outstanding principal amount of
Committed Loans made by any Bank.
"Reimbursement Obligations" means, at any time,
the aggregate of all obligations of the Borrower then
outstanding under Section 2.15 to reimburse an LC Issuing
Bank for amounts paid by such LC Issuing Bank in respect of
any drawing under any Letter of Credit.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 60% of the aggregate amount of the Commitments or, if
the Commitments shall have been terminated, having at least
60% of the aggregate amount of the Outstanding Credit
Exposures.
"Subsidiary" means any corporation or other entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are
at the time directly or indirectly owned by the Borrower.
"Subsidiary Guarantors" means Consolidated
Freightways Corporation of Delaware, a Delaware corporation,
Con-Way Transportation Services, Inc., a Delaware
corporation, and each other Subsidiary which becomes a party
to the Subsidiary Guaranty Agreement pursuant to Article III
thereof, and their respective successors.
"Subsidiary Guaranty Agreement" means a Subsidiary
Guaranty Agreement among the Borrower, the Subsidiary
Guarantors and the Agent, as executed and delivered pursuant
to Section 3.01(c) and as the same may be amended from time
to time in accordance with the terms thereof.
"TASP Notes" means (i) $55,000,000 aggregate
principal amount of the 8.50% Series A Guaranteed ESOP Notes
due January 1, 2006 and $62,000,000 aggregate principal
amount of the 8.62% Series B Guaranteed ESOP Notes due
January 1, 2009, each issued pursuant to separate Note
Agreements, each dated as of July 17, 1989, among
Consolidated Freightways, Inc. Thrift and Stock Ownership
Trust ("TASP"), the Borrower and certain institutional
investors and (ii) $33,000,000 aggregate principal amount of
the 9.00% Restructured Notes due January 1, 2006, issued
under separate Restructured Note Agreements, each dated as
of November 3, 1992, among TASP, the Borrower and certain
institutional investors.
"Taxes" has the meaning set forth in Section
8.04(a).
"Termination Date" means January 10, 1999, or any
later date to which the Termination Date shall have been
postponed pursuant to Section 2.01(b), or, if any such day
is not a Euro-Dollar Business Day, the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the
Termination Date shall be the next preceding Euro-Dollar
Business Day.
"Third Party Affiliate" means (i) any Person that
directly, or indirectly through one or more intermediaries,
controls the Borrower (a "Controlling Person") or (ii) any
Person (other than the Borrower or a Subsidiary) which is
controlled by or is under common control with a Controlling
Person. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities,
by contract or otherwise.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the value
of all benefit liabilities under such Plan, determined on a
plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued
but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of
a member of the ERISA Group to the PBGC or any other Person
under Title IV of ERISA.
"United States" means the United States of
America, including the States and the District of Columbia,
but excluding its territories and possessions.
"Wholly-Owned Subsidiary" means any Subsidiary all
of the shares of capital stock or other ownership interests
of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Borrower.
"Workers' Compensation Letter of Credit" means
any letter of credit which is used to secure obligations of
the Borrower or its Subsidiaries under workers' compensation
or similar laws.
SECTION 1.02. Accounting Terms and
Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred
in by the Borrower's independent public accountants) with
the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to
the Banks; provided that, if the Borrower notifies the Agent
that the Borrower wishes to amend any covenant in Article V
to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or
if the Agent notifies the Borrower that the Required Banks
wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally
accepted accounting principles became effective, until
either such notice is withdrawn or such covenant is amended
in a manner satisfactory to the Borrower and the Required
Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Article II on a
single date and for a single Interest Period. Borrowings
are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing
(e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of
Article II under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance
therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) Each
Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make loans to the Borrower pursuant to
this Section from time to time prior to the Termination
Date; provided that, immediately after each such Loan is
made, the sum of (i) the aggregate outstanding principal
amount of all Committed Loans made by such Bank plus (ii)
its Outstanding LC Exposure shall not exceed its Commitment.
Each Borrowing pursuant to this Section shall be in an
aggregate principal amount of $10,000,000 or any larger
integral multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate amount available in
accordance with Section 3.03(b)) and shall be made from the
several Banks ratably in accordance with their respective
Percentages. Within the foregoing limits, the Borrower may
borrow, repay, or to the extent permitted by Section 2.11,
prepay Loans and reborrow at any time prior to the
Termination Date.
(b) The Termination Date may be postponed, in the
manner and subject to the conditions set forth in this
subsection (b), on January 10, 1996 (the "Extension Date"),
for a period of one year (i.e., to January 10, 2000). If
the Borrower wishes to request a postponement of the
Termination Date on the Extension Date, it shall give
written notice to that effect to the Agent not less than 45
nor more than 90 days prior to the Extension Date, whereupon
the Agent shall notify each of the Banks, LC Issuing Banks
and Co-Agents of such notice. Each of the Banks, LC Issuing
Banks and Co-Agents will use its best efforts to respond to
such request, whether affirmatively or negatively, within 30
days. If all of the Banks, LC Issuing Banks and Co-Agents
respond affirmatively, then, subject to receipt by the Agent
prior to the Extension Date of instruments substantially in
the form of Exhibit H hereto signed by each of the Banks, LC
Issuing Banks and Co-Agents, respectively, and by the
Borrower and the Agent, the Termination Date shall be
postponed, effective on the Extension Date, for a period of
one year. Unless all of the Banks, LC Issuing Banks and Co-
Agents respond affirmatively within 30 days, the Borrower's
request to postpone the Termination Date shall be deemed to
have been denied.
SECTION 2.02. Notice of Committed Borrowing. The
Borrower shall give the Agent notice (a "Notice of Committed
Borrowing") not later than (x) 12:00 Noon (New York City
time) on the date of each Base Rate Borrowing, (y) 1:00 P.M.
(New York City time) on the second Domestic Business Day
before each CD Borrowing and (z) 1:00 P.M. (New York City
time) on the third Euro-Dollar Business Day before each
Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing
are to be CD Loans, Base Rate Loans or Euro-Dollar
Loans, and
(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period;
provided that the Borrower may not deliver a Notice of
Committed Borrowing if after giving effect to the requested
Borrowing there would be more than ten Committed Fixed Rate
Borrowings outstanding.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower
may, as set forth in this Section, request the Banks to make
offers to make Money Market Loans to the Borrower on any day
prior to the Termination Date. The Banks may, but shall
have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept any such offers
in the manner set forth in this Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Agent by telex
or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be
received no later than (x) 1:00 P.M. (New York City time) on
the fifth Euro-Dollar Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction
or (y) 11:30 A.M. (New York City time) on the Domestic
Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the
Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger integral multiple of
$1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Absolute Rate.
The Borrower may request offers to make Money Market Loans
for more than one Interest Period in a single Money Market
Quote Request. No Money Market Quote Request shall be given
within five Euro-Dollar Business Days (or such other number
of days as the Borrower and the Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile transmission
an Invitation for Money Market Quotes substantially in the
form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance
with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 9.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 10:15 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by
the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the
Agent or such affiliate notifies the Borrower of the terms
of the offer or offers contained therein not later than (x)
one hour prior to the deadline for the other Banks, in the
case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute
Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of
the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger integral multiple of $1,000,000,
(y) may not exceed the principal amount of Money Market
Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being
made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000 of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000 of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each Interest
Period specified in the related Invitation for Money Market
Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly
notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with
subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market
Loans for which offers have been received for each Interest
Period specified in the related Money Market Quote Request,
(B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be,
so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
than 11:30 A.M. (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify
the aggregate principal amount of offers for each Interest
Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger integral
multiple of $1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Agent may deem
appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than (x) 12:00 Noon (New York City
time) on the date of each Borrowing other than a Base Rate
Borrowing and (y) 1:00 P.M. (New York City time) on the date
of each Base Rate Borrowing, each Bank participating therein
shall (except as provided in subsection (c) of this Section)
make available its share of such Borrowing, in Federal or
other funds immediately available in New York City, to the
Agent at its address referred to in Section 9.01. Unless
the Agent determines that any applicable condition specified
in Article III has not been satisfied, the Agent will,
promptly upon receipt thereof, make the funds so received
from the Banks available to the Borrower at the Agent's
aforesaid address.
(c) If any Bank makes a new Loan hereunder on a
day on which the Borrower is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in
subsection (b), or remitted by the Borrower to the Agent as
provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's share
of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this
Section 2.04 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank
shall not have so made such share available to the Agent,
such Bank and the Borrower severally agree to repay to the
Agent, within one Domestic Business Day after demand, such
corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent,
at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest
rate applicable thereto pursuant to Section 2.07 and (ii) in
the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included
in such Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office
in an amount equal to the aggregate unpaid principal amount
of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(b), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and
maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with
any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such
Loan then outstanding; provided that the failure of any Bank
to make any such recordation or endorsement, or any error in
the making thereof, shall not affect the obligations of the
Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its
Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base
Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the sum
of the Base Rate for such day plus, if applicable, the Base
Rate Margin for such day. Such interest shall be payable
for each Interest Period on the last day thereof. Any
overdue principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per annum
equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period;
provided that if any CD Loan or any portion thereof shall,
as a result of clause (2)(b) of the definition of Interest
Period, have an Interest Period of less than 30 days, such
portion shall bear interest during such Interest Period at
the rate applicable to Base Rate Loans during such period.
Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer
than 90 days, 90 days after the first day thereof. Any
overdue principal of or interest on any CD Loan shall bear
interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to be
the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid at
10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of
recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an
amount comparable to the principal amount of the CD Loan of
such CD Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York
City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Adjusted
CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve
Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. S 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months,
three months after the first day thereof.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per annum
equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i)
the applicable London Interbank Offered Rate by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of
the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due
to but excluding the date of actual payment, at a rate per
annum equal to the sum of 2% plus the higher of (i) the sum
of the Euro-Dollar Margin plus the Adjusted London Interbank
Offered Rate applicable to such Loan and (ii) the
Euro-Dollar Margin plus the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by
dividing (x) the average (rounded upward, if necessary, to
the next higher 1/16 of 1%) of the respective rates per
annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for
such other period of time not longer than three months as
the Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of
the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market
for the applicable period determined as provided above by
(y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if
the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2%
plus the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03.
Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall
be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the
Base Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest
error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated
by this Section. If any Reference Bank does not furnish a
timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if
none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Fees.
(a) Commitment Fee. The Borrower shall pay to
the Agent, for the account of the Banks ratably in
accordance with their respective Percentages, a commitment
fee for each day at the Commitment Fee Rate for such day
(determined in accordance with the Pricing Schedule) on the
amount by which the aggregate amount of the Commitments
exceeds the Aggregate Usage on such day. Such commitment
fee shall accrue from and including January 10, 1995 to but
excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety).
(b) Facility Fee. The Borrower shall pay to the
Agent, for the account of the Banks ratably in accordance
with their respective Percentages, a facility fee for each
day at the Facility Fee Rate for such day (determined in
accordance with the Pricing Schedule). Such facility fee
shall accrue for each day (i) from and including January 10,
1995 to but excluding the Termination Date (or earlier date
of termination of the Commitments in their entirety), on the
aggregate amount of the Commitments (whether used or unused)
on such day and (ii) if any Committed Loans or LC
Liabilities remain outstanding after the Commitments
terminate in their entirety, then for each day from and
including the date on which the Commitments terminate in
their entirety to but excluding the first day thereafter on
which no Committed Loans or LC Liabilities remain
outstanding, on the aggregate outstanding amount of the
Committed Loans and the LC Liabilities on such day.
(c) Payments. Accrued fees under subsections (a)
and (b) shall be payable quarterly on the last day of each
fiscal quarter of the Borrower and on the date on which the
Commitments terminate in their entirety (and, if later, the
first day thereafter on which no Committed Loans or LC
Liabilities remain outstanding).
SECTION 2.09. Optional Termination or Reduction
of Commitments. The Borrower may, upon at least three
Domestic Business Days' notice to the Agent, (i) terminate
the Commitments at any time, if no Loans or LC Liabilities
are outstanding at such time, or (ii) ratably reduce from
time to time by an aggregate amount of $5,000,000 or any
larger integral multiple of $1,000,000, the aggregate amount
of the Commitments in excess of the Aggregate Usage.
SECTION 2.10. Mandatory Termination of
Commitments. The Commitments shall terminate on the
Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.11. Optional Prepayments. (a) The
Borrower may, upon at least one Domestic Business Day's
notice to the Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)) in whole at any time, or from
time to time in part in amounts aggregating $5,000,000 or
any larger integral multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 8.02 and
Section 8.05(b), the Borrower may not prepay all or any
portion of the principal amount of any Fixed Rate Loan prior
to the maturity thereof.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, not later
than 1:00 P.M. (New York City time) on the date when due, in
Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal
of, or interest on, the Domestic Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of
principal is extended in accordance with this Section 2.12,
by operation of law or otherwise, interest thereon shall be
payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower
has made such payment in full to the Agent on such date and
the Agent may, 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 that
the Borrower shall not have so made such payment, each Bank
shall repay to the 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 the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan (pursuant to Article VI or VIII or otherwise) on
any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.07(d), or if the Borrower fails
to borrow any Fixed Rate Loans after notice has been given
to any Bank in accordance with Section 2.04(a), the Borrower
shall pay to each Bank within 15 days after demand an amount
calculated as provided in Exhibit J hereto to compensate
such Bank for any loss incurred by it (or by an existing or
scheduled Participant in the related Loan) in obtaining,
liquidating or employing deposits from third parties,
provided that such Bank shall have delivered to the Borrower
a certificate setting forth such amount and the calculation
thereof in reasonable detail.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and all letter of credit fees, commitment
fees and facility fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
SECTION 2.15. Letters of Credit. (a) On the
Effective Date, each LC Issuing Bank that has issued an
Existing Letter of Credit on or before the Effective Date
shall be deemed, without further action by any party hereto,
to have sold to each Bank, and each Bank shall be deemed,
without further action by any party hereto, to have
purchased from such LC Issuing Bank, a participation in such
Existing Letter of Credit and the related LC Liabilities in
proportion to its Percentage. Concurrently with such sale,
the participations in the Existing Letters of Credit sold to
the Existing Banks under the Existing Agreement shall be
automatically cancelled without further action by any of the
parties thereto.
(b) Subject to the terms and conditions set forth
in this Agreement (including without limitation the
condition set forth in Section 3.03(b)),
(i) ABN-AMRO Bank, N.V., as LC Issuing Bank,
agrees to issue Letters of Credit hereunder from time
to time after the Effective Date and before the
Termination Date upon the request of the Borrower,
provided that immediately after each such Letter of
Credit is issued, the aggregate outstanding amount of
LC Liabilities in respect of all Letters of Credit
issued by ABN-AMRO Bank, N.V., as LC Issuing Bank,
shall not exceed $100,000,000;
(ii) Bank of America National Trust and Savings
Association, as LC Issuing Bank, agrees to issue
Letters of Credit hereunder from time to time after the
Effective Date and before the Termination Date upon the
request of the Borrower, provided that immediately
after each such Letter of Credit is issued, the
aggregate outstanding amount of LC Liabilities in
respect of all Letters of Credit issued by Bank of
America National Trust and Savings Association, as LC
Issuing Bank, shall not exceed $100,000,000;
(iii) The First National Bank of Chicago, as LC
Issuing Bank, agrees to issue Letters of Credit
hereunder from time to time after the Effective Date
and before the Termination Date upon the request of the
Borrower, provided that (x) immediately after each such
Letter of Credit is issued, the aggregate outstanding
amount of LC Liabilities in respect of all Letters of
Credit issued by The First National Bank of Chicago, as
LC Issuing Bank, shall not exceed $100,000,000 and (y)
The First National Bank of Chicago, as LC Issuing Bank,
shall not issue any Letter of Credit in respect of any
obligation under the Borrower's public debt or the TASP
Notes; and
(iv) Morgan Guaranty Trust Company of New York,
as LC Issuing Bank, agrees to issue Letters of Credit
hereunder from time to time after the Effective Date
and before the Termination Date upon the request of the
Borrower, provided that immediately after each such
Letter of Credit is issued, the aggregate outstanding
amount of LC Liabilities in respect of all Letters of
Credit issued by Morgan Guaranty Trust Company of New
York, as LC Issuing Bank, shall not exceed
$125,000,000.
Upon the issuance by an LC Issuing Bank of a Letter of
Credit in accordance with this subsection (b), such LC
Issuing Bank shall be deemed, without further action by any
party hereto, to have sold to each Bank, and each Bank shall
be deemed, without further action by any party hereto, to
have purchased from such LC Issuing Bank, a participation in
such Letter of Credit and the related LC Liabilities in
proportion to its Percentage.
(c) No Letter of Credit issued on or after the
Effective Date shall have an original expiry date later than
one year after the issuance thereof. No Letter of Credit
shall be extended on or after the Effective Date unless (i)
such extension is for a period not exceeding one year and
(ii) the LC Issuing Bank agrees to so extend such Letter of
Credit (or, in the case of an "evergreen" Letter of Credit,
its ability to give a notice to prevent such extension
expires) no earlier than three months before the then
existing expiry date. No Letter of Credit shall have an
original or extended expiry date later than the fifth
Domestic Business Day prior to the Termination Date.
(d) The Borrower shall give the relevant LC
Issuing Bank at least three Domestic Business Days' prior
notice of (x) the issuance of each Letter of Credit to be
issued by it after the Effective Date and (y) each extension
of a Letter of Credit issued by it, specifying in each case
(i) the date of such issuance or extension, (ii) the expiry
date or extended expiry date of such Letter of Credit (which
shall comply with subsection (c) above), (iii) the proposed
terms of such Letter of Credit and (iv) the nature of the
transactions proposed to be supported thereby. The issuance
of any Letter of Credit after the Effective Date shall be
subject to the conditions precedent set forth in Article III
(the LC Issuing Bank having no duty to ascertain whether
such conditions precedent are satisfied, other than to
confirm with the Agent on the date of issuance that such
issuance will not cause the Aggregate Usage to exceed the
aggregate amount of the Commitments) and subject to the
additional conditions precedent that such Letter of Credit
shall be satisfactory to such LC Issuing Bank and that the
Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit
as such LC Issuing Bank shall have reasonably requested.
The extension of any Letter of Credit shall be subject to
the conditions precedent set forth in Article III (the LC
Issuing Bank having no duty to ascertain whether such
conditions precedent are satisfied). Upon issuing or
extending any Letter of Credit, the LC Issuing Bank shall
promptly notify the Agent of such issuance or extension, and
the Agent shall promptly notify each Bank thereof and of the
amount of such Bank's participation in such Letter of
Credit.
(e) The Borrower shall pay to the Agent, for the
account of the Banks ratably in accordance with their
respective Percentages, a letter of credit fee at (i) the LC
Fee Rate on the aggregate amount available for drawings
under each Letter of Credit (other than Workers'
Compensation Letters of Credit) outstanding from time to
time and (ii) the LC Fee Rate minus .125% per annum on the
aggregate amount available for drawings under each Workers'
Compensation Letter of Credit outstanding from time to time.
Each such fee shall be payable in arrears on the last day of
each fiscal quarter of the Borrower for so long as such
Letter of Credit is outstanding and on the expiry date
thereof. The Borrower shall pay to each LC Issuing Bank
additional fronting fees and expenses in the amounts and at
the times agreed between the Borrower and such LC Issuing
Bank. The LC Issuing Banks shall furnish to the Agent upon
request such information as the Agent shall require in order
to calculate the amount of any fee payable under this
subsection (e).
"LC Fee Rate" means, for any day, a rate per annum
equal to the Euro-Dollar Margin for such day.
(f) Upon receipt from the beneficiary of any
Letter of Credit of any demand for payment under such Letter
of Credit, the relevant LC Issuing Bank shall notify the
Agent and the Agent shall promptly notify the Borrower and
each other Bank as to the amount to be paid by the Issuing
Bank as a result of such demand and the proposed payment
date (the "LC Payment Date"). The responsibility of such LC
Issuing Bank to the Borrower and each Bank shall be only to
determine that the documents (including each demand for
payment) delivered under each Letter of Credit issued by it
in connection with such presentment shall be in conformity
in all material respects with such Letter of Credit. Each
LC Issuing Bank shall endeavor to exercise the same care in
the issuance and administration of the Letters of Credit
issued by it as it does with respect to letters of credit in
which no participations are granted, it being understood
that in the absence of any gross negligence or willful
misconduct by such LC Issuing Bank, each Bank shall be
unconditionally and irrevocably liable without regard to the
occurrence of any Event of Default or any condition
precedent whatsoever, to reimburse such LC Issuing Bank on
demand for (i) such Bank's Percentage of the amount of each
payment made by such LC Issuing Bank under each Letter of
Credit issued by it to the extent such amount is not
reimbursed by the Borrower pursuant to subsection (g) below
plus (ii) interest on the foregoing amount to be reimbursed
by such Bank, for each day from the date of such LC Issuing
Bank's demand for such reimbursement (or, if such demand is
made after 11:00 A.M. (New York City time) on such date,
from the next succeeding Domestic Business Day) to the date
on which such Bank pays the amount to be reimbursed by it,
at a rate of interest per annum equal to the Federal Funds
Rate for such day.
(g) The Borrower shall be irrevocably and
unconditionally obligated to reimburse each LC Issuing Bank
on or by the applicable LC Reimbursement Date for any
amounts paid by such LC Issuing Bank upon any drawing under
any Letter of Credit issued by it, without presentment,
demand, protest or other formalities of any kind; provided
that neither the Borrower nor any Bank shall hereby be
precluded from asserting any claim for direct (but not
consequential) damages suffered by the Borrower or such Bank
to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such LC Issuing
Bank in determining whether a request presented under any
Letter of Credit issued by it complied with the terms of
such Letter of Credit or (ii) such LC Issuing Bank's failure
to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit. All such
amounts paid by such LC Issuing Bank and remaining unpaid by
the Borrower shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to (x) the
rate applicable to Base Rate Loans for such day if such day
falls on or before the applicable LC Reimbursement Date and
(y) the sum of 2% plus the rate applicable to Base Rate
Loans for such day if such day falls after such LC
Reimbursement Date. Each LC Issuing Bank will pay to each
Bank ratably in accordance with its Percentage all amounts
received from the Borrower for application in payment, in
whole or in part, of the Reimbursement Obligations in
respect of any Letter of Credit issued by such LC Issuing
Bank, but only to the extent such Bank has made payment to
such LC Issuing Bank in respect of such Letter of Credit
pursuant to subsection (f).
(h) If, after the date hereof, the adoption of
any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, 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 compliance
by any Bank or LC Issuing Bank with any request or directive
(whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose,
modify or deem applicable any tax, reserve, special deposit
or similar requirement against or with respect to or
measured by reference to Letters of Credit issued or to be
issued hereunder or participations therein, and the result
shall be to increase the cost to any Bank or LC Issuing Bank
of issuing or maintaining any Letter of Credit or any
participation therein, or reduce any amount receivable by
any Bank or LC Issuing Bank hereunder in respect of any
Letter of Credit (which increase in cost, or reduction in
amount receivable, shall be the result of such Bank's or LC
Issuing Bank's reasonable allocation of the aggregate of
such increases or reductions resulting from such event),
then, upon demand by such Bank or LC Issuing Bank, the
Borrower agrees to pay to such Bank or LC Issuing Bank, from
time to time as specified by such Bank or LC Issuing Bank,
such additional amounts as shall be sufficient to compensate
such Bank or LC Issuing Bank for such increased costs or
reductions in amount incurred by such Bank or LC Issuing
Bank. A certificate of such Bank or LC Issuing Bank
submitted by such Bank or LC Issuing Bank to the Borrower
shall be conclusive as to the amount thereof in the absence
of manifest error.
(i) The Borrower's obligations under this Section
2.15 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim
or defense to payment which the Borrower may have or have
had against any LC Issuing Bank, any Bank or any beneficiary
of a Letter of Credit. The Borrower further agrees with the
LC Issuing Banks and the Banks that the LC Issuing Banks and
the Banks shall not be responsible for, and the Borrower's
Reimbursement Obligations in respect of any Letter of Credit
shall not be affected by, among other things, the validity
or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or
all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Subsidiaries, the
beneficiary of any Letter of Credit or any financing
institution or other party to whom any Letter of Credit may
be transferred or any claims or defenses whatsoever of the
Borrower or any of its Subsidiaries against the beneficiary
of any Letter of Credit or any such transferee. No LC
Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection
with any Letter of Credit issued, extended or renewed by it.
The Borrower agrees that any action taken or omitted by an
LC Issuing Bank or any Bank under or in connection with each
Letter of Credit and the related drafts and documents, if
done in good faith and without gross negligence, shall be
binding upon the Borrower and shall not put such LC Issuing
Bank or any Bank under any liability to the Borrower.
(j) To the extent not inconsistent with
subsection (i) above, each LC Issuing Bank shall be entitled
to rely, and shall be fully protected in relying upon, any
Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal
counsel, independent accountants and other experts selected
by such LC Issuing Bank. Each LC Issuing Bank shall be
fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received
such advice or concurrence of the Required Banks as it
reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Banks
against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any
such action. Notwithstanding any other provision of this
Section 2.15, each LC Issuing Bank shall in all cases be
fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the
Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the
Banks and all future holders of participations in any
Letters of Credit.
(k) The Borrower hereby agrees to indemnify and
hold harmless each Bank, each LC Issuing Bank and the Agent,
and their respective directors, officers, agents and
employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Bank, such
LC Issuing Bank or the Agent may incur (or which may be
claimed against such Bank, such LC Issuing Bank or the Agent
by any Person whatsoever) by reason of or in connection with
the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit or any actual or
proposed use of any Letter of Credit, including, without
limitation, any claims, damages, losses, liabilities, costs
or expenses which an LC Issuing Bank may incur by reason of
or in connection with the failure of any other Bank to
fulfill or comply with its obligations to such LC Issuing
Bank hereunder (but nothing herein contained shall affect
any rights the Borrower may have against any defaulting
Bank); provided that the Borrower shall not be required to
indemnify any Bank, any LC Issuing Bank or the Agent for any
claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of an LC Issuing Bank
in determining whether a request presented under any Letter
of Credit issued by it complied with the terms of such
Letter of Credit or (ii) an LC Issuing Bank's failure to pay
under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit; and provided
further that the foregoing indemnity shall not apply with
respect to any costs or expenses arising out of any claim by
any Person other than the beneficiary or account party under
the relevant Letter of Credit unless such costs and expenses
shall have been reasonably incurred. Nothing in this
subsection (k) is intended to limit the obligations of the
Borrower under any other provision of this Agreement.
(l) Each Bank shall, ratably in accordance with
its Percentage, indemnify each LC Issuing Bank, its
affiliates and their respective directors, officers, agents
and employees (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees
and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross
negligence or willful misconduct or such LC Issuing Bank's
failure to pay under any Letter of Credit issued by it after
the presentation to it of a request strictly complying with
the terms and conditions of the Letter of Credit) that such
indemnitees may suffer or incur in connection with this
Section 2.15 or any action taken or omitted by such
indemnitees hereunder.
(m) In its capacity as a Bank, each LC Issuing
Bank shall have the same rights and obligations as any other
Bank. The obligations of the LC Issuing Banks under the
Financing Documents are several and not joint.
SECTION 2.16. Maximum Interest Rate. (a)
Nothing contained in this Agreement or the Notes shall
require the Borrower to pay interest for the account of any
Bank at a rate exceeding the maximum rate permitted by
applicable law.
(b) If the amount of interest payable for the
account of any Bank on any interest payment date in respect
of the immediately preceding interest computation period,
computed pursuant to Section 2.07, would exceed the maximum
amount permitted by applicable law to be charged by such
Bank, the amount of interest payable for its account on such
interest payment date shall be automatically reduced to such
maximum permissible amount.
(c) If the amount of interest payable for the
account of any Bank in respect of any interest computation
period is reduced pursuant to subsection (b) of this Section
and the amount of interest payable for its account in
respect of any subsequent interest computation period,
computed pursuant to Section 2.07, would be less than the
maximum amount permitted by applicable law to be charged by
such Bank, then the amount of interest payable for its
account in respect of such subsequent interest computation
period shall be automatically increased to such maximum
permissible amount; provided that at no time shall the
aggregate amount by which interest paid for the account of
any Bank has been increased pursuant to this subsection (c)
exceed the aggregate amount by which interest paid for its
account has theretofore been reduced pursuant to subsection
(b) of this Section.
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Effectiveness. This
Agreement shall become effective on the date on which all of
the following conditions to effectiveness shall be satisfied
(but shall not become effective unless such date is before
February 15, 1995):
(a) the Agent shall have received counterparts
hereof signed by each of the parties hereto (or, in the
case of any party as to which an executed counterpart
shall not have been received, the Agent shall have
received in form satisfactory to it telegraphic, telex
or other written confirmation from such party of
execution of a counterpart hereof by such party);
(b) the Agent shall have received a duly executed
Note for the account of each Bank dated on or before
the Effective Date complying with the provisions of
Section 2.05;
(c) the Agent shall have received counterparts of
the Subsidiary Guaranty Agreement, duly executed by
each of the Obligors listed on the signature pages
thereof;
(d) the Borrower shall have paid (or made
arrangements satisfactory to the Agent for paying) on
the Effective Date all fees accrued under the Existing
Agreement to but excluding the Effective Date and all
other amounts (if any) then due and payable by the
Borrower thereunder;
(e) on the Effective Date no loans shall be
outstanding under the Existing Agreement;
(f) the Agent shall have received an opinion of
Eberhard G.H. Schmoller, Esq., general counsel for the
Borrower, substantially in the form of Exhibit E hereto
and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(g) the Agent shall have received an opinion of
Davis Polk & Wardwell, special counsel for the Agent,
substantially in the form of Exhibit F hereto and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request; and
(h) the Agent shall have received all documents
the Agent may reasonably request relating to the
existence of the Obligors, the corporate authority for
and the validity of the Financing Documents and any
other matters relevant hereto, all in form and
substance satisfactory to the Agent.
The Agent shall promptly notify the Borrower, the Banks and
the LC Issuing Banks of the Effective Date, and such notice
shall be conclusive and binding on all parties hereto.
SECTION 3.02. Consequence of Effectiveness. (a)
On the Effective Date, the Existing Agreement will be
automatically amended and restated to read as this Agreement
reads, without further action by any of the parties thereto.
(b) On and after the Effective Date, the rights
and obligations of the parties hereto shall be governed by
the provisions hereof, and the rights and obligations of the
parties to the Existing Agreement with respect to the period
prior to the Effective Date shall continue to be governed by
the provisions thereof as in effect prior to the Effective
Date, except that all fees accrued under the Existing
Agreement to but excluding the Effective Date shall be paid
on the Effective Date.
SECTION 3.03. Credit Extensions. The obligation
of any Bank to make a Loan on the occasion of any Borrowing
and the obligation of an LC Issuing Bank to issue or extend
a Letter of Credit on the occasion of a request therefor by
the Borrower are each subject to the satisfaction of the
following conditions:
(a) receipt (i) by the Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as the
case may be, in the case of a Borrowing or (ii) by such
LC Issuing Bank of a notice as required by Section
2.15, in the case of a Letter of Credit;
(b) the fact that, after giving effect to such
Credit Extension, the Aggregate Usage will not exceed
the aggregate amount of the Commitments;
(c) the fact that, immediately before and after
such Credit Extension, no Default shall have occurred
and be continuing; and
(d) the fact that the representations and
warranties of the Borrower contained in this Agreement
(except, in the case of a Refunding Borrowing, the
representations and warranties set forth in Sections
4.04(c) and 4.05 as to any matter which has theretofore
been disclosed in writing by the Borrower to the Banks)
shall be true on and as of the date of such Credit
Extension.
Each Credit Extension hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Credit Extension as to the facts specified in clauses
(b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery
and performance by each Obligor of the Financing Documents
to which it is a party are within its corporate powers, have
been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or
by-laws of such Obligor or of any agreement, judgment,
injunction, order, decree or other instrument binding upon
such Obligor or any Subsidiaries or result in the creation
or imposition of any Lien on any asset of such Obligor or
any Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower
and the Notes, when executed and delivered in accordance
with this Agreement, will constitute valid and binding
obligations of the Borrower. The Subsidiary Guaranty
Agreement, when executed and delivered by each Obligor, will
constitute a valid and binding agreement of such Obligor.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December
31, 1993 and the related statements of consolidated
operations, consolidated cash flows and consolidated
shareholders' equity for the fiscal year then ended,
reported on by Arthur Andersen & Co. and set forth in the
Borrower's 1993 Annual Report to Shareholders, a copy of
which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting
principles, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows
for such fiscal year.
(b) The unaudited condensed consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as
of September 30, 1994 and the related unaudited condensed
statements of consolidated operations and consolidated cash
flows for the nine months then ended, set forth in the
Borrower's quarterly report for the fiscal quarter ended
September 30, 1994 as filed with the Securities and Exchange
Commission on Form 10-Q, a copy of which has been delivered
to each of the Banks, fairly present, on a basis consistent
with the financial statements referred to in subsection (a)
of this Section, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows
for such nine-month period (subject to normal year-end
adjustments).
(c) Since September 30, 1994 there has been no
material adverse change in the business, financial position,
results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. There is no action,
suit or proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower
or any of its Subsidiaries before any court or arbitrator or
any governmental body, agency or official (i) in which there
is a reasonable possibility that a final judgment in excess
of $30,000,000 will be entered or filed against the Borrower
or any of its Subsidiaries, (ii) in which there is a
reasonable possibility of an adverse decision which could,
in a manner not involving the payment of damages, materially
adversely affect the business of the Borrower and its
Subsidiaries, considered as a whole, or (iii) which in any
manner draws into question the validity of any Financing
Document.
SECTION 4.06. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA
and the Internal Revenue Code with respect to each Plan,
except to the extent that noncompliance could not materially
adversely affect the business, consolidated financial
position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries. No member of
the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement, or made any amendment
to any Plan or Benefit Arrangement, which has resulted or
could result in the imposition of a Lien or the posting of a
bond or other security under ERISA or the Internal Revenue
Code or (iii) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the
ordinary course of its business, the Borrower conducts
periodic reviews of the effect of Environmental Laws on the
business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including,
without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures
required to achieve or maintain compliance with
environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related
constraints on operating activities, including any periodic
or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted
thereat, any costs or liabilities in connection with
off-site disposal of wastes or Hazardous Substances, and any
actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the
basis of such reviews, the Borrower has reasonably concluded
that such associated liabilities and costs, including the
costs of compliance with Environmental Laws, are unlikely
(after taking into account the Borrower's reserves for such
liabilities and costs) to have a material adverse effect on
the business, financial condition, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.08. Taxes. United States Federal
income tax returns of the Borrower and its Subsidiaries have
been examined and closed through the fiscal year ended
December 31, 1986. The Borrower and its Subsidiaries have
filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by
them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books
of the Borrower and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the
Borrower, adequate.
SECTION 4.09. Subsidiaries. Each of the
Borrower's corporate Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted. Each Subsidiary Guarantor is
a Wholly-Owned Subsidiary of the Borrower.
SECTION 4.10. Not an Investment Company. The
Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All information
heretofore furnished by the Borrower to the Agent or any
Bank for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent
or any Bank will be, true and accurate in all material
respects on the date as of which such information is stated
or certified. The Borrower has disclosed to the Banks in
writing any and all facts which materially and adversely
affect or may affect (to the extent the Borrower can now
reasonably foresee) the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries,
taken as a whole, or the ability of the Borrower to perform
its obligations under this Agreement.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has
any Commitment or any Outstanding LC Exposure hereunder or
any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will
deliver to each of the Banks:
(a) as soon as available and in any event within
120 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the
end of such fiscal year and the related audited
statements of consolidated operations, consolidated
cash flows and consolidated shareholders' equity for
such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal
year, all reported on in a manner acceptable to the
Securities and Exchange Commission by Arthur Andersen &
Co. or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within
45 days after the end of each of the first three
quarters of each fiscal year of the Borrower,
commencing with the fiscal quarter ending March 31,
1995, the condensed consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the
end of such quarter, the related condensed statement of
consolidated operations for such quarter and the
related condensed statements of consolidated operations
and consolidated cash flows for the portion of the
Borrower's fiscal year ended at the end of such
quarter, setting forth in the case of such statements
of consolidated operations and consolidated cash flows
in comparative form the figures for the corresponding
periods of the Borrower's previous fiscal year, all
certified (subject to normal year-end adjustments) as
to fairness of presentation and consistency by the
chief financial officer or the chief accounting officer
of the Borrower;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) above, a certificate of the chief financial officer
or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations
required to establish whether the Borrower was in
compliance with the requirements of Sections 5.07,
5.08, 5.09 and 5.12 on the date of such financial
statements and (ii) stating whether any Default exists
on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set
of financial statements referred to in clause (a)
above, a statement of the firm of independent public
accountants which reported on such statements (i)
whether anything has come to their attention to cause
them to believe that any Default existed on the date of
such statements and (ii) confirming the calculations
set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (c) above;
(e) within five Domestic Business Days after any
officer of the Borrower obtains knowledge of any
Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) which the Borrower shall have
filed with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV
of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such
reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice
that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, which could, when
aggregated with any liability incurred after January
10, 1995 by any member of the ERISA Group as a result
of any other such withdrawal liability, reorganization,
insolvency or termination, give rise to aggregate
liabilities of the ERISA Group in excess of $5,000,000,
a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy
of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan
pursuant to Section 4063 of ERISA, which could, when
aggregated with any liability incurred after January
10, 1995 by any member of the ERISA Group as a result
of any other such withdrawal, give rise to aggregate
liabilities of the ERISA Group in excess of $5,000,000,
a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement or makes
any amendment to any Plan or Benefit Arrangement which
has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth
details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is
required or proposes to take; and
(i) from time to time such additional information
regarding the financial position or business of the
Borrower and its Subsidiaries as the Agent, at the
request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The
Borrower will pay and discharge, and will cause each
Subsidiary to pay and discharge, at or before maturity, all
their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where
the same are contested in good faith by appropriate
proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally
accepted accounting principles, appropriate reserves for the
accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Subsidiary
to keep, all property useful and necessary in its business
in good working order and condition, ordinary wear and tear
excepted.
(b) The Borrower will maintain, and will cause
each Subsidiary to maintain, with financially sound and
reputable insurers, insurance against liabilities to third
parties, casualties affecting property used in its business
and other risks of the kinds customarily insured against by
corporations of established reputation engaged in the same
or similar business and similarly situated, of such types
and in such amounts as are customarily carried under similar
circumstances by such other corporations; provided that, in
lieu of any such insurance, the Borrower or any Subsidiary
may maintain a system or systems of self-insurance and
reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and
with respect to which the Borrower or such Subsidiary will
maintain adequate insurance reserves, all in accordance with
generally accepted accounting principles and in accordance
with sound insurance principles or practice.
SECTION 5.04. Conduct of Business and Maintenance
of Existence. The Borrower will continue, and will cause
each Non-Emery Subsidiary to continue, to engage in business
of the same general type as now conducted by the Borrower
and its Non-Emery Subsidiaries, and will preserve, renew and
keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and
effect their respective corporate existence and their
respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that
nothing in this Section 5.04 shall prohibit (i) any merger
or consolidation permitted by Section 5.10 or (ii) the
termination of the corporate existence of any Subsidiary
(other than a Subsidiary Guarantor) if the Borrower in good
faith determines that such termination is in the best
interest of the Borrower and is not materially
disadvantageous to the Banks.
SECTION 5.05. Compliance with Laws. The Borrower
will comply, and will cause each Subsidiary to comply, in
all material respects with all applicable laws, ordinances,
rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental
Laws and ERISA and the rules and regulations thereunder),
except where (i) the necessity of compliance therewith is
contested in good faith by appropriate proceedings or (ii)
failures to comply therewith could not, in the aggregate,
have a material adverse effect on the business, consolidated
financial position or consolidated results of operations of
the Borrower and its Consolidated Subsidiaries.
SECTION 5.06. Inspection of Property, Books and
Records. The Borrower will keep, and will cause each
Subsidiary to keep, proper books of record and account in
which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and
activities. The Borrower will permit, and will cause its
Subsidiaries (except Insignificant Subsidiaries) to permit,
representatives of any Bank, at such Bank's expense, to
visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective
books and records and to discuss their respective affairs,
finances and accounts with their respective officers,
employees and independent accountants, in each case to the
extent reasonably requested by such Bank to enable it to
evaluate the credit of the Borrower and the Subsidiary
Guarantors, confirm the Borrower's compliance with the
provisions of the Financing Documents, exercise and enforce
such Bank's rights under the Financing Documents or
otherwise make decisions relating thereto, but subject to
any limitations imposed by law or by confidentiality
agreements binding on the Borrower or the relevant
Subsidiary. Such visits, inspections, examinations and
discussions shall be conducted at such reasonable times and
as often as the relevant Bank or Banks may reasonably
request.
SECTION 5.07. Debt. (a) The ratio of
Consolidated Debt to Consolidated Tangible Net Worth shall
not exceed (1) 2 to 1 at any time during 1995 or (2) 1.75 to
1 at any time thereafter.
(b) Total Debt of all Non-Emery Subsidiaries will
at no time exceed $100,000,000; provided that, for purposes
of this subsection (b), such Total Debt shall not include
(i) Debt of a Non-Emery Subsidiary owing to the Borrower,
(ii) Debt of a Non-Emery Subsidiary owing to another Non-
Emery Subsidiary (except, in the case of Debt held by a Non-
Emery Subsidiary that is not wholly owned, directly or
indirectly, by the Borrower, the portion of such Debt
allocable, on a pro rata basis, to the minority interest),
(iii) Debt of the Borrower Guaranteed by a Subsidiary
Guarantor and (iv) Debt of an ESOP Trust which is Guaranteed
by a Non-Emery Subsidiary. "ESOP Trust" means a trust
created under an employee stock ownership plan as defined in
Section 407(d)(6) of ERISA which purchases the capital stock
of the relevant Non-Emery Subsidiary for the benefit of
employees of such Non-Emery Subsidiary and its subsidiaries.
SECTION 5.08. Minimum Consolidated Tangible Net
Worth. Consolidated Tangible Net Worth shall not be less
than $217,000,000; provided that such amount shall be
increased as of the last day of each fiscal year of the
Borrower (commencing with 1994) by an amount equal to 50% of
the consolidated net income of the Borrower and its
Consolidated Subsidiaries, if such consolidated net income
is positive, (i) for the fourth quarter of 1994 in the case
of 1994 and (ii) for the full fiscal year in the case of
each subsequent fiscal year.
SECTION 5.09. Negative Pledge. Neither the
Borrower nor any Non-Emery Subsidiary will create, assume or
suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement
in an aggregate principal amount not exceeding
$17,000,000;
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Subsidiary and not created in contemplation of such
event at the request of the Borrower or any of its
Subsidiaries or for the benefit of any of their
respective creditors;
(c) any Lien on any asset securing Debt incurred
or assumed for the purpose of financing all or any part
of the cost of acquiring such asset, provided that such
Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Borrower or a Subsidiary
and not created in contemplation of such event at the
request of the Borrower or any of its Subsidiaries or
for the benefit of any of their respective creditors;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Subsidiary and
not created in contemplation of such acquisition at the
request of the Borrower or any of its Subsidiaries or
for the benefit of any of their respective creditors;
(f) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by
any Lien permitted by any of the foregoing clauses of
this Section, provided that such Debt is not increased
and is not secured by any additional assets;
(g) any Lien on (i) the common stock of any
Subsidiary Guarantor, but only if after giving effect
to such Lien, the Borrower would own, directly or
indirectly, at least 80% of the common stock of such
Subsidiary Guarantor free and clear of Liens or (ii)
the common stock of any Emery Subsidiary;
(h) Liens arising in the ordinary course of its
business which (i) do not secure Debt, (ii) do not
secure any obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or
materially impair the use thereof in the operation of
its business;
(i) any Lien on accounts receivable if,
immediately after such Lien arises, the aggregate
uncollected balance of all accounts receivable sold or
subjected to Liens by the Borrower and its Subsidiaries
(excluding accounts receivable charged off in
accordance with the charge-off policies applicable to
the unsold accounts receivable of the Borrower and its
Subsidiaries) would not exceed 10% of the consolidated
accounts receivable of the Borrower and its
Subsidiaries as of the end of its then most recently
ended fiscal quarter; and
(j) Liens not otherwise permitted by the
foregoing clauses of this Section securing Debt in an
aggregate principal amount at any time outstanding not
to exceed the sum of $25,000,000 plus 10% of
Consolidated Tangible Net Worth as of the end of the
immediately preceding fiscal quarter of the Borrower.
SECTION 5.10. Consolidations, Mergers and Sales
of Assets. The Borrower will not, and will not permit any
Subsidiary to, consolidate or merge with, or sell, lease or
otherwise transfer any of its assets to, any Person, except
that nothing in this Section 5.10 shall prohibit:
(a) the merger of a Non-Emery Subsidiary into the
Borrower,
(b) the merger or consolidation of a Non-Emery
Subsidiary with or into another Person (except an Emery
Subsidiary) if the corporation surviving such
consolidation or merger is a Non-Emery Subsidiary,
(c) the merger or consolidation of an Emery
Subsidiary with or into another Emery Subsidiary,
(d) the merger or consolidation of an Emery
Subsidiary with or into another Person (except the
Borrower or a Non-Emery Subsidiary) if the corporation
surviving such merger or consolidation is an Emery
Subsidiary,
(e) the sale, lease or other transfer of any
asset of the Borrower or the Non-Emery Subsidiaries (i)
in the ordinary course of business or (ii) for fair
value if after giving effect thereto, the aggregate
consideration received for all of their assets sold,
leased or otherwise transferred under this clause (ii)
during any fiscal year of the Borrower does not exceed
$100,000,000, or
(f) the sale, lease or other transfer of any
asset of the Emery Subsidiaries in the ordinary course
of business, or otherwise if the Borrower in good faith
determines that such sale, lease or other transfer is
in the best interest of the Borrower or any Emery
Subsidiary and is not materially disadvantageous to the
Banks;
provided that, in the case of (x) any such merger or
consolidation or (y) any such sale, lease or other transfer
of any asset not in the ordinary course of business, after
giving effect thereto, no Default shall have occurred and be
continuing.
SECTION 5.11. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower for general corporate purposes. None of such
proceeds will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of
Regulation U.
SECTION 5.12. Fixed Charge Coverage. The ratio
of Consolidated EBITDAR to Consolidated Fixed Charges will
not, for any period of four consecutive fiscal quarters, be
less than (1) 1.75 to 1 if the fourth such fiscal quarter
ends in 1994, (2) 1.875 to 1 if the fourth such fiscal
quarter ends in 1995, or (3) 2 to 1 if the fourth such
fiscal quarter ends in 1996 or thereafter.
SECTION 5.13. Transactions with Third Party
Affiliates and Emery Subsidiaries. (a) The Borrower will
not, and will not permit any Subsidiary to, directly or
indirectly, pay any funds to or for the account of, make any
investment (whether by acquisition of stock or indebtedness,
by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise) in, lease, sell,
transfer or otherwise dispose of any assets, tangible or
intangible, to, or participate in, or effect any transaction
in connection with any joint enterprise or other joint
arrangement with, any Third Party Affiliate; provided that
nothing in this subsection (a) shall prohibit (i) the
Borrower from declaring or paying any lawful dividend so
long as, after giving effect thereto, no Default shall have
occurred and be continuing, (ii) the Borrower or any
Subsidiary from making sales to or purchases from any Third
Party Affiliate and, in connection therewith, extending
credit or making payments, or from making payments for
services rendered by any Third Party Affiliate, if such
sales or purchases are made or such services are rendered in
the ordinary course of business and on an arm's-length
basis, (iii) the Borrower or any Subsidiary from making
payments of principal, interest and premium on any Debt of
the Borrower or such Subsidiary held by a Third Party
Affiliate if the terms of such Debt are established on an
arm's-length basis or (iv) the Borrower or any Subsidiary
from participating in, or effecting any transaction in
connection with, any joint enterprise or other joint
arrangement with any Third Party Affiliate if the Borrower
or such Subsidiary participates in the ordinary course of
its business and on a basis no less advantageous than the
basis on which such Third Party Affiliate participates.
(b) The Borrower will not, and will not permit
any Non-Emery Subsidiary to, directly or indirectly, lease,
sell, transfer or otherwise dispose of any asset, tangible
or intangible, to any Emery Subsidiary, unless such lease,
sale, transfer or other disposal (i) is made in the ordinary
course of business and on an arm's-length basis or (ii) is
of an asset with a value (calculated at the greater of book
value or fair market value as of the date of such lease,
sale, transfer or other disposal) which, when aggregated
with the value so calculated of each other asset leased,
sold, transferred or otherwise disposed of in one or more
related transactions (if any), is $500,000 or less.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more
of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay any principal
of any Loan when due, or shall fail to pay within three
Domestic Business Days of the due date thereof any
interest, fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or perform
any covenant contained in Sections 5.07 to 5.12,
inclusive, or in Section 3.01 of the Subsidiary
Guaranty Agreement;
(c) the Borrower shall fail to observe or perform
any covenant or agreement contained in any Financing
Document (other than those covered by clause (a) or (b)
above) for 30 days after written notice thereof has
been given to the Borrower by the Agent at the request
of any Bank;
(d) any representation, warranty, certification
or statement made by the Borrower in any Financing
Document or in any certificate, financial statement or
other document delivered pursuant to any Financing
Document shall prove to have been incorrect in any
material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to
make any payment in respect of any Material Debt within
three Domestic Business Days after such payment is due
or, if longer, within any grace period otherwise
applicable to such payment;
(f) any event or condition shall occur which
results in the acceleration of the maturity of Material
Debt or enables the holders of Material Debt or any
Person acting on their behalf to accelerate the
maturity thereof, or any default by the Borrower or any
Subsidiary shall occur which results in the termination
of Material Commitments prior to the scheduled
termination thereof or enables Persons extending
Material Commitments to terminate such Material
Commitments prior to the scheduled termination thereof;
(g) the Borrower or any Subsidiary (except
Insignificant Subsidiaries) shall commence a voluntary
case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself
or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, or shall consent to
any such relief or to the appointment of or taking
possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize
any of the foregoing;
(h) an involuntary case or other proceeding shall
be commenced against the Borrower or any Subsidiary
(except Insignificant Subsidiaries) seeking
liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against
the Borrower or any Subsidiary (except Insignificant
Subsidiaries) under the federal bankruptcy laws as now
or hereafter in effect;
(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess
of $25,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV
of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more
members of the ERISA Group to incur a current payment
obligation in excess of $25,000,000;
(j) a final judgment or order for the payment of
money in excess of $25,000,000 shall be entered or
filed against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied, unvacated
and unstayed for a period of 30 days;
(k) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said
Act) of 30% or more of the outstanding shares of common
stock of the Borrower; or, during any period of 15
consecutive calendar months, individuals who were
directors of the Borrower on the first day of such
period shall cease to constitute a majority of the
board of directors of the Borrower; or
(l) the Borrower shall cease to own, directly or
indirectly, at least 80% of the common stock of each
Subsidiary Guarantor free and clear of all Liens;
then, and in every such event, the Agent shall (i) if
requested by the Required Banks, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate
and (ii) if requested by Banks holding Notes evidencing at
least 60% in aggregate principal amount of the Loans
outstanding, by notice to the Borrower declare the Notes
(together with accrued interest thereon) to be, and the
Notes shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Obligors;
provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to any
Obligor, without any notice to the Obligors or any other act
by the Agent or the Banks, the Commitments shall thereupon
terminate and the Notes (together with accrued interest
thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Obligors.
SECTION 6.02. Notice of Default. The Agent shall
give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
SECTION 6.03. Cash Cover. The Borrower agrees,
in addition to the provisions of Section 6.01 hereof, that
upon the occurrence and during the continuance of any Event
of Default, it shall, if requested by the Agent upon
instruction from Banks having at least 60% of the aggregate
amount of the Outstanding LC Exposures, pay (and, in the
case of any of the Events of Default specified in clause (g)
or (h) above with respect to any Obligor, forthwith, without
any demand or the taking of any other action by the Agent or
any Bank, it shall pay) to the Agent an amount in
immediately available funds equal to the then aggregate
amount of the LC Liabilities to be held as security therefor
for the benefit of the Banks and the LC Issuing Banks.
ARTICLE VII
THE AGENT AND THE CO-AGENTS
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under the Financing Documents as are delegated to the
Agent by the terms thereof, together with all such powers as
are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same
rights and powers under the Financing Documents as any other
Bank and may exercise or refrain from exercising the same as
though it were not the Agent, and Morgan Guaranty Trust
Company of New York and its affiliates may accept deposits
from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or affiliate of
the Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations
of the Agent under the Financing Documents are only those
expressly set forth therein. Without limiting the
generality of the foregoing, the Agent shall not be required
to take any action with respect to any Default (except as
expressly provided in Article VI) and shall not have a
fiduciary relationship with any Bank.
SECTION 7.04. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for
an Obligor), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with the
Financing Documents or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of the Financing Documents or
any other instrument or writing furnished in connection
therewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex
or similar writing) believed by it to be genuine or to be
signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Percentage, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent, the Co-Agents or any other Bank, and based
on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Bank also acknowledges that
it will, independently and without reliance upon the Agent,
the Co-Agents or any other Bank, and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking any action under the Financing Documents.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks and
the Borrower. Upon any such resignation, the Required Banks
shall have the right, after consultation with the Borrower,
to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at
least $1,000,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this
Article shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall
pay to the Agent for its own account fees in the amounts and
at the times previously agreed upon between the Borrower and
the Agent.
SECTION 7.10. Co-Agents. The Co-Agents, in their
capacities as such, shall have no rights, obligations or
duties of any kind under the Financing Documents and shall
not have a fiduciary relationship with any Bank.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing:
(a) the Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts)
are not being offered to the Reference Banks in the
relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks
having 50% or more of the aggregate amount of the
Commitments advise the Agent that the Adjusted CD Rate
or the Adjusted London Interbank Offered Rate, as the
case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the
case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be,
shall be suspended. Unless the Borrower notifies the Agent
at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such
date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base
Rate Borrowing and (ii) if such Fixed Rate Borrowing is a
Money Market LIBOR Borrowing, the Money Market LIBOR Loans
comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base
Rate for such day.
SECTION 8.02. Illegality. If, on or after the
date of this Agreement, the adoption of any applicable law,
rule or regulation, or any change in any applicable law,
rule or regulation, 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 compliance by
any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or
its Euro-Dollar Lending Office) to make, maintain or fund
its Euro-Dollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant
to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully
continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently
with prepaying each such Euro-Dollar Loan, the Borrower
shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and such Bank shall make such a Base
Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change in any applicable
law, rule or regulation, 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 compliance by
any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or
its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans and the
result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by such Bank
to be material, then, within 30 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) 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 in any
such law, rule or regulation, 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 any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such 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,
request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 30
days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will use its best efforts promptly
to notify the Borrower and the Agent of any event of which
it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under
this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount,
such Bank may use any reasonable averaging and attribution
methods.
SECTION 8.04. Taxes. (a) Any and all payments
by the Borrower to or for the account of any Bank or the
Agent hereunder or under any Note shall be made free and
clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes
imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note to any Bank or
the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower
shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law and (iv)
the Borrower shall furnish to the Agent, at its address
referred to in Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes and any other
excise or property taxes, or charges or similar levies which
arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as
"Other Taxes").
(c) The Borrower agrees to indemnify each Bank
and the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as
the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days
from the date such Bank or the Agent (as the case may be)
makes demand therefor.
(d) Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Bank listed on the signature pages hereof and
on or prior to the date on which it becomes a Bank in the
case of each other Bank, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or
business in the United States. If the form provided by a
Bank at the time such Bank first becomes a party to this
Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall
be considered excluded from "Taxes" as defined in Section
8.04(a).
(e) For any period with respect to which a Bank
has failed to provide the Borrower with the appropriate form
pursuant to Section 8.04(d) (unless such failure is due to a
change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form
originally was required to be provided), such Bank shall not
be entitled to indemnification under Section 8.04(a) with
respect to Taxes imposed by the United States; provided that
should a Bank, which is otherwise exempt from or subject to
a reduced rate of withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such
Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this
Section 8.04, then such Bank will change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. (a) If (i) the obligation of
any Bank to make Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 with respect to its
CD Loans or Euro-Dollar Loans and the Borrower shall, by at
least five Euro-Dollar Business Days' prior notice to such
Bank through the Agent, have elected that the provisions of
this Section 8.05(a) shall apply to such Bank, then, unless
and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for
compensation no longer exist:
(x) all Loans which would otherwise be made by
such Bank as CD Loans or Euro-Dollar Loans, as the case
may be, shall be made instead as Base Rate Loans (on
which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of
the other Banks), and
(y) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid, all
payments of principal which would otherwise be applied
to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
(b) If (i) any Bank has demanded compensation
under Section 8.03 with respect to its CD Loans or Euro-
Dollar Loans or (ii) the Borrower has become obligated to
pay any Taxes or other amounts to or for the account of any
Bank pursuant to Section 8.04, and the Borrower shall, by at
least five Euro-Dollar Business Days' prior notice to the
Banks through the Agent, have elected that the provisions of
this Section 8.05(b) shall apply to all of the Banks, then
the Borrower shall, on the fifth Euro-Dollar Business Day
following such notice, prepay in full the then outstanding
principal amount of each outstanding Euro-Dollar Loan or CD
Loan, as the case may be, of each Bank, together with
accrued interest thereon.
SECTION 8.06. Substitution of Banks. If (i) any
Bank has demanded compensation under Section 8.03 or (ii)
the Borrower has become obligated to pay any Taxes or other
amounts to or for the account of any Bank pursuant to
Section 8.04 (such Bank, in either case, being called a
"Selling Bank"), the Borrower shall have the right, with the
assistance of the Agent, to seek one or more banks or other
institutions satisfactory to the Borrower, the LC Issuing
Banks and the Agent (collectively, the "Purchasing Banks")
willing to purchase the Selling Bank's Note and its share of
any unpaid Reimbursement Obligations and assume the
Commitment of the Selling Bank, all on the terms specified
in this Section 8.06. The Selling Bank shall be obligated
to sell its Note and its share of any unpaid Reimbursement
Obligations to such Purchasing Bank or Banks (which may
include one or more of the Banks) within 15 days after
receiving notice from the Borrower requiring it to do so, at
an aggregate price equal to the outstanding principal amount
thereof, plus unpaid interest accrued thereon to but
excluding the date of sale. In connection with any such
sale, and as a condition thereof, the Borrower shall pay to
the Selling Bank all fees accrued for its account hereunder
to but excluding the date of such sale, plus, if demanded by
the Selling Bank at least two Domestic Business Days prior
to such sale, (i) the amount of any compensation which would
be due to the Selling Bank under Section 2.13 if the
Borrower had prepaid the outstanding Fixed Rate Loans of the
Selling Bank on the date of such sale and (ii) any
additional compensation, Taxes or other amounts accrued for
its account under Section 8.03 or 8.04, as applicable, to
but excluding said date (it being understood that the
Selling Bank shall retain its right to be compensated after
the date of such sale for any such accrued amounts remaining
unpaid). Upon such sale, the Purchasing Bank or Banks shall
assume the Commitment of the Selling Bank, and the Selling
Bank shall be released from its obligations hereunder to a
corresponding extent. If any Purchasing Bank is not already
one of the Banks, the Selling Bank, as assignor, such
Purchasing Bank, as assignee, the Borrower, the LC Issuing
Banks and the Agent shall enter into an assignment and
assumption agreement substantially in the form of Exhibit G
hereto, whereupon such Purchasing Bank shall be a Bank party
to this Agreement, shall be deemed to be an Assignee
hereunder and shall have all the rights and obligations of a
Bank with a Commitment equal to its ratable share of the
Commitment of the Selling Bank. Upon the consummation of
any sale pursuant to this Section 8.06, the Selling Bank,
the Agent and the Borrower shall make appropriate
arrangements so that, if required, each Purchasing Bank
receives a new Note.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission
or similar writing) and shall be given to such party: (x)
in the case of the Borrower, an LC Issuing Bank, a Co-Agent
or the Agent, at its address or telex number or facsimile
number set forth on the signature pages hereof, (y) in the
case of any Bank, at its address or telex number or
facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other
address or telex number or facsimile number as such party
may hereafter specify for the purpose by notice to the Agent
and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received,
(ii) if given by facsimile transmission, when such facsimile
is transmitted to the facsimile transmission number
specified in or pursuant to this Section 9.01 and telephonic
confirmation of receipt thereof is received, (iii) if given
by mail, 72 hours after such communication is deposited in
the mails with first class postage prepaid, addressed as
aforesaid or (iv) if given by any other means, when
delivered at the address specified in this Section; provided
that notices to the Agent or the LC Issuing Banks under
Article II or Article VIII shall not be effective until
received.
SECTION 9.02. No Waivers. No failure or delay by
the Agent, any Bank or any LC Issuing Bank in exercising any
right, power or privilege under any Financing Document shall
operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Indemnification. (a)
The Borrower shall pay (i) all out-of-pocket expenses of the
Agent, including fees and disbursements of special counsel
for the Agent, in connection with the preparation and
administration of the Financing Documents, any waiver or
consent thereunder or any amendment thereof or any Default
thereunder or any event or condition reasonably alleged by
any Bank to be a possible Default thereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred
by the Agent and each Bank, including fees and disbursements
of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent,
each Co-Agent and each Bank, their respective affiliates and
the respective directors, officers, agents and employees of
the foregoing (each an "Indemnitee") and hold each
Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of the Financing
Documents (other than the provisions thereof relating to
Letters of Credit as to which indemnification is provided in
Section 2.15(k)) or any actual or proposed use of proceeds
of Loans hereunder; provided that no Indemnitee shall have
the right to be indemnified hereunder for such Indemnitee's
own gross negligence or willful misconduct as determined by
a court of competent jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive (i) payment of a
proportion of the aggregate amount of principal and interest
due with respect to any Note held by it which is greater
than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with
respect to any Note held by such other Bank or (ii) payment
of a proportion of its participation in the LC Liabilities
which is greater that the proportion received by any other
Bank in respect of its participation in the LC Liabilities,
the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes or the LC
Liabilities (as the case may be) held by the other Banks,
and such other adjustments shall be made, as may be required
so that all such payments of principal and interest with
respect to the Notes held by the Banks shall be shared by
the Banks pro rata and all such payments with respect to the
LC Liabilities shall be shared pro rata by the Banks
participating therein; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Notes and
the LC Liabilities. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that
any holder of a participation in a Note or the LC
Liabilities, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such
participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or
waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent or the LC Issuing
Banks are affected thereby, by the Agent or the LC Issuing
Banks, as the case may be); provided that no such amendment
or waiver shall, unless signed by all the Banks, (i)
increase or decrease the Commitment of any Bank (except for
a ratable decrease in the Commitments of all Banks) or
subject any Bank to any additional obligation, (ii) reduce
the principal of or rate of interest on any Loan or any fees
hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan, any Reimbursement
Obligation or any fees hereunder or for any termination of
any Commitment or (iv) change any provision of this Section
or change the percentage of the Commitments, the Outstanding
Credit Exposures or the Outstanding LC Exposures or of the
aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or
any of them to take any action under this Section or any
other provision of the Financing Documents.
SECTION 9.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of
its Loans or its Outstanding LC Exposure. Within five
Domestic Business Days after such grant, unless such grant
consists solely of a participating interest in the Money
Market Loans of such Bank, such Bank shall notify the
Borrower of the name of such Participant and the amount of
its participating interest. In the event of any such grant
by a Bank of a participating interest to a Participant,
whether or not upon notice to the Agent, such Bank shall
remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement.
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 the Borrower hereunder including, without
limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) of Section
9.05 without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided
in its participation agreement, be entitled to the benefits
of Article VIII with respect to its participating interest.
An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a
participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all,
or, subject to the next sentence, a proportionate part of
all, of its rights and obligations under this Agreement and
the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit G hereto (an
"Assignment and Assumption Agreement") executed by such
Assignee and such transferor Bank, with (and subject to) the
subscribed consent of the Borrower (which shall not be
unreasonably withheld), the LC Issuing Banks and the Agent;
provided that if an Assignee is an affiliate of such
transferor Bank or another Bank, the consent of the Borrower
and the Agent shall not be required; and provided further
that such assignment may, but need not, include rights of
the transferor Bank in respect of outstanding Money Market
Loans. No assignment of a proportionate part of the rights
and obligations of a Bank under this Agreement and the Notes
may be made unless the "Assigned Amount" set forth in the
related Assignment and Assumption Agreement equals or
exceeds $5,000,000. Upon execution and delivery of an
Assignment and Assumption Agreement and payment by such
Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor 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 a Commitment as set forth in such Assignment and
Assumption Agreement, and the transferor 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 subsection (c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee.
In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500. If the Assignee is
not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower
and the Agent certification as to exemption from deduction
or withholding of any United States federal income taxes in
accordance with Section 8.04.
(d) 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.
(e) No Assignee, Participant or other transferee
of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such Bank
would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 8.02, 8.03 or 8.04 requiring such Bank
to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the
State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New
York State court sitting in New York City for purposes of
all legal proceedings arising out of or relating to the
Financing Documents or the transactions contemplated
thereby. The Borrower irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in
an inconvenient forum.
SECTION 9.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER, THE AGENT, THE CO-AGENTS, THE LC ISSUING BANKS AND
THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
SECTION 9.11. Confidentiality. The Agent, each
LC Issuing Bank and each Bank agrees to keep confidential
any proprietary or financial information obtained by the
Agent, such LC Issuing Bank or such Bank, as the case may
be, based on a review of the books and records of the
Borrower or any Subsidiary pursuant to Section 5.06 and any
other information to the extent such information has been
stated by the Borrower to be confidential; provided that
nothing herein shall prevent the Agent, any LC Issuing Bank
or any Bank from disclosing such information (i) to the
Agent, any LC Issuing Bank or any other Bank in connection
with the transactions contemplated by the Financing
Documents, (ii) to the officers, directors, employees,
agents, attorneys and accountants of such party and its
affiliates who have a need to know such information in
accordance with customary banking practices and who receive
such information having been made aware of the restrictions
set forth in this Section, (iii) upon the order of any court
or administrative agency, (iv) upon the request or demand of
any regulatory agency or authority having jurisdiction over
such party, (v) which has been publicly disclosed, (vi)
which has been obtained from any Person other than the
Borrower and its Subsidiaries, provided that such Person is
not known to it to be bound by a confidentiality agreement
with the Borrower or its Subsidiaries or known to it to be
otherwise prohibited from transmitting the information to it
by a contractual, legal or fiduciary obligation, (vii) in
connection with the exercise of any remedy under the
Financing Documents or (viii) to any actual or proposed
participant or assignee of all or any of its rights under
the Financing Documents, provided that such proposed
participant or assignee shall have agreed in writing, for
the benefit of the Borrower as a third-party beneficiary, to
be bound by the provisions of this Section.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.
CONSOLIDATED FREIGHTWAYS, INC.
By /s/ R. Guy Kraines
Title: Assistant Treasurer
3240 Hillview Avenue
Palo Alto, California 94304
Telex number: (910) 373-2105
Facsimile number: (415) 813-0160
Telephone number: (415) 494-2900
Commitment:
$30,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Carl J. Mehldau, Jr.
Title: Associate
$30,000,000 ABN-AMRO BANK, N.V.
By /s/ Jeffrey A. French
Title: Vice President
By /s/ L.T. Osborne
Title: Group Vice President
$30,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Michael J. Dasher
Title: Vice President
$30,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Karen J. Andrews
Title: Vice President
$30,000,000 MELLON BANK, N.A.
By /s/ Harry F. Kusick, Jr.
Title: First Vice President and
Department Senior Credit
Officer
$25,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By /s/ Makoto Masuda
Title: Deputy General Manager
$25,000,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By /s/ Curt Biren
Title: Vice President
$20,000,000 UNION BANK
By /s/ Jana P. Strycker
Title: Vice President
$20,000,000 UNITED STATES NATIONAL BANK OF
OREGON
By /s/ Ann C. Smith
Title: Vice President
$15,000,000 THE BANK OF CALIFORNIA, N.A.
By /s/ Robert J. Vernagallo
Title: Vice President
$15,000,000 CREDIT SUISSE
By /s/ David J. Worthington
Title: Member of Senior
Management
By /s/ Marilou Palenzuela
Title: Member of Senior
Management
$15,000,000 FIRST INTERSTATE BANK OF OREGON,
N.A.
By /s/ Dave Perry
Title: Vice President
$15,000,000 PNC BANK, NATIONAL ASSOCIATION
By /s/ J. Gregory Seibly
Title: Vice President
Total Commitments:
$300,000,000
============
ABN-AMRO BANK, N.V.,
as LC Issuing Bank
101 California Street
Suite 4550
San Francisco, CA 94111-5612
Attn: Jeffrey A. French,
Vice President
Telex number: 278137 ABNSF UR
Facsimile number: (415) 362-3524
Telephone number: (415) 984-3703
By /s/ Jeffrey A. French
Title: Vice President
By /s/ L.T. Osborne
Title: Group Vice President
BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as LC Issuing Bank
By /s/ Michael J. Dasher
Title: Vice President
555 California Street
San Francisco, CA 94104
Attn: Michael J. Dasher,
Vice President
Credit Products 3838
Facsimile number: (415) 622-4585
Telephone number: (415) 622-2126
with a copy to:
Bank of America
National Trust and
Savings Association
1850 Gateway Boulevard
Concord, CA 94520
Attn: Cheryl Colombo
Customer Services Officer
Global Payment Operations
Domestic Account
Administration 5693
Facsimile number: (510) 885-7531
Telephone number: (510) 885-7040
THE FIRST NATIONAL BANK OF
CHICAGO, as LC Issuing Bank
By /s/ Karen J. Andrews
Title: Vice President
1 First National Plaza
10th Floor, Suite 0362
Chicago, Illinois 60670
Attention: Gerald F. Mackin,
Vice President
Facsimile number: (312) 732-3055
Telephone number: (312) 732-1905
with a copy to:
The First National Bank of
Chicago
1 North Dearborn
9th Floor
Chicago, Illinois 60670
Attention: Mark Klatt
Facsimile number: (312) 407-1065
Telephone number: (312) 407-3024
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as LC Issuing Bank
By /s/ Carl J. Mehldau, Jr.
Title: Associate
J.P. Morgan Delaware
Morgan Christiana Center
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Barbara Martel,
Associate
Facsimile number: (302) 634-1838
Telephone number: (302) 634-1925
with a copy to:
60 Wall Street
New York, New York 10260-0060
Attention: David Ellis,
Vice President
Telex number: 177615
Facsimile number: (212) 648-5014
Telephone number: (212) 648-7638
ABN-AMRO BANK, N.V.,
as Co-Agent
101 California Street
Suite 4550
San Francisco, CA 94111-5612
Attn: Jeffrey A. French,
Vice President
Telex number: 278137 ABNSF UR
Facsimile number: (415) 362-3524
Telephone number: (415) 984-3703
By /s/ Jeffrey A. French
Title: Vice President
By /s/ L.T. Osborne
Title: Group Vice President
BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Co-Agent
555 California Street
San Francisco, CA 94104
Attn: Michael J. Dasher,
Vice President
Credit Products 3838
Facsimile number: (415) 622-4585
Telephone number: (415) 622-2126
By /s/ Michael J. Dasher
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, as Co-Agent
By /s/ Karen J. Andrews
Title: Vice President
1 First National Plaza
10th Floor, Suite 0362
Chicago, Illinois 60670
Attention: Gerald F. Mackin,
Vice President
Facsimile number: (312) 732-3055
Telephone number: (312) 732-1905
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Carl J. Mehldau, Jr.
Title: Associate
J.P. Morgan Delaware
Morgan Christiana Center
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Jeannie Mattson,
Associate
Facsimile number: (302) 634-1092
Telephone number: (302) 634-1938
with a copy to:
60 Wall Street
New York, New York 10260-0060
Attention: David T. Ellis,
Vice President
Telex number: 177615
Facsimile number: (212) 648-5014
Telephone number: (212) 648-7638